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Electoral and Referendum Amendment Bill (No.2) 1995



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House: House of Representatives

Portfolio: Administrative Services

Commencement: On Royal Assent

Background

Electoral Roll Reviews

During the 1992 Electoral Roll review, the enrolment details of the residents at 5.7 million dwellings around the nation were checked. According to the 1992- 93 Annual Report of the Australian Electoral Commission (AEC), the review 'resulted in the identification of 1.2 million persons required to enrol, and approximately 650 000 persons who were no longer living at the address for which they were enrolled.' 1

During 1993- 94, Electoral Roll reviews were completed in Victoria and the ACT, and reviews began in the Northern Territory and New South Wales. The AEC reported in its 1993- 94 Annual Report that the reviews in Victoria and New South Wales checked enrolment details of electors in 95 per cent of the residences under review. As a result, 590,000 changes to electors' enrolment details were made and 180,000 enrolment forms were collected. 2

In a report dated September 1992, the Joint Standing Committee on Electoral Matters devoted some attention to the question of the cost and effectiveness of current arrangements for electoral roll reviews. 3

The November 1994 report of the Joint Standing Committee on Electoral Matters remarked that, as early as 1974, a review of the Australian Electoral Office (as the AEC was then called) recommended a reform of the Electoral Roll review procedures. A number of criticisms have been made of the current review procedures. These were reported on in the 1992 and 1994 reports of the Joint Standing Committee on Electoral Matters and include:

cost - the cost of the 1990- 91 Electoral Roll review was $10,953,185. This cost is the additional cost of conducting a review and does not include salaries and overheads; and is adjusted to take account of contributions made by the States to Electoral Roll reviews;

effectiveness and accuracy - some have suggested that because of fixed reviews and elector mobility, information collected during a review may be out of date by the end of a review. Thus, the 1992 report of the Joint Standing Committee commented that:

The current statutory requirement to conduct a habitation review in each two year period may not always be appropriate for Commonwealth election or redistribution purposes. If, for example, a period of three years transpires between two Commonwealth elections and a habitation review commences nine months before the first of those elections, then another review must commence some eighteen months before the second election. With an elector turnover of more than 20% per annum, this second review would achieve little in terms of roll accuracy for the second election. 4

reviews are concentrated rather than continuous - that is, they take place periodically over a short period. This results in heavy reliance on casual rather than permanent staff; associated recruitment and training costs. There have also been suggestions that there are difficulties in following up the information obtained in a timely fashion due to heavy processing requirements.

In its 1994 report, the Joint Standing Committee on Electoral Matters recommended that 'section 92 of the Electoral Act be amended to allow more flexibility in the timing of electoral roll reviews and so as to ensure that roll reviews are conducted between elections on an ongoing basis.' 5 The Committee also recommended a trial of continuous electoral roll reviews in a number of electoral divisions as a precursor to continuous electoral roll reviews. 6

However, the following comment on alternatives to periodic electoral roll reviews should also be noted, in relation to:

the dilemma facing any electoral administration considering a more selective and targeted approach to habitation reviews, as it is understandable that they would wish to be free of any suggestion that selective reviews benefit one side of politics and not the other.

Prisoner Voting

At present, a person who has been convicted and is under sentence for an offence punishable under Commonwealth, State or Territory law by imprisonment for 5 years or more is ineligible to have his or her name on an electoral roll or to vote in a House of Representatives or Senate election. 7

In its report on the 1993 Federal Election, the Joint Standing Committee on Electoral Matters recommended that, except for those convicted of treason or treachery 8 , prisoners be entitled to enrol and to vote in House of Representatives and Senate elections. A similar recommendation was made in the Joint Committee's report on The Operation during the 1984 Election of the 1983/84 Amendments to Commonwealth Electoral Legislation. An amendment along these lines was introduced by the Government in the Electoral and Referendum Bill 1989 but was defeated in the Senate.

In part, those recommendations were made because the AEC reported practical impediments in identifying the potential sentence for an offence 9 - the present test for disqualification.

On 10 July 1995, the Acting Prime Minister announced that the Government would not proceed with the amendments in the Electoral and Referendum Bill (No.2) 1995 which extended the prisoner franchise. 10 The press release stated that the Government will 'look at ways of streamlining current arrangements.' 11

Eligible Overseas Electors

Section 94 of the Commonwealth Electoral Act 1918 deals with Eligible Overseas Electors. An elector who intends going overseas for three years or less and who does not intend to return to their current address may apply to become an Eligible Overseas Elector. An elector who applies for registration as an Eligible Overseas Elector must do so within one month immediately preceding his or her date of departure overseas. Failure to apply for registration within this time period means that such a person cannot be registered as an Eligible Overseas Elector.

At the 1993 Federal Election there were 90 overseas voting centres operating and more than 38,000 pre- poll and postal votes were issued overseas.

In November 1994, the Joint Standing Committee on Electoral Matters recommended that the Commonwealth Electoral Act 1918 be amended so that a person can register as an Eligible Overseas Elector during the three months prior to their date of departure from Australia or 'at any time within one year of their actual date of departure, provided that they are enrolled.' 12

Action on Receipt of a Claim for Enrolment or Transfer of Enrolment

Section 102 of the Commonwealth Electoral Act 1918 provides a procedure for enrolling electors or transferring their enrolment. Subsection 102(2A) applies to the period between the issue of election writs or the public announcement that an election will be held and 6 pm on the day on which the election Rolls close. Section 102(4) of the Commonwealth Electoral Act 1918 provides that:

where a person makes a claim under section 101 to have his or name placed on a Roll; and

the claim is received from 6 pm on the day the Rolls close,

then, that person's name cannot be added to the Roll until after polling for the election closes.

Bulk Nominations

Since 1991, it has been possible for a registered political party to nominate in bulk its candidates for a House of Representatives election. Prior to this time, all House of Representatives candidates for election were obliged to lodge their own nominations with their Divisional Returning Officer.

In its report on the 1993 Federal Election, the Joint Standing Committee on Electoral Matters listed a number of weaknesses in the bulk nominations scheme. One of these related to the refund of deposits. In practice, political parties pay the nomination fee for all their bulk- nominated candidates. However, where a candidate is successful or attracts 4 per cent of the vote, the refund of the deposit is sent to the candidate by the AEC. The Joint Standing Committee recommended that in the case of bulk nominations for House of Representatives elections, nomination refund cheques be sent to the party or person who paid the nomination fee.

Another potential difficulty associated with the bulk nominations scheme concerns the death of one candidate who is part of a bulk nomination. There was conflicting legal opinion placed before the Joint Standing Committee on Electoral Matters about whether the whole of a bulk nomination would be invalidated if a candidate from the bulk nomination either withdrew his candidature or died. The Joint Standing Committee on Electoral Matters recommended that the Commonwealth Electoral Act 1918 be amended so that such events would not invalidate the whole of a party's bulk nomination. 13

Postal Voting and Carers

Section 184A of the Commonwealth Electoral Act 1918 provides that an elector may apply for registration as a General Postal Voter. At present, there are a number of grounds on which a person may apply for registration as a General Postal Voter. These include living 20 kilometres or more from a polling place, being seriously ill or infirm and unable travel to a polling place, or having religious beliefs which preclude them from attending a polling place.

The Divisional Returning Officer keeps a register of General Postal Voters. General Postal Voters need not make special application for a postal vote application form when an election is called. Depending on the grounds for their registration as a General Postal Voter, they are either automatically sent an application form for a postal vote or they are sent ballot papers without having to complete a postal vote application form.

In its November 1994 report, the Joint Standing Committee on Electoral Matters recommended that carers of seriously ill or infirm people should be able to register as General Postal Voters. The Joint Committee remarked that, at present, such people may have to leave a seriously ill or infirm person in order to cast their vote on polling day, cast a pre- poll vote or obtain a postal vote application form. 14

The Electoral and Referendum Amendment Bill (No.2) 1995 adds another ground of eligibility to become a General Postal Voter - that of caring for a seriously ill or infirm person.

Sending of Electoral Materials to Registered General Postal Voters

Under section 186 of the Commonwealth Electoral Act 1918, provision is made for sending electoral materials to registered General Postal Voters. In the case of General Postal Voters who are registered because they are physically unable to sign their name 15 , the voter is sent ballot papers without having to first complete an application form for a postal vote.

In all other cases, those who are registered General Postal Voters are first sent an application form for a postal vote by the Divisional Returning Officer and, on returning this, are sent their ballot papers.

In 1994, the Joint Standing Committee on Electoral Matters recommended, by majority, that a General Postal Voter who lives more than 100 kilometres from a polling place be able to register to be sent a ballot paper and declaration envelope without first completing a postal vote application. A dissent was made by Mr Connolly, Senator Minchin, Senator Tierney, Mr Cobb and Senator Chamarette. The dissenters recommended that the Commonwealth Electoral Act 1918 be amended so that a General Postal Voter living more than 20 kilometres from a polling place can register to be sent ballot papers and a declaration envelope without a postal vote application form being required.

The dissenters made their recommendation on the basis that this was in accordance with the recommendation of the Australian Electoral Commission, was in line with procedures used in some State and Territory elections, and would avoid confusion and administrative difficulty.

Amendments contained in the Electoral and Referendum Amendment Bill (No.2) 1995 will mean that all registered General Postal Voters will be sent ballot papers and a declaration envelope rather than first receiving an application form for a postal vote.

Assistance in Casting a Vote

Subsection 234(1) of the Commonwealth Electoral Act 1918 provides that if a voter satisfies the presiding officer that he or she is so physically incapable or illiterate as to be unable to vote without assistance, then a person appointed by the voter can mark, fold and deposit the person's ballot paper.

The amendments to the Commonwealth Electoral Act 1918 contained in the Bill, require a presiding officer who is visiting a patient in a hospital or special hospital in order to take that person's vote to explain subsection 234(1) to that patient.

Declaration Vote Scrutiny

At present, a preliminary scrutiny of declaration votes is conducted after the close of polling. This scrutiny involves initial checking of voter details on declaration envelopes.

In November 1994, the Joint Standing Committee on Electoral Matters recommended that the Commonwealth Electoral Act 1918 be amended to enable this preliminary scrutiny to begin on the Monday before polling day 'in the interests of speeding up the count and reducing pressure on AEC staff and computer systems.' 16 The Joint Standing Committee remarked that such an amendment would mean that candidates would need to consider having scrutineers available before polling day.

Interstate Pre- Poll Voting and Close of the Polls

If an elector is outside his or her State or Territory on polling day, then they can cast a pre- poll vote at a pre- poll centre or AEC Divisional Office. Many interstate pre- poll votes are cast on polling day.

In 1994, the Joint Standing Committee on Electoral Matters reported that some interstate voters in Western Australia had been disenfranchised by a requirement in the Commonwealth Electoral Act 1918 that they cast their pre- poll vote by the close of polls in their home State or Territory. The Joint Standing Committee recommended that the Act be amended to allow an interstate voter to cast a pre- poll vote up to the time the polls close in the State or Territory in which the vote is cast.

Main Provisions

Schedule 1 - Amendment of the Commonwealth Electoral Act 1918

Electoral Roll Reviews

Items 1, 2 and 3 of Schedule 1 amend the Commonwealth Electoral Act 1918 in relation to reviews of the Electoral Rolls.

Item 2 of Schedule 1 amends section 92 of the Commonwealth Electoral Act 1918 by omitting subsections (2)- (5). Subsections 92(2)- (5) currently:

require the AEC to conduct a habitation review in each State and Territory at least once every two years;

provide for the funding of such reviews.

New subsections 92(2) and 92(3) provide that:

the AEC must cause Electoral Roll reviews to be conducted 'with a view to ascertaining such information as is required for the preparation, maintenance and revision of the Rolls'; and

funding will be provided from Consolidated Revenue for expenses reasonably incurred in conducting such reviews.

Eligible Overseas Voters

Item 6 amends subsections 94(1) and 94(2) of the Commonwealth Electoral Act 1918. New subsection 94(1) provides that a person may apply to be registered as an Eligible Overseas Elector either within 3 months of his or her date of departure from Australia or within one year of leaving Australia.

Item 14 of Schedule 1 amends subsection 95(4) of the Commonwealth Electoral Act 1918. Section 95 of the Commonwealth Electoral Act 1918 deals with the eligibility of the spouse or child of an Eligible Overseas Elector to themselves be registered as an Eligible Overseas Elector. At present, subsection 95(4) of the Commonwealth Electoral Act 1918 provides that such a person's name cannot be added to the Electoral Roll until after the close of polling for that election, if received from 6 pm on the day of the close of the Rolls.

The amendment to subsection 95(4) provides that such a person's name cannot be added to the Electoral Roll if received from 8 pm on the day the Rolls close.

Itinerant Voters

Section 96 of the Commonwealth Electoral Act 1918 provides that an elector who does not have a permanent address can apply for electoral enrolment as an itinerant elector. At present, under subsection 96(4), such a person's name cannot be placed on the Roll until after the close of polling for that election, if his or her application is received from 6 pm on the day the Rolls for an election close.

Item 15 of Schedule 1 amends subsection 96(4) of the Commonwealth Electoral Act 1918 to provide that if an application for enrolment by an itinerant voter is received from 8 pm on the day that Rolls close for an election, that person's name cannot be added to the Roll until after the close of polling at that election.

Item 18 of Schedule 1 amends subsection 102(4) of the Commonwealth Electoral Act 1918 to provide that a claim by a person to have his or her name placed on an electoral Roll under section 101 which is received from 8 pm on the day the Roll closes, cannot be considered for addition to the Roll until after the close of polling for the election.

Enrolment by Fax

Item 21 of Schedule 1 adds new section 111A to the Commonwealth Electoral Act 1918. It will provide that a claim for enrolment may be sent by fax. The Joint Standing Committee reported the ability of Divisional Returning Officers to accept enrolment forms sent by fax should be clarified. This amendment will not apply to a provisional claim for enrolment made under section 99A or to a claim accompanied by a request under section 104 17 of the Commonwealth Electoral Act 1918.

Bulk Nominations and Refund of Candidates' Deposits

Item 22 of Schedule 1 amends section 173 of the Commonwealth Electoral Act 1918. Section 173 sets out the conditions under which deposits made by or on behalf of a candidate in a Senate or House of Representatives election are to be returned or forfeited. At present, section 173 reads:

The deposit made by or on behalf of a candidate at a Senate election or at a House of Representatives election shall be retained pending the election, and after the election shall be returned to the candidate, or to some other person authorized by the candidate in writing to receive it, if the candidate is elected ...

Item 22 omits the words 'to the candidate, or to some other person authorized by the candidate in writing to receive it...' In their stead, the words 'in accordance with subsection (2) or (3)' are substituted.

Item 23 of Schedule 1 inserts new subsections 173(2) and 173(3). New subsection 173(2) provides that if a candidate was nominated by the registered officer of a registered political party and the deposit was not paid by the candidate, then it must be returned to the person who paid the deposit or to a person authorized in writing by the person who paid the deposit. New subsection 173(3) provides that in all other cases, the deposit must be returned to the candidate or to a person authorised in writing by the candidate.

Items 24- 27 make consequential amendments relating to the refund of deposits in the case of candidates who withdraw their nomination in certain circumstances (section 177) and candidates who die before the date of the election (section 178).

Death of a Bulk Nomination Candidate

Item 28 amends section 180 of the Commonwealth Electoral Act 1918. At present, section 180 provides for the situation where a candidate dies after the nominations for election have been declared but before polling day. At present:

in the case of a Senate election where 'the candidates remaining are not greater in number than the candidates required to be elected', then those candidates are declared to be elected;

in the case of a House of Representatives election, the death of a candidate means that the election is deemed to have failed.

New subsection 180(3) provides that, where a candidate in a bulk nomination dies before the nominations have been declared, the nomination of other candidates in the bulk nomination is not invalidated.

Postal Voting and Carers

Item 29 amends section 184A of the Commonwealth Electoral Act 1918. Section 184A deals with applications for registration as a General Postal Voter. New paragraph 184A(2)(c) provides that a person will be able to apply for registration as a General Postal Voter on the grounds that he or she will be caring for a seriously ill or infirm person at a place other than a hospital and will be unable to travel to a polling place for this reason.

Item 30 of Schedule 1 omits subsection 186(2) from the Commonwealth Electoral Act 1918 and inserts in its place new subsection 186(2). New subsection 186(2) will mean that all General Postal Voters are sent their ballot papers and a declaration envelope without having first to complete a postal vote application form.

There are consequential amendments to Schedule 3 of the Commonwealth Electoral Act 1918 as a result of these changes (see Items 42 and 43 of Schedule 1 of the Bill).

Canvassing

Item 31 of Schedule 1 inserts new subsection 200D(1A) into the Commonwealth Electoral Act 1918. New subsection 200D(1A) will prohibit canvassing for votes within 6 metres of a Divisional Returning Office on polling day and on all days to which polling is adjourned.

Item 32 of Schedule 1 inserts new subsection 200D(2A) into the Commonwealth Electoral Act 1918. New subsection 200D(2A) contains a similar prohibition on canvassing in relation to pre- poll voting offices.

Interstate Pre- Poll Voting

Item 33 of Schedule 1 amends subsection 200D(6) of the Commonwealth Electoral Act 1918 to provide that a person voting interstate on polling day may vote during the ordinary hours for voting in that particular State or Territory. At present, subsection 200D(6) provides that a person voting interstate may not cast a pre- poll vote after the close of the poll in the State or Territory in which the elector is enrolled.

Assistance in Casting a Vote

Item 37 inserts new subsection 234(1A) into the Commonwealth Electoral Act 1918. New subsection 234(1A) requires a presiding officer who is visiting a patient who is voting in a hospital or special hospital to explain to that patient that they can be assisted to cast a vote.

Preliminary Scrutinies

Items 38 and 39 amend section 266 of the Commonwealth Electoral Act 1918 which relates to the preliminary scrutiny of declaration votes after the close of the poll. 18 After the close of the poll, the Divisional Returning Officer conducts preliminary scrutinies of postal vote certificates and declaration envelopes (containing pre- poll, absent and provisional votes) to decide whether the claimants are entitled to vote. Those ballot papers accepted for further scrutiny are then placed in a ballot box to be check in the same way as ordinary ballot papers.

At present, subsection 266(1) of the Commonwealth Electoral Act 1918 provides that preliminary scrutinies commence 'after the close of the poll.' Amendments to section 266 will mean that preliminary scrutinies can commence 'at any time after the beginning of the Monday before polling day.'

Legal Representation and Disputed Elections

Item 41 of Schedule 1 repeals existing section 370 of the Commonwealth Electoral Act 1918 and substitutes new section 370. Existing section 370 relates to the Court of Disputed Returns and provides that a party to a petition disputing an election cannot be legally represented without the consent of all parties or by leave of the Court. New section 370 will provide that a party to a petition may represent themselves or may be legally represented.

Schedule 2 - Amendment of the Referendum (Machinery Provisions) Act 1984

Item 1 of Schedule 2 of the Electoral and Referendum Amendment Bill (No.2) 1995 paragraph 4(2)(a) of the Referendum (Machinery Provisions) Act 1984 to provide that the rolls close at 8 pm on the day of the close of the Roll. At present, the Rolls close at 6 pm.

Item 2 of Schedule 2 amends inserts new subsection 36(1A ) to provide that a presiding officer who is taking the vote of a patient in a hospital or special hospital must explain that the patient is entitled to assistance in voting. This amendment mirrors the amendment made to the Commonwealth Electoral Act 1918 (see Background and Item 37 of Schedule 1).

Item 6 19 amends subsection 58(2) of the Referendum (Machinery Provisions) Act 1984 to provide for the dispatch of postal voting papers to registered General Postal Voters, in line with amendments made to the Commonwealth Electoral Act 1918 (see Background and Items 30, 40 and 42 of Schedule 1).

Item 7 amends subsection 73B(6) of the Referendum (Machinery Provisions) Act 1984 in relation to the hours during which an interstate voter in a referendum can cast a pre- poll vote. This provision is mirrored in the amendments made to the Commonwealth Electoral Act 1918 (see Background and Item 33 of Schedule 1).

Items 8 and 9 20 of Schedule 2 amend section 89 of the Referendum (Machinery Provisions) Act 1984 to provide that a preliminary scrutiny of declaration votes may commence from the Monday before voting day. Similar amendments are made in Schedule 1 to the Commonwealth Electoral Act 1918 (see Background and Items 38, 39 and 44 of Schedule 1).

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Endnotes

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1

p.4.

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2

Australian Electoral Commission, Annual Report 1993- 1994, p.8.

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3

Joint Standing Committee on Electoral Matters, The Conduct of Elections: New Boundaries for Cooperation, September 1992.

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4

Ibid, p.173.

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5

Joint Standing Committee on Electoral Matters, The 1993 Federal Election. Report of Inquiry into the Conduct of the 1993 Federal Election and Matters Related Thereto, November 1994, p. 48.

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6

Ibid, p.48.

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7

Paragraph 93(8)(b), Commonwealth Electoral Act 1918.

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8

The crime of treachery is set out in section 24AA of the Crimes Act 1914. It includes actions done with the intention of overthrowing the Constitution of the Commonwealth by revolution or sabotage or with the intention of overthrowing by violence or force the established Government of the Commonwealth or of a State.

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9

A court may impose a sentence which is considerably shorter than the maximum potential sentence, but the actual sentence is not the test for disqualification.

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10

See Items 4 and 5 of the Electoral and Referendum Amendment (No.2) Bill.

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11

Acting Prime Minister, 'Prisoner voting,' Press Release, 10 July 1995.

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12

Joint Standing Committee on Electoral Matters, op.cit, p.100.

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13

Ibid, p.85.

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14

Ibid, p.96.

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15

Subsection 98(3) and paragraph 184A(2)(f), Commonwealth Electoral Act 1918.

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16

Joint Standing Committee on Electoral Matters, op.cit, p.20.

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17

Section 104 enables a person to request that their address should not be shown on the Roll because it would place their personal safety or that of their family at risk. Such an application must be accompanied by particulars of the relevant risk and a statutory declaration.

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18

There is a consequential amendment in Item 44 of Schedule 1.

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19

There are consequential amendments in Items 10 and 11 of Schedule 2.

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20

There is also a consequential amendment made in Item 12 of Schedule 2.

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Jennifer Norberry (277 2476)

Bills Digest Service

Parliamentary Research Service 28 August 1995

This Digest does not have any legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

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