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Electoral and Referendum Amendment Bill 1995



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House: House of Representatives

Portfolio: Administrative Services

Commencement: On Royal Assent

Purpose

The purpose of the Electoral and Referendum Amendment Bill 1995 (the Bill) is to amend:

the Commonwealth Electoral Act 1918 (the Electoral Act); and

the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).

Background

The Bill responds, in part, to the report of the Joint Standing Committee on Electoral Matters (the Joint Standing Committee) - Report of Inquiry into the Conduct of the 1993 Federal Election and Matters Related Thereto. 1

Powers of delegation

At present, the Australian Electoral Commission (AEC) can delegate its powers under the Electoral Act to the Electoral Commissioner. The Joint Standing Committee recommended that the Commission be permitted to delegate its powers under any other law (as well as under the Electoral Act). 2 'The Commission' is constituted by a Chairperson, the Electoral Commissioner and the Australian Statistician. The Electoral Commissioner is the Commission's full-time executive officer. The recommendation followed a request by the AEC.

The AEC also has powers under statutes other than the Electoral Act. For example, it conducts elections under the Aboriginal and Torres Strait Islander Commission Act 1989 and the Industrial Relations Act 1988. An example of a responsibility that cannot at present be delegated but must be exercised by the Commission itself is the appointment of polling places for Aboriginal and Torres Strait Islander Commission elections.

Objections to electoral enrolment

Procedures exist under the Electoral Act for voters of unsound mind to be removed from the electoral roll. Under subsection 114(1) of the Electoral Act, it is a requirement that a person objecting to a person's enrolment must live in the same subdivision as the voter and must lodge a $2.00 fee. 3 The Joint Committee reported that a consequence of these requirements is that voters of unsound mind are not removed from the rolls and that non-voter levels are higher than necessary. 4

The Joint Standing Committee recommended that the Electoral Act be amended so that an elector objecting to the enrolment of another elector on the basis of unsound mind not be required to live in the same subdivision and not be required to lodge a $2.00 fee. 5

The Joint Standing Committee also recommended a change in procedures where an objection has been lodged to the enrolment of a voter. At present, subsection 118(5) of the Electoral Act prevents a Divisional Returning Officer (DRO) from removing an elector's name from the roll between the date on which writs are issued and the close of polling, even where the DRO has already decided that the elector's name should be removed. The Joint Standing Committee dates this provision from before 1983 - 'that is, when it was possible for the rolls to close the same day the writ was issued.' 6

The Joint Standing Committee recommended that the Electoral Act be amended to provide that the period from which a DRO cannot remove an elector's name from the roll following an objection action should commence at the close of the rolls. 7

Security marks and ballot papers

The Joint Standing Committee recommended that section 209A of the Electoral Act be amended to provide that ballot papers may be printed using either a security mark approved by the Australian Electoral Commission or a watermark. 8

In evidence before the Joint Standing Committee, the AEC stated that existing legislation which requires authentication of ballot papers by the use of a watermark is both costly and technologically obsolete. 9 The AEC proposed the use of a security mark - such as that used for cheque books. An added advantage of a security mark, according to the Joint Committee, is that its use would make erasures more difficult to disguise. 10

Silent enrolment electors

Another recommendation of the Joint Standing Committee was to increase the protections provided to silent enrolment electors who make postal vote applications. A person who considers that the appearance of their address on the publicly available Commonwealth Electoral Roll would endanger their own safety or that of their family, may make a request to the DRO that their address not appear on the roll or be removed from the roll. This is called silent enrolment. The DRO must be given details of the risk faced by the applicant and the request must be verified by a statutory declaration.

Applications for postal votes are available for public inspection. While postal vote applications available for public inspection do not list the residential address of a silent enrolment elector, they do contain information such as postal address and telephone number. The public availability of this type of information may also endanger the safety of a silent enrolment elector.

The Joint Standing Committee recommended that, with the exception of the elector's name, all information on postal vote applications for silent enrolment electors should be deleted prior to public inspection. 11

Canvassing in and around hospitals

At present, hospital patients are excluded from canvassing not only on polling day but during the entire period from the issue of election writs.

In 1989 the Joint Standing Committee on Electoral Matters reported receiving a submission which advocated the relaxation of these restrictions on canvassing in hospitals. However, the Joint Standing Committee on Electoral Matters did not find any 'compelling reasons' to remove the restrictions. 12

Amendments to the Electoral Act made in 1990 provided for mobile polling teams to visit hospitals and carry and distribute how-to-vote material.

The submission on relaxing restrictions made to the Joint Standing Committee in 1989 was again put in 1990 13 , but the Committee did not endorse the submission.

Divisional Returning Officers

The Electoral Act contains a provision which precludes Divisional Returning Officers who are enrolled in electorates in which they are the DRO, from voting in an election for the House of Representatives in that electorate.

In the past, DROs had a casting House of Representatives vote when an election result was tied.

In its 1986 report, the Joint Select Committee on Electoral Reform recommended that where a tied vote occurred, the outcome should be determined by the Court of Disputed Returns rather than by a casting vote of a DRO. 14 This recommendation was implemented by an amendment to the Electoral Act in 1990.

Because a DRO no longer has a casting vote, the Joint Standing Committee on Electoral Matters concluded in its 1994 Report that it was inappropriate for a DRO to be disqualified from voting in the House of Representatives electorate for which he or she is the DRO. 15

Declaration vote scrutiny

As a result of amendments to the Electoral Act in 1992, it was possible during the 1993 elections for the AEC to undertake:

... a provisional distribution of preferences direct to ... [the two candidates most likely to win each House of Representatives seat] ... during the scrutiny (in addition to the full distribution of preferences). The objective was to gain an early indication of the outcome of the full count of preferences, and to thereby gain "on the night" the outcome of the election. 16

This provisional distribution is called the two candidate preferred count. The Joint Standing Committee reported that the two candidate preferred count gave a good indication of the election result on election night in 1993, as well as a good indication of the likely result in those seats where a result could have taken several days to decide. 17

The Joint Standing Committee recommended that the use of a two candidate preferred count should be applied to declaration vote scrutinies in all electorates. 18 The declaration vote relates to an elector who has filled out their details on an envelope for a postal, pre-poll or absent vote. In the 1993 election, the two candidate preferred count was applied to scrutiny of the declaration vote only in those electorates identified as close at the end of counting on election night. 19

Election campaign advertising

Subsection 328(1) of the Electoral Act prohibits the printing, publication or distribution of 'an electoral advertisement, handbill, pamphlet or notice' unless it contains the name and address of the person authorising it. Posters are not encompassed by this definition.

The Joint Standing Committee recommended that the requirement for authorisation be extended to posters. 20 Posters are a common form of election advertising.

Main Provisions

Amendments of the Commonwealth Electoral Act 1918

Item 7 of Schedule 1 amends subsection 16(1) of the Electoral Act to enable the Commission to delegate its powers under 'any other law'. The Act already enables the Commission to delegate its powers under the Electoral Act - other than its powers under Part IV. 21

Item 15 of Schedule 1 amends subsection 118(5) of the Electoral Act to provide that the DRO shall not remove an elector's name from the roll as a result of an objection lodged re unsoundness of mind during the period between the close of the rolls and the close of polling at the election. At present, the period runs from the issuing of the writs to the closing of the poll.

Item 32 of Schedule 1 amends subsection 189(4) of the Electoral Act to require all information about a silent enrolment elector, save his or her name, to be removed before applications for postal votes are made publicly available.

Item 35 of Schedule 1 repeals section 209A of the Electoral Act and substitutes new section 209A. This amendment allows the Electoral Commission to use either a watermark or to overprint ballot papers in a particular manner which is approved by the Commission. Either can be the official mark for the authentication of ballot papers.

Item 37 of Schedule 1 amends subsection 226(5) to prohibit canvassing on polling day near any hospital that is a polling place. Hospitals will thus, in general, be in the same position as other places once writs are issued for an election - that is, canvassing will be prohibited only on polling day. At present, canvassing is prohibited in a hospital from the day writs for an election are issued.

The amendments also add new subsection 226(5A) to the Electoral Act. The effect of this amendment is that, in the case of a special hospital 22 , canvassing is prohibited on the five days preceding polling day and on polling day itself.

Item 38 of Schedule 1 amends paragraph 228(5)(c) of the Electoral Act in accordance with new subsection 228(5A) which is inserted by Item 39.

Item 39 of Schedule 1 inserts subsection 228(5A) into the Electoral Act. The effect of this amendment is to place a limit of 13 days after polling day for the receipt of postal votes. The Electoral Commissioner will have a discretion to extent this period (new paragraph 228(5A)(a)). The Electoral Commissioner's discretion is not qualified in new subsection 228(5A) which provides that the cutoff period for the receipt of postal votes may be '... within 13 days after the close of the poll or such longer time as the Electoral Commissioner, before the end of that period, directs in writing...'.

Item 44 of Schedule 1 amends subsection 273(17) of the Electoral Act. At present, in a Senate scrutiny, if only two candidates remain for the last vacancy to be filled and they have an equal number of votes, the Australian Electoral Officer for the State or Territory has a casting vote but does not otherwise vote in the election. New subsection 273(17) provides that such determinations will be made by lot. Items 45-47 of Schedule 1 amend other relevant subsections of the Electoral Act accordingly. The amendment provided by Item 44 has the further effect of permitting Australian Electoral Officers to vote in elections.

Items 48 and 49 of Schedule 1 amend subsections 274(2A) and 274(2B) of the Electoral Act. These amendments deal with scrutiny of votes in House of Representatives elections. They provide that a two candidate preferred count shall be conducted not only on polling night but at the fresh scrutiny 23 and declaration scrutinies conducted after polling day.

Item 51 of Schedule 1 amends subsection 274(9) of the Electoral Act. At present, the Act provides that in House of Representatives elections, 'if, on any count, 2 or more candidates have an equal number of votes and one of them has to be excluded, the Divisional Returning Officer shall decide which of them shall be excluded.' The amendment provides that the DRO will conduct a 'countback' until the two or more lowest ranking candidates are excluded. If there is no prior count at which one of these candidates had fewer votes than the others, then the DRO will determine the excluded candidate by lot.

Items 53 - 56 of Schedule 1 deal with printing and publication of election advertisements etc. For example:

subsection 328(1) of the Electoral Act is amended to include posters within the authorisation requirements associated with the printing and publishing of election material;

paragraph 328(3)(a) of the Electoral Act is amended to remove the exemption on car stickers from requirements for authorisation.

Item 58 of Schedule 1 amends paragraph 332(2)(b) of the Electoral Act to remove the requirement that the author of a letter to the editor of a newspaper must comply with the full requirements of the authorisation provisions of the Act. These provisions require such a person to disclose their name and full address. The effect of the amendment is to require the author to disclose only their name and suburb/locality.

Amendments of the Referendum (Machinery Provisions) Act 1984

Item 5 of Schedule 2 repeals section 25A of the Referendum Act and inserts new section 25A. This new subsection will enable a referendum ballot paper to be marked either with a watermark or by a security mark approved by the Electoral Commission.

Item 10 of Schedule 2 inserts new subsection 46A(5A) into the Referendum Act. The amendment provides that there will be a cutoff of 13 days after polling day for the receipt of all postal votes. New paragraph 46A(5A)(a) provides that the Electoral Commissioner will have a discretion to extend this period.

Item 20 of Schedule 2 amends subsection 125(2) of the Referendum Act. The author of a letter to the editor of a newspaper will no longer be required to disclose their name and full address. Name and suburb/locality will be sufficient.

Endnotes

1 1994, AGPS, Canberra.

2 1994 Report, p 149, Recommendation 73.

3 Subsection 118(4) of the Electoral Act provides that such an objection must be accompanied by a certificate issued by a medical practitioner which states that in the practitioner's opinion the elector is of unsound mind and cannot understand the nature and significance of enrolment and voting.

4 1994 Report, p 56.

5 1994 Report, p 56, Recommendation 28. Subsection 119(8) of the Electoral Act presently provides that if an elector's name is removed from the electoral roll as the result of such an objection, the $2.00 fee is to be refunded.

6 1994 Report, p 55.

7 1994 Report, p 55, Recommendation 27. The rolls close seven days after the issue of an election writ.

8 1994 Report, p 124, Recommendation 61.

9 1994 Report, p 124.

10 1994 Report, p 124.

11 1994 Report, p 94, Recommendation 46.

12 The 1987 Federal Election. Inquiry into the Conduct of the 1987 Federal Election and 1988 Referendums, May, 1989, AGPS, Canberra.

13 See 1990 Federal Election. Report from the Joint Standing Committee on Electoral Matters, December, 1990, AGPS, Canberra.

14 The Operation during the 1984 General Election of the 1983/84 Amendments to Commonwealth Electoral Legislation. A Report from the Joint Select Committee on Electoral Reform, December 1986, AGPS, Canberra.

15 1994 Report, p 146, Recommendation 70.

16 1994 Report, p 16.

17 1994 Report, p 17.

18 1994 Report, p 20, Recommendation 14.

19 1994 Report, p 20.

20 1994 Report, p 111, Recommendation 53.

21 Part IV of the Electoral Act deals with electoral divisions.

22 Special hospitals are hospitals declared by notice in the Gazette and include convalescent homes and similar institutions. The Electoral Act provides for mobile polling in special hospitals.

23 A fresh scrutiny occurs when ballot papers from all polling places in a Division have been returned to the DRO and involves re-checking the counting done on election night.

Jennifer Norberry (Ph. 06 2772476)

Bills Digest Service 13 February 1995

Parliamentary Research Service

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.

Commonwealth of Australia 1995.

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Published by the Department of the Parliamentary Library, 1995.