WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Purpose
Background
Main Provisions
Endnotes
Date Introduced: 3 December 1997
House: House of Representatives
Portfolio: Finance and Administration
Commencement: On the 28th day after Royal
Assent unless otherwise stated in the Schedules.
To amend the
Commonwealth Electoral Act 1918 so as to implement some of
the recommendations from each of the three Joint Standing Committee
on Electoral Matters reports.
The Commonwealth Electoral Act 1918
('the Principal Act') has received a great deal of scrutiny and
amendment over the past two decades. It has been the subject of a
number of reviews during that time, primarily by the Joint Standing
Committee on Electoral Matters. The Bill seeks to amend the
Principal Act to implement some of the recommendations. The Bill
also makes technical and consequential amendments to the
Referendum (Machinery Provisions) Act 1984.
The former Australian Electoral Office was
replaced by the independent Australian Electoral Commission (AEC)
in 1984. The AEC is 'responsible for providing the Australian
people with an independent electoral service which meets their
needs and which encourages them to understand and participate in
the electoral process.'(1)
The Joint Standing Committee on Electoral
Matters (JSCEM) tabled a report in November 1994 on the 1993
election. The report Report of Inquiry into the Conduct of the
1993 Federal Election and Matters Related Thereto made 73
recommendations.
The Joint Standing Committee on Electoral
Matters tabled a report on 19 December 1995 entitled Electoral
Redistributions with 24 recommendations. A redistribution is a
'redrawing of electoral boundaries to ensure that, as nearly as
practicable, each State and Territory gains representation in the
House of Representatives in proportion to the State or Territory's
population, and that there are the same number of electors in each
division for a given State or Territory.'(2)
A further report ('the 1997 Report') was tabled
in June 1997 by the same Committee entitled the Report of the
Inquiry into all Aspects of the Conduct of the 1996 Federal
Election and Matters Related Thereto. This later report made
73 recommendations.
The Bill picks up some of the recommendations
from each of the reports but essentially concentrates on the
earlier two reports. The Second Reading Speech indicates that the
Government is still considering the recommendations in the 1997
report.
Item 7 will amend subsection 46(1) of the
Principal Act so that the determination of the State and Territory
representation entitlements is done after twelve months from the
first meeting of the House of Representatives rather than after 9
months. The effect of the change will be to have an extra quarters'
statistics or an extra three months of data after the election
available for use (ie four quarters rather than three) in
calculating the representation entitlements. This was the first
recommendation made in the JSCEM Electoral Redistributions
report of 19 December 1995.
Items 17 & 18 together
expand the range of enrolled electors that an electorate may have
from the 'average divisional enrolment' for that State or
Territory. Currently the range is from 98% to 102% and the Bill
will increase this to the range 96.5% to 103.5%. This was the 'most
contentious issue' at the JSCEM inquiry(3). The increased range
will enable the redistribution committees to more properly consider
the 'qualitative criteria' such as the physical features of the
electorate and the means of communication or travel within the
electorate and the 'community of interests' within the electorate
and adjust the electorate accordingly. The AEC cautioned that the
expression 'community of interests' was an elusive criterion. The
Government Response acknowledged this but reasoned that the JSCEM's
assessment that the 'numerical criteria do not allow due
consideration to be given to the qualitative factors' was right and
therefore there should be a relaxation of the rules to 'allow a
realistic degree of flexibility'. For example, some boundaries cut
through a street or through a suburb leaving the impression that
the strict application of the 'mathematical formula' was much more
important than other factors. The 2% range did not, according to
the proponents of change, allow any flexibility and was all about
number-crunching.
The majority judgment in McGinty &
Ors v State of Western Australia (1996) 186 CLR 140
makes it clear that there is no constitutional requirement for
absolutely equal electorate size. Whilst the expectation might be
that 'one vote means one value', the High Court's majority judgment
makes it clear that this is not constitutionally guaranteed.
Clearly the High Court would find in some cases that a disparity in
the number of electors between electorates could be so great as to
offend the principle in the Constitution that representatives are
elected directly by the people.
Item 38 allows the Electoral
Commission to provide, in electronic form, extracts of the
electoral roll (including the sex of electors) to individuals or
organisations conducting medical research or running health
screening programs, Senators and Members and to registered
political parties. Currently such information can only be provided
to certain prescribed authorities (generally specified Government
Departments or Commonwealth Authorities).
Recommendation 52 of the 1997 Report advocated
that section 91 be amended so that the age, salutation details and
gender of persons on the electoral roll could be provided to
Senators, Members and registered political parties. The
recommendation also suggested that the same details be made
available in some designated instances for research purposes.
Whilst there are undoubtedly benefits to the
community flowing from medical research and there may be benefits
to individuals contacted by health screening programs, there is
also an issue of privacy. The Privacy Act 1988 contains a
number of information privacy principles which include the basic
rules that essentially personal information should only be
collected for a purpose that is lawful and that the person giving
the information should be aware of why the personal information is
required and how it will be used. In this context, people giving
their name, sex, address and birthdate to the AEC would not have
been aware, or have anticipated, that the information could be
used, for example, by people running health screening programs. The
Privacy Act 1988 does, however, provide for the issuing of
guidelines by the National Health and Medical Research Council (see
section 95 of the Privacy Act 1988) and acts done by
medical researchers that comply with the properly issued and
gazetted guidelines are deemed not to breach the Privacy Act
1988.
The Privacy Act 1988 applies only to
government-held information and does not apply to private companies
or individuals. As a result, one outcome of disseminating this
information to non-government people or organisations is that the
information is no longer protected by the Privacy Act
1988. Proposed section 91A(1) will make it an
offence to use this information for any purpose other than that for
which it was permitted, however the penalty is merely 10 penalty
units. One penalty unit is currently $110.00 under section 4AA(1)
of the Crimes Act 1914. Therefore, the maximum penalty for
the misuse of the information is $1 100.00.
Proposed section 94A allows
people who would ordinarily be eligible to be on the electoral roll
to enrol whilst they are residing overseas for no longer than 6
years for career or employment reasons (either for themselves or
their spouse).
Items 90 and 91 increase the
nomination fees for persons running for either the House of
Representatives or the Senate. The fees will increase from $500 to
$700 for a Senate nomination and from $250 to $350 for a nomination
for the House of Representatives.
Item 128 introduces
proposed section 273A which will allow the
computerised counting of Senate votes for the first time. The
precautions already in the Principal Act in relation to inspecting
the ballot boxes are all preserved and the new section will allow
informal votes to be rejected etc and then the first preferences
electronically recorded and scrutinised in accordance with existing
section 273. This amendment should greatly facilitate the counting
of votes and provide a faster senate election result without
compromising the accuracy.
Item 135 inserts a new section,
proposed section 274(7AA). This will allow, after
a count of first preferences, candidates rated third or below to be
excluded. The Explanatory Memorandum explains this as allowing 'for
the declaration of the poll in a House of Representatives election
on the result of the two candidate preferred count where on the
basis of first preference votes, the exclusion of all but two
candidates is inevitable.'(4)
Item 150 repeals subsection
329(3) of the Principal Act. Subsection 329(3) is the provision
that gained notoriety in the lead-up to the 1996 election campaign
when activist Albert Langer was jailed for contempt of court after
being ordered not to breach section 329 by advocating a vote other
than that provided for in section 240 of the Principal Act (ie the
full preferential system). Langer advocated a formal vote where no
further preferences could be distributed after the first two
preferences were tallied(5). Despite the High Court upholding the
validity of section 329(6) there was strong criticism of the
provision and of the jailing of Langer(7). Part of recommendation
13 of the 1997 report of the Joint Standing Committee on Electoral
Matters advocated the removal of subsection 329(3).
The result of this amendment will be that
optional preferential voting will still be valid in Australia and
people will now be able to actively lobby others to vote in this
fashion. One outcome of this might be that protest votes might work
against the major parties and in the favour of the minor parties
and independents. Of course, such votes have been possible in the
past, but now it will be lawful to advocate and encourage their
use.
Item 158 implements in part
recommendation 56 of the Joint Standing Committee on Electoral
Matters' report on the 1993 election. It will relax the current
rules regarding letters to the editors of newspapers. Currently,
all letters regarding electoral matters are required to have the
author's name and address also printed. This item will amend the
current rules to allow just the author's name and their suburb or
locality to be printed.
Item 161 will implement
recommendation 8 of the Joint Standing Committee on Electoral
Matters' report on the 1996 election. Item 161 will amend
subsection 339(1) to make it a strict liability offence for a
person to vote more than once in the same election. The maximum
penalty will be 10 penalty units. Currently, there is a requirement
for the prosecution to prove that people who are charged with
having voted more than once did so "wilfully".
-
- Australian Electoral Commission 1996-97 Annual Report,
3.
- AEC, Electoral Newsfile No 38, January 1994 as quoted
on page 5 of the Joint Standing Committee on Electoral Matters'
report Electoral Redistributions.
- Government Response to the Joint Standing Committee on
Electoral Matters' report Electoral Redistributions.
Recommendation 3.
- Explanatory Memorandum, 19.
- For further information see Field, C. 'Tweedledum and
Tweedledee 1,2,3,3 - The Albert Langer Story', Current Issues
Brief No. 14 1995-96, Parliamentary Library
- Langer v The Commonwealth of Australia (1996)
186 CLR 302.
- See Field, op cit, 7-8.
Susan Downing
6 March 1998
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's contents with
Senators and Members
and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 1997
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
1997.
Back to top