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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
Electoral and
Referendum Amendment Bill (No. 2) 1998
Date Introduced: 14 May 1998
House: Senate
Portfolio: Finance and Administration
Commencement: The amendments described in
this Digest will generally commence on the 28th day
after the Bill receives Royal Assent. However, those dealing with
the verification of the identity of a person seeking enrolment and
the removal of the one month qualifying period for enrolment in an
electorate will commence on a day to be fixed by Proclamation.
To make a number
of changes to:
- the requirements for enrolment aimed to minimise electoral
fraud
- remove the right of prisoners to vote in Federal elections
and
- make a number of largely administrative changes to the
electoral law.
Following Federal general elections the Joint
Standing Committee on Electoral Matters regularly holds an inquiry
into the conduct of the election to identify further refinements to
the Commonwealth Electoral Act 1918 to resolve problems
identified at the previous general election. The Committee's report
on the 1996 general election was released in June 1997 and
identified a number of matters that should be addressed before the
next general election. A number of the recommendations contained in
the Committee's report were addressed in the Electoral and
Referendum Bill 1997 which, at the time of writing, is before the
Senate.
The matters to be addressed by this Bill contain
no central theme and the Background to the various provisions will
be discussed in the Main Provisions section of this Digest.
Potential Electoral Fraud and
Other Administrative Matters
The report defined electoral fraud to include
matters such as multiple voting (either by multiple voting by an
enrolled elector or by placing the names of deceased persons on the
roll), being enrolled in the wrong electorate or being enrolled
while being a foreign citizen or underage. The report noted that
such circumstances could arise by misunderstanding as well as
deliberate fraud. The report also noted that:
The inquiry did not reveal improper
enrolment or voting sufficient to affect any result at the
election. However, it is unacceptable that the most fundamental
transaction between a citizen and the government .... is subject to
a far lower level of scrutiny than such lesser transactions as
opening a bank account, applying for a passport, applying for a
driver's licence or registering for social security.(1)
It may be noted that while the transactions with
the Commonwealth noted by the Committee generally require the
production of a person's tax file number (TFN), the Committee did
not recommend the use of the TFN as an eligibility criteria for
voters. Rather, the Committee recommended a number of changes,
including that:
- the witness requirements for enrolment be tightened
- that an applicant for enrolment be required to produce at least
one piece of original documentary evidence, such as a photographic
drivers licence, Birth Certificate, passport, Medicare Card or a
written reference from a limited range of people and
- that the use of data matching between Commonwealth, State and
Territory bodies be examined to determine if it is effective to
verify the identity of enrolment data.(2)
The report also noted that as the rolls for an
election close 7 days after the issue of the writs for the
election, there is great pressure on the AEC to process the
applications before the election, which hampers the ability to
determine if the voter is eligible to be enrolled. The report notes
that from the time that the writs were issued for the 1996 election
until the rolls closed approximately 428 000 transactions were
processed.(3) It was recommended that for new enrolments the rolls
be closed on the day the writs are issued and for changes in
details for enrolled voters the rolls close at the end of the third
day after the issue of the writs.(4) The adoption of such a
recommendation would reduce the time available for new electors to
be entered on the rolls and has the potential to disenfranchise a
greater number of potential voters.
Section 91 of the Commonwealth Electoral Act
1918 (the Principal Act) contains a general prohibition on the
disclosure of the occupation, sex and date of birth of electors.
The Electoral and Referendum Amendment Bill 1998 (which at time of
writing is before the Senate) proposes to insert subsections 91(9A)
and 91(9B) that will allow the sex of electors to be provided to
organisations or people that conduct medical research or health
screening; members of the House of Representatives or Senate; a
registered political party; and an electoral authority of a State
or Territory where the Act provides for the disclosure of
information to such a body. Except for the last group, the
information is to be provided by tape or disk. Item 1 of
Schedule 1 will insert proposed subsection 91(9C) that
will allow a tape or disk disclosing the date of birth or
salutations of electors to be provided to a member of the House of
Representatives or Senate or to a registered political party. If
information is provided under section 91, section 91A provides
restrictions on the purposes that the information can be used for.
The purposes that a member of the House of Representatives or
Senate, or a registered political party may use the information for
will be expanded to include research regarding electoral matters
(items 5 and 7).
Changes to the period allowed for enrolment
after the calling of an election are contained in items 11,
14 and 28 that amend various sections of the Principal Act
that deal with the enrolment of voters to provide that after the
issue of the writs for the election and during the 'postponement
period' no new names are to be entered, or deleted, from the roll.
The postponement period will be:
- where the person is already on the roll, the period begins at 8
p.m. on the day the rolls close and
- for those not on the roll, the period closes at 6 p.m. on the
day the writs are issued
- both periods end at the close of polling for the election.
(The procedure for an election is for the
Parliament to be dissolved, the issue of writs within a maximum of
10 days after the dissolution and the close of rolls 7 days after
the issue of the writs.)
These amendments will implement the
recommendation on the early closing of roles for unenrolled
eligible voters as noted above.
Section 98 of the Principal Act deals with
eligibility to have a name placed on the rolls. The current
requirements are that the claim is made in an approved form, is
signed by the applicant and is attested to by an elector or a
person eligible for enrolment. Item 20 of Schedule
1 will insert new requirements to address the possibility of
electoral fraud discussed above. Proposed subsection
98(2) provides that while the appropriate regulations are
in force, the identity of the applicant must be verified according
to the regulations unless the Divisional Returning Officer is
satisfied that the person has previously been an elector and that
if a claim is made that the person has been granted Australian
citizenship this is to be verified according to the
regulations.
The requirement that a person has lived in an
electorate for a month to seek enrolment or provisional enrolment
will be removed by items 21 to 23 which will amend
section 99 of the Principal Act.
Section 188 of the Principal Act provides that
where a Returning Officer receives a valid application for a postal
vote they are to take certain action, including the posting of a
ballot paper to the person. Proposed section 365A
provides that where the Returning Officer arranges for the delivery
of the material by means other than post, the Court of Disputed
Returns is not to declare that a person was not duly elected or
declare an election void because of the failure of the means of
delivery. The proposed section also provides that it is not to have
any implications about the effect of a delivery by post
(item 47).
Voting Rights of
Prisoners(5)
The Bill proposes to disenfranchise all
convicted persons of the right to vote.(6)
Existing paragraph 93(8)(b) of the
Commonwealth Electoral Act 1918 suspends the right to vote
for prisoners 'serving a sentence of 5 years or longer for an
offence against the law of the Commonwealth or of a State or
Territory'. The disenfranchisement given by paragraph 93(8)(b) is
based on the actual sentence given to the convicted person rather
than the maximum sentence applicable to the crime committed by the
convicted person. The Controllers-General of Prisons are required
to identify the prisoners affected by such a provision and send a
list of such prisoners to the Australian Electoral Commission. The
provision has in the past been criticised on the basis that it
creates practical difficulties.(7) The Joint Standing Committee on
Electoral Matters recommended in its 1993 Federal Election report
that voting rights be extended to all prisoners but this was
rejected by the then Government in July 1995.(8)
Relevant International Law
The right to vote is mentioned in article 25 of
the International Covenant on Civil and Political Rights (ICCPR)
which states:
Article 25
Every citizen shall have the right
and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions:
(a) To take part in the conduct of
public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at
genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors;
(c) To have access, on general terms of
equality, to public service in his country.
Article 25 must be read in conjunction with
article 2 which obliges State Parties (of which Australia is one)
as follows:
Article 2
1. Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights
recognised in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status.
2. Where not already provided for by
existing legislative or other measures, each State Party to the
present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the
provisions of the present Covenant, to adopt such legislative or
other measures as may be necessary to give effect to the rights
recognised in the present Covenant.
3. Each State Party to the present
Covenant undertakes:
(a) To ensure that any person whose
rights or freedoms as herein recognised are violated shall have an
effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;
(b) To ensure that any person
claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or
by any other competent authority provided for by the legal system
of the State, and to develop the possibilities of judicial
remedy;
(c) To ensure that the competent
authorities shall enforce such remedies when granted.
The Human Rights Committee (HRC) has made a
General Comment on Article 25 in which it affirmed that article 25
'lies at the core of democratic government based on the consent of
the people and in conformity with the principles of the
Covenant'.(9) The HRC seems to suggest that a conviction may be
used as a basis for suspending the right to vote(10) although
legislative provisions 'which would deprive citizens of their right
to vote' must be indicated in the State Parties report to the HRC
and 'explained'. Therefore it seems that a 'blanket application' of
a rule prohibiting prisoners from voting may well fall outside the
scope of the 'allowable exceptions' contemplated by the HRC. This
point is not clear from the HRC General Comment but other legal
commentators have asserted that:
...the denial of the right of
convicted persons is a distinction based upon their legal status as
convicted persons and, consequently, runs counter to the spirit and
indeed the letter of the Covenant ....Criminal conviction does not
impair one's ability to make rational voting choices.(11)
Factors that would be relevant to whether, in
having exclusions, a country had breached article 25 would be the
resources of the country and the possibility of alternative methods
of voting (such as postal voting). The more well-resourced the
country and the more there were systems in place that would
facilitate voting by prisoners (such as postal voting) the more
likely it would be that the denial of those voting rights would be
a breach of the ICCPR.
Other relevant international instruments are the
Standard Minimum Rules for the Treatment of Prisoners
which has under the heading 'guiding principles' the aim of
minimising 'any differences between prison life and life at liberty
which tend to lessen the responsibility of the prisoners or the
respect due to their dignity as human beings.' Arguably this might
mean that they should have rights and responsibilities for voting
akin to ordinary citizens. The United Nations Universal Declaration
on Human Rights 1948 is also relevant because it is commonly argued
that the principles therein are rules of customary international
law and therefore are binding even though the Declaration does not
have treaty status. Article 21(1) of the Declaration states:
Everyone has the right to take part
in the government of his country, directly or through freely chosen
representatives.
Other Reports on the Right to Vote
A 1987 article from the Criminal Law Journal on
the Voting Rights of Convicted Persons attributes the
origin of policies disenfranchising prisoners of their right to
vote is to the idea of 'civil death'. Other historical
justifications given were arguments such as Locke's theory that
'every person who enters society authorises the society, or its
legislative body, to make laws for the public good and pledges that
she or he will assist in the execution of those laws'.(12) This
means that a conviction (p11) 'resulted in the annihilation of
one's legal existence and the consequent removal of all
corresponding legal rights. And with the loss of legal rights and
status, the right to vote - the right to political self-expression,
was similarly removed.'
The 1973 Mitchell Committee's report on penal
reform made disparaging comments about the above view:
We can see no ground for preserving
these disabilities. The right to vote seems to us to have no
connection with the question whether the voter is a good or a bad
citizen. For this reason we refrain from analysing these provisions
in detail and commenting on the anomalies which appear in their
terms. We confine ourselves to a simple recommendation that they be
abolished.(13)
The majority of the 1993 Joint Standing
Committee on Electoral Matters similarly recommended that the
existing provision (which disenfranchises prisoners serving a
sentence punishable by five years or more imprisonment from voting)
be repealed:
Recommendation 68: that subsection
93(8)(b) and section 109 of the Electoral Act be repealed, so that
an elector is not deprived of the right to enrol or vote on the
basis that the elector is a prisoner (except in the event of a
conviction for treason or treachery).(14)
A dissenting report was written by Mr Connolly
MP, Senator Minchin, Senator Tierney and Mr Cobb MP which noted
that the concept of imprisonment encompassed a number of aspects
including 'the denial of a wide range of freedoms to provide a
disincentive to crime'.
The right for people serving a sentence of
imprisonment to vote in Federal elections will be removed by
items 10, 18 and 29.
Amendments to the Referendum (Machinery Provisions)
Act 1984
Amendments to this Act reflect those described
above in respect to the time of closing of the rolls and the effect
of a failure of non-postal delivery arrangements.
- Joint Standing Committee on Electoral Matters, The 1996 Federal
Election, 5.
- Ibid., 11.
- Ibid., 14.
- Ibid., 14.
- The Background for this section was prepared by Susan Downing
of the Law and Bills Digest Group.
- For a discussion of the the issues see Orr, G. Ballotless and
Behind Bars: The Denial of the Franchise to Prisoners, (1998)
F.L.R. v26(1) 55-82.
- Evidence of AEC to Joint Standing Committee on Electoral
Matters see p142 of the 1993 Federal Election: Report of the
Inquiry into the Conduct of the 1993 Federal Election and Matters
Related Thereto.
- Press Release, 10 July 1995, The Hon. Kim Beazley
MP.
- Human Rights Committee, General Comment 25 (57) adopted at the
1510th meeting (1996) U.N. Doc.
CCPR/C/21/Rev.1/Add.7.
- bid paragraph 14.
- Fitzgerald, J. & Zdenkowski, G. Voting Rights of
Convicted Persons (1987) 11 CLJ 11-39 at 39.
- Fitzgerald, J. & Zdenkowski, G. Voting Rights of
Convicted Persons (1987) 11 CLJ 11-39 at 12.
- Criminal Law and Penal Methods Reform Committee of South
Australia, Report No. 1, Sentencing and Corrections
(1973), at p.130 as quoted in Fitzgerald, J. & Zdenkowski, G.
Voting Rights of Convicted Persons (1987) 11 CLJ 11-39 at
12.
- Tttt The 1993 Federal Election: Report of the Inquiry into
the Conduct of the 1993 Federal Election and Matters Related
Thereto, Joint Standing Committee on Electoral Matters,
143-44.
Chris Field
Susan Downing
12 June 1998
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ISSN 1328-8091
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