Bills Digest no. 191 2006–07
Electoral and Referendum Legislation Amendment Bill
2006
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
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Electoral and Referendum Legislation
Amendment Bill 2006
Date introduced:
30 November 2006
House: House of Representatives
Portfolio: Special Minister of State
Commencement:
Most of Schedules 1, 2 and
3 commence on Royal Assent, however Schedule 3 Part 1 commences on
a day to be fixed by Proclamation or six months after Royal
Assent
To amend the
Commonwealth Electoral Act 1918 (CEA) and the
Referendum (Machinery Provisions) Act 1984 (RMPA) to:
-
extend some provisions for postal voting, including the range of
AEC officers who may receive postal votes,
-
to allow for trials of electronic voting for the sight-impaired
and overseas serving defence personnel,
-
to extend the capacity of the Australian Electoral Commission to
establish pre-poll voting offices, and
-
to make miscellaneous changes to the CEA.
Note that this Bill has already been passed
into law. This Bills Digest has been prepared to complete the
historical record.
This Bill is the second in a number of
Government amendments to electoral legislation. The first Bill, the
Electoral and Referendum Amendment (Electoral Integrity and Other
Measures) Bill 2005, was discussed in Bills Digest No. 95,
2005-06.(1) That Bill contained amendments which brought
forward the closure of the electoral roll after the issuing of
writs, introduced new requirements regarding identity for
provisional voters, changed the rules governing donations to
political parties and excluded certain prisoners from voting. It
was a contentious Bill which elicited a significant degree of
opposition and controversy. This Bill, in contrast, is likely to be
non-contentious and receive widespread support. It contains
measures arising out of the Joint Standing Committee on Electoral
Matters report on the inquiry into the conduct of the 2004 federal
election.(2)
The proposal to remove criminal defamation
provisions in Part 3 is not so immediately clear in its
implications as other proposals in the Bill, so some background is
provided here.
In its submission to the enquiry to the 2001
election, the Australian Electoral Commission (AEC) recommended
that the current provisions regarding criminal defamation be
removed.(3)
Section 350 currently provides that there is
an offence committed if false or defamatory statements are made
about a candidate. There is a defence if the person making the
statement believed, on reasonable grounds, that it was true. There
are also provisions for restraint by injunction to stop the
repetition of a defamatory statement.
The AEC argued that the provisions were
unnecessary, in part because according to the Director of Public
Prosecutions (DPP s) records, there has not been any prosecution
for defamation under section 350 of the Act. It is to be noted that
there had been complaints made to the DPP under the section, but
none had been found to be sustainable (partly because the offence,
as a criminal defamation provision, attracts a higher burden of
proof).
The AEC argued that two cases had made s. 350
even more difficult to utilise. Dow Jones & Company Inc v
Gutnick(4) was a case in which a Victorian court
found that defamation had occurred in Victoria because of material
published in the US. The broadening of the traditional
understanding of jurisdictional issues has concerned the AEC
regarding s. 350, because additional material, which would be
difficult to police , would fall within the provision. They were
also concerned by the case of Roberts v
Bass,(5) which had given a broader protection to
political speech by finding that material published during an
election period would effectively be covered by the implied freedom
of political communication. Given this outcome, the Commission
argued that the provisions of s. 350 would be even less likely to
be used.
It should be noted that Senator Murray
supported the removal of the section, or its amendment to
include a clause making it clear that defamatory material had
significantly affected the outcome of an election. This might
facilitate prosecution of defamatory political comment on the
internet through the Court of Disputed Returns, which handles
allegations of corruption of the electoral process.
(6)[emphasis added]
This alternative proposal was not pursued.
While the removal of the section would not seem to have many
practical implications, according to the AEC s analysis, the
amendment may be less productive than some alternative solutions,
such as that possible alternative proposed by Senator Murray. The
issue has, however, received the attention of two Joint Standing
Committees on Electoral Matters, both of which have recommended the
removal of the section.
Items 1 4 insert various
definitions that will subsequently provide a legislative basis to
enable Australian Federal Police (AFP) members and members of the
defence forces or defence civilians (civilians who are serving with
the Australian Defence Force (ADF) and are bound by Defence Force
discipline) to be given particular rights to vote overseas. Under
changes made by items 8 10 this would include a
capacity to enrol as a postal voter before leaving Australia.
Items 5 and 11 insert provisions that would ensure
that their service overseas is not information given out by the
AEC.
Item 6 brings forward the
time by which an application for a postal vote must be made (from
6pm on the Friday to 6pm on the Thursday before polling day), but
this more restrictive provision is explained as being necessary to
ensure that the applicant can be more likely to receive the voting
papers. Item 6 also introduces new provisions
which require the AEC to do its best to ensure that those who did
not meet the Thursday deadline know that they are not eligible for
a postal vote and will need to make alternative arrangements to
vote.
Items 14 24 expand the range
of AEC officers who can receive postal votes, and make
consequential amendments.
Items 29 35 mirror the
amendments made to expand the range of AEC officers who can receive
postal votes in the Referendum (Machinery Provisions) Act
1984.
This Schedule introduces a new Part
XVA to the CEA which will allow for two trials of
electronic voting methods. One of these is a trial of
electronically assisted voting for sight-impaired people
(Division 1) and the other is for defence
personnel serving outside Australia (Division 2).
In recognition of the pilot nature of these arrangements, and in
order to allow for flexibility in these matters, there are broad
provisions for the making of regulations. There are also specific
provisions recognising that the Minister may decide that the
electronically assisted voting trials are not to proceed
(proposed sections 202AF and 202AM). The new Parts
do specify certain minimum provisions, such as the need to keep a
record of who has voted in this way and the need to keep a printed
record of the vote, in the case of the sight-impaired trials, and
the need to transmit electronic votes to the AEC, in the case of
the defence force trials. Mirror provisions inserting Part
IVB are proposed for the RMPA.
The Electoral and Referendum Amendment
(Electoral Integrity and Other Measures) Act 2006 introduced
additional requirements for those applying to be added to the
electoral roll. These amendments recognise that it may be more
difficult for overseas applicants to utilise an Australian driver s
license and consequently that a passport may be used in the
alternative (proposed subsection 98AA(1)).
The proposed amendments to both the CEA and
the RMPA would allow the AEC to establish pre-poll voting offices
more easily. Under proposed s. 200BA of the CEA
the AEC would need to let candidates know as soon as possible after
establishing a pre-poll voting office and, in their discretion,
publish the information in a relevant newspaper. Under
proposed s. 73AA of the RMPA the need to alert
people is modified (there being no candidates in a referendum) and
the AEC must alert registered political parties.
This Part contains a single item proposing to
remove section 350 of the CEA. This section currently provides that
a person is guilty of an offence if the person makes or publishes
any false and defamatory statement in relation to the personal
character or conduct of a candidate. This provision does not apply
if the person proves that he or she had a reasonable ground for
believing, and did believe, the statement to be true. The section
further provides that
any person who makes a false and defamatory
statement in relation to the personal character or conduct of a
candidate in contravention of this section may be restrained by
injunction at the suit of the candidate aggrieved, from repeating
the statement or any similar false and defamatory statement.
The implications of removing the section are
discussed above in the Background to the Bill .
The Bill does not contain provisions likely to
attract controversy.
- Jerome Davidson,
Electoral and Referendum Amendment (Electoral Integrity and Other
Measures) Bill 2005 , Bills Digest, no. 95, Parliamentary
Library, Canberra, 2005 06, http://www.aph.gov.au/library/pubs/bd/2005-06/06bd095.pdf.
- Joint Standing
Committee on Electoral Matters, Inquiry into the Conduct of the
2004 Federal Election and Matters Related Thereto, September
2005, http://www.aph.gov.au/house/committee/em/elect04/report.htm,
accessed on 23 March 2007.
- AEC, Fifth
Submission in Response to Questions on Notice , Submission No.
198 to the Joint Standing Committee on Electoral Matters Inquiry
into the 2001 Federal Election,
24 April 2003, pp. 4 7.
- Dow Jones Company
Inc v Gutnick [2001] VSCA 249 (21 September 2001) http://www.austlii.edu.au/au/cases/vic/VSCA/2001/249.rtf,
accessed on 21 March 2007.
- Roberts
v Bass (2003) 194 ALR 161, http://www.austlii.edu.au/au/cases/cth/HCA/2002/57.html,
accessed on 23 March 2007.
- Joint Standing
Committee on Electoral Matters, op. cit., p. 282.
Kirsty Magarey
29 June 2007
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