Bills Digest no. 183 2009–10
Electoral and Referendum Amendment (How-to-Vote Cards
and Other Measures) Bill 2010
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
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Electoral and Referendum Amendment
(How-to-Vote Cards and Other Measures) Bill 2010
Date introduced: 2 June 2010
House: House
of Representatives
Portfolio: Special Minister of State
Commencement: This clause specifies that sections 1 to 3 commence
upon Royal Assent. Schedules 1 and 2 commence on a single day to be
fixed by Proclamation or, if not proclaimed earlier, 6 months
following Royal Assent.
Links: The
links to the Bill, its Explanatory Memorandum and second
reading speech can be found on the Bills page, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
Purpose
The main purpose of the Bill is to amend the Commonwealth
Electoral Act 1918 and the Referendum (Machinery
Provisions) Act 1984 (Cth) so as to:
- Expand the authorisation requirements for how-to-vote cards,
and
- Expand misleading and deceptive publication provisions to
include material published on the internet and telephone.[1]
Both measures seek to increase the level of
transparency in election campaign advertising so that voters may be
better informed of the nature of the political material they
receive.
The practice of political parties distributing election material
such as how-to-vote cards outside polling places has become common
in federal and state elections. Aspects of the use of those cards
are governed by legislation in each jurisdiction. From time to time
the content, authorisation and distribution of how-to-cards has
been the subject of controversy and legal action. The main issues
with how-to-vote cards have been that some cards have been
misleading and the behaviour of political party workers that
distribute them. The amount of paper they consume and the cost of
how-to-vote cards has also attracted some criticism in the
past.[2]
Following the state election in South Australia on 20 March
2010, a number of allegations were raised about the distribution of
misleading how-to-vote cards, the impersonation of polling place
workers, the impersonation of voters and the conduct of polling
officials. On 13 May 2010, these matters were referred to the Joint
Standing Committee on Electoral Maters (JSCEM).[3] However, the motion was not
supported by the Government. On speaking against the motion the
Special Minister of State, Senator Ludwig, tabled possible
amendments to the Commonwealth Electoral Act 1918 (the
Electoral Act) and the Referendum (Machinery Provisions) Act
1984 (the Referendum Act), designed to clarify the law in
relation to how-to-vote cards. On 2 June 2010, those amendments
were introduced into the House of Representatives as part of the
current Bill. The new measures concerning misleading or deceptive
publication over the telephone or internet follow allegations
arising from the state election in Tasmania.
In introducing the Bill the Parliamentary Secretary for Western
and Northern Australia, the Hon. Gary Gray MP, stated that the
amendments were aimed at providing voters ‘the means of
making informed decisions when voting’.[4] The proposals to include the internet
and telephone within the legislative definition of
‘publish’ were designed to expand the law in relation
to the publication of material ‘that is likely to mislead or
deceive an elector in relation to the casting of a
vote’.[5]
The Bill is part of the Government’s broader electoral
reform agenda. In December 2008 the Government issued a green paper
examining electoral finance reform issues, and in September 2009 a
second green paper was issued examining broader electoral reform
issues.[6] Both green papers identified
reform possibilities and invited comment.
In 2008 and 2009 the Government introduced Bills making
significant changes to the law relating to electoral funding,
political donations, disclosure and reporting, and certain offences
and penalties.[7] The 2008 Bill was defeated in the
Senate in March 2009 and the 2009 Bill, which is a revised version
of the 2008 Bill, was introduced and passed in March 2009 in the
House of Representatives and is currently before the Senate.
On 11 February 2010, the Government introduced the Electoral and
Referendum Amendment (Close of Rolls and Other Measures) Bill 2010
into the House of Representatives. The Bill contained the
provisions to:
- fix the seventh day after the issue of federal election writs
as the date for the close of rolls
- repeal the evidence of identity requirements for provisional
electors and provide for a signature checking procedure
- make provision for electronic updating of electors’
details
- enable the Australian Electoral Commission (AEC) to process
enrolment transactions outside the electoral division for which a
person is enrolling
- ‘enable pre-poll votes cast in an elector’s
‘home’ division to be cast and counted as ordinary
votes, wherever practicable’
- ‘restrict the number of candidates that can be endorsed
by a political party in each Division’,[8] and
- enable electronic voting for sight-impaired electors[9]
The close of rolls and evidence of identity requirements for
provisional electors measures in the Bill were opposed by the
Opposition.[10] The
Bill was passed by the House of Representatives on 10 March 2010
and introduced into the Senate on 15 March 2010. It is expected to
be withdrawn from the Senate.
Also introduced in the House of Representatives on 2 June 2010
were three other electoral and referendum Bills:
- Electoral and Referendum Amendment (Close of Rolls and Other
Measures) Bill (No. 2) 2010, to advance the contentious components
of the previous Bill, the close of rolls and evidence of identity
requirements for provisional electors measures.
- Electoral and Referendum Amendment (Pre-poll Voting and Other
Measures) Bill 2010, to advance the other, non-controversial
components of the previous Bill.
- Electoral and Referendum Amendment (Modernisation and Other
Measures) Bill 2010, to introduce a series of operational changes
to, inter alia, make better use of electronic and online
facilities.[11]
The Electoral and Referendum Amendment (Modernisation and Other
Measures) Bill 2010 and the current Bill, were referred to the
Senate Finance and Public Administration Committee for inquiry and
report. The Committee tabled its report on 17 June 2010, and
recommended that the Bill be passed.[12]
The Opposition indicated its general support for the Bill, but
tabled amendments to increase the penalties relating to the
proposed how-to-vote cards measures.[13] Those amendments were not adopted by
the House.[14] In
additional comments to the Senate Committee inquiry into the Bill,
Australian Greens leader, Senator Bob Brown, recommended that the
Bill be amended to, among other things, reduce the voting age to
16, enable adequate funding for youth electoral programs, and
include truth in political advertising provisions.[15] As yet, there is
no indication of the independent and Family First Party positions
on the Bill.
The Government estimates that there are no costs associated with
implementation of the proposed amendments.[16]
How-to-vote cards fall within the electoral advertising
provisions of the Electoral Act. The law requires that the contact
details of the person who had authorised the material, and the
printer, be included at the end of the material. The main section
of relevance is subsection 328(1) which provides that:
(1) A person shall not print, publish or
distribute or cause, permit or authorize to be printed, published
or distributed, an electoral advertisement, handbill, pamphlet,
poster or notice unless:
(a) the name and address of the person
who authorized the advertisement, handbill, pamphlet, poster or
notice appears at the end thereof; and
(b) in the case of an electoral
advertisement, handbill, pamphlet, poster or notice that is printed
otherwise than in a newspaper--the name and place of business of
the printer appears at the end thereof.
The amendments in the Bill propose to:
- insert a definition of ‘how-to-vote card’ into the
Electoral Act
- require that the name and address of the person who authorised
the card be placed at the top of each printed face of the
material
- if the card was produced for an endorsed candidate of a
registered political party, require that the name of that political
party must be included on the card
- if the card was produced for a candidate who is not a member of
a registered political party, require that the word
‘candidate’ must be printed on the card next to the
name
- specify the size of the font to be used, at 10–20 points
depending on the size of the card, and
- introduce two new offences for those who do not comply with the
authorisation requirements and for those who publish or distribute
how-to-vote cards with false authorisation details. (The maximum
penalty is 10 penalty units or $1,100 in each case).
The amendments follow the Queensland legislative
approach.[17]
How-to-vote cards did not feature as a prominent issue in the
JSCEM report on the 2007 federal election. However, in his Second
reading speech, the Parliamentary Secretary noted that the
Government was ‘mindful of the views expressed’ in the
JSCEM report on the 1998 federal election.[18] In that report, tabled on 26 June
2000, the Committee noted particular concerns about the
historically vexed issue of second preference how-to-vote cards,
those designed by one party to attract the second preference votes
of electors who support another party.[19] The Committee observed a decision of
the Queensland Court of Disputed Returns concerning the division of
Macquarie following the 1993 federal election and other complaints
about second preference how-to-vote cards used in the 1998
election. The Committee recommended that the regulation of
how-to-vote cards include a broad definition of the cards to
include narrative material, that the authorisation details include
the name of the party or candidate producing the card be displayed
prominently on each side of the card.[20]
In a dissenting report, the then Opposition (Labor) members of
JSCEM argued that the problem of differing laws and practices in
relation to how-to-vote cards, across nine jurisdictions, was of
greater concern. It proposed two alternative recommendations, that
JSCEM ‘initiate a cooperative interstate parliamentary
committee’ to look at harmonising how-to-vote card regimes
across the country, and that the AEC conduct a trial, at a
by-election, of displaying how-to-vote cards in individual polling
booths rather than have them handed out outside polling
places.[21]
In its response to the majority report of the Committee, the
Government argued that the definition of how-to-vote cards was
adequately addressed in existing legislation and that the further
recommendations about the display of authorisation details on the
cards was ‘too prescriptive and unnecessary’.[22]
Previously, public funding in the form of
parliamentarians’ entitlements, has been used as
supplementary funding for the production and distribution of postal
vote applications. In 2009 the Australian National Audit Office
(ANAO) released a performance audit on the administration of
parliamentarians’ entitlements. In relation to the use of
entitlements for producing how-to-vote material, the ANAO noted
that 43 Members of the House of Representatives or 29 per cent
‘used their printing entitlement to produce a total of 4.6
million ‘how to vote’ cards for the 3.97 million
registered voters in the electorates represented by those
Members’.[23]
The Government accepted all of the recommendations from the ANAO
report including ending the use of printing entitlements for
electioneering.[24]
The broad policy options for dealing with how-to-vote cards
include banning them outright, banning just second preference
cards, banning all misleading cards and/or regulating them
all.[25] Other
possible reforms to how-to-vote cards that have been canvassed
include:
- empowering the presiding officer of a polling booth to enforce
aspects of the Electoral Act, which may include the power to
confiscate how-to-vote cards deemed to be misleading, as suggested
to JSCEM following the 2001 election.[26]
- requiring that the AEC approve all how-to-vote cards prior to
election day, as required in Queensland and Victoria.[27]
- requiring that how-to-vote cards include the full flow of
preferences (rather than just a first preference which could
encourage the casting of informal votes), as required in
Victoria.[28]
- regulating the behaviour of political party workers who hand
out how-to-vote material.[29]
- working towards a standardisation or harmonisation of regimes
in relation to how-to-vote cards.[30]
- providing that how-to-vote cards be registered with the AEC
prior to election day, as required in New South Wales.[31]
Academic Associate Professor Graeme Orr outlined some of the
benefits for registering how-to-vote cards:
[Registration] has the benefit of educating
campaigners, by bringing them into the administrative net ahead of
polling day. More importantly, it gives the Commissions and parties
advanced notice of material, allowing time for a considered
challenge to any dubious material. It also offers a cleaner path to
polling day enforcement for Commission staff: unregistered material
can be readily identified and its withdrawal requested, on the
spot, by polling officials, without drawing them into subjective or
difficult arguments about whether the material is misleading or the
true source of its authoriser.[32]
In its submission to the Senate Finance and Public
Administration Committee, the AEC argued that pre-registration
systems for how-to-vote cards may be manageable in a single
jurisdiction, with a limited number of candidates, in one time
zone. However, at the federal level, such as system would raise a
number of practical difficulties and divert resources from its core
election activities.[33]
The Senate Finance and Public Administration Committee also
heard that the proposed new provisions may not adequately cover
circumstances where a supporter of a political party claims to have
authorised how-to-vote cards themselves. Professor Orr offered an
alternative definition of the term ‘authorised by or on
behalf of’ so as to deem a party or candidate to have
authorised a card where they meet all or part of the cost of
producing the card.[34]
According to the proposal, the maximum penalty for how-to-vote
cards that do not comply with the specified requirements, including
font size, is 10 penalty units or $1100. Contravention of the
proposed provisions relating to the publication of false
authorisation details is the same, at 10 penalty units. However,
the penalty for misleading or deceptive publications, under
subsection 329(4) is set somewhat higher at $1000, six months
imprisonment or both. Professor Orr suggested that, as false
authorisation may also constitute a misleading publication, the new
penalty of 10 penalty units under subsection 328B(5), relating to
the publication of false authorisation details, appears inadequate
alongside the penalty for misleading or deceptive
publications.[35]
The Opposition considered the new penalties as generally
inadequate in relation to the seriousness of the offence. Their
amendments to the Bill proposed to increase the new penalties to 50
penalty units or $5500. Those amendments were not adopted by the
House.[36]
Following the 2001 federal election, JSCEM heard that the Unity
candidate in the electorate of Barton, Mr John Lau, distributed a
how-to-vote card with an order of preference different to that
authorised by his own party. The federal member for Barton, the
Hon. Robert McClelland MP, claimed that this ‘induced or, at
the very least, had the potential to induce people to record a vote
that was not in accordance with their understanding and,
accordingly, intention’.[37] However, the AEC found that the cards were
properly authorised under law and submitted to JSCEM that ‘it
had no powers to resolve what was in essence an internal dispute
within the Unity Party’.[38]
In it submission to the JSCEM inquiry into the 2004 federal
election, the National Party claimed that in the electorate of
Richmond, the ‘Liberals for Forests’ booth workers,
wearing blue t-shirts with the word ‘Liberals’
emblazoned prominently on the front, handed out how-to-vote cards
and asked voters to ‘vote Liberal' as they entered the
polling place.[39]
The Liberals for Forests had directed their preferences to the
Labor candidate. The result was one of the closest of the 2004
Federal Election with a winning margin of only 301 votes after the
distribution of preferences. Only 151 people needed to be misled to
affect the result. The Committee concluded that Ms Justine Elliot
was elected as a result of preferences on the basis of deceptions
by Liberals for Forests.[40]
The Committee also received complaints that how-to-vote cards
for a Liberal Party candidate in Melbourne Ports resembled those of
the Australian Greens candidate.[41] The Committee considered that the Liberal party
how-to-vote cards distributed in that electorate were not
misleading.[42]
At the 2010 state election in South Australia, Labor campaign
workers were reported to have handed out ‘put your FAMILY
FIRST’ how-to-vote cards in the seats of Mawson, Morialta,
Light and Hartley. The cards included photographs of Family First
candidates and recommended that Family First supporters give Labor
their second preference. A representative from the Family First
Party argued that the cards were a ‘deliberate and blatant
attempt to solicit Family First votes to Labor when there was no
preference arrangements’.[43] As noted above, these matters and others were
referred to JSCEM for inquiry and report. Submissions close 23 July
2010.[44]
Under current legislation, publications that are likely to
mislead or deceive an elector in relation to the casting of a vote
are prohibited. The Electoral Act and the Referendum Act both
define the word ‘publish’ to include radio or
television.[45] The
new measures proposed in the Bill aim to expand the definition of
publish to include not only radio and television, but also the
internet and telephone. The amendments also cover material
published on the internet from Australian citizens or residents
located overseas.[46]
According to the AEC submission to the Senate Finance and Public
Administration Committee, the amendments follow concerns raised by
the Greens about certain alleged misleading activities prior to the
Tasmanian state election.[47] Two days before that election, it was reported that the
Australian Labor Party had made 20 000 ‘robocalls’
or automated telephone messages. According to the report, the
messages alleged that the Greens supported the legalisation of
heroin, a claim which was later denied by the Greens. The report
also stated that the telephone messages did not include a statement
that they were authorised by the Australian Labor Party.[48]
While the intention of the proposed amendments is to clarify the
law by including the telephone and internet under the meaning of
‘publish’ it may be that those forms of publication
were already covered. The word publish is not exhaustively defined
under the Electoral Act and the Referendum Act.[49] It could be argued that the
inclusion of ‘radio or television’ under current
provisions are to be regarded as be illustrative rather than
exhaustive.
Item 1 inserts a definition of a
‘how-to-vote’ card into subsection 4(1) the Electoral
Act for the first time. It will include a card, handbill or
pamphlet that:
- represents a ballot paper or part of a ballot paper and is
‘apparently’ intended to affect or is likely to affect
how votes are cast for candidates, or
- lists the names of candidates with a number indication the
order of voting preference against the names of all or any of such
candidates, or
- otherwise directs or encourages votes to use a particular order
of preference for all or any of the candidates.
Item 6 will insert new subsections
328B(1) to (6) into the Electoral Act
stipulating the requirements relating to how-to-vote cards. The
requirements relate to the authorisation details such as the name
and address of the person who authorised the how-to-vote card, and
to the extent necessary, the political party of the candidate, and
if the candidate is not endorsed by a registered political party,
then the name of the candidate with the ‘candidate’
included (new subsection 328B(1).
New subsection 328(2) stipulates font
requirements.
As discussed above, offences are created for not meeting the
requirements of these new provisions, and also for providing some
or all false authorisation details (see in particular new
paragraph 328B(5)(d))
Items 2 and (4) have the
effect of inserting the additional words ‘internet or
telephone’ into the Electoral Act and the Referendum Act into
the meaning of the word ‘publish’ in the relevant
provisions. This means that ‘publish’ will be expanded
to include not only radio, television, but also internet or
telephone (see discussion above).
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2662.
Mark Rodrigues and Diane Spooner
18 June 2010
Bills Digest Service
Parliamentary Library
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