Bills Digest no. 184 2009–10
Electoral and Referendum
Amendment (Close of Rolls and Other Measures) Bill
(No. 2) 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
(Close of Rolls and Other Measures) Bill (No. 2)
2010
Date introduced: 2 June 2010
House: House
of Representatives (the Bill passed the House on 16 June
2010)
Portfolio: Special Minister of State
Commencement: The day the Act receives 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/.
The purpose of the Bill is to
amend the Commonwealth Electoral Act 1918 and the
Referendum (Machinery Provisions) Act 1984 (Cth) so as
to:
- fix the seventh day after the issue of federal election writs
as the date for the close of rolls, and
- repeal the evidence of identity requirements for provisional
electors and provide for a signature checking procedure.
The Bill reproduces Schedules 1 and 2 of the original Electoral
and Referendum Amendment (Close of Rolls and Other Measures) Bill
2010. The Bill is one of a package of four electoral Bills
introduced into the House of Representatives on 2 June 2010.
In 2006 the Howard Government introduced a suite of significant
changes to electoral and referendum administration with the
Electoral and Referendum Amendment (Electoral Integrity and
Other Measures) Act 2006 (Cth). Changes included:
- the introduction of evidence of identity requirements for
enrolments and provisional voting
- changing the date for the close of rolls from the seventh day
after the issue of the federal election writs to the third working
day after the issue of the writs for certain categories of
enrolment (for updating details; for those turning 18 years of age
between the issue of the writs and polling day; and for those
gaining citizenship between the issue of the writs and polling
day), and
- changing the date for the close of rolls from the seventh day
after the issue of the federal election writs to the date of the
issue of the writs for other new enrolments and
re-enrolments.[1]
The measures in the Electoral and Referendum Amendment
(Electoral Integrity and Other Measures) Act 2006 (Cth) were
controversial and were opposed by the Australian Labor Party (ALP)
(then in Opposition) and by the minor parties.[2]
The Second Reading speech states that the Bill fulfils two ALP
election commitments.[3] In its 2007 National Platform the ALP indicated that it
would reverse a number of the 2006 Howard Government changes to
electoral administration including the changes to the date for the
close of rolls and evidence of identity requirements.[4]
The Second Reading speech also indicates that the Bill
implements recommendations arising from the Joint Standing
Committee on Electoral Matters’ (JSCEM) inquiry into the
conduct of the 2007 federal election and related matters (referred
to the JSCEM by the Special Minister of State on 27 February 2008
and by the Senate on 12 March 2008).[5] In its inquiry report (June 2009), a
majority of the JSCEM made 53 recommendations relating to a range
of electoral administration matters including the date for the
close of rolls, evidence of identity, enrolment and participation,
pre-poll voting, informal voting, electoral administration,
penalties, prisoner voting rights, and overseas electors.[6] Specific recommendations
relevant to the Bill included:
- fixing the date for the close of rolls to seven days after the
date of federal election writs (Recommendation 1)
- repeal of the evidence of identity requirements for provisional
electors and the introduction of a signature checking process for
declaration votes where necessary (Recommendation 2)
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.[7] 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.[8] 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. Schedules 1 and 2 of that Bill
contained the same provisions relating to the close of rolls and
evidence of identity requirements for provisional electors as the
current Bill. The original Bill also included a range of other
provisions to:
- make provision for electronic updating of electors’
details
- enable the 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’, and
- enable electronic voting for sight-impaired electors.[9]
The original Bill was passed by the House of Representatives on
10 March 2010 and introduced into the Senate on 15 March 2010. The
Bill is still before the Senate.
The current Bill reproduces Schedules 1 and 2 of the original
Bill. The remaining provisions of the original Bill are now
contained in the Electoral and Referendum Amendment (Pre-poll
Voting and Other Measures) Bill 2010, which was also introduced
into the House of Representatives on 2 June 2010 and which passed
the House on 16 June 2010 and the Senate on 17 June 2010.[10]
In addition, two further electoral Bills were introduced into
the House of Representatives on 2 June 2010: the Electoral and
Referendum Amendment (Modernisation and Other Measures) Bill 2010
and the Electoral and Referendum Amendment (How-to-Vote Cards and
Other Measures) Bill 2010. These Bills passed the House of
Representatives on 16 June 2010 and were introduced into the
Senate on 16 June 2010.[11]
On 13 May 2010 the Senate referred the provisions of ‘all
bills introduced into the House of Representatives after 13 May
2010 and before 3 June 2010 that contain provisions commencing on
or before 1 July 2010’ to Senate committees for consideration
and report by 15 June 2010.[12]
On 15 June 2010 the Senate Finance and Public Administration
Legislation Committee tabled a report in the Senate indicating that
the Committee had considered both the Electoral and Referendum
Amendment (Close of Rolls and Other Measures) Bill (No. 2) 2010 and
the Electoral and Referendum Amendment (Pre-poll Voting and Other
Measures) Bill 2010, and had ‘determined that there are no
substantive matters that require examination’.[13]
Consistent with its stance in relation to Schedules 1 and 2 of
the original Electoral and Referendum Amendment (Close of Rolls and
Other Measures) Bill 2010, the Opposition opposes the Bill.[14] The Opposition’s
stance is also consistent with the JSCEM Opposition members’
dissent, in the Committee’s report on the 2007 election, from
the majority recommendations concerning the close of rolls and
evidence of identity for provisional electors.[15]
The Australian Greens endorsed the original Electoral and
Referendum Amendment (Close of Rolls and Other Measures) Bill 2010
but also proposed amendments creating offences for inaccurate and
misleading electoral advertising and for pre-election automated
telephone calls to electors intended to affect voting.[16] The Greens may propose
such amendments again in relation to the current Bill. The
Electoral and Referendum Amendment (How-to-Vote Cards and Other
Measures) Bill 2010 proposes to bring material published by
telephone or the internet within the existing provisions in the
Electoral Act prohibiting the printing, publication or distribution
of misleading or deceptive material.[17]
Independent Senator Nick Xenophon proposed amendments to the
original Electoral and Referendum Amendment (Close of Rolls and
Other Measures) Bill 2010 retaining the existing evidence of
identity requirements for provisional electors in the
Commonwealth Electoral Act 1918 but also providing for a
signature checking procedure which, if satisfied, would mean that
the evidence of identity requirements did not apply.[18] Senator Xenophon may
propose such amendments again in relation to the current Bill.
Family First Senator Steve Fielding has not yet indicated his
position on the Bill.
The Government estimates that the cost of implementing the
measures in the Bill will be just over $0.2 million.[19]
Currently under the Commonwealth Electoral Act 1918
(the Electoral Act) and the Referendum (Machinery Provisions)
Act 1984 (Cth) (the Referendum Act) the electoral and
referendum rolls close on the third working day after the issue of
the federal election/referendum writs for those updating their
details and for those turning 18 years of age or gaining
citizenship between the issue of the writs and polling day. For
other new enrolments and for re-enrolments the electoral rolls
close on the date of the issue of the writs. The rolls close at 8
pm on the relevant day as this is the deadline by which claims or
applications for enrolment must be made.
The Bill proposes to amend the Electoral Act and Referendum Act
so as to fix the seventh day after the issue of the federal
election/referendum writs as the date for the close of the rolls.
This closure date would apply for all categories of enrolment
including new enrolments, updating details, those applying for
enrolment at 17 years of age, and applications for enrolment from
eligible overseas electors, itinerant electors, and those set to
gain citizenship between the issue of the writs and polling day.
The deadline for the making of claims or applications for enrolment
(and therefore the point at which the rolls would close) would be 8
pm on the seventh day after the issue of the writs.
The new date for the close of the rolls would also apply to the
removal of electors from the rolls resulting from an objection to
their enrolment, so that removal could not occur between 8 pm on
the day of the close of rolls and the close of polling on polling
day.
The Second Reading speech states that the new measures in
Schedule 1 will ‘provide sufficient time for new voters to
enrol to vote for a federal election or existing electors to update
their address details with the AEC’.[20] Reversal of the reduction in the
close of rolls changes introduced by the Howard Government in 2006
has been ALP policy since before the 2007 election (see above). The
main issues in contention in relation to roll closure have been
electoral roll integrity and voting fraud and restriction of the
vote/disenfranchisement.[21]
Whereas currently the Electoral Act and Referendum Act both
specify that the close of rolls is to take place on the third
working day after the issue of the writs (defined as any day except
a Saturday, Sunday or a public holiday in any state or territory),
the proposed amendments fixing the seventh day after the issue of
the writs as the date for the close of rolls does not specify that
the seventh day must be a working day. The Bill proposes to repeal
the current definition of ‘working day’ from the
Electoral Act and the Referendum Act. In relation to the latter
Act, the Explanatory Memorandum states this is because it is
‘now otiose’.[22]
Currently under the Electoral Act and the Referendum Act
electors casting provisional votes at elections and referendums are
required to provide evidence of identity either at the time of
voting or by the first Friday following the polling day.[23] If provided at the
time of voting, the evidence of identity must be the original of
either the elector’s driver’s licence or one of a
prescribed set of documents (e.g. a birth certificate, a
certificate of Australian citizenship, a current Australian
passport, or a current credit or bank account card). If provided by
the first Friday after the polling day, the evidence of identity
must be the original or an attested copy of the elector’s
driver’s licence or prescribed document. If the prescribed
evidence of identity is not provided within the timeframe the
provisional vote is not counted.
The Bill proposes to repeal the evidence of identity
requirements for provisional electors from both the Electoral Act
and the Referendum Act. In place of these requirements, Divisional
Returning Officers (DROs) would be required to check the signature
of an elector on the envelope containing the provisional vote
against the most recent record of that elector’s signature
(if any) where the DRO had reason to doubt that the signature on
the envelope was genuine. If the signature on the envelope was not
that of the elector, the provisional vote would not be counted. The
Explanatory Memorandum states that in most cases the most recent
record ‘will be the signature on the claim for enrolment
form’[24];
the Bill is silent however regarding arrangements where no recent
record of an elector’s signature was available.
The Second Reading speech states that, along with Schedule 1,
the new measures in Schedule 2 will ‘implement
recommendations of the JSCEM supported by the Government as
necessary to provide eligible electors with the greatest
opportunity to enrol and vote in an election’.[25] Reversal of the
evidence of identity requirements introduced by the Howard
Government in 2006 has been ALP policy since before the 2007
election (see above). The main issues in contention in relation to
evidence of identity for provisional electors have been enrolment
integrity and integrity of the provisional voting system, and
restriction of the vote/disenfranchisement.[26]
Only significant amendments are detailed in this part of the
Digest. In most instances amendments to the Electoral Act are
mentioned as most amendments to the Referendum Act are in similar
terms.
Item 6 repeals subsections 102(4),
(4AA) and (4AB) and substitutes
new section 102(4) of the Electoral Act to ensure
that a claim by a person, made after the close of polls and before
the election, to have his or her name put on the roll cannot be
considered until after the close of polling (that is, until after
the election).
The major amendment in this Schedule is made by item
12 which repeals and substitutes section
155 of the Electoral Act to provide that the date for the
close of the rolls is the seventh day after the date of the writ.
Item 14 makes the same amendment to the Referendum
Act by the repeal and substitution of subsection
9(1) of that Act.
By repealing the whole of section 155, the definition of
‘working day’ in subsection 155(2) is repealed, and
item 15 repeals the definition of ‘working
day’ from the Referendum Act.
Schedule 2 amends both the Electoral Act and
the Referendum Act to provide that the DRO must check the most
recent record of an elector’s signature in the circumstance
that the DRO has doubts about the authenticity of the
elector’s signature on the envelope that purports to contain
the provisional vote ballot paper. As discussed above, the proposed
amendment does not address the possibility that there may be no
earlier signature on record.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2500.
Nicholas Horne
21 June 2010
Bills Digest Service
Parliamentary Library
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