Bills Digest no. 191 2009–10
Electoral and Referendum Amendment (Modernisation 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
(Modernisation and Other Measures) Bill 2010
Date introduced: 2 June 2010
House: House
of Representatives
Portfolio: Special Minister of State
Commencement: As the date of the next federal election is not
known at this stage, some Schedules, or elements of Schedules,
commence on Proclamation to provide some flexibility in
implementation. Other Schedules are drafted to commence after Royal
Assent and the commencement of specified Schedules in the Electoral
and Referendum Amendment (Pre-poll Voting and Other Measures) Act
2010 due to the interaction between measures contained in Schedules
to the two Acts.
Sections 1 to 4 commence upon Royal Assent.[1]
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 main purpose of the Bill is
to amend the Commonwealth Electoral Act 1918 and the
Referendum (Machinery Provisions) Act 1984 (Cth) so as
to:
- remove the requirement to publish enrolment and
election-related forms and information in the Government Gazette
and substitute the requirement for the Electoral Commissioner to
publish the information, at a minimum, on the Australian Electoral
Commission’s (AEC) website;
- provide that a person making an application for enrolment or
changing the name under which they are enrolled (which does not
include amending address details) needs to include with their
application either their driver’s licence number, passport
number or an attestation of identity signed by an enrolled
elector;
- reduce the age at which people may provisionally enrol from 17
years old to 16 years old;
- allow for electronic roll information to be provided to
parliamentarians and allow for electronic certified lists;
- introduce flexibility to print ballot papers at the local level
by removing the technical requirement for ballot-papers to be
‘overprinted’;
- introduce one form of mobile polling which may visit anywhere
that the Electoral Commissioner determines. The amendment removes
inconsistencies that currently exist in the arrangements for visits
at various places or institutions;
- enable a person to apply for a postal vote electronically by
removing the requirement for an application for a postal vote to be
signed and witnessed;
- prohibit written material from being attached to a postal vote
application;
- clarify that a right to inspect the electoral roll does not
include the right to electronically copy or record the roll;
- allow the AEC to provide the postal address of general postal
voters to state and territory electoral commissions;
- introduce specific provisions to facilitate enrolment and
continued enrolment for people experiencing homelessness;
- expand the grounds upon which a person may apply for a pre-poll
or postal vote; and
- make a number of minor technical amendments.[2]
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In introducing the Bill, the Parliamentary Secretary for Western
and Northern Australia, the Hon Gary Gray MP, stated that the
amendments:
- repeals redundant provisions;
- gives the Electoral Commissioner flexibility rather than
prescription; and
- places more technological tools at the AEC’s disposal so
that the AEC can continue to deliver the best enrolment and
election practices.[3]
Most of the reforms proposed were based on unanimous
recommendations of the Joint Standing Committee on Electoral
Matters (JSCEM) inquiry into the 2007 federal election.[4] The inquiry was 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 report of 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:
- the publication of electoral information on the AEC’s
website (Recommendation 41)
- streamlining the proof of identity requirements for enrolment
purposes (Recommendation 7)
- the provision of electoral roll information in electronic form
to senators and members and the use of electronic and hard copy
certified lists at polling places (Recommendation 43)
- the removal of the technical requirement that ballot papers be
‘overprinted’ and the requirement for Divisional
Returning Officers (DRO) to annotate certain ballot papers
(Recommendations 37 and 38)
- the consolidation of mobile polling provisions (Recommendations
18, 20, 28, 29 and 30)
- reforms to postal voting procedures (Recommendations 5, 6 and
33)
- other amendments relating to rolls and enrolment
(Recommendations 19, 44 and 53)
- expanding the grounds upon which an elector may apply for an
early vote (Recommendations 25 and 26), and
- incorporation of recommended amendments to the Commonwealth
Electoral Act 1918 into the Referendum (Machinery
Provisions) Act 1984 (Cth) where appropriate ‘to ensure
consistency between the provisions applying to elections and
referenda’ (Recommendation 45).[7]
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.[8] 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.[9] 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 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 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[10], and
- enable electronic voting for sight-impaired electors.[11]
The close of rolls and evidence of identity requirements for
provisional electors measures in the Bill were opposed by the
Opposition.[12] 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, advances 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, proposes the other, non-controversial
components of the previous Bill. This Bill was passed by the Senate
on 17 June 2010.
- Electoral and Referendum Amendment (How-to-Vote Cards and Other
Measures) Bill 2010, to introduce expanded authorisation
requirements for how-to-vote cards and to expand the definition of
misleading or deceptive publication to include the telephone and
the internet.[13]
The Electoral and Referendum Amendment (How-to-Vote Cards 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 Bills be passed.[14]
The Opposition indicated its support for the majority of new
measures in the Bill with two main exceptions. First, the
Opposition objected to part of Schedule 6 requiring that new postal
vote applications be returned directly to the AEC and the
prohibition on the attachment of extra material to a postal vote
application form. Second, the Opposition objected to part of
Schedule 7 concerning the proposed repeal of paragraph 96(9)(a) of
the Electoral Act, which currently provides that a person will no
longer hold enrolment as an itinerant elector if the person neither
votes or applies for a postal vote at a general election.[15] In a dissenting report
to the Senate Finance and Public Administration Committee inquiry
into the Bill, the Opposition Senators noted those matters and also
raised concerns with other aspects of the Bill relating to the
proposed removal of the requirement that DRO supply hard copy
forms.[16]
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.[17] As yet, there is no indication
of Senator Xenophon and the Family First Party positions on the
Bill.
The Government estimates that the cost of implementing the
measures in the Bill will be approximately $3.3 million.[18]
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Schedule 1—
Publishing forms and information about places to vote
Currently under the Commonwealth Electoral Act 1918
(the Electoral Act) and the Referendum (Machinery Provisions)
Act 1984 (the Referendum Act), the Australian AEC is required
to publish certain information including the location of polling
places and ‘approved’ enrolment forms in the
Commonwealth of Australia Gazette. The original intention
of this requirement was to provide transparency and enable the
public to have full access to that information. The Explanatory
Memorandum notes that publishing this information in the
Gazette is a ‘rigid, time consuming and expensive
process.’[19]
The proposed amendments recognise the growing trend of people
accessing information from the web.
In its inquiry into the 2007 federal election JSCEM heard that
the AEC was constrained by provisions in the Electoral Act that
require one specific form to be used for each type of enrolment
transaction, approved by publication in the Gazette. The
AEC suggested that greater flexibility could be achieved by
enabling it to design forms for different groups of electors to be
used in online transactions. The Committee concurred and
recommended amendments to enable a number of versions of the
approved form and the facilitation of online transactions.[20] Schedule 1 implements
that unanimous recommendation.
In a dissenting report to the Senate Committee inquiry into the
Bill, the Opposition Senators noted that Schedule 1 would also
delete section 37 of the Electoral Act, which requires Divisional
Returning Officers to keep and supply prescribed forms. The
Opposition considered that this would be an unnecessary
deletion.[21] The
Government has argued that those forms can be printed on
demand.[22]
Since the introduction of the Electoral and Referendum
Amendment (Electoral Integrity and Other Measures) Act 2006,
electors who wish to enrol or change their enrolment details are
required to:
- supply a driver’s licence number.
- if the person does not have a driver’s licence, he or she
must show a prescribed document (for example a birth certificate)
to an authorised person (for example a nurse) who is an enrolled
elector.
- if the person cannot meet either requirement (a) or requirement
(b), he or she must have his or her enrolment form countersigned by
two electors who are on the Commonwealth electoral roll, and who
have known the person for at least one month.[23]
This system of evidence of identity for enrolment followed a
JSCEM recommendation from its report into the 2004 federal
election.[24] In
recommending that evidence of identity requirements be
strengthened, the Committee emphasised its ‘commitment to
ensuring that the process of enrolment is not conducive to
electoral fraud or electoral roll manipulation’.[25] The then Opposition
dissented from that recommendation arguing that the change would
make it more difficult for people to enrol, particularly seniors,
younger people, people of a non-English speaking background, and
indigenous people.[26]
The current proposal is to amend the 2006 reforms to evidence of
identity for enrolment to achieve greater flexibility and ensure
that people are not unduly restricted from the franchise. It is
proposed that to enrol, people will be required to produce a
driver’s licence, passport number or the signature of one
person currently on the electoral roll attesting the identity of
the person. It is further proposed that evidence of identity will
not be required for people changing their address details.[27] The proposal
implements Recommendation 7 of the JSCEM Report.
Following the 2007 election the AEC told JSCEM that it
considered those evidence of identity requirements discriminatory
to those who do not hold a drivers licence and that it limited the
franchise of particular groups including the poor, and people in
remote and indigenous communities. Moreover, the AEC argued that
the current requirements could be circumvented by those with a
determination to do so.[28] Other groups offered similar arguments supporting the
change including Uniting Justice Australia, the Human Rights and
Equal Opportunity Commission and Public Interest Law Clearing House
(PILCH) Homeless Persons’ Legal Clinic.[29] By contrast, the Festival of
Light and the Coalition parties supported the current arrangements,
although the Opposition members on the Committee did not dissent
from the Committee’s recommendation on the matter.[30] Although, in its
dissenting report, the Coalition stated its opposition to
‘any weakening of proof-of-identity provisions in relation to
enrolling or provisional voting on the grounds that it removes an
important deterrent that acts to prevent citizens from failing to
maintain their enrolment or who may seek to engage in multiple
voting’.[31]
Currently under the Electoral Act and the Referendum Act, people
who are 17 years of age may provisionally enrol and their
provisional enrolment automatically becomes full enrolment at the
time of their eighteenth birthday. The proposed amendments aim to
lower the age of provisional enrolment to those aged 16 years. The
purpose of the proposal is to enable the AEC to better target young
people in it enrolment promotional activities, particularly young
people in school. The amendments follow JSCEM’s unanimous
Recommendation 12. In a supplementary submission to the Committee,
the AEC noted the potential to engage younger people with the
political process while they are at school, citing the following
data from the Australian Bureau Statistics (ABS):
|
Age
|
14
|
15
|
16
|
17
|
18
|
|
Est %
|
98.6
|
94.7
|
82.9
|
62.7
|
14.5
|
There are no proposals to reduce the voting age as part of the
measures. The AEC also stressed that there was ‘no necessary
link’ between age at which a person can enrol and the voting
age.[33] The
Coalition has accepted Government assurances that the measures are
not part of any process to reducing the voting age.[34] The leader of the
Australian Greens, Senator Bob Brown, however, argued that the Bill
should also include provisions to lower the voting age to
16.[35]
Schedule 4 comprises the following four proposals concerning
technology and electoral roll lists and ballot papers:
- enabling the provision of electronic copies of rolls,
- enabling the production of electronic lists of voters,
- flexibility in the printing of ballot papers, and
- clarifying the process of authenticating ballot papers.
Under current legislation, senators and members of the House of
Representatives are entitled to receive certain electoral roll
information including the ‘latest print of the roll’ in
hardcopy. The proposed amendments provide that a senator or member
may elect to receive a copy of the electoral roll or certified list
in an electronic form. The proposed amendment implements
Recommendation 50 of the JSCEM.[36]
Under current legislation the Electoral Commissioner is required
to produce a certified list of voters for each Division, and the
person issuing ballots must mark each voter off the certified list.
The proposed amendments will enable the Commissioner to produce
electronic certified lists or ‘approved lists’ to be
used along side or instead of the hard copy certified lists at
polling places. The proposal gives effect to unanimous
Recommendation 43 of JSCEM.[37] The proposal was put to the Committee by the AEC
which noted the use of electronic certified lists in recent state
elections in, Western Australia, Queensland, Victoria and the
Australian Capital Territory. The benefits of using electronic
lists include reducing the carbon footprint (in 2007 the lists used
over six million A4 sheets of paper) and ease of
transportation.[38]
Current legislation requires that ballot papers must include an
official mark for purposes of authentication, being a specified
water mark or an ‘overprinting’ of the paper with a
design approved by the Electoral Commission. What constitutes
overprinting is not defined in the Electoral Act. Following the
Court of Disputed Returns petition concerning the Division of
McEwen the AEC obtained advice from the Australian Government
Solicitor suggesting that there is some legal doubt over the
technical meaning of overprinting.[39] The nature of the legal doubt
concerns whether printing on a ballot paper dyed green in the
production process amounts to ‘overprinting’, as
opposed to printing on a white paper that had been printed green.
The distinction can be particularly important where ballot papers
are printed locally from PDF files in Australian embassies
overseas.[40] This
is also of significance in relation to certain pre-poll and
absentee voting.[41]
The amendments propose to remove the technical requirement for
‘overprinting’ ballot papers and provide that ballot
papers contain a design approved by the Commissioner. The aim of
the proposal is to provide greater flexibility in the printing of
ballot papers and to enable the printing of ballot papers on demand
where supplies are exhausted in pre-poll voting offices and polling
places. The measure implements unanimous Recommendation 38 of
JSCEM.[42]
In Mitchell v Bailey, the Court of Disputed Returns raised the
issue of how votes are determined to be formal.[43] The Court overturned 153 of the
643 votes that had been excluded from the count on the grounds of
formality during a recount for the Division. The recount and the
Court’s decision raised a degree of uncertainty about the
process of scrutinising ballot papers. In 2008 the AEC commissioned
former public servant Alan Henderson PSM to review the implications
of the Court’s decision and made a number of recommendations,
most of which were endorsed by JSCEM.[44]
The proposed amendments aim to clarify the law in relation to
ballot papers considered formal by the DRO despite not containing
the initials of an issuing officer nor a water mark. To remove any
uncertainty, it is proposed the DROs write on such ballot papers,
‘I am satisfied that this ballot paper is an authentic ballot
paper on which a voter has marked a vote’.[45] The measure follows the
unanimous recommendation 37 of JSCEM. Henderson had originally
recommended that AEC manuals, handbooks and training be amended to
specify that ballot papers lacking official marking but believed to
be authentic by the DRO be marked as proposed. However, JSCEM
considered that the Act should also be amended in order to clarify
the procedure in statute.[46]
Current provisions with the Electoral Act and the Referendum Act
enable mobile polling at various places including hospitals,
prisons and remote divisions. The Acts contain separate provisions
for mobile polling in those different places, but does not
authorise mobile polling as may be required more generally. The
proposed amendments consolidate the currently separate mobile
polling provisions for hospitals, prisons and remote divisions into
a single general section of each Act and introduce flexibility into
determining where mobile polling is conducted and extends how long
it may be conducted for. More specifically, the proposed
amendments:
- provide for mobile polling 12 days prior to, and on, polling
day,
- enable the Electoral Commissioner to determine the locations of
mobile polling places,
- enable the Electoral Commissioner to notify the public of the
provision of mobile polling on the AEC website and by other
means.
The proposals primarily give effect to Recommendation 20 of
JSCEM which was framed in terms of providing facilities for
homeless people. That recommendation called for the Electoral Act
to be amended, ‘to allow mobile polling and/or pre-poll
facilities to be provided at such locations and at such times as
the Australian Electoral Commission deems necessary for the
purposes of facilitating voting’.[47] The proposals also satisfy
Recommendations 18 (mobile polling for indigenous town camps),
Recommendation 28 (for mine workers), Recommendation 29 (in
hospitals) and Recommendation 30 (extending the period of mobile
polling where it is provided). Also, as recommended by JSCEM,
consistent changes are proposed for the Referendum Act.
However, Recommendation 20 was not unanimous. While supporting
the more flexible arrangements for mobile polling, the Coalition
members of the Committee opposed the application of the
recommendation to people who are itinerant or homeless. It was
considered that homeless people already had access to existing
polling facilities, whereas voters in rural and remote areas did
not.[48]
Schedule 6 proposes four main changes to the existing postal
voting provisions consistent with unanimous Recommendations 5, 6
and 33 of JSCEM. First, it is proposed that the requirement that
postal vote applications are signed by the applicants and a witness
is removed so that the applications may be submitted online and
processed expeditiously. Second, it is proposed that extraneous
material attached or incorporated into blank application forms for
postal voting, such as party political material, be prohibited.
Third, that completed postal vote application forms are required to
be returned directly to the AEC, rather than via a third party such
as a political party. Fourth, to require that written declarations
from the elector and witness to certify that the conditions for the
completion of the postal vote were met before the close of the
poll. Amendments also propose that the date of the witness
signature on the postal vote is the date of the completion of the
vote, not the post mark. As noted above, it is intended that
Schedule 6 would commence six months following Royal Assent.
At the 2007 federal election, a total of 12 930 814 votes were
counted for candidates of the House of Representatives and of
those, 706 0466 or 5.46 per cent were postal votes.[49] JSCEM considered that
the postal delivery system had failed a proportion of voters,
despite their fulfilment of their requirements vis-à-vis the lodgement of postal
votes. Other evidentiary requirements such as the signature of
witnesses for postal vote applications were found to introduce
delays in the process without actually enhancing the integrity of
the system. The Committee noted that in 2007, there were 50 000
postal vote applications that required rectification and
resubmission, mainly due to issues with witnessing. The Nationals
and the Liberal Party, in separate submissions, told the Committee
that the postal vote application form was unduly complex and not
user-friendly.[50]
Since 1998 the Electoral Act has enabled individuals and
organisations, to provide postal vote applications physically
attached to, or forming part of, other written material.[51] Political parties have
relied on this provision to produce their own version of the
application form. In 2003 the Special Minister of State granted an
extension of members’ entitlements to include expenditure on
postal vote application letters to constituents as a
‘community service’.[52]
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 postal vote material, the ANAO
noted:
- at least 8.23 million PVA [postal vote application] documents
were produced by Parliamentarians in 2007‐08 using their
Printing Entitlement, providing the capacity for 16.5 million
applications to be made to the AEC for a Postal Voting Pack,
meaning that Parliamentarians printed 2.9 million more postal vote
application forms than the number of voters enrolled for the
election;
- the Monthly Management Reports indicated that 91 members used
their Printing Entitlement to have sufficient PVAs produced that
would have enabled every enrolled elector in their electorate to
apply for a Postal Voting Pack. In two instances, the number of
PVAs produced would have enabled every enrolled voter in the
electorate to have submitted more than four applications for a
Postal Voting Pack; and
- the AEC received 400 775 ‘party’ PVAs for the 2007
federal election, meaning that, at best, 97.6 per cent of
applications for a Postal Voting Pack printed and distributed by
Parliamentarians were not used by voters. By way of comparison, in
2007‐08 the AEC wrote to more than three million people as
part of its roll review and roll stimulation activities and
received back slightly more than 700 000 completed application
forms, but did not consider this rate of response to be
sufficiently efficient or effective.[53]
The Government accepted all of the recommendations from the ANAO
report including ending the use of printing entitlements for
electioneering.[54]
The Australian Government’s, Electoral Reform Green
Paper: Strengthening Australia’s Democracy, canvassed
some concerns that have been expressed about the involvement of
political parties in the postal voting process. These concerns
included:
- that the practice may subvert the independence of the AEC in
the postal voting process,
- the practice may unduly delay the postal voting process,
- that political parties could use the completed applications to
capture the personal details of voters.[55]
However, it could be argued that political parties have a
legitimate role in facilitating postal voting by encouraging people
to use the facility.[56] Notably, the proposed amendments do not completely
remove political parties from the postal voting process. Parties
may still provide postal vote applications and include their own
political material in the same envelope so long as that material is
not attached to, or incorporated into, the form.[57] If passed, the new provisions
would apply to individuals and organisations, including lobby
groups, not just political parties.
Although it was not the intention of the provisions, the
proposed measures to require postal vote applications to be
returned directly to the AEC could be interpreted as restricting
the ability of old or infirm postal voters to use a ‘third
party’ to submit their application. It was suggested to the
Senate Finance and Public Administration Committee that Schedule 6
be rethought so as not to preclude a postal voter using a friend to
deliver or post their application.[58]
The proposals to return postal vote applications directly to the
AEC and prevent the attachment of extraneous material from
applications were not recommended the JSCEM. The Opposition have
argued that these measures would adversely impact on the share of
the vote by Coalition parties and have objected to the
measures.[59]
Schedule 7 contains three sets of provisions concerning rolls
and enrolment based on unanimous recommendations of JSCEM. Current
legislation requires that a version of the electoral roll
containing names and addresses is available for the public to
inspect at the office of each DRO, capital cities and other places.
There are no previsions that specifically prohibit the recording or
copying the information contained therein. The AEC and JSCEM raised
concerns that, given technological developments, large-scale
reproduction of the information may be conducted for inappropriate
purposes. The first part of Schedule 7 proposes to clarify that
there is no right to copy such information, although no offence is
specified.[60] This
is based on Recommendation 53 of the JSCEM.
The AEC also shares electoral roll information with states and
territories under ‘joint roll arrangements’ for the
purpose of conducting elections, referenda and maintaining the
roll. The second part of Schedule 7 proposes to provide for
regulations to proscribe other purposes for which states and
territories can use electoral roll information. The Explanatory
Memorandum lists the compilation of jury lists as one example of
such an additional purpose.[61] This proposal is based on Recommendation 44 of
JSCEM. That recommendation referred to a range of minor technical
and operational changes suggested by the AEC. The new measures only
proposes to implement one of those changes, to expand the list of
purposes for which states and territories could use roll
information.[62]
Under current legislation, homeless people could lose their
enrolment as itinerant electors if they reside in temporary
accommodation for a month or longer. Furthermore, homeless people
could be removed from the roll if they do not vote at a general
election. Voting is not compulsory for itinerant people.[63] The third part of
Schedule 7 seeks to broaden the ability for homeless people to vote
by maintaining their enrolment while they live in crisis or
transitional accommodation and if they have not voted at a general
election. The amendments further propose to clarify the current
legislation to define a homeless person as a person without
adequate access to safe and secure housing consistent with the
meaning under the Supported Accommodation Assistance Act
1994.[64] The
proposal gives effect to Recommendation 19 of JSCEM.
In its inquiry, JSCEM heard that the AEC did not fully implement
electoral services to homeless people as recommended by the
Committee following the 2004 federal election. In forming its
recommendation to provide greater flexibility in the enrolment of
homeless people, the Committee particularly noted submissions from
Hanover Welfare Services and PILCH Homeless Persons’ Legal
Clinic. The Committee’s recommendation, as adopted in the
current proposal, is based on Victorian electoral
provisions.[65]
As noted above, the Opposition indicated that it would not
support the proposal to repeal paragraph 96(9)(a) of the Electoral
Act which currently provides that a person will no longer hold
enrolment as an itinerant elector if the person neither votes or
applies for a postal vote at a general election. The Opposition
argued that measures to maintain the enrolment of itinerant
electors if they do not vote or apply for a postal vote reduces the
integrity of the electoral roll by leaving ‘no alternative
mechanism for roll-cleansing of itinerant voters’.[66]
‘Early voting’ comprises of pre-poll and postal
voting. Current legislation prescribes the grounds upon which an
application for postal and pre-poll votes may be made. These
grounds include absence from the state in which an elector is
enrolled, being outside eight kilometres of a polling booth in an
elector’s own state, serious illness and so on.[67] The new measures
proposed in the Bill seek to provide two additional grounds upon
which an elector may apply for an early vote, that an elector will
be absent from their own division throughout the hours of polling
on polling day, and due to a reasonable fear for, or reasonable
apprehension about, their personal safety or wellbeing.[68]
These proposed changes follow unanimous Recommendations 25 and
26 of JSCEM. In its report, the Committee noted that thousands of
absent votes had been cast in divisions that adjoined
elector’s home divisions. It considered that allowing absence
from a division as a ground for early voting would reduce the
number of absent votes cast on polling day. Homelessness Australia
told the Committee fear for personal safety may prevent people from
attending polling places, particularly people fleeing domestic
violence in rural and remote areas where polling locations are
limited.[69] In
previous years, JSCEM has resisted certain reforms to early voting
primarily because it wanted to encourage electors to vote in person
on polling day.[70]
However, this no longer appears to be of great concern to the
Committee.[71]
Schedule 9 of the Bill proposes a range of less significant
technical amendments to:
- remove gender specific language;
- amend incorrect cross references; and
- provide for consistent use of terminology.[72]
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Only the more significant provisions amending the Electoral Act
are canvassed in this part of the Digest.
Item 2 inserts a definition of ‘approved
form’ to be a form that is approved by the Commissioner in
writing, and that has been published by the Commissioner. The note
to the new definition gives as an example that the form
‘might have been’ published by the Commissioner on the
Commissioner’s website.
Item 5 deletes from subsection 80(1) that the
Commissioner publishes the declaration and abolition of polling
places in the Gazette, and stipulates instead that the
Commissioner will do these things ‘in writing’.
Item 7 inserts new subsections 80(2A) and
(2B) to the effect that the Commissioner will publish
notice appointments, declarations and the abolition of polling
places on the Commissioner’s website and in any other way the
Commissioner considers appropriate. Failure to do so however,
will not affect the validity of appointment, declaration or
abolition.
Similar amendments are made to the Referendum Act.
Item 6 makes the substantive amendment in this
Schedule by repealing existing section 98AA and re-enacting a
new section 98AA to have the effect that certain
claims or applications must include or be accompanied by any of the
following:
- a driver’s licence number
- an Australian passport number
- an attestation of identity on an approved form by another
enrolled person
- any other evidence prescribed by the regulations
According to the Explanatory Memorandum the new provision:
Provides that the new requirements for evidence
of identity apply to a person that makes an application or claim
under the provisions providing for enrolment from outside
Australia, as a child or spouse of an overseas elector, or as an
applicant for citizenship. The new requirements also apply to
people who make an application or claim as an itinerant elector, or
for standard enrolment if the person is not already enrolled, or if
the person wants to change the name under which he or she is
enrolled. If an elector is simply changing his or her address
details then evidence of identity is not required.[73]
Section 89 of the Electoral Act requires that the electoral roll
be printed at regular intervals. Item 1 repeals
that provision. The rationale for this includes that the provision
is largely defunct
Given the Commission’s powers in section
90 to determine the manner and form in which information is to be
provided under Part VI of the Electoral Act. Section 90
specifically includes ‘electronic form’.[74]
Item 5 inserts new subsections
90B(3A)-(3D) to provide generally that the Electoral
Commission may provide a single electronic copy of the relevant
roll to a Senator or Member, and in certain circumstances, a
further one or two copies of that roll.
Item 12 repeals and substitutes subsection
232(1) to the effect that a polling official must either place a
mark against a person’s name, or electronically record, that
a person has been handed a ballot paper.
Item 47 amends subsection 268(2) to require the
polling officer to also endorse a ballot paper with the words
‘I am satisfied that this ballot paper is an authentic ballot
paper on which a voter has marked a vote’.
Item 1 repeals and substitutes subsection
184(1) to the effect that an application for a postal vote will no
longer be required to be witnessed by another person.
Item 7 inserts new paragraphs
194(1)(da) and (db) to require that postal vote elector
and the witness to declare that the vote the requirements of the
provision were satisfied before the close of the poll.
Schedule 3 of the Electoral Act contains the rules for the
conduct of a preliminary scrutiny of declaration votes.
Currently the DRO under Rules 3 and 3A must compare the signature
of the elector on the application with the signature on the
relevant postal vote certificate and allow the scrutineers to
inspect both signatures. Item 9 repeals these
Rules and substitutes new rule 3 which will
provide that in the event the DLO has reason to doubt that the
signature on the postal vote certificate is the elector’s
signature, then the DRO must check the signature against the most
recent record (if any) of the elector’s signature that is
available. The Explanatory Memorandum notes that in practice this
is likely to be the elector’s application for enrolment. Note
that this amendment means that the checking need only be undertaken
if the DLO holds a doubt about authenticity, whereas under the
current law, the checking must be done in all cases.
Item 23, although a small amendment, is
significant. It removes the word ‘may’ and
inserts ‘must not’ into subsection 184AA(1), so that a
postal vote application form must not have anything attached to it
or form part of other material. A similar amendment is made
to the Referendum Act. The Explanatory Memorandum does make
clear that other material can still be included in an envelope with
the postal vote application.[75]
Schedule 7—Other amendments relating to
rolls and enrolment
Item 1 clarifies the Electoral Act by adding
new subsection 90A(5) so that a right to inspect
the roll does not include a right to copy or record by electronic
means the roll or part of the roll.
Items 4-11 make the amendments relating to
enrolment of persons experiencing homelessness and itinerant
electors discussed at page 19 of this Digest.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2662.
Mark Rodrigues
Diane Spooner
24 June 2010
Bills Digest Service
Parliamentary Library
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