WARNING:
This Digest was prepared for debate. It reflects the legislation as
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Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
Electoral and Referendum Amendment Bill
(No.2) 1998
Date Introduced: 26 November 1998
House: House of Representatives
Portfolio: Finance and Administration
Commencement: Formal parts of the Bill
commence on Royal Assent, whereas the amendments discussed in this
Digest will generally commence on the 28th day after
Assent. Those provisions 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 date to be fixed by Proclamation.
The Bill amends
the Commonwealth Electoral Act 1918 and the Referendum
(Machinery Provisions) Act 1984.
The Bill:
-
- creates more rigorous enrolment requirements
-
- removes the right of prisoners to vote in Federal elections,
and
-
- makes a number of largely technical and administrative
changes.
This Bill is, in most respects, the same as
legislation passed by the House of Representatives but not fully
considered by the Senate prior to the calling of the 3 October 1998
General Election. The two material differences are that the present
version of the Bill provides for:
-
- the repeal of provisions allowing for mobile polling in prisons
(item 36), and
-
- removes access to pre-poll and postal voting for prisoners
(item 69).
After each Federal election, the Joint Standing
Committee on Electoral Matters (JSCEM) (as a matter of course)
inquires into the conduct of the election to identify further
refinements to the Commonwealth Electoral Act 1918 which
may resolve problems identified at the previous poll.
The JSCEM's Report on the 1996 General Election
was released in June 1997 and identified several matters requiring
attention.(1) A number of the recommendations contained in the
Committee's Report were addressed in the Electoral and
Referendum Act 1998 which received Royal Assent on 17 July
1998.
This Bill has no central theme and the
Background to the various provisions will be discussed in the Main
Provisions section of the Digest.
Potential
Electoral Fraud and Related Administrative Matters
The JSCEM's Report defines electoral fraud as
including 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 under-age. 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.(2)
The transactions identified by the Committee
generally require the production of a person's tax file number
(TFN). However, the Committee did not recommend the use of the TFN
as a means for screening out fraudulent votes. Rather, the
Committee recommended a number of administrative changes, including
that:
-
- witness requirements for enrolment be tightened
-
- each 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
-
- data matching between Commonwealth, State and Territory bodies
be examined to determine if it is effective to verify the identity
of enrolment data.(3)
The JSCEM's Report also said that, as the rolls
for an election close 7 days after the issue of the writs, there is
great pressure on the Australian Electoral Commission (the AEC) to
process the applications before the election, which hampers its
ability to determine if the voter is eligible to be enrolled. The
Report records that, from the time that the writs were issued for
the 1996 election until the rolls closed, approximately 428 000
transactions were processed.(4)
Significantly, the Report recommends that for
new enrolments the electoral rolls be closed on the day the writs
are issued and that for changes in details for enrolled voters, the
rolls close at the end of the third day after the issue of the
writs.(5) The adoption of such a recommendation would reduce the
time available for new electors to be entered on the rolls and
could disenfranchise a number of potential voters.
One of the functions of the AEC has been to
encourage the population to "participate in the electoral
process."(6) Closing the roll early will exclude members of the
community who may have otherwise enrolled when faced with the
immediate incentive of being able to cast a vote in a specific
election. To the extent that this process will discourage rather
than encourage voter enrolment it will conflict with one of the
AEC's aims. The AEC does, however, have other aims, including the
cost-effective management of the roll and its accuracy, both of
which are likely to be improved by such an amendment.
The AEC spends a considerable amount of
resources encouraging potential electors to enrol.(7) Between
August and September 1998 $2 500 000 was spent on the enrolment
phase of public information campaigns. The tendency for voters to
enrol in the lead up to a vote is illustrated by the Constitutional
Convention elections:
From the announcement to the Close of Polling
for the Convention election, the AEC processed 119 627 new
enrolments...(8)
During the financial year 1997-98 there was a
sum total of 482 973 new enrolments.
Subsection 91(9) 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 Act
1998 inserted subsections 91(9A) and 91(9B) into the Principal
Act. These new sections allow information on the gender of electors
to be provided to persons or bodies that conduct medical research
or health screening; members of the House of Representatives,
Senators; registered political parties; and electoral authorities
of the States and Territories. Except for the last group, the
information is to be provided by tape or disk. Relevant information
may be provided to State and Territory electoral authorities by any
means [subsection 91(9B)].
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 the 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 for
which a member of the House of Representatives or Senate, or a
registered political party may use the information will be expanded
to include research regarding electoral matters (items 5
and 7).
Changes to the period allowed for enrolment
after the calling of a general election are contained in
items 11, 14 and 28. These amend various sections
of the Principal Act that deal with the enrolment of voters. The
proposed amendments 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 a general election is for
either the House of Representatives or both Houses to be dissolved,
writs are issued within a maximum of 10 days after the dissolution
and the close of rolls is 7 days after the issue of the
writs.)(9)
These amendments will implement the Committee's
recommendation on the early closing of rolls for unenrolled
eligible voters as noted above.
Section 98 of the Principal Act deals with the
placing of names on the electoral 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.
Item 20 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. Item 20 also provides that where a
claim for enrolment is made after a person has been granted
Australian citizenship, their citizenship 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 22 which will amend
section 99 of the Principal Act. Item 23 prevents
challenges to an enrolment where, at the time the elector applied
for enrolment, that elector was not actually living in the
Subdivision in which enrolment was sought.
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).
Funding and Disclosure
Item 44 amends subsection
305B(1) of the Principal Act so that donors will only be required
to lodge a return if their gifts to a political party in a
financial year exceed $10,000.00. The present threshold for donor
disclosure is $1500.00.
Division 5A of the Principal
Act makes provision for mandatory annual returns by
political parties and associated entities that have received
significant donations.
Item 45 amends subsection
314A(1) that provides that political parties receiving (directly or
indirectly) donations totalling more than $1500.00 in a financial
year must furnish a return to the Electoral Commission. The
proposed amendment raises the threshold for returns to
$5000.00.
Subsection 314AC(2) presently provides that
donations that do not exceed $500.00 are not counted in calculating
the level of donations for the purposes of subsection 314AC(1)
returns. Item 46 amends subsection 314AC(2) to
raise the small donation exclusion to $1500.00.
Voting
Rights of Prisoners(10)
The Bill proposes to disenfranchise all
convicted persons of the right to vote.(11)
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 effected 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 AEC. The provision has in the
past been criticised on the basis that it creates practical
difficulties.(12) 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.(13)
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.
The Human Rights Committee (HRC) has made a
General Comment on Article 25 in which it affirmed that it 'lies at
the core of democratic government based on the consent of the
people and in conformity with the principles of the Covenant'.(14)
The HRC seems to suggest that while certain convictions may be used
as a basis for suspending the right to vote,(15) legislative
provisions 'which would deprive citizens of their right to vote'
must be indicated in the State Parties report to the HRC and
'explained'. Furthermore the Committee is clear that:
The grounds for such deprivation should be
objective and reasonable. If conviction for an offence is a basis
for suspending the right to vote, the period of such suspension
should be proportionate to the offence and the sentence.(16)
A 'blanket application' of a rule prohibiting
prisoners from voting would seem to fall outside the scope of the
'allowable exceptions' contemplated by the HRC. Other legal
commentators have asserted more broadly 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.(17)
Factors that would be relevant to whether a
country had breached article 25 by disenfranchising people with
convictions, include 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 appears to be that the
denial of those voting rights will amount to a breach of the
ICCPR.
The Canadian Supreme Court has found that
legislation which disenfranchised prisoners was unconstitutional
because it violated the Canadian Charter of Rights and Freedoms, a
document with provisions comparable to the ICCPR. The Canadian
Court found that it may be constitutionally possible to
disenfranchise some prisoners, however different types of offenders
would need to be distinguished, and a failure to make this
distinction meant the legislation was unconstitutional. All
prisoners were able to vote in the subsequent general election
(1997).(18)
Other relevant international instruments are the
Standard Minimum Rules for the Treatment of Prisoners.
This instrument has, under the heading 'guiding principles', the
aim of minimising 'any differences between prison life and life at
liberty that 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 to the idea of 'civil death'. Other historical justifications
given were arguments such as John 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'.(19) This means that a
conviction '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, is similarly removed.'(20)
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.(21)
The majority of the 1993 Joint Standing
Committee on Electoral Matters similarly recommended that the
existing provision (disenfranchising 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).(22)
A dissenting report was tabled by David Connolly
MP, Senator Nick Minchin, Senator John Tierney and Michael Cobb MP.
The report 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'.(23)
The right for people serving a sentence of
imprisonment to vote in Federal elections will be removed by
items 10, 18, 29, 36 and 69.
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.
-
- Report of the Inquiry into all Aspects of the Conduct of the
1996 Federal Election and Matters Related Thereto, June 1997, AGPS.
- Ibid., p. 5.
- Ibid., p. 11.
- Ibid., p. 14.
- Ibid., p.14.
- See both the Commission's 1997-98 Annual Report where its third
key function, information and education, is explained, pp. 48ff
& the Commission's home page http://www.aec.gov.au/.
- AEC Financial Statements, pp. 78ff of the 1997-98 AEC Annual
Report.
- p. 30 1997-98 AEC Annual Report.
- For further details on election timetables see the Australian
Electoral Commission's Internet site: http://www.aec.gov.au. For
possible dates for the next federal election refer: Margaret Healy,
'When will it be? Timetables for Commonwealth Elections', Research
Note No.10 1998-99, Department of the Parliamentary Library, 9
February 1999.
- The Background for this section was prepared by Susan Downing
and Kirsty Magarey of the Law and Bills Digest Group.
- For a discussion of the issues see G. Orr, 'Ballotless and
Behind Bars: The Denial of the Franchise to Prisoners', (1998) FLR.
Vol. 26(1), pp. 55-82.
- Evidence of AEC to Joint Standing Committee on Electoral
Matters. See p.142 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.
- Ibid paragraph 14.
- Ibid.
- Fitzgerald, J. & Zdenkowski, G. Voting Rights of Convicted
Persons (1987) 11 CLJ 11-39 at 39.
- Sauve v Canada (Chief Electoral Officer) (1996) 1 F.C. 857. See
also the answer given by Mr Fahey MP to a Question on Notice from
Mr Robert McLelland, MP, House of Representatives, Official
Hansard, 8 February 1999, p. 2089.
- Ibid. at 12.
- Ibid. at 11.
- 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.
- 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, pp. 143-44.
- Ibid, p.165. No extended rationale is given in the Dissenting
Report for opposing prisoners' voting rights.
Bob Bennett, Chris Field, Susan Downing, Kirsty
Magarey
12 February 1999
Bills Digest Service
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