Bills Digest No. 109  1998-99 Electoral and Referendum Amendment Bill (No.2) 1998


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

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.

Purpose

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.

Background

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.

Main Provisions

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.

Endnotes

  1. Report of the Inquiry into all Aspects of the Conduct of the 1996 Federal Election and Matters Related Thereto, June 1997, AGPS.

  2. Ibid., p. 5.

  3. Ibid., p. 11.

  4. Ibid., p. 14.

  5. Ibid., p.14.

  6. 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/.

  7. AEC Financial Statements, pp. 78ff of the 1997-98 AEC Annual Report.

  8. p. 30 1997-98 AEC Annual Report.

  9. 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.

  10. The Background for this section was prepared by Susan Downing and Kirsty Magarey of the Law and Bills Digest Group.

  11. 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.

  12. 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.

  13. Press Release, 10 July 1995, The Hon. Kim Beazley MP.

  14. Human Rights Committee, General Comment 25 (57) adopted at the 1510th meeting (1996) U.N. Doc. CCPR/C/21/Rev.1/Add.7.

  15. Ibid paragraph 14.

  16. Ibid.

  17. Fitzgerald, J. & Zdenkowski, G. Voting Rights of Convicted Persons (1987) 11 CLJ 11-39 at 39.

  18. 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.

  19. Ibid. at 12.

  20. Ibid. at 11.

  21. 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.

  22. 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.

  23. Ibid, p.165. No extended rationale is given in the Dissenting Report for opposing prisoners' voting rights.

Contact Officer and Copyright Details

Bob Bennett, Chris Field, Susan Downing, Kirsty Magarey
12 February 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

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ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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