Bills Digest No. 230 1997-98
Electoral and Referendum Amendment Bill
(No. 2) 1998
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
Electoral and Referendum Amendment Bill (No.
2) 1998
Date Introduced: 14 May
1998
House: Senate
Portfolio: Finance and
Administration
Commencement: The amendments
described in this Digest will generally commence on the 28th
day after the Bill receives Royal Assent. However, those 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 day to be fixed by Proclamation.
To make a number of changes to:
- the requirements for enrolment aimed to minimise electoral fraud
- remove the right of prisoners to vote in Federal elections and
- make a number of largely administrative changes to the electoral law.
Following Federal general elections the Joint Standing
Committee on Electoral Matters regularly holds an inquiry into the conduct
of the election to identify further refinements to the Commonwealth
Electoral Act 1918 to resolve problems identified at the previous
general election. The Committee's report on the 1996 general election
was released in June 1997 and identified a number of matters that should
be addressed before the next general election. A number of the recommendations
contained in the Committee's report were addressed in the Electoral and
Referendum Bill 1997 which, at the time of writing, is before the Senate.
The matters to be addressed by this Bill contain no central
theme and the Background to the various provisions will be discussed in
the Main Provisions section of this Digest.
Potential Electoral Fraud and Other Administrative
Matters
The report defined electoral fraud to include 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 underage. 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.(1)
It may be noted that while the transactions with the
Commonwealth noted by the Committee generally require the production of
a person's tax file number (TFN), the Committee did not recommend the
use of the TFN as an eligibility criteria for voters. Rather, the Committee
recommended a number of changes, including that:
- the witness requirements for enrolment be tightened
- that an 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 and
- that the use of data matching between Commonwealth, State and Territory
bodies be examined to determine if it is effective to verify the identity
of enrolment data.(2)
The report also noted that as the rolls for an election
close 7 days after the issue of the writs for the election, there is great
pressure on the AEC to process the applications before the election, which
hampers the ability to determine if the voter is eligible to be enrolled.
The report notes that from the time that the writs were issued for the
1996 election until the rolls closed approximately 428 000 transactions
were processed.(3) It was recommended that for new enrolments the rolls
be closed on the day the writs are issued and for changes in details for
enrolled voters the rolls close at the end of the third day after the
issue of the writs.(4) The adoption of such a recommendation would reduce
the time available for new electors to be entered on the rolls and has
the potential to disenfranchise a greater number of potential voters.
Section 91 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 Bill 1998 (which at time of writing is before the Senate) proposes
to insert subsections 91(9A) and 91(9B) that will allow the sex of electors
to be provided to organisations or people that conduct medical research
or health screening; members of the House of Representatives or Senate;
a registered political party; and an electoral authority of a State or
Territory where the Act provides for the disclosure of information to
such a body. Except for the last group, the information is to be provided
by tape or disk. 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 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 that a member of the House
of Representatives or Senate, or a registered political party may use
the information for will be expanded to include research regarding electoral
matters (items 5 and 7).
Changes to the period allowed for enrolment after the
calling of an election are contained in items 11, 14 and 28 that
amend various sections of the Principal Act that deal with the enrolment
of voters to 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 an election is for the Parliament
to be dissolved, the issue of writs within a maximum of 10 days after
the dissolution and the close of rolls 7 days after the issue of the writs.)
These amendments will implement the recommendation on
the early closing of roles for unenrolled eligible voters as noted above.
Section 98 of the Principal Act deals with eligibility
to have a name placed on the 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. Proposed subsection 98(2) 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 and that if a claim is made that the person has been granted Australian
citizenship this 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 23 which will amend section 99 of the Principal
Act.
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).
Voting Rights of Prisoners(5)
The Bill proposes to disenfranchise all convicted persons
of the right to vote.(6)
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 given 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 Australian Electoral Commission. The provision
has in the past been criticised on the basis that it creates practical
difficulties.(7) 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.(8)
Relevant International Law
The right to vote is mentioned in article 25 of the International
Covenant on Civil and Political Rights (ICCPR) which states:
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:
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.
2. Where not already provided for by existing legislative or other measures,
each State Party to the present Covenant undertakes to take the necessary
steps, in accordance with its constitutional processes and with the provisions
of the present Covenant, to adopt such legislative or other measures as
may be necessary to give effect to the rights recognised in the present
Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognised
are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies
when granted.
The Human Rights Committee (HRC) has made a General Comment
on Article 25 in which it affirmed that article 25 'lies at the core of
democratic government based on the consent of the people and in conformity
with the principles of the Covenant'.(9) The HRC seems to suggest that
a conviction may be used as a basis for suspending the right to vote(10)
although legislative provisions 'which would deprive citizens of their
right to vote' must be indicated in the State Parties report to the HRC
and 'explained'. Therefore it seems that a 'blanket application' of a
rule prohibiting prisoners from voting may well fall outside the scope
of the 'allowable exceptions' contemplated by the HRC. This point is not
clear from the HRC General Comment but other legal commentators have asserted
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.(11)
Factors that would be relevant to whether, in having
exclusions, a country had breached article 25 would be 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 would be that the denial of those
voting rights would be a breach of the ICCPR.
Other relevant international instruments are the Standard
Minimum Rules for the Treatment of Prisoners which has under the heading
'guiding principles' the aim of minimising 'any differences between prison
life and life at liberty which 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 is to the idea of 'civil death'. Other
historical justifications given were arguments such as 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'.(12) This means that a conviction
(p11) '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,
was similarly removed.'
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.(13)
The majority of the 1993 Joint Standing Committee on
Electoral Matters similarly recommended that the existing provision (which
disenfranchises 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).(14)
A dissenting report was written by Mr Connolly MP, Senator
Minchin, Senator Tierney and Mr Cobb MP which 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'.
The right for people serving a sentence of imprisonment
to vote in Federal elections will be removed by items 10, 18 and 29.
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.
- Joint Standing Committee on Electoral Matters, The 1996 Federal Election,
5.
- Ibid., 11.
- Ibid., 14.
- Ibid., 14.
- The Background for this section was prepared by Susan Downing of the
Law and Bills Digest Group.
- For a discussion of the the issues see Orr, G. Ballotless and Behind
Bars: The Denial of the Franchise to Prisoners, (1998) F.L.R. v26(1)
55-82.
- Evidence of AEC to Joint Standing Committee on Electoral Matters see
p142 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.
- bid paragraph 14.
- Fitzgerald, J. & Zdenkowski, G. Voting Rights of Convicted
Persons (1987) 11 CLJ 11-39 at 39.
- Fitzgerald, J. & Zdenkowski, G. Voting Rights of Convicted
Persons (1987) 11 CLJ 11-39 at 12.
- 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.
- Tttt 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, 143-44.
Chris Field
Susan Downing
12 June 1998
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.
IRS staff are available to discuss the paper's contents with Senators
and Members
and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 1998
Except to the extent of the uses permitted under the Copyright Act
1968, no part of this publication may be reproduced or transmitted
in any form or by any means, including information storage and retrieval
systems, without the prior written consent of the Parliamentary Library,
other than by Members of the Australian Parliament in the course of their
official duties.
Published by the Department of the Parliamentary Library, 1998.
|
