Bills Digest No. 144 2003-04
Electoral
and Referendum Amendment (Access to Electoral Roll and other Measures)
Bill 2004
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
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Electoral
and Referendum Amendment (Access to Electoral Roll and other Measures)
Bill 2004
Date Introduced:
1 April 2004
House:
House of Representatives
Portfolio:
Special Minister of State
Commencement:
The Act commences on the day that it receives Royal Assent.
The provisions in schedule 1—that is, the amendment provisions of the
Act, commence on the 28th day after the Act receives Royal
Assent
The Bill amends the Commonwealth
Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery
Provisions) Act 1984 (the Referendum Act). Many of the amendments
are technical and many are directed at eliminating discrepancies between
the Electoral Act and the Referendum Act. The purposes and origins of
the more substantive provisions are discussed under the Background section
below.
The Bill provides for new sections in the Electoral
Act and Referendum Act to expressly enable scrutineers to be present
at pre-poll voting offices. The amendment comes in response to the recommendation
16 of the Joint Standing Committee on Electoral Matters’ (JSCEM) report
on the 2001 election. The Committee noted, in making that recommendation:
The Electoral Act is silent on the attendance of scrutineers
at pre-poll voting centres. The AEC noted that the Referendum (Machinery
Provisions) Act 1984 allows for scrutineers to be present at pre-poll
voting centres, as scrutineers are allowed at ‘each place in Australia
where voting is being conducted’. The AEC recommended that a similar
provision be included in the Electoral Act.
The Committee considers that openness and transparency
are key factors in ensuring high levels of electoral integrity, fairness
and public confidence. Measures such as opening the pre-poll voting
centres to correctly appointed scrutineers would increase openness
and transparency.(1)
It is made an offence punishable by up to six months
imprisonment for a scrutineer to communicate with another person at
a pre-poll voting office where that communication is not reasonably
necessary for the discharge of the scrutineer’s duty. These provisions
are similar in effect to the existing provisions in s. 217 and 218 of
the Electoral Act that make it an offence to influence or attempt to
influence any elector within a polling booth.
There is currently a regime in place for the use of
electoral roll information by ‘prescribed authorities’. The relevant
provisions appear in the Electoral and Referendum Regulations 1940.
The regulations have effect only until 24 June 2005. The current Bill
preserves those regulations, but also provides express power in the
Act itself for the provision of such information.
The Bill clears the way for the Australian Electoral
Commission (AEC) to establish an electronic database available via the
internet as provided for in a recommendation of the JSCEM that was consistent
with submissions by the AEC.(2) This is achieved by allowing
the AEC to determine the form in which roll information is to be provided.
The amendments also restructure the provisions that
relate to supply of roll information. Members and Senators will be entitled,
under the provisions, to three printed copies of the roll rather than
the five required to be provided under the current provision.
The Bill introduces a provision to prohibit the sale
of the electoral roll in any format. This comes about as a result of
a recommendation of the JSCEM, concurring with the view of the AEC.(3)
The JSCEM was concerned that information on purchased copies of the
roll could easily be used for commercial purposes.
The Electoral Act currently provides for a penalty
of 100 penalty units (a penalty unit is currently $110) for the wrongful
use of roll information.(4) The current provision is limited
to the provision of information by tape or disk. The Bill repeals the
current provision and substitutes for it a provision that refers simply
to information, and hence covers information supplied by any means.
The Bill proposes to introduce an express provision
requiring the AEC to provide reasons in relation to its decisions relating
to registration of party names. The provision originates with a JSCEM
recommendation based on this reasoning:
While the AEC is obliged under subsection 141(7) of
the Electoral Act to give relevant persons associated with the reviewable
decision ‘written notice’ of that decision, the Committee considers
that the AEC has a wide discretion in the level of detail it is required
to provide in the notice. The Committee believes that the provision
of detailed reasons, with reference to the Electoral Act, should be
mandatory. Those reasons should be published to assist the understanding
of the application of the relevant provisions.(5)
The Electoral Act currently prohibits a number of activities
at an entrance or within a polling booth or within six metres of a polling
booth or polling booth entrance. Those activities are:
(a) canvassing for votes
(b) soliciting the vote of any elector
(c) inducing any elector not to vote for any particular
candidate
(d) inducing any elector not to vote at the election,
or
(e) exhibiting any notice or sign (other than an official
notice) relating to the election.(6)
The Bill proposes to add to that prohibition, the circumstance
where a person engages in any of those activities more than six metres
from polling booths but by means of various specified public address
systems, ‘radio equipment’, or a ‘device for broadcasting’ and the activity
is audible within the polling booth or within six meters from the polling
booth. The provision emanates from recommendation 22 of the JSCEM’s
report on the 2001 election. That recommendation was not in the terms
of that contained in the Bill, rather it was:
that subject to advice from the AEC, section 340 of
the Commonwealth Electoral Act 1918 be amended so as to prohibit the
broadcast of political material which is clearly audible within the
six metres surrounding a polling place on election day.(7)
There are potential problems with the proposed provision.
One problem arises because of the inclusion of radio equipment or broadcasting
devices in the provision. If a radio station broadcasts a political
advertisement on the day of the election, and a person has a radio turned
on inside or within earshot of a polling booth, does the radio station
breach the section? A presently drafted, it seems so. The person authorising
the advertisement and perhaps the radio station itself would be technically
liable to the penalty provided for under the provision (5 penalty units).
Whether that goes beyond the intention of the provision is a matter
for consideration.
Another potential problem, as raised by the JSCEM when
making the relevant recommendation, is that care needs to be taken to
ensure that any proposed provision is consistent with the constitutional
principles of freedom of political communication. The freedom of political
communication extends to any non-verbal actions which are intended and
are capable of expressing ideas about government and the policies/politics
of the Commonwealth or the States. At first sight, the proposed restriction
on the broadcast of the political material specified would infringe
the constitutionally guaranteed freedom of communication. But the restriction
might be allowable if:
The JSCEM referred to legal advice obtained by the AEC, to the effect
that, in order to comply with those principles, the provision would need
to:
-
be limited to a defined time period (say 8am to 6pm on polling day);
-
be confined to prescribed places (polling places);
-
define the limit to which the ‘electioneering’ activity may extend
beyond the six metre boundary around the polling place; and
-
consider the scope of the power of authorised officers to regulate
this sort of activity beyond pre-existing definitions of polling booths
and polling places.(8)
The Bill does not address all of those matters. The
resolution of the question of the constitutional validity of this provision
is beyond the scope of this Digest, but the Parliament may require reassurance
that the issues going to the question have been adequately addressed.
The Electoral Act and Referendum Act provide for applications
by candidates or the AEC to the Federal Court for injunctions restraining
conduct in breach of the Act, or compelling conduct required under the
Act. Currently, the Acts provide that an appeal lies from decisions
of the Federal Court in such matters, to the High Court. The Bill proposes
to remove the existing right of appeal to the High Court, by way of
right (meaning, without the need to first apply to the High Court for
special leave to appeal) in relation to judgments of the Federal Court
granting or refusing to grant injunctions.
The Explanatory Memorandum asserts that the existing
provisions ‘conflict’ with section 33 of the Federal Court Act 1976
which, the memorandum says, ‘states that appeal should be by way of
special leave’. To say that the provisions ‘conflict’, with respect,
overstates the position. Section 33 of the Federal Court Act provides
simply that an appeal requires special leave except as otherwise
provided by another Act. Hence section 33 allows for, and contemplates
that other Acts might provide for an appeal without leave. Whether that
leave should be required is a question of policy. To add a requirement
for special leave effectively places another obstacle in the way of
access to the High Court. Such leave is granted only where there is
some special reason that warrants intervention by the High Court. The
Parliament may wish to consider whether appeals by candidates or the
AEC against decisions relating to injunctions under the Electoral or
Referendum Act warrant speedy and unimpeded access to the High Court.
Schedule 1, items 1 and 20
These items amend the Electoral Act to allow for the
presence of scrutineers at pre-poll voting offices and to provide for
a penalty (similar to that provided under s. 218(1) of the Electoral
Act) for making unofficial communications (for instance, attempting
to influence an elector).
Schedule 1, items 2, 5, and 6
These items amend the Electoral Act to permit the use
of roll information by prescribed authorities for prescribed purposes.
Schedule 1, items 3, 7, 9, 13, 112 and 114
These items amend the Electoral Act so as to restructure
the provisions that relate to supply of roll information.
Schedule 1, items 4, 8, 113 and 115
These items amend the Electoral Act to extend the prohibition
on inappropriate use of roll information to cover information supplied
by any means.
Schedule 1, items 14, 15 and 16
These items amend the Electoral Act to require the
AEC to publish reasons for decisions to refuse to register party names.
Schedule 1, items 27, 28 and 29
These items amend the Electoral Act to prohibit the
broadcasting of electoral material audible within six metres of a polling
booth.
Schedule 1, item 30
This item amends the Electoral Act by removing the
appeal from the Federal Court’s decisions on injunctions to the High
Court as of right.(if any)
Schedule 1, items 33 and 37
These items amend the Referendum Act to allow for the
presence of scrutineers at pre-poll voting offices and to provide for
a penalty (similar to that provided under s. 218(1) of the Electoral
Act) for making unofficial communications (for instance, attempting
to influence an elector).
Schedule 1, items 40 and 41
These items amend the Referendum Act to prohibit the
broadcasting of electoral material audible within six metres of a polling
booth.
Schedule 1, item 42
This item amends the Referendum Act by removing the
appeal from the Federal Court’s decisions on injunctions to the High
Court as of right.
The Bill contains a large number of technical amendments
that are unlikely to be controversial. Parliament may wish to consider
the issues raised herein regarding the proposal to prohibit the broadcasting
of electoral material audible within six metres of a polling booth and
the proposed provision removing the appeal to the High Court as of right,
in respect of decisions of the Federal Court on injunctions.
-
Joint Standing Committee on Electoral Matters, Report of the inquiry
into the conduct of the 2001 Federal Election and matters relating
thereto, Canberra, June 2003, pp. 158–9.
-
ibid., recommendations 27 and 28, pp. 26–27.
-
ibid., recommendation 29 and commentary, pp. 227–8.
-
Commonwealth Electoral Act 1918, section 91A.
-
The 2001 Federal Election, op. cit., p. 117.
-
Commonwealth Electoral Act 1918, section 340(1).
-
The 2001 Federal Election, op. cit., p. 193.
-
ibid., p. 192.
Jerome Davidson
25 May 2004
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2004
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