BILLS DIGEST NO. 108, 2011–12, 10 February 2012

Electoral and Referendum Amendment (Maintaining Address) Bill 2011

Kai Swoboda
Economics Section

Date introduced:  23 November 2011

House:  House of Representatives

Portfolio:  Special Minister of State

Commencement:  The day after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/bills/. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The main purpose of the Bill is to amend the Commonwealth Electoral Act 1918 to allow the Electoral Commissioner to update the address details of an elector on the electoral roll if the Commissioner is satisfied that the elector lives at the address. The Bill does not propose to provide the capacity for the Electoral Commissioner to directly enrol electors who are not on the electoral roll.

Background

Under the Commonwealth Electoral Act 1918, all eligible individuals are required to enrol and when they change address, update their enrolment within 21 days of residing at their new address for at least one month.[1] Failure to do so can lead to a fine of $110.[2]

Requirements for electors to be proactive in enrolling and updating their enrolment can lead to electors being removed from the electoral roll when they change address and/or update their details when an election is called. The Australian Electoral Commission estimates that of those eligible to be enrolled, around 1.4 million eligible electors were not on the Commonwealth electoral roll as at 30 June 2011 (figure 1).

Figure 1              Estimated eligible population and enrolled electors, 1999–2011

Source: Australian Electoral Commission, Submission to the Joint Standing Committee on Electoral Matters, Inquiry into the Electoral and Referendum Amendment (Maintaining Address) Bill 2011, 27 January 2012, p. 4, viewed 9 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/maintainingbill/subs.htm

Proactive enrolment requirements can also mean that electors delay updating their enrolment until a significant electoral event occurs. For example, in the period between the announcement of the election (Saturday 17 July 2010) and the final close of the electoral rolls for the 2010 federal election (Monday 26 July 2010), a total of 563 638 enrolment transactions were processed by the Australian Electoral Commission.[3] This activity accounted for more than 26 per cent of total enrolment transactions processed in 2010–11.[4]

Existing agreements between the Commonwealth and states and territories provides that the Australian Electoral Commission maintains the electoral roll for Commonwealth, state and local government elections and that, in general, an update to an individual’s enrolment applies for elections across all three levels of government.[5] However, each jurisdiction sets its own requirements for enrolling or updating enrolment and there are some areas of difference between jurisdictions (table 1).

Table 1              Enrolment provisions, by jurisdiction

Jurisdiction

New to roll - signature required

Change address – signature required

Witness required

Evidence of identity required (eg: drivers licence)

Automatic enrolment – electors new to roll

Automatic enrolment – electors changing address

Commonwealth

√

×

×

√

×

×

NSW

√

×

×

√

√

√

Vic

√

×

√

×

√

√

Qld

√

×

×

√

×

×

WA

√

√

√

×

×

×

SA

√

√

√

×

×

×

Tas

√

×

×

√

×

×

ACT

√

×

×

√

×

×

NT

√

×

×

√

×

×

Source: Enrolment forms for each jurisdiction available from: http://www.aec.gov.au/enrol/form.htm

Changes to enrolment application processes over recent years in both Commonwealth and state/territory electoral legislation has resulted in some differences emerging between jurisdictions in the information required to enrol or update enrolment. These can affect both the number of electors on the roll and the accuracy of the roll (where an elector is enrolled at one address for state purposes and at another for federal purposes). For example:

•       New South Wales and Victoria have provisions that allow the state Electoral Commissioner to automatically add individuals to the electoral roll who are currently not on the state electoral roll or update the address details of individuals who are already on the state electoral roll

•       for electors who are already on the Commonwealth electoral roll but need to update their address details, a signature is not required (resulting in the possibility of updating enrolment details on-line), whereas a signature is still required in South Australia and Western Australia, and

•       electors are required to meet prescribed ‘evidence of identity requirements’, such as providing their drivers licence number, to enrol on the Commonwealth electoral roll and in some states, but no such requirement applies for Victoria, Western Australia and South Australia.

The differences outlined above will mean that those states that diverge from the Commonwealth enrolment requirements because of different witnessing or evidence of identity requirements (Victoria, NSW, Qld, WA and SA) will always have a relatively minor underlying level of difference in the number of enrolled electors. However, with NSW and Victoria now able to automatically update enrolment details for those changing address and those who are not on the electoral roll it is likely that a significant gap in the number of enrolled electors will emerge between the Commonwealth electoral roll and the electoral roll for these states.

For example, the gap between the Commonwealth electoral roll and the NSW state roll was around 7700 in January 2012, reducing from a gap of around 20 500 in June 2011. The gap emerged following the NSW Electoral Commission’s commencement of automatic enrolment on October 2010 electors (figure 2).

Figure 2              Trends in New South Wales enrolment, September 2010 to January 2012

Source: Australian Electoral Commission, Enrolment statistics, various months, 13 January 2011, viewed 6 February 2012, http://www.aec.gov.au/Enrolling_to_vote/Enrolment_stats/index.htm; Electoral Commission New South Wales, Enrolment Statistics, viewed 6 February 2012, http://www.elections.nsw.gov.au/__data/assets/excel_doc/0006/86604/State_District_Enrolments_-_January_2012.xls.xlsx

By the time of the NSW state election in March 2011, a total of 42 172 electors were automatically added to the NSW roll—of whom around 20 000 were not currently on the roll with the remainder relating to changes of address.[6]

Based on the NSW Electoral Commission automatically enrolling 10 000 people per month, Antony Green estimates that there could be a 200 000 difference between the Commonwealth and NSW state electoral roll by the time of a 2013 federal election.[7]

Automatic enrolment in other Australian jurisdictions

As previously noted, automatic enrolment is already in operation in NSW and Victoria, with implementation in Queensland delayed until after the 2012 state election.[8] The specific requirements in each of these jurisdictions varies to some degree, and there are some important differences between the arrangements proposed by the Bill for Commonwealth enrolment and these states.

In NSW, automatic enrolment is provided for by section 29 of the Parliamentary Electorates and Elections Act 1912 (NSW). In summary, this provides that:

•       the Electoral Commissioner may initiate an enrolment for a person who is not on the electoral roll and a change in address for a person who is on the electoral roll

•       notification to the elector is to be provided in writing (which may be by email, SMS text message or other electronic means) and a response period of seven days is provided for, after which the proposed enrolment can take place. Notification is then also required in writing that the enrolment transaction has occurred

•       the Electoral Commissioner may base his or her belief about a person’s eligibility to be enrolled on information from the Commonwealth electoral roll and a number of other sources including from bodies such as Roads and Maritime Services and the Registry of Births, Deaths and Marriages, and

•       the Electoral Commissioner may exercise this automatic enrolment function after the issue of the writ for the election.

In Victoria, automatic enrolment is provided for by section 23A of the Electoral Act 2002 (Vic). In summary, this provides that:

•       the Electoral Commission may initiate an enrolment for a person who, within 21 days of turning 18, has not applied to be on the electoral roll

•       notification to the elector is to be provided (the form of which is unspecified) and a response period of seven days is provided for, after which the proposed enrolment can take place. Notification is then also required in writing that the enrolment transaction has occurred, and

•       the roll for an election, which is closed seven days after the issue of the writ for the election, does not include automatic enrolment transactions from the close of rolls.[9]

In Queensland, legislation has yet to be developed to implement automatic enrolment. Under the proposals included in the Queensland Government’s White Paper on reforming Queensland’s electoral system, the main features of automatic enrolment were proposed to be:

•       the Electoral Commissioner may initiate an enrolment for a person who turns 18 and is not enrolled within 21 days of turning 18

•       notification to the elector is to be provided in writing (the form of which is unspecified) and a response period of seven days is provided for, after which the proposed enrolment can take place, and

•       no person can be automatically added to the electoral roll after the close of rolls (which is between five and seven days after the issue of the writ).[10]

Basis of policy commitment

The Explanatory Memorandum notes that the Bill implements a recommendation of the Joint Standing Committee on Electoral Matters (JSCEM) report on the conduct of the 2007 election.[11] The relevant JSCEM recommendation was that:

... the Commonwealth Electoral Act 1918 be amended to allow the Australian Electoral Commission to receive and use information for the purposes of directly updating the electoral roll, where that information has been:

provided by an elector or electors to an agency approved by the Minister as an agency which performs adequate proof of identity checks; and

the elector or electors have indicated their proactive and specific consent to opt in for the information to be used for the purposes of directly updating the electoral roll, and

the data has been provided by that agency to the Australian Electoral Commission for the purposes of updating the electoral roll.[12]

The 2007 JSCEM report is not the only report of the Committee to recommend some form of automatic enrolment update. Two other JSCEM reports are also relevant:

•       the 2010 JSCEM inquiry into the NSW Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill 2009 recommended that the Australian Electoral Commission be allowed to automatically enrol electors on the basis of data provided by trusted agencies[13] and

•       the 2011 JSCEM inquiry into the conduct of the 2010 federal election also supported automatic enrolment for Commonwealth purposes in the case of individuals eligible to be on the electoral roll who are not on the roll and to update the address details of electors who are on the roll.[14] An important caveat to this set of recommendations was that approval of agencies from which data may be supplied to the AEC by external agencies should be made by disallowable instrument.[15]

In addition to these JSCEM reports, a Green Paper on Electoral Reform, issued in September 2009, also canvassed the possibility for the adoption of automatic enrolment at a federal level, noting that:

Implementation of automatic enrolment would require consideration of matters including:

-          its impact on particular groups of electors who do not interact with trusted agencies

-          maintenance of existing enrolment quality assurance processes, and

-          a public information and education campaign.

To protect the integrity of the electoral roll, measures may need to be put into place to verify the information received from other government sources. The information received by many government agencies is based on an address for contact rather than a place of residence. Given the importance of ascertaining an accurate place of residence for determining the electoral division in which a person is entitled to vote, there may be a risk that an incorrect residential address may be provided to the AEC; processes would need to be implemented to address this risk. The information provided to the AEC would also need to be sufficiently comprehensive to enable the AEC to ascertain a person’s entitlement to be added to the electoral roll; for example, it would need to distinguish between citizens and non-citizens, and provide accurate date of birth information.

The importance of identity to the integrity of the electoral roll would also require that data used for the purposes of establishing identity was obtained from agencies with sufficiently rigorous processes for establishing, verifying and maintaining proof of identity. For example, the AEC has noted that to receive benefits and services from Centrelink, clients are required to provide documents which establish a client’s identity and establish how it is used, and a physical signature. Motor authorities often require documents to support a person’s claim of identity and a photograph and/or signature. Processes to obtain signatures for the AEC’s records could be established if necessary.[16]

Committee consideration

The Bill was referred to the Joint Standing Committee on Electoral Matters on 24 November 2011 for inquiry and report, with no reporting date specified.[17] Further information about the inquiry can be found on the inquiry’s webpage.[18]

Policy position of the Coalition and Australian Greens

The Coalition, in minority reports for the JSCEM inquiries that have recommended automatic enrolment, have indicated that they do not support moving away from an elector-initiated enrolment process. For example, in the JSCEM report into the implications of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Act 2009 (NSW) for the conduct of Commonwealth elections, the Coalition noted that:

... a move away from an individual enrolling on his or her own initiative in compliance with electoral legislation to a situation where the state can enrol a person of its own accord represents a drastic and dramatic change in our enrolment processes. Such a change should not be enacted without due consideration and deliberation.

The AEC submits that the declining enrolment rate is “in part caused and perpetuated by enrolment processes based on antediluvian mechanisms and overly prescriptive legislation”. If this statement is to be taken at face value, then this is a reason to reconsider some of these practices – it does not justify a movement away from individual registration to automatic enrolment

... Despite the fact that Government majority recommends the power to declare data sources as trusted be given to the AEC, Opposition Members and Senators do not believe this addresses this problem in its entirety.

We are also concerned at the power given to the Electoral Commissioner to deem data sources ‘trusted’ in determining the use of such data in compiling the roll as a potential risk to the office.

The inclusion of such data, if erroneous, would be extremely damaging to public faith in our electoral process. Furthermore, the inclusion of such data may well be controversial due to lack of faith in its inclusion or utilisation.

Placing the Electoral Commissioner at the heart of such a potentially charged dispute can only damage the standing of the office and the AEC.[19]

The Australian Greens were represented on JSCEM for the inquiries into the 2007 election, 2010 election and the implications of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Act 2009 (NSW) for the conduct of Commonwealth elections and did not dissent from the recommendations relating to enrolment of the majority of the Committee. Submissions by the NSW and Victorian branches of the Australian Greens to parliamentary committee inquiries into electoral reform have supported the introduction of the NSW model of automatic updates to the electoral roll.[20]

Financial implications

The Explanatory Memorandum notes that the costs associated with the implementation of the measures contained in the Bill will be absorbed by the Australian Electoral Commission.[21]

Main issues

The various JSCEM reports have examined the arguments in favour and against the adoption of automatic enrolment.[22] In summary, the main arguments in favour of adopting automatic enrolment presented in the JSCEM reports include:

•       current arrangements are biased against maintaining electors on the roll as data can be used to remove people from the roll but people cannot be added or have their address details changed without their proactive action

•       there is potential for elector confusion with differing state and federal enrolment requirements and without change at the Commonwealth level, there is a risk that electoral rolls will diverge as electors assume that their Commonwealth enrolment is automatically updated, and

•       automatic enrolment is a response to declining vote participation, particularly for young people, and is one of a number of strategies to address this decline.

The main arguments against adopting automatic enrolment include:

•       the system of compulsory enrolment places an obligation on individuals to update their own enrolment and that these responsibilities are not difficult nor onerous to fulfil

•       automatic enrolment dilutes an elector’s responsibilities to keep their enrolment up to date as required by compulsory enrolment, and is inconsistent with the compulsory enrolment provisions of the Commonwealth Electoral Act 1918, and

•       data received from other agencies is not collected for the purpose of electoral enrolment and there may be quality, timeliness and other issues associated with the data that make it inappropriate to use it to update a person’s enrolment.

The implementation of measures proposed by the Bill gives rise to two main issues that are discussed in more detail below, namely:

•       what is meant by reliable and current data used to update the electoral roll, and

•       the potential impact of automatic update on special category electors such as silent electors, general postal voters and itinerant electors.

What is reliable and current data?

The Electoral Commission, under section 92(1) of the Commonwealth Electoral Act 1918, has broad powers to obtain information (including from Commonwealth, state, territory and local government officers and agencies) in relation to the preparation, maintenance or revision of the electoral roll.

Under the provisions proposed by the Bill, the Electoral Commissioner would be granted the flexibility to utilise data provided by any agency or source for the purposes of automatically updating an elector’s address details.

The provisions of the Bill are inconsistent with the Minister’s second reading speech, the Explanatory Memorandum and the JSCEM recommendation nominated by the Minister as the basis for the proposed change. Neither the term ‘reliable’ nor ‘current’ is defined in the Commonwealth Electoral Act 1918, nor in the Bill. The Bill only requires for the Commissioner to be ‘satisfied’ that the elector lives at another address.

The Minister’s second reading speech noted that the Electoral Commissioner would be able to use ‘reliable’ and ‘current’ data sources to directly update the electoral roll:

This bill will allow the Electoral Commissioner to directly update an elector's enrolled address following receipt and analysis of reliable and current data sources from outside the Electoral Commission.

... Information from reliable sources is already used by the Electoral Commission to monitor the accuracy of the roll.

... The Electoral Commissioner will be permitted to use accurate and timely information from reliable sources to maintain the current address of already enrolled electors.[23]

Further, the Explanatory Memorandum notes that the Bill:

will allow the Electoral Commissioner to directly update an elector’s enrolled address following the receipt and analysis of reliable and current data sources from outside the Australian Electoral Commission that indicate an elector has moved residential address.[24]

It is important to note that the 2007 JSCEM recommendation cited by the Explanatory Memorandum as the recommendation that was being implemented by the Bill[25] included some caveats about the operation of automatic enrolment, including Ministerial approval for data sources used to update the electoral roll:

The committee agrees with the AEC and others who suggest that some electors expect information provided to one government agency will be used to update the electoral roll, or at least, that they hold an expectation that such updates are possible.

The committee is attracted to the idea that electors who provide information to government agencies like Centrelink, which have stringent [proof of identity] processes of their own, should be permitted to allow the agency to provide data to the AEC for the purposes of directly updating the electoral roll.

There are, however, two elements to such a process which the committee believes are necessary to ensure that the process has the required degree of integrity.

The first is that the elector must provide their proactive and specific consent to opt in for the data to be used to update the electoral roll.

The second is that there must be surety that the [proof of identity] processes used by the respective government agencies have sufficient integrity to maintain the confidence of stakeholders.

To achieve this, the committee believes that it is appropriate that the Minister approve the agencies from which the AEC receive data for the purposes of effecting direct update to the electoral roll.[26]

Further, the 2010 JSCEM recommendation included some limits on the implementation of automatic enrolment, namely that the approval of agencies from which the AEC is to receive data, be made a disallowable instrument.[27]

As previously noted, the AEC use a range of external data sources to review the electoral roll. This information, which typically contains name, address and often date of birth information, is then used to match to electors enrolled on the electoral roll to identify those electors who are either:

•       on the electoral roll but at a different address, or

•       not on the electoral roll.

A range of issues have been identified in administrative arrangements relating to the accuracy of government agency name and address data, including:

•       data is collected for a different purpose so address information may not necessarily relate to a person’s current residential address. For example, under the NSW Smartroll system, of the 45 407 persons proposed to be enrolled or have their address details updated, 3275 persons (seven per cent) did not subsequently have their enrolment updated[28]—indicating that the data used did not necessarily support the proposed enrolment transaction, and

•       data used by the Electoral Commission may be collected by agencies who do not have sufficiently high standards of data collection and maintenance.[29]

The Coalition have previously argued that providing the Electoral Commissioner with the power to determine what constitutes a ‘trusted’ data source may create a reputational risk for the Electoral Commission and the Electoral Commissioner:

[T]he power given to the Electoral Commissioner to deem data sources ‘trusted’ in determining the use of such data in compiling the roll as a potential risk to the office.

The inclusion of such data, if erroneous, would be extremely damaging to public faith in our electoral process. Furthermore, the inclusion of such data may well be controversial due to lack of faith in its inclusion or utilisation.

Placing the Electoral Commissioner at the heart of such a potentially charged dispute can only damage the standing of the office and the AEC.[30]

Impact on special category electors

There are a number of ‘special category’ electors on the Commonwealth electoral roll whose eligibility for enrolment or voting is governed by specific provisions of the Commonwealth Electoral Act 1918 and whose application for enrolment requires the use of separate enrolment forms. Special category electors include:

•       prisoners

•       silent electors

•       general postal voters

•       Norfolk Island and Antarctic electors, and

•       itinerant electors including homeless electors.[31]

In the case of silent electors, an application for enrolment also requires that the applicant sign a statutory declaration that they meet the specific requirements of enrolment under this category.[32]

The Bill does not include separate provisions relating to special category electors. One possible consequence of automatic enrolment is that an elector who is enrolled under one of the special categories can potentially have their enrolment updated and ‘lose’ their status as a special category elector.

The AEC have indicated that special category electors would be administratively excluded from the process of matching data from external agencies.[33]

In NSW, there is no specific provision in the Parliamentary Electorates and Elections Act 1912 (NSW) that excludes special category electors from being part of the automatic enrolment process. However, in their notification to the affected elector, the NSW Electoral Commission alert electors to the potential to be enrolled as a special category elector.[34]

While special category electors are proposed to be excluded by administrative rules from the automatic enrolment process it may be appropriate to make this exclusion explicit in legislation.

Key provisions

Amendments to the Commonwealth Electoral Act 1918

Schedule 1

Section 28 of the Act relates to the delegations by the Electoral Commissioner and is amended by item 1 to provide that section 92 (roll reviews) is one of the powers and functions that can be delegated by the Electoral Commissioner.

Items 2 to 9 substitute references to ‘Electoral Commission’ with ‘Electoral Commissioner’ in section 92 (or are consequential to this substitution), to specify the Electoral Commissioner as the person responsible for undertaking enrolment-related tasks and functions, rather than the Electoral Commission.

These amendments recognise the Commissioner (or the delegate), not the Commission, as administrative authority to implement electoral law in regard to certain functions – the other being pre-poll voting.

Schedule 2

Schedule 2 inserts the substantive provisions into the Act that provide for the Electoral Commissioner to directly update an elector’s address details on the electoral roll.

Item 3 inserts proposed section 103A to allow the Electoral Commissioner to directly update an elector’s enrolled address if the Commissioner is satisfied that the person is already enrolled at one address and the Commissioner is satisfied that the person lives at another address.

Proposed subsection 103A(2) provides that the Commissioner ‘may’ give the effected person a notice in writing of the intention of updating their address details and advise the elector that he or she has 28 days to inform the Electoral Commissioner that he or she does not live at the new address.

Comment

The Explanatory Memorandum notes that proposed subsection 103A(2) ‘requires’ the Electoral Commissioner to give the effected person a notice in writing.[35] This appears to be inconsistent with the wording in the Bill, which gives the Electoral Commissioner discretion in giving the effected person a notice in writing.

Proposed subsection 103A(3) provides that the Electoral Commissioner may update the elector’s address details unless satisfied by the person’s response to the written notice that that the person does not live at the new address. Proposed subsection 103A(4) provides that the Electoral Commissioner may take action before the end of the 28 days if the person indicates to the Electoral Commissioner within that period that they do live at the new address.

Comment

The 28 day period providing for a response by the elector is significantly longer than the seven day period provided for in New South Wales and Victoria.[36]

Proposed subsection 103A(5) prohibits the Electoral Commissioner from directly updating the electoral roll during the period commencing at 8pm, seven days after the issue of the writ for an election and finishing at the close of poll for the election.

Comment

Under the NSW automatic enrolment model, elector’s details can be updated after the issue of the writ for the election, including up to election day.[37]

Proposed subsection 103A(6) provides that the Electoral Commissioner ‘must’ give the person notice in writing of the outcomes of any update or decision to not update an elector’s address details as a result of a proposal for the Electoral Commissioner to directly update an elector’s address details.

Under section 102(1)(b)(ii) of the Act the Electoral Commissioner must notify an elector in writing that the elector’s enrolled address has been updated following the receipt of a claim for transfer of enrolment from the elector. Proposed subsection 103A(7) exempts the Electoral Commissioner from this obligation if the Electoral Commissioner has already given notice under proposed subsection 103A(6). This results in the elector being sent a single confirmation of their enrolment change.

Proposed subsection 103A(8) provides that a written notice made under proposed section 103A can be an electronic communication as defined in the Electronic Transactions Act 1999, irrespective of whether the person has consented to such communication.[38]

Comment

While the Australian Electoral Commission has used SMS and email communication to contact individuals about the possible need to update their address details or to confirm their address details[39], the inclusion of proposed subsection 103A(8) will allow for more widespread use of email and/or SMS communication to inform electors about the outcomes of the Electoral Commissioner’s decision to update, or not update, an electors address details.

The New South Wales Electoral Commission, through the SmartRoll process, utilise a cascading system of confirming enrolment details with electors that first uses SMS and if no delivery is made then email is used, and then again if no delivery is made a letter is posted to the newly-enrolled address.[40]

Item 4 of Schedule 2 inserts proposed subsection 114(6) which provides that the Electoral Commissioner ‘must not’ commence action to remove a person from the electoral roll if the Commissioner has given the person notice about the person’s address being directly updated. Under the existing section 114, the grounds for removing electors from the roll includes that the Electoral Commissioner has ‘reasonable grounds for believing that the person is not entitled to be enrolled’.[41]

Item 5 inserts proposed subsections 116(5) and 116(6), which provides that the Electoral Commissioner ‘must’ dismiss a private objection (except those which relate to ‘unsound mind’)[42] and repay the $2 application fee without giving notice to the challenged elector if the Electoral Commissioner has already given the challenged elector a notice about directly updating their address details and the Commissioner is satisfied that the objection does not provide information inconsistent with that on which the Commissioner’s decision about updating the challenged elector’s details was based.

Item 8 inserts proposed subsection 118(9) which provide that in circumstances where the objection process is already underway and prior to determining the objection the Electoral Commissioner directly updates the challenged elector’s address details, the Commissioner ‘must’ give notice to the challenged elector (in writing or by electronic means) that the Electoral Commissioner will not determine the objection. If the objection is a private objection, the Electoral Commissioner must give the objector written notice that the objection will not be determined and that the $2 application fee be repaid.

Items 9, 10, 11 and 12 provide that the Electoral Commissioner’s decisions to directly update an elector’s details or to not determine an objection on account of the challenged elector having their details directly updated are open to internal review on application by the elector or a person who has initiated a private objection. This internal review process under section 120 of the Act currently applies to a range of other decisions relating to enrolment by the Electoral Commissioner.

Amendments to the Referendum (Machinery Provisions) Act 1984

Item 16 of Schedule 2 inserts proposed paragraph 4(2)(aa) so that the Electoral Commissioner is not able to directly update an elector’s address details in the period between 8pm seven days after the issue of the writ for the referendum to the close of voting for the referendum—ensuring that the provisions relating to directly updating an elector’s enrolment details for a referendum are consistent with those applying for an election.

Concluding comments

The proposal for the Electoral Commissioner to be able to initiate enrolment (so-called automatic enrolment) for electors who are already on the electoral roll is a significant step from current arrangements that require electors to initiate changes to their electoral enrolment. Several states, including Victoria and New South Wales have adopted automatic enrolment and the proposed arrangements do not go as far as in these states as the proposed arrangements will apply only to changing the address details of those already on the electoral roll—no elector who is not currently on the electoral roll will be able to be added by the Electoral Commissioner.

The proposed arrangements give the Electoral Commissioner considerable discretion on how automatic enrolment will operate, including deciding what data sources are used for automatic enrolment purposes. This discretion is broader than the basis for the policy change as outlined in the relevant JSCEM report and inconsistent with the Explanatory Memorandum and second reading speech, which refer to ‘reliable and current’ data sources being used for the purposes of directly updating enrolment details. Further, the application of administrative business rules that include, or exclude, particular types of electors are not specified in the Bill and are left to the discretion of the Electoral Commissioner.

The proposed changes can be viewed as a pragmatic response to changes in elector behaviour and a move to a more modern approach to enrolment. However, automatic enrolment also marks a shift away from current arrangements that require electors to compulsorily maintain their enrolment.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2495.

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ISSN 1328-8091

[1].               Commonwealth Electoral Act 1918, section 101.

[2].               Commonwealth Electoral Act 1918, section 101(6).

[3].               Australian Electoral Commission, 2010 federal election workload, Submission to the Joint Standing Committee on Electoral Matters, Inquiry into the conduct of the 2010 federal election, p. 4, viewed 9 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect10/subs.htm

[4].               Australian Electoral Commission, Annual report 2010–11, AEC, 2011, p. 34, viewed 9 February 2012, http://www.aec.gov.au/About_AEC/Publications/Annual_Reports/2011/files/aec-annual-report-2010-2011.pdf

[5].               Australian Electoral Commission, ‘Commonwealth electoral roll’, AEC website, 13 January 2011, viewed 6 February 2012, http://www.aec.gov.au/Enrolling_to_vote/About_Electoral_Roll/

[6].               Electoral Commission NSW, Report on the conduct of the NSW state election 2011, 2011, p. 86, viewed 25 January 2012, http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/67f2055c4d085409ca25795a0017cf2c/$FILE/NSW%20EC's%20Report%20on%20the%202011%20State%20Election.pdf

[7].               A Green, ‘NSW automatic enrolment and its challenge for the Commonwealth’, ABC website, 16 July 2011, viewed 25 January 2012, http://blogs.abc.net.au/antonygreen/2011/07/nsw-automatic-enrolment-and-its-challenge-for-the-commonwealth.html#more. The NSW Electoral Commission have set a target of enrolling or re-enrolling over 10 000 eligible NSW electors per week, 2010-11 Annual report, p. 16, viewed 9 February 2012, http://www.elections.nsw.gov.au/__data/assets/pdf_file/0005/96296/NSWEC_Annual_Report_2010-2011.pdf

[8].               Electoral Commission Queensland, Annual report 2010-11, September 2011, p. 5, viewed 2 February 2012, http://www.ecq.qld.gov.au/uploadedFiles/http/Resources/Reports/Annual%20Report%202010-11.pdf

[9].               Electoral Act 2002 (Vic), section 29(3).

[10].               Queensland Government, ‘Reforming Queensland’s electoral system’, December 2010, viewed 2 February 2012, http://www.premiers.qld.gov.au/community-issues/open-transparent-gov/assets/electoral-reform-whitepaper.pdf

[11].               Explanatory Memorandum, p. 1.

[12].               Joint Standing Committee on Electoral Matters, Report on the conduct of the 2007 federal election and matters related thereto, Canberra, June 2009, p. 114, viewed 6 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect07/report2.htm

[13].               Joint Standing Committee on Electoral Matters, Inquiry into the implications of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Act 2009 (NSW) for the conduct of Commonwealth elections, Canberra, February 2010, p. 22, viewed 30 January 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/autobill2009/report.htm

[14].               Joint Standing Committee on Electoral Matters, The 2010 federal election: report on the conduct of the election and related matters, Canberra, July 2011, pp. 36-37, viewed 6 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect10/report.htm

[15].               Ibid.

[16].               Australian Government, Electoral Reform Green Paper: Strengthening Australia’s Democracy, September 2009, pp. 94-97, viewed 6 February 2012, http://www.dpmc.gov.au/consultation/elect_reform/strengthening_democracy/docs/strengthening_australias_democracy.pdf

[17].               House of Representatives Selection Committee, Report No. 39, 24 November 2011, viewed 9 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=selc/reports.htm

[18].               Joint Standing Committee on Electoral Matters, Inquiry into the Electoral and Referendum Amendment (Maintaining Address) Bill 2011, 13 December 2011, viewed 9 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/maintainingbill/index.htm

[19].               A Robb MP (Deputy Chair), Senator S Birmingham, Senator S Ryan, Liberal Party of Australia; B Scott MP, The Nationals, Joint Standing Committee on Electoral Matters, Inquiry into the implications of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Act 2009 (NSW) for the conduct of Commonwealth elections, Dissenting report, pp. 27–28, viewed 2 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/autobill2009/report.htm

[20].               Australian Greens (Victoria), Submission to the Victorian Parliament’s Electoral Matters Committee, Inquiry into voter participation and informal voting, p. 1, viewed 6 February 2012, http://www.parliament.vic.gov.au/images/stories/committees/emc/Voter_Participation/Australian_Greens_Victoria.pdf; Australian Green (NSW), Submission to the Joint Standing Committee on Electoral Matters, Inquiry into the 2010 federal election, 21 February 2011, p. 3, viewed 6 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect10/subs.htm

[21].               Explanatory Memorandum, p. 1.

[22].               Readers are referred to the following reports: The 2010 federal election: report on the conduct of the election and related matters, Canberra, June 2011, pp. 29–26, viewed 6 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect10/report.htm; Joint Standing Committee on Electoral Matters, Inquiry into the implications of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Act 2009 (NSW) for the conduct of Commonwealth elections, Canberra, February 2010, pp. 11–20, viewed 6 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/autobill2009/report.htm; Joint Standing Committee on Electoral Matters, Report on the conduct of the 2007 federal election and matters related thereto, Canberra, June 2009, pp. 98–113, viewed 6 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect07/report2.htm

[23].               G Gray (Special Minister of State), ‘Second reading speech: Electoral and Referendum Amendment (Maintaining Address) Bill 2011’, House of Representatives, Debates, 23 November 2011, p. 13568, viewed 6 February 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F14965034-cdb8-4a26-98aa-26c862a1cd0e%2F0082%22

[24].               Explanatory Memorandum, p. 1.

[25].               Explanatory Memorandum, p. 1.

[26].               Joint Standing Committee on Electoral Matters, Report on the conduct of the 2007 federal election and matters related thereto, op. cit., p. 114.

[27].               Joint Standing Committee on Electoral Matters, The 2010 federal election: report on the conduct of the election and related matters, op. cit., p. 36.

[28].               Electoral Commission NSW, Report of the NSW state election 2011, 2011, p. 85, viewed 25 January 2012, http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/67f2055c4d085409ca25795a0017cf2c/$FILE/NSW%20EC's%20Report%20on%20the%202011%20State%20Election.pdf 

[29].               B Bishop (MP), A Somlyay (MP), Senator S Ryan, Senator S Birmingham, Joint Standing Committee on Electoral Matters, Inquiry into the conduct of the 2010 federal election and matters related thereto, Dissenting report, July 2011, p. 183, viewed 6 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect10/report.htm

[30].               Joint Standing Committee on Electoral Matters, Inquiry into the implications of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Act 2009 (NSW) for the conduct of Commonwealth elections, op. cit., p. 28.

[31].               Australian Electoral Commission (AEC), ‘Special category electors’, AEC website, viewed 6 February 2012, http://www.aec.gov.au/Enrolling_to_vote/Special_Category/index.htm. Relevant sections of the Commonwealth Electoral Act 1918 applying to these special categories are section 95AA (Norfolk Island electors), section 96A (prisoners), section 96 (itinerant and homeless electors), section 104 (silent elector), section 184A (General Postal Voters) and section 249 (Antarctic electors).

[32].               Commonwealth Electoral Act 1918, section 104(3).

[33].               Australian Electoral Commission, Joint Standing Committee on Electoral Matters, Inquiry into the Electoral and Referendum Amendment (Maintaining Address) Bill 2011, 27 January 2012, p. 15, viewed 6 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/maintainingbill/subs.htm

[34].               Electoral Commission NSW (ECNSW), ‘Automatic changes to your enrolment details: if you have moved, your enrolment address may be changed’, ECNSW website, viewed 6 February 2012, http://www.elections.nsw.gov.au/enrol_to_vote/smartroll/Automatic_Changes_to_your_Enrolment_Details

[35].               Explanatory Memorandum, p. 4.

[36].               Parliamentary Electorates and Elections Act 1912 (NSW), section 29(5)(b); Electoral Act 2002 (Vic), section 23A.

[37].               Parliamentary Electorates and Elections Act 1912 (NSW), section 29(9).

[38].               Under subsection 9(2)(d) of the Electronic Transactions Act 1999, if the information is permitted to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity—the person to whom the information is permitted to be given consents to the information being given by way of electronic communication.

[39].               Australian Electoral Commission, Annual report 2009–2010, 2010, p. 3, viewed 6 December 2011, http://www.aec.gov.au/About_AEC/Publications/Annual_Reports/files/aec-annual-report-2009-10.pdf

[40].               Electoral Commission NSW (ECNSW), ‘SmartRoll’, ECNSW website, viewed 6 December 2011, http://www.elections.nsw.gov.au/enrol_to_vote/smartroll

[41].               Commonwealth Electoral Act 1918, section 114(2).

[42].               A private objection is initiated by an enrolled elector who considers that the other person is not entitled enrolment.