A. Australian Electoral Commission's proposed technical amendments to legislation

Extracted from AEC Submission 66 (8)

1.Approval requirement for the destruction of enrolment claims

The AEC recommends that section 391 of the Commonwealth Electoral Act (1918) be amended so the Electoral Commissioner, not the Australian Electoral Officer (AEO), is responsible for approving the destruction of claims for enrolment. The Electoral Commissioner may delegate the task (for example to Assistant Commissioner Roll Management).
Section 391: The change would simplify the process for the destruction of enrolment forms and improve efficiency. It is consistent with the 2010 changes to section 28 of the Act where Divisional Returning Officer and AEO references were changed to Electoral Commissioner, with the addition of a subsection for delegations.

2.Storing enrolment claims

The AEC recommends that section 391 of the Commonwealth Electoral Act (1918) be amended to provide for the Electoral Commissioner to approve the method of storing enrolment forms.
Section 391 requires an AEO (or the Electoral Commissioner for the ACT) to approve the method for storing enrolment forms (enrolment claims).The change from AEO to Electoral Commissioner would allow efficient and nationally consistent approach to storing enrolment claims in any permanent form approved by the Electoral Commissioner.

3.Remove elector from the roll where added incorrectly

The AEC recommends that section 105 of the Commonwealth Electoral Act (1918) be amended to introduce the power to remove an elector from the roll to correct mistakes of fact or process and maintain factual accuracy rather than having to rely on objection provisions. This power should be covered by the review provisions.
Section 105: There are circumstances where mistakes are made in the maintenance of the electoral roll, where the AEC does not have the power to administratively correct them in a timely manner. These include circumstances such as where a person is enrolled for the first time, but their enrolment application should have been rejected, for example the application did not satisfy the evidence of identity requirements under section 98AA of the Act. The AEC can only correct the enrolment through objection action on the grounds that the person is not entitled to be enrolled for that division.
A provision that allows the AEC to correct mistakes would maintain the relevance of the powers at section 105, address current limitations and be more efficient.

4.Amend references to Census Collection Districts

The AEC recommends that the Commonwealth Electoral Act (1918) be amended to replace the term ‘Census Collection District’ and ‘Census district’ to a generic term.
Subsection 76(17); Paragraph 76(9)(a); Paragraph 76A(8)(a); and Paragraph 90B(10)(e):
The change would update statistical geography terminology in the Act, and would provide for changes in terminology such as when the Australian Bureau of Statistics changed the standard statistical geography from ‘Census Collection District’ to a generic term.

5.Amend superfluous reference to the Northern Territory

The AEC recommends that subsection 93(10) of the Commonwealth Electoral Act (1918) be amended to remove references to the Northern Territory.
Subsection 93(10): The reference to Northern Territory in subsection 93(10) of the Electoral Act is superfluous given section 97 (in Part VII) of the Electoral Act provides for Part VII to apply to the Northern Territory (or the Australian Capital Territory) as if reference to a state in that Part were reference to that territory.

6.Requirement for addresses on the certified list

The AEC recommends that section 208 of the Commonwealth Electoral Act (1918) be amended to specifically provide for the enrolled address to be included as part of the certified list of voters.
Section 208: This section of the Act does not require an elector’s enrolment address to be included on the certified list of voters. However, at section 229 of the Electoral Act, at the time of voting, before the voter is issued with their ballot papers, the issuing officer asks where the voter lives. Any amendment needs to consider the requirement for suppression of address of silent electors as provided for in section 104.

7.Identifying features on ballot papers – administrative mark and/or colour

The AEC recommends that section 209 of the Commonwealth Electoral Act (1918) be amended to allow the AEC the flexibility to include an administrative mark such as the division name and/or a coloured mark, feature or panel.
Section 209: It would not be possible, in the absence of legislative amendment, to:
print any of the text in colour, on the basis that subsection 209(3) requires ballot papers to be printed using ‘black type face of a kind ordinarily used in Commonwealth Government publications’; or
change the background colour of the whole of a House of Representatives or Senate ballot paper, on the basis that this would offend the requirement in subsection 209(3) that Senate ballot papers be printed on a white background colour and ballot papers for the House of Representatives must have a green background colour.
Explicit authorisation of an administrative mark and / or a coloured mark, feature or panel, would remove any doubt as to whether incorporation of such elements offended the ‘black typeface’ or background colour requirements of subsection 209(3), or whether such elements were within the scope of subsection 392(1) which provides that substantial compliance with the forms in Schedule 1 will be sufficient.
Enabling the AEC to place an administrative mark on ballot papers, or the flexibility to print ballot papers with identifying features or colours, would assist:
polling officials to issue correct ballot papers to electors
staff counting votes, from voting centres issuing ordinary votes for more than one division, correctly attribute Senate ballot papers to the relevant division.
contractors and AEC staff to accurately allocate correct division and Senate ballot papers to AEC offices and voting locations
It should be noted that such inclusions on ballot papers may affect the costs of ballot paper printing.

8.Year on House of Representatives ballot paper

The AEC recommends that Schedule 1 Form F of the Commonwealth Electoral Act (1918) be amended to include the year on House of Representative ballot papers.
Schedule 1 Form F: This would ensure consistency with the Senate ballot paper requirements.

9. Correct drafting error in Form E

The AEC recommends that Form E of the Commonwealth Electoral Act (1918) be amended to correct format errors.
Form E: The following drafting errors should be corrected:
footnote number (4) should not appear above the line (ATL) – all current references to footnote (4) appearing ATL should be replaced with references to footnote (2)
footnote (4) should only appear below the line (BTL) in the ungrouped column adjacent to the candidate name
footnote (1) should also be added next to the candidate boxes in the ungrouped column above footnote (4)
all references to footnote (4) BTL should be replaced with references to footnote (3)
an additional candidate box needs to be added to Column D BTL.
These changes are required consequential to the repeal of subsection 211A.

10. Directions for marking of votes in Senate election

The AEC recommends that section 239 of the Commonwealth Electoral Act (1918) be amended so that directions for how to mark the ballot paper say ‘must’ for both above the line and below the line.
Section 239: This section provides that a person ‘must’ mark his or her vote in accordance with paragraphs (a) or (b), whereas subsection 239(2) provides that a vote ‘may’ be marked on a ballot paper in accordance with the directions set out in paragraphs 239(2)(a) and (b).
The inconsistent use of ‘must’ and ‘may’ was also used in the former subsection 239(1) and subsection 239(2). Amending the subsections to use the word ‘must’ would make the information on marking ballot papers consistent.

11.General Postal Voters (GPV) under the Referendum Act

The AEC recommends that section 58 of the Referendum (Machinery Provisions) Act (1984) be amended to enable the AEC to dispatch postal voting papers to general postal voters for a referendum, as soon as practicable after the close of rolls.
Section 58 of the Referendum Act: The Electoral Commissioner is required, under section 58 of the Referendum Act, to, ‘as soon as practicable after the issue of the writ for a referendum or the public announcement of the proposed date for the voting, whichever is the earlier’, arrange for the delivery of postal voting papers to each registered general postal voter.
This change would reduce the number of voting papers sent to individuals who are ultimately not entitled to vote because the timeframe would mean that voting papers would only be sent to registered general postal voters after the close of the rolls for a referendum. In addition it ensures votes are issued in accordance with details on the finalised certified list.
Voting papers are sent to GPVs at elections held in conjunction with referendums, or elections, following the declaration of nominations, which follows the close of rolls.

12.Postal vote application (PVA) from issue of writ

The AEC recommends that subsection 55(4) of the Referendum (Machinery Provisions) Act 1984 and subsection 184(4) of the Commonwealth Electoral Act (1918) be amended to allow application for a postal vote to be made only from the issue of the writ, rather than from announcement of the proposed date of polling or the issue of writ, whichever is the earlier.
Subsection 55(4) of the Referendum Act and subsection 184(4) of the Electoral Act: This issue was considered in drafting the Plebiscite (Same-Sex Marriage) Bill 2016.
As the Explanatory Memorandum to that Bill noted, subclause 16(1) proposed to replace subsection 55(4) of the Referendum Act with a new subsection 55(4) for the purpose of the plebiscite. The replacement subsection 55(4) proposed to provide that a postal vote application may not be made until after the issue of the writ. This change would mean that even if the proposed date for voting is announced prior to the issue of the writ, postal vote applications may not be made until the writ is issued.
Requiring postal vote applications to be made after the issue of the writ is a minor but important administrative efficiency for the AEC. It would clarify for the AEC when PVAs can be made available and be validly accepted, given the term ‘announcement’ is not defined in the Electoral Act.
Potentially it would also be less confusing for electors who, following statements concerning the intended date of the federal election, seek to apply for a postal vote regardless of the election timetable.

13.Consistent treatment of PVAs made under the Electoral and Referendum Acts

The AEC recommends that section 184 of the Commonwealth Electoral Act (1918) and section 59 of the Referendum (Machinery Provisions) Act (1984) be amended to ensure consistency in the treatment of postal vote applications when an election and a referendum are held at the same time.
Section 184 of the Electoral Act and Section 59 of the Referendum Act: Section 59 of the Referendum Act has the effect of treating an application for a postal vote (PVA) in an election as a PVA for a referendum. But a PVA for a referendum is not treated as an application for an election. This was highlighted as an issue when a federal election was proposed to be held on the date that had already been announced for the proposed referendum on local government in 2013.
It is recommended that the Referendum Act and the Act be amended to provide that when an election and referendum are held at the same time, a PVA for a referendum is treated as a PVA for an election. This should have effect even when announcement of the events are made at different times.

14.Remove requirement to produce PVAs at preliminary scrutiny

The AEC recommends that Schedule 3, clause (2) and subsections 188A(2) and 188A(3) of the Commonwealth Electoral Act (1918) be amended to remove the requirement to produce PVAs at preliminary scrutiny and send PVAs to the relevant division.
Schedule 3, clause (2) and subsections 188A(2) and 188A(3): Following legislative change in 2010, PVAs are no longer matched with postal vote certificates (PVCs) or used in any part of preliminary scrutiny, which used to require a comparison of PVA and PVC signatures. The legislation also enabled PVAs to be processed centrally and online, so in many cases there is no hard-copy to be ‘produced’. The integrity of the process is maintained by issuing a barcoded PVC on the basis of a valid PVA and registering the returned PVC back to the online PVA. Each PVC maintains its link to the PVA through both being allocated the same unique identification number.

15.Broaden reference to polling official

The AEC recommends that subsection 4(1) and/or subsections 273(2) and 274(2) of the Commonwealth Electoral Act (1918) and/or relevant provisions be amended to reflect changes to scrutiny arrangements.
Subsection 4(1) and/or subsections 273(2) and 274(2) and/or relevant provisions: Various provisions in the Electoral Act require activities to be undertaken in the presence of a ‘polling official’. Subsections 273(2) and 274(2) require the re-opening of a ballot box in the presence of a ‘polling official’. However, the definition of ‘polling official’ in subsection 4(1) currently is limited to a deputy presiding officer and an assistant presiding officer, which are terms generally associated with polling activities or counting of votes in polling booths only.
To make more clear that ballot boxes from pre-poll voting centres and mobile teams may not necessarily be opened in a polling booth, and that a ‘polling official’ as defined will also include persons in the AEC’s workforce referred to as a scrutiny or count assistant or supervisor, it is recommended that relevant amendments are required to the terminology used in subsections 4(1) and/or subsections 273(2) and 274(2) and/or relevant provisions.
The AEC will work with the Office of Parliamentary Counsel to identify the relevant provisions requiring amendment to implement this recommendation.

16.Forwarding of declaration votes

The AEC recommends that section 228 of the Commonwealth Electoral Act (1918) be amended to revert to the pre-2016 federal election provisions.
Section 228: Following the 2016 legislative amendments, declaration vote ballot boxes were not opened or reconciled at the polling place as had occurred at previous elections. Instead they were required to be returned to the DRO unopened. This meant that the reconciliation workload previously carried out at each polling place was moved to divisional out-posted centres in the days following polling day. This resulted in two to three days of additional workload that needed to be carried out at out-posted centres before the declaration vote exchange could be finalised and the preliminary and further scrutiny of some declaration votes could commence.
(Reference was made to this issue at paras 145 – 147 of the AEC’s Submission 66 of 1 November 2016.)

17.Opening ballot boxes and packaging and parcelling

The AEC recommends subsections 273(2) and 274(2) and/or other relevant provisions of the Commonwealth Electoral Act (1918) be amended to remove references to counting ‘without inspecting’ and to allow the Electoral Commissioner to determine the method for packaging and parcelling of ballot papers.
Paragraph 273(2)(c) and paragraph 274(2)(ab) and/or other relevant provisions: After opening a ballot box containing Senate or House of Representatives ballot papers, the provisions require a ballot box to be opened, ballot papers to be removed, ballot papers to be counted without being inspected, and the number of ballot papers from the box to be recorded. Following this process, first preference votes can be counted.
Removing the step of counting the ballot papers without inspecting them and re-ordering remaining provisions to align with established processes would simplify the process of extracting ballot papers, counting first preferences and recording the number of ballot papers.
Paragraphs 274(2)(b), (e), (g) and (h) and/or other relevant provisions: The counting and packaging requirements in subparagraphs 274(2)(b), (e), (g) and (h) of the Electoral Act have the effect of requiring first preference votes for each candidate, and informal votes to be individually parcelled and labelled.
Senate packaging and parcelling arrangements outlined in subparagraphs 273(2)(e) and 273(3)(d) are less onerous, while ensuring that packaging of ballot papers is secure.
Removing the reference to parcelling in counting and handling provisions (paragraphs 274(2)(b) and (e) of the Act), while amending packaging and dispatch provisions (paragraphs 274(2)(g) and (h) of the Act) to provide for secure packaging and parcelling, in accordance with the directions of the Electoral Commissioner would speed up procedures without compromising any element of the process.

18.Declaration vote mark-off on electronic certified list (ECL)

The AEC recommends that Schedule 3 of the Commonwealth Electoral Act (1918) be amended to allow mark-off of declaration votes where an electronic certified list is in use thus allowing earlier commencement of this aspect of preliminary scrutiny.
Schedule 3: Where an elector has been found on a certified list outside the division where they are voting (for example because they can be searched on the state or national roll on an ECL) they are recorded as having a vote issued but are not officially marked off on the certified list, until the declaration vote is returned to the home division and subjected to preliminary scrutiny. The mark-off could occur at the time of issuing the vote and the receiving division would not need to conduct this aspect of the preliminary scrutiny. This would reduce the time needed for preliminary scrutiny of some declaration votes, once received in the home division, meaning that they could be counted earlier.

19.Nominations by email

The AEC recommends that Part XIV of the Commonwealth Electoral Act (1918) and/or Schedule 1 of the Electronic Transactions Regulations 2000 be amended to enable electronic lodgement of nomination forms, where these forms are currently are able to be lodged by facsimile.
Schedule 1: Part XIV of the Act should be amended to provide that forms may be lodged via facsimile and email.
Facsimile is no longer a common means of transmitting written copies of forms to the AEC. Enabling nomination forms to be lodged by scanning and emailing to the relevant AEO or DRO, would allow use of current technology. Facsimile is no longer a common means of transmitting written copies of forms to the AEC. Enabling nomination forms to be lodged by scanning and emailing to the relevant AEO or DRO, would allow use of current technology.

20.Pencils at polling places

The AEC recommends that section 206 of the Commonwealth Electoral Act (1918) be amended to remove the prescription for pencils and allow for pens or pencils to be provided in polling booths.
Section 206: Pens may assist with processes to electronically capture marks from ballot papers, as per the new Senate scanning process. The AEC should have the flexibility to provide pens or pencils as the means to vote.

21.Non-voter notices

The AEC recommends that references to the Divisional Returning Officer in section 245 of the Commonwealth Electoral Act (1918) be amended to refer to a delegate of the Electoral Commissioner.
Section 245: The current provisions suggest that non-voter letters are dispatched by the DRO.
The Act does not reflect the existing centralised approach to dispatch of notices. Further, the provisions assume the existence of an individual DRO for each division at all times, which does not readily reflect the AEC’s staffing arrangements outside of an election period (particularly in larger work units involving co-located divisions where a DRO is not appointed for all divisions all of the time). It is recommended ‘Electoral Commissioner’ be substituted for the DRO. Relevant functions may then be delegated to AEC officers.

22.Preservation of electoral documents

The AEC recommends that section 393A of the Commonwealth Electoral Act (1918) be amended as follows regarding the preservation of electoral documents.
Section 393A: Amend the Act to say the AEC or Electoral Commissioner should store electoral documents, not the DRO/AEO. The AEC centrally stores many documents such as certified lists, ballot papers and postal vote applications.
Currently, only DROs can access parcels, based on directions issued by the Electoral Commissioner. Larger work units house more than one division and DROs are not appointed for all divisions all of the time. This prescription is an issue for things like the informal ballot paper study, or any kind of stocktake.
The Electoral Commissioner or their delegate, in compliance with the instruction of the Electoral Commissioner, would replace the reference to DRO/AEO responsibilities to safely store, and access stored, ballot papers.
Section 393A(9): This sub-section should be amended to refer to electoral documents rather than simply document. This will ensure that the defined term ‘electoral document’ is consistently referenced throughout the section.
Section 393A: Allow for the preservation of documents for use in activities approved by the Electoral Commissioner, such as testing processes and as training materials. It is recommended that provisions be inserted to provide for use of marked ballot papers as training material, after destruction is allowed or after action by the Court of Disputed Returns is finalised.

23.Compliance with forms

The AEC recommends that the Referendum (Machinery Provisions) Act (1984) be amended to insert similar arrangements provided for in section 392 of the Commonwealth Electoral Act (1918) that allow for substantial compliance with forms.
Referendum Act: Necessary minor alterations to the forms such as ballot papers are allowed in the Act but not in the Referendum Act.

24.Determining formality in Senate scrutiny

The AEC recommends that subsection 268(2) of the Commonwealth Electoral Act (1918) be amended to include reference to the Australian Electoral Officer to facilitate the determination of formality of Senate ballot papers.
Subsections 268(2) and 273(4): Changes to the Senate scrutiny now affect how formality decisions are made. The DRO no longer plays a role in the conduct of a Senate scrutiny under section 273 and accordingly the DRO is not present to exercise the power provided under subsection 268(2) to determine and record a decision in relation to ballot paper authenticity. This was a consequential amendment missed in the Senate reform legislation in 2016.
It is recommended that the relevant subsection be amended so that Senate ballot papers may be endorsed by the relevant Australian Electoral Officer in each state or territory.

25.Electronically assisted counting

The AEC recommends that subsection 268(2) and / or section 273A of the Commonwealth Electoral Act (1918) be amended to account for an electronically assisted counting process.
Subsection 268(2) and / or section 273A: The current Senate ballot paper scanning protocol only scans the front of the ballot paper and as a result the written endorsement under subsection 268(2) that is placed on the back of the ballot paper is not recorded.
It is recommended that the requirement to endorse the back of the ballot paper under subsection 268(2) be able to be satisfied through the creation of a computer record rather than through physically endorsing the back of the ballot paper. For example, the image of the Senate ballot paper has that information included in the electronic file.

26.Registration of political parties

The AEC recommends that paragraph 132(7)(a) of the Commonwealth Electoral Act (1918) be amended from:
The Electoral Commission shall not register a political party unless:
a
it has published a notice of the application for registration in accordance with this section
to:
The Electoral Commission shall not register a political party unless:
b
The Electoral Commissioner has published a notice of the application for registration in accordance with this section
Paragraph 132(7)(a): The Electoral Commission has the power to register or deregister a party, the Electoral Commissioner has the legislative responsibility to publish notices.

27.Party logo application

The AEC recommends that paragraph 134(2)(d) of the Commonwealth Electoral Act (1918) be amended to include the logo elements from paragraphs 134(1)(ea) and (1)(eb). Add “…for the purposes of paragraphs (1)(c), (d), (e), (ea) and (eb) – must be accompanied by a fee of $500.”
Paragraph 134(2)(d): This amendment would ensure that the $500 fee applies to an application for a party logo and would align with the existing requirement for other changes to the Register, as was intended when the provision was introduced.

28. Deregistration of political parties - fraud

The AEC recommends that paragraph 137(1)(c) of the Commonwealth Electoral Act (1918) be amended from:
 
“the registration of a political party so registered was obtained by fraud or misrepresentation;”
to:
 
“the registration of a political party so registered or reviewed was obtained by fraud or misrepresentation;”
Paragraph 137(1)(c): Deregistration for fraud or misrepresentation in obtaining registration should be extended to cover information provided as part of a review of registration under section 138A.

29. Party registration – review of decisions

The AEC recommends that subsection 141(2) of the Commonwealth Electoral Act (1918) be amended from:
 
“…within the period of 28 days after the day on which the decision first comes to the notice of the person…”
to:
 
“…within 28 days after the day on which the AEC notifies the decision…”
Subsection 141(2): The revised words would provide a tangible, measurable period during which an application for review of a decision can be lodged.

30. Requisites for appointment of candidate agent

The AEC recommends that subsection 290(3) of the Commonwealth Electoral Act (1918) be amended from:
 
“if notice of the appointment was given to the Commission after the close of nominations for election”
to:
 
“the appointment was given to the Commission after the due date of the lodgement of the candidate return.”
Subsection 290(3): There is no logical reason to link the appointment of a candidate agent to the close of nominations. A more appropriate approach would be to allow candidates to appoint an agent any time up to when disclosure returns are due.

31. Election funding not made in certain circumstances

The AEC recommends that section 297 of the Commonwealth Electoral Act (1918) be amended to provide that election funding will not be payable where a registered political party has elected not to receive election funding.
Section 297: Recognise where a party has indicated it does not want to receive election funding so that election funding will not be paid to them.

32.Disclosure of donations - loan records

The AEC recommends that paragraph 306A(3)(a) of the Commonwealth Electoral Act (1918) be amended as follows:
(3) The receiver of the loan must keep a record of the following:
(a) the terms and conditions of the loan; and
(b) if the loan was received from a registered industrial organisation other than a financial institution:
(i) the name of the organisation; and
(ii) the names and addresses of the members of the executive committee (however described) of the organisation; or
(c) if the loan was received from an unincorporated association:
(i) the name of the organisation or association; and
(ii) the names and addresses of the members of the executive committee (however described) of the association or organisation; or
(d) if the loan was paid out of a trust fund or out of the funds of a foundation:
(i) the names and addresses of the trustees of the fund or of the foundation; and
(ii) the title or other description of the trust fund, or the name of the foundation, as the case requires; or
(e) in any other case – the name and address of the person or organisation.
Paragraph 306A(3)(a): At the end of this paragraph an “and” should be added to make it clear that these details must always be disclosed along with one of either (b), (c), (d) or (e). The word “or” perhaps also needs to be included after paragraphs (b) and (c).

33. Annual disclosure records

The AEC recommends that section 317 of the Commonwealth Electoral Act (1918) be amended to require records to be maintained pertaining to annual disclosure returns.
Section 317: The requirement to maintain records for three years has never been updated to cover records required in support of annual disclosures. It still only applies to election disclosures. The three year period for annual disclosures could commence from 1 July in the financial year following the disclosure year.

34.Require return for gifts to candidates in by-elections

The AEC recommends that section 305A of the Commonwealth Electoral Act (1918) be amended to read “in relation to an election or by-election”.
Section 305A: Due to the way ‘election’ and ‘by-election’ are defined in subsection 303(1) of the Electoral Act, the requirement to submit a return under section 305A (gifts to candidates) does not apply to a by-election. This amendment would ensure that the requirements would apply to by-elections.

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