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Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012

Introduced into the House of Representatives on 29 November 2012
Portfolio: Special Minister of State

1.1        This bill amends three Acts[1] to:

• set out procedures to be followed when a ballot-box is opened prematurely and to require ballot papers in such a box to be excluded from scrutiny;
• make provisions about pre-poll voting and postal voting;
• provide for further periods of time to be provided to the augmented Electoral Commission to complete inquiries regarding redistribution of electoral boundaries; and
• amend taxation legislation to enable some forms of taxpayer information to be provided to the Australian Electoral Commission to administer voter enrolment.

Compatibility with human rights

1.2        The bill is accompanied by a self-contained statement of compatibility that identifies a number of rights which are engaged by the bill, in particular the right not to be subject to unlawful or arbitrary interference with one’s privacy and the right to vote.[2] The statement of compatibility concludes that to the extent that either of these rights is restricted, the restrictions are reasonable and proportionate measures adopted in pursuit of a legitimate objective.

1.3        The amendments proposed by the bill are in response to the recommendations of the report of the Joint Standing Committee on Electoral Matters (JSCEM) into the 2010 election.[3] The bill is also currently the subject of an inquiry by that committee.

Right not to be subjected to unlawful or arbitrary interference with one’s privacy

1.4        There are two sets of amendments that give rise to significant human rights issues in this bill. The first is the proposed amendments to income tax legislation which will allow the Commissioner of Taxation to provide information that is subject to the confidentiality obligations under the Taxation Administration Act 1953 to the Electoral Commissioner to facilitate keeping the electoral roll up to date.

1.5        In its General comment No 25 (2006) on article 25 of the ICCPR the UN Human Rights Committee stated:

11. States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. ... Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community.

1.6        The proposed amendments will make it lawful for the Commissioner of Taxation to disclose to the Electoral Commissioner, for the purposes of the administration of the Electoral Act and the Referendum Act,[4] information about taxpayers which it would otherwise be an offence to disclose. It would join a number of other exceptions which permit the disclosure of relevant information to Commonwealth departments or agencies for the purpose of the administration of various pieces of Commonwealth legislation.

1.7        The availability of this information would permit the Electoral Commissioner to exercise powers conferred by recent amendments to the Electoral Act to directly update or transfer a person’s enrolment without claim or notice from the person and to enrol an unenrolled person without claim or notice from the person (sections 103A and 103B). It would thus serve to ensure that persons eligible to enrol are enrolled (and thus may vote) and for the records of others to be updated so that they continue to be eligible to vote.

1.8        This would involve encroachment on the right to privacy, so must be justified as a reasonable and proportionate measure in pursuit of a legitimate goal. The statement of compatibility argues that the amendments:

are reasonable, necessary and proportionate to achieving the aim of enabling the Electoral Commissioner to ensure that people who are eligible to vote are registered in accordance with the Electoral Act and Referendum Act. Specifically, the potential benefits associated with interfering with a person’s privacy outweigh any deleterious effects the proposed amendments might have on a person’s right to privacy.

1.9        In reaching a conclusion on the reasonableness and proportionality of these amendments, it may also be relevant to take into account the fact that under Australian law, voting is compulsory (something which has been held to be consistent with, though not required by, international human rights law).

1.10             The committee considers it a reasonable and proportionate interference with the right to privacy to permit information provided under the taxation legislation and subject to its secrecy provisions to be provided to the Electoral Commissioner for the purposes of the administration of the Electoral Act and Referendum Act.

Right to vote

1.11      The second area in which human rights concerns arise is in relation to the treatment of ballot papers in a ballot box that has been opened prematurely. The proposed new sections[5] set out the procedures that must be followed if an officer becomes aware that a ballot box containing ballot papers has been opened prematurely.  The ballot papers are to be sealed in a parcel, identified as having been in the ballot box that was prematurely opened, and sent to the Divisional Returning Officer. The ballot papers contained in such a ballot box are then excluded from scrutiny and those votes are not counted for the purposes of an election or referendum.

1.12      The statement of compatibility states:

These provisions do not limit the right to vote provided for by Article 25 of the ICCPR. Rather, they provide, in order to preserve the integrity of the voting process, that where a ballot box has been opened prematurely, the ballot papers contained in the box will be excluded from the scrutiny. However, to the extent that the provisions do limit the right to vote, by providing that a person’s vote will not be counted in the scrutiny in very specific circumstances, the provisions are reasonable...

1.13        It is part of the right to vote that one’s vote actually be counted on the same basis as that of every other elector; accordingly, not counting ballots that have been cast because of a premature opening of a ballot box, is a limitation of the enjoyment of the right to vote and must be justified as a reasonable and proportionate measure.

1.14      General comment No 25 of the UN Human Rights Committee notes:

An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. ...The security of ballot boxes must be guaranteed and votes should be counted in the presence of the candidates or their agents. There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes...[6]

1.15      The statement of compatibility argues that the protection of the integrity of the voting process is a legitimate and important objective and that this measure is necessary in order to achieve that goal. The existence of clear statutory procedures for the handling of ballot boxes and the relative infrequency of such occurrences, are relevant to the question of reasonableness and proportionality. Furthermore, the statement of compatibility notes that:

the Australian Electoral Commission can file a petition disputing an election under section 357 of the Electoral Act and section 102 of the Referendum Act if the excluded ballot papers are likely to affect the result is also significant in this regard ....[E]ven if the provisions limit a person’s right to vote, if a person’s vote is likely to affect the outcome of the election, it may still count towards any petition seeking to void the election or referendum.

1.16             The committee considers that the provisions relating to the treatment of ballot papers in ballot boxes opened other than in accordance with the provisions of the Act, pursue the legitimate objective of the protection of the integrity of the voting process and are a reasonable and proportionate restriction on the right to vote.

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