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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL AND REFERENDUM AMENDMENT (HOW-TO-VOTE CARDS AND
OTHER MEASURES) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Special Minister of State,
Senator the Hon Joseph Ludwig)
ELECTORAL AND REFERENDUM AMENDMENT (HOW-TO-VOTE CARDS
ROLLS AND OTHER MEASURES) BILL 2010
OUTLINE
The Electoral and Referendum Amendment (How-to-Vote Cards and Other Measures) Bill
2010 (the Bill) amends the Commonwealth Electoral Act 1918 (Electoral Act) and the
Referendum (Machinery Provisions) Act 1984 (Referendum Act).
How-to-vote cards
Section 328 of the Electoral Act in general terms imposes various obligations relating to
authorisation requirements for electoral advertisements, video recording and newspaper
advertisements. Currently, how-to-vote cards are treated as a form of electoral
advertisement. A contravention of these requirements is an offence.
It is common on polling day, and in the few weeks in the lead-up to polling day, for
candidates and registered political parties to issue how-to-vote cards. The how-to-vote cards
generally adopt a ballot paper style presentation by listing the names of all candidates for that
election and putting a number beside each candidate in the suggested order that a voter
should allocate his or her preferences.
The amendments will introduce into the Electoral Act specific and expanded authorisation
requirements for how-to-vote cards. A contravention of these requirements will be an
offence.
The intention of the amendments is to make it clearer who will benefit from the preference
flow suggested on the how-to-vote card. It is intended that these amendments will reduce the
potential for voters to be misled and to give voters the means to make informed decisions by
ensuring that the political source of how-to-vote material is clearly stated.
Misleading or deceptive publication
Section 329 of the Electoral Act and section 122 of the Referendum Act generally prohibit a
person from printing, publishing or distributing, or causing to be printed, published or
distributed, anything that may mislead or deceive an elector in how to cast a vote.
Subsection 329(6) defines the term `publish' to include `publish by radio or television'. The
amendments in this Bill will add the terms `telephone' and `internet' to the definition of
publish in section 329 of the Electoral Act and section 122 of the Referendum Act.
The offence in section 329 of the Electoral Act and section 122 of the Referendum Act is
expanded to include the internet. Consequently, the Bill amends the offence to have extended
geographical jurisdiction.
FINANCIAL IMPACT STATEMENT
There are no costs associated with implementation of the proposed amendments.
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be cited as the Electoral and Referendum
Amendment (How-to-Vote Cards and Other Measures) Act 2010.
Clause 2 - Commencement
2. This clause specifies that sections 1 to 3 commence upon Royal Assent. Schedules 1
and 2 commence on a single day to be fixed by Proclamation or, if not proclaimed earlier, 6
months following Royal Assent.
Clause 3 - Schedule(s)
3. This clause specifies that each Act specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule, and any other item in a Schedule
to this Act has effect according to its terms.
Schedule 1 - How-to-vote cards
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Subsection 4(1)
4. Item 1 amends subsection 4(1) of the Electoral Act to add a definition of the term
`how-to-vote card'.
Item 2 - Paragraph 308(1)(e)
5. Item 2 amends paragraph 308(1)(e) to remove an incorrect cross reference to section
332 which is no longer in the Electoral Act. Item 2 also amends the definition of `electoral
expenditure' in section 308 of the Electoral Act to add the expenditure incurred in the
production of how-to-vote cards used during the election period.
Item 3 - Subparagraph 314AEB(1)(a)(iii)
6. Item 3 amends subsection 314AEB(1) to add expenditure incurred in the printing,
production, publication or distribution of how-to-vote cards in a return for a financial year.
Item 4 - Before paragraph 328(3)(a)
Item 5 - Subsection 328(4)
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7. Items 4 and 5 amend subsections 328(3) and 328(4) to exclude how-to-vote cards
from the authorisation requirements in section 328. The necessity for this exclusion is due to
new section 328B providing for specific and expanded authorisation requirements for how-
to-vote cards.
Item 6 - After section 328A
8. Item 6 inserts new section 328B which makes the substantive amendments in relation
to specific and expanded authorisation requirements for how-to-vote cards and introduces
two new offences for a breach of the authorisation requirements.
9. New subsection 328B(1) requires a how-to-vote card to include at the top of each
printed face the name and address of the person who authorised the how-to-vote card. If the
how-to-vote card is registered by or on behalf of a registered political party, the card must
include the name of the registered political party. If the how-to-vote card is authorised by or
on behalf of a candidate who is not endorsed by a registered political party, the card must
include the name of the candidate and the word `candidate' printed next to the name.
10. New subsections 328B(2) and 328B(3) require the authorisations under subsection
328B(1) to conform to certain requirements in relation to the size of the characters in the
authorisation. This amendment is intended to ensure that the authorisation is clearly visible
and identifiable to electors.
11. New subsection 328B(4) makes it an offence for a person, during the relevant period,
to publish or distribute a how-to-vote card, or causes, permits or authorises another person to
publish or distribute a how-to-vote card, that does not comply with the authorisation
requirements in subsections 328B(1) and (2). The penalty is 10 penalty units.
12. New subsection 328(5) makes it an offence for a person, during the relevant period, to
publish or distribute a how-to-vote card, or causes, permits or authorises another person to
publish or distribute a how-to-vote card, and some or all of the authorisation details on the
how-to-vote card are false. The penalty is 10 penalty units.
13. New subsection 328B(6) defines the term `address of a person' for the purposes of
section 328B to be an address including a full street address and suburb or locality at which
the person can usually be contacted during the day. It does not include a post office box.
Item 7 - Subsection 351(5)
Item 8 - Subsection 351(5)
14. Item 7 amends subsection 351(5) so that the person whose name and address appears
at the top of or end of an authorisation required under the Electoral Act in the absence of
evidence to the contrary is taken to have announced or published the matter or caused it to be
announced or published for the purposes of section 351. Item 8 amends subsection 351(5) to
add a reference to subsection 328B necessitated by the amendment in Item 6.
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Part 2 - Application of amendments
Item 9 - Application of amendments
15. Item 9 makes it clear that the amendments relating to how-to-vote cards only applies
prospectively to all elections and referenda the writs for which are issued on or after the
commencement of Schedule 1.
Schedule 2 - Misleading or deceptive publication
Part 1 - Amendments
Commonwealth Electoral Act 1918
Section 329 of the Electoral Act prohibits publications that are likely to mislead or deceive an
elector in relation to the casting of a vote. Subsection 329(6) provides a definition of the term
`publish'. This Bill amends the definition of publish and provides extended geographical
jurisdiction for the offence.
Item 1 - After subsection 329(5)
16. Item 1 inserts new subsection 329(5A) which gives the offence in section 329
extended geographical operation in accordance with the Criminal Code (extended
geographical jurisdiction - category B). This provision is consistent with the extended
geographical operation of section 328A of the Electoral Act dealing with publication of
electoral advertisements on the internet. The intention of this amendment is to capture
material published overseas by an Australian citizen or resident.
Item 2 - Subsection 329(6)
17. Section 329 generally prohibits a person from printing, publishing or distributing or
causing to be printed, published or distributed anything that may mislead or deceive an
elector in relation to how to cast a vote. Subsection 329(6) defines the term publish to
include publish by radio or television. Item 2 amends section 329(6) to add the terms
`telephone' and `internet' to the definition of publish in section 329 of the Electoral Act.
Referendum (Machinery Provisions) Act 1984
Item 3 - After subsection 122(5)
18. Consistent with amendments to the Electoral Act, Item 3 inserts new subsection
122(6) which gives the offence in section 122 extended geographical operation in accordance
with the Criminal Code (extended geographical jurisdiction - category B). This provision is
consistent with the extended geographical operation of section 121A of the Referendum Act
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dealing with publication of electoral advertisements on the internet. The intention of this
amendment is to capture material published overseas by an Australian citizen or resident.
Item 4 - Subsection 122(7)
19. Section 122 generally prohibits a person from printing, publishing or distributing or
causing to be printed, published or distributed anything that may mislead or deceive an
elector in relation to how to cast a vote. Subsection 122(7) defines the term publish to
include publish by radio or television. Consistent with amendments to the Electoral Act,
Item 4 amends section 122(7) to add the terms `telephone' and `internet' to the definition of
publish in section 122 of the Referendum Act.
Part 2 - Application of amendments
Item 5 - Application of amendments
20. Item 5 makes it clear that the amendments relating to misleading and deceptive
publication only applies prospectively to all elections and referenda the writs for which are
issued on or after the commencement of Schedule 2.
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