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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL AND REFERENDUM AMENDMENT (CLOSE OF ROLLS 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 (CLOSE OF ROLLS AND OTHER MEASURES) BILL
2010
OUTLINE
The Electoral and Referendum Amendment (Close of Rolls and Other Measures)
Bill 2010 (the Bill) amends the Commonwealth Electoral Act 1918 (the
Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the
Referendum Act).
The Joint Standing Committee on Electoral Matters (JSCEM) conducted an
inquiry into the conduct of the 2007 federal election and the resulting
report is entitled Report on the conduct of the 2007 federal election and
matters related thereto (JSCEM Report). The Bill contains five government
supported amendments arising from the JSCEM Report. The Bill also contains
one measure relating to the number of candidates that can be endorsed by a
political party in each Division which emerged as an issue at the 2009
Bradfield by-election and requires legislative amendment prior to the
conduct of any subsequent federal elections.
The Bill contains provisions that will:
. restore the close of Rolls period to seven days after the issue of the
writ for an election;
. repeal the requirement for provisional voters to provide evidence of
identity before their votes are admitted to scrutiny;
. modernise enrolment processes to enable electors to update their
enrolment details electronically;
. allow the Australian Electoral Commission (AEC) to manage its workload
more efficiently by enabling enrolment transactions to be processed
outside the Division for which the person is enrolling;
. enable pre-poll votes cast in an elector's 'home' Division to be cast
and counted as ordinary votes, wherever practicable; and
. restrict the number of candidates that can be endorsed by a political
party in each Division.
FINANCIAL IMPACT STATEMENT
The costs associated with implementation of the measures contained in this
Bill are estimated at just over $1.0M. Net savings of $5.7M are expected
to be achieved over the forward estimates period, with the majority of
savings achieved through efficiencies in pre-poll voting at the next and
subsequent federal elections.
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be cited as the Electoral and
Referendum Amendment (Close of Rolls and Other Measures) Act 2010.
Clause 2 - Commencement
2. This clause specifies that sections 1 to 3 commence upon Royal Assent.
Schedules 1 to 3 and Schedule 5 are to commence on Royal Assent.
Schedule 4 is to commence on a date 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 - Amendments relating to close of Rolls
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Paragraph 94A(4)(a)
4. Item 1 amends section 94A of the Electoral Act which deals with claims
for enrolment lodged by eligible overseas electors who are located
outside Australia. This item removes the current restriction contained
in paragraph 94A(4)(a) of the Electoral Act that prevents a person
being added to the Rolls after 8pm on the date of the issuing of the
writs and substitutes the day of the close of Rolls that is specified
in the new section 155 (see item 12 below).
Item 2 - Subsection 95(4)
5. Item 2 amends section 95 of the Electoral Act which deals with claims
for enrolment from the spouse or child of an eligible overseas elector.
This item removes the current restriction contained in subsection
95(4) of the Electoral Act that prevents a person being added to the
Rolls after 8pm on the date of the issuing of the writs and substitutes
the day of the close of Rolls that is specified in the new section 155
(see item 12 below).
Item 3 - Subsection 96(4)
6. Item 3 amends section 96 of the Electoral Act which deals with claims
for enrolment from itinerant electors. This item removes the current
restriction contained in subsection 96(4) of the Electoral Act that
prevents a person being added to the Rolls after 8pm on the date of the
issuing of the writs and substitutes the day of the close of Rolls that
is specified in the new section 155 (see item 12 below).
Item 4 - Subsection 102(1)
Item 5 - Subsection 102(2A)
Item 6 - Subsections 102(4), (4AA) and (4AB)
Item 7 - Paragraph 102(4A)(a)
Item 8 - Subparagraph 102(4A)(b)(ii)
Item 9 - Subsection 102(4B)
Item 10 - Paragraphs 102(4B)(a) and (b)
7. Items 4 to 10 amend section 102 of the Electoral Act which deals with
making changes to the electoral Roll after the receipt of claims for
enrolment (including transfer of enrolment). Existing subsections
102(4), (4AA), (4AB) and (4A) of the Electoral Act contain restrictions
on taking action to add new voters to the electoral Roll after 8pm on
the date of the issuing of the writs for an election. The amendments
remove this restriction and substitutes the day of the close of Rolls
that is specified in the new section 155 (see item 12 below).
Item 11 - Subsection 118(5)
8. Item 11 amends section 118 of the Electoral Act which deals with the
determining of objections by a Divisional Returning Officer that
results in a person being removed from the electoral Roll in accordance
with the requirements contained in section 114. This item removes the
current restriction contained in subsection 118(5) of the Electoral Act
that prevents a person being removed from the Rolls after 8pm on the
date of the issuing of the writs and substitutes the day of the close
of Rolls that is specified in the new section 155 (see item 12 above).
Item 12 - Section 155
9. Item 12 contains the major change to section 155 of the Electoral Act
by repealing the existing time period contained in this section for the
close of the Rolls for the purposes of an election and substituting a
new section 155 which specifies that the date fixed for the close of
Rolls is the 7th day after the date of the writ. The amendments give
effect to JSCEM Recommendation 1 and return the close of Rolls period
to that which existed at the 2004 federal election.
Referendum (Machinery Provisions) Act 1984
Item 13 - Subsections 4(2) and (3)
10. Item 13 amends section 4 of the Referendum Act which deals with making
changes to the electoral Roll after the receipt of claims for enrolment
and objection action. Existing section 4 of the Referendum Act
contains restrictions on taking action to add new voters, transfer the
address details of existing voters or remove voters in specified
circumstances generally from the issue of the writ for an election.
This item removes the current restrictions relating to the issue of the
writ and substitutes the day of the close of the Rolls that is
specified in new subsection 9(1) (see item 14 below).
Item 14 - Subsection 9(1)
11. Item 14 contains the major change to section 9 of the Referendum Act by
repealing the existing time period contained in this section for the
close of the Rolls for the purposes of a referendum and substituting
the new subsection 9(1) which specifies that the date fixed for the
close of the Rolls is the 7th day after the issue of the writ. The
amendments give effect to JSCEM Recommendation 1 and return the close
of Rolls period to that which existed at the 2004 federal election.
Item 15 - Subsection 9(3)
12. Item 15 repeals the now otiose definition of working day.
13. The amendments contained in items 13 to 15 give effect to JSCEM
Recommendation 45 which states that amendments to the Electoral Act
should where appropriate be incorporated into the Referendum Act to
ensure consistency between the provisions applying to elections and
referenda.
Part 2 - Application of amendments
Item 16 - Application of amendments
14. Item 16 makes it clear that the repeal of the amendments relating to
the close of the Rolls only applies prospectively to all elections and
referenda the writs for which are issued on or after the commencement
of Schedule 1.
Schedule 2 - Amendments relating to evidence of identity for provisional
votes
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Subsections 235(1B), (9) and (10)
Item 2 - After paragraph 3A of Schedule 3
Item 3 - Subparagraph 6(ca) of Schedule 3
15. Provisional votes are a type of declaration vote that can be cast by an
elector on polling day. Section 235 of the Electoral Act sets out the
requirements for casting a provisional vote. Section 235 currently
specifies that an elector who casts a provisional vote at a polling
place on polling day must provide a polling official with evidence of
identity at the time of voting or provide it to an AEC officer by the
first Friday following polling day. Section 266 of the Electoral Act
sets out the requirements for conducting preliminary scrutiny of
declaration votes, which includes declaration envelopes that contain
provisional votes. The process for preliminary scrutiny is set out in
Schedule 3 to the Electoral Act which includes the current requirement
in subparagraph 6(ca) that failure to provide evidence of identity for
a provisional vote by the first Friday following polling day shall
result in the envelope containing the provisional vote being excluded
from the count.
16. The amendments contained in items 1 to 3 of Schedule 2 give effect to
JSCEM Recommendation 2 with amendments to section 235 and Schedule 3 to
the Electoral Act. The amendments repeal the requirement for the
provision of evidence of identity either at the time that a provisional
vote is cast or by the first Friday following polling day.
17. Item 1 repeals the evidence of identity requirements contained in
subsections 235(1B), (9) and (10) of the Electoral Act.
18. Item 2 inserts a new paragraph 3B in Schedule 3 to the Electoral Act
which enables the Divisional Returning Officer (DRO) to examine the
declaration envelope that contains a provisional vote during
preliminary scrutiny. Where the DRO has some reason to doubt that the
signature on the declaration envelope containing the provisional vote
ballot-paper is the actual signature of a person who is entitled to
vote at the election, then the DRO must check the signature against the
most recent record that contains the elector's signature. In most
circumstances this will be the signature on the claim for enrolment
form.
19. Item 3 repeals the existing subparagraph 6(ca) of Schedule 3 to the
Electoral Act and substitutes a new subparagraph that contains a
similar requirement to new paragraph 3B of Schedule 3. It is only
where the DRO is of the view that the signature on a declaration
envelope containing the provisional vote and the signature on other
records is not the same that the declaration envelope is to be excluded
at this point in the scrutiny process.
Referendum (Machinery Provisions) Act 1984
Item 4 - Subsections 37(1B), (9) and (10)
Item 5 - After paragraph 3A of Schedule 4
Item 6 - Subparagraph 6(ca) of Schedule 4
20. Provisional votes can be cast in a referendum in a similar manner and
for the same reasons as an election under the Electoral Act.
Subsections 37(1B), (9) and (10) of the Referendum Act require that an
elector who casts a provisional vote on a voting day for a referendum
must provide a polling official with evidence of identity at the time
of voting or provide it to an AEC officer by the first Friday following
voting day.
21. The amendments contained in items 4 to 6 give effect to JSCEM
Recommendation 45 which states that amendments to the Electoral Act
should where appropriate be incorporated into the Referendum Act to
ensure consistency between the provisions applying to elections and
referenda.
22. Item 4 repeals the evidence of identity requirements contained in
subsections 37(1B), (9) and (10) of the Referendum Act.
23. Item 5 inserts a new paragraph 3B in Schedule 4 to the Referendum Act
which enables the DRO to examine the declaration envelope that contains
a provisional vote during preliminary scrutiny. Where the DRO has some
reason to doubt that the signature on the declaration envelope
containing the provisional vote ballot-paper is the actual signature of
a person who is entitled to vote at the referendum, then the DRO must
check the signature against the most recent record that contains the
elector's signature. In most circumstances this will be the signature
on the claim for enrolment form.
24. Item 6 repeals the existing subparagraph 6(ca) of Schedule 4 to the
Referendum Act and substitutes a new subparagraph that contains a
similar requirement to new paragraph 3A of Schedule 4. It is only
where the DRO is of the view that the signature on a declaration
envelope containing the provisional vote and the signature on other
records is not the same that the declaration envelope is to be excluded
at this point in the scrutiny.
Part 2 - Application of amendments
Item 7 - Application of amendments
25. Item 7 makes it clear that the repeal of the evidence of identity
provisions for dealing with provisional votes only applies
prospectively to all elections and referenda the writs for which are
issued on or after the commencement of Schedule 2.
Schedule 3 - Amendments relating to pre-poll votes
The amendments contained in Schedule 3 give effect to JSCEM recommendations
22 to 24 which generally recommend legislative amendment to provide for pre-
poll votes cast in an elector's 'home' Division to be cast and counted as
ordinary votes, wherever practicable.
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Subsection 4(1) (definition of Compartment)
26. Item 1 repeals the current definition of compartment which was
restricted to a compartment used in a polling booth on polling day and
inserts a new definition. The new definition of compartment includes a
compartment used in a polling booth on polling day and extends the
definition to include a compartment used at a place at which pre-poll
ordinary votes are available (a Divisional office and a pre-poll voting
office).
Item 2 - Subsection 4(1) (paragraph (b) of the definition of declaration
vote)
27. Item 2 limits the definition of a declaration vote to include a pre-
poll declaration vote but not a pre-poll ordinary vote.
Item 3 - Subsection 4(1)
Item 4 - Subsection 4(1)
28. Items 3 and 4 insert new definitions for pre-poll declaration vote and
pre-poll ordinary vote by referring to the new subsection 200AA(2).
Item 5 - Subsection 99B(1) (note)
29. Item 5 amends the note at the end of subsection 99B(1) of the Electoral
Act to clarify that a person who is provisionally enrolled under
section 99B is not entitled to a pre-poll ordinary vote.
Item 6 - Before section 200A
30. Part XVA of the Electoral Act provides for pre-poll voting to take
place prior to polling day. An elector may apply for a pre-poll vote
on any of the grounds set out in Schedule 2 to the Electoral Act.
These grounds include such circumstances as the elector expecting to be
absent from the state or territory in which they are enrolled during
the hours of polling on polling day.
31. The Electoral Act currently specifies that a pre-poll vote must be cast
as a declaration vote. This means that once an elector has filled out
a ballot paper it is then inserted into an envelope upon which the
elector has completed their personal details and signed a declaration
that the elector is eligible for a pre-poll vote by meeting one of the
grounds in Schedule 2 of the Electoral Act. The current process for
dealing with pre-poll votes prohibits the opening of any votes
contained in an envelope until the prescriptive preliminary scrutiny
process has been undertaken. This means that pre-poll votes cannot be
counted on polling night. A large number of pre-poll votes at an
election are 'home Division pre-poll votes'. Home Division pre-poll
votes are pre-poll votes issued by a Division for that Division.
32. The amendments contained in Schedule 3 will specify two types of pre-
poll vote: the currently existing pre-poll vote to be known as pre-poll
declaration votes and the new home Division pre-poll vote to be known
as pre-poll ordinary votes.
33. In addition to defining the two different kinds of pre-poll voting,
item 6 also inserts the headings for Division 1 and Division 2. These
new headings are required due to the inclusion of pre-poll ordinary
voting within Part XVA. The Divisions provide for an introduction,
general matters relating to both forms of pre-poll voting, pre-poll
ordinary voting and pre-poll declaration voting.
Item 7 - At the end of subsection 200A(2)
34. Item 7 inserts a note at the end of subsection 200A(2) clarifying that
a person who is provisionally enrolled is not entitled to vote by
casting a pre-poll ordinary vote.
Item 8 - Subsection 200A(3)
35. Item 8 makes a consequential amendment to the definition of 'elector'
for Part XVA and Schedule 3 to exclude a person who casts a pre-poll
ordinary vote
Item 9 - After subsection 200BA(1)
36. A place, other than the office of a Divisional Returning Officer, at
which pre-poll votes can be taken must be declared in writing as such a
place. These places are known as pre-poll voting offices (PPVO).
37. A place at which pre-poll ordinary voting is available is specified in
subsection 200DD (see item 14 below). One of the places specified for
the taking of pre-poll ordinary votes is a PPVO that is located within
the geographical boundaries of a Division.
38. Item 9 inserts a new provision that enables the Electoral Commission to
declare either in a declaration under subsection 200BA(1) or as a
separate declaration under 200BA(1A) a PPVO as a place that can take
pre-poll ordinary votes for one or more specified Divisions located
outside the divisional boundaries in which the PPVO is located.
39. Item 9 caters for PPVOs that take pre-poll ordinary votes for more than
one Division. These may include but are not limited to PPVOs located
near the boundary of an electoral Division (commonly known as 'dual
booths') or for central city locations used to take votes for the
entire State or Territory (commonly known as 'super booths').
Item 10 - After subsection 200BA(3)
40. Item 10 requires a declaration made under subsection 200BA(1A) to be
published in the Gazette.
Item 11 - Subsection 200BA(4)
41. Item 11 amends subsection 200BA(4) to clarify that a declaration under
subsection 200BA(1A) is not a legislative instrument within the meaning
of section 5 of the Legislative Instruments Act 2003 (Legislative
Instruments Act).
Item 12 - At the end of subsection 200C(1)
Item 13 - At the end of subsection 200D(3)
42. Item 12 inserts a note at the end of subsection 200C(1) and item 13
inserts a note at the end of subsection 200D(3). The notes clarify
that voting by pre-poll ordinary vote is not available at an office of
an Assistant Returning Officer (ARO). A person applying for a pre-poll
vote at the office of an ARO outside Australia must vote by pre-poll
declaration vote.
Item 14 - After section 200DB
43. Item 14 inserts the substantive provisions relating to the manner in
which pre-poll ordinary votes are cast and counted at an election.
44. New section 200DC inserts definitions for use in the Division 3. The
places at which pre-poll ordinary voting is available are specified in
new subsection 200DD(1). For voters enrolled in a Division those
voters may be able to vote by pre-poll ordinary vote at the following
places:
. the office of the DRO for the voter's Division;
. a PPVO that is geographically located in the voter's Division; or
. a PPVO that is not geographically located within the Division but has
been declared, in accordance with new subsection 200BA(1A), to be a PPVO
for the voter's Division.
45. Despite the fact that a place meets one of the conditions in subsection
(1), the Electoral Commissioner may determine in writing, in accordance
with new subsection 200DD(2), that pre-poll ordinary voting is not
available at that place generally or as specified. New subsection
200DD(3) clarifies that a determination under new subsection 200DD(2)
is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act.
46. New subsection 200DD(4) will provide that pre-poll ordinary voting for
a Division is not available at a place unless the certified list of
voters for that Division has been delivered to the place..
47. New section 200DE specifies that every place at which pre-poll ordinary
voting is available must have voting compartments for voters to
complete their ballot papers in private. There must also be a pencil
in each compartment for the use of voters.
48. In accordance with new section 200DF each place at which pre-poll
ordinary voting is available must be provided with ballot boxes to
securely house completed ballot papers.
49. Entitlement to a pre-poll ordinary vote is specified in new subsection
200DG(1). A voter is entitled to a pre-poll ordinary vote if:
. the voter has applied for a pre-poll vote;
. the place at which the voter has applied is a place at which pre-poll
ordinary voting is available, in accordance with new section 200DD, for
the voter's Division;
. the voter's name is on the certified list for that Division;
. the certified list for the voter's Division has been delivered to that
voting place; and
. the voter is not excluded from voting by pre-poll ordinary vote.
50. A voter may be excluded from pre-poll ordinary voting if he or she
meets any one of the exclusions specified in new subsection 200DG(2).
A voter is excluded from voting by pre-poll ordinary vote if:
. the voter does not complete and sign a pre-poll vote certificate for
ordinary voting;
. the voter provides insufficient or unacceptable answers to the questions
that must be put to the voter by the issuing officer in accordance with
new section 200DI;
. the voter's address does not appear on the certified list of voters (the
voter is a 'silent elector');
. there is a mark on the certified list of voters that appears to indicate
that the voter has already voted in the election; or
. the voter is provisionally enrolled.
51. A voter, who applies for a pre-poll vote and is entitled to a pre-poll
ordinary vote, must vote by pre-poll ordinary vote. When entitled to
vote by pre-poll ordinary vote there are some obligations, specified in
new section 200DH, the voter must undertake before the voter will be
issued with ballot papers for an election. First, the voter will
receive a pre-poll vote certificate for ordinary voting, in the
approved form. The voter must complete and sign the pre-poll vote
certificate and give it to an issuing officer.
52. The issuing officer who received the voter's pre-poll vote certificate
for ordinary voting will ask the voter, in accordance with new
subsection 200DI, the same questions that are asked of voters who vote
at a polling place on polling day, namely:
a. What is your full name?
b. Where do you live?
c. Have you voted before in this election or elections? (as the case
requires).
53. If the voter does not answer the questions fully or does not satisfy
the issuing officer that they are the person on the certified list who
they are claiming a vote for, the issuing officer may ask the voter
further questions about information that is specified on the certified
list. Paragraph 200DG(2)(c) will provide that if the issuing officer
is still not satisfied that the voter is the person on the certified
list whom they are claiming a vote for, the voter is not entitled to a
pre-poll ordinary vote.
54. Paragraph 200DG(2)(b) will provide that if the voter answers the
question in relation to previously voting in the election in the
affirmative, the voter is not entitled to a pre-poll ordinary vote.
55. If following this procedure, the voter is entitled to a pre-poll
ordinary vote the issuing officer must give the voter an initialed
ballot paper, in accordance with new section 200DJ. The issuing
officer must then place a mark against the voter's name on a copy of
the certified list for the voter's Division to indicate that the voter
has voted at the election. If a scrutineer present has an objection to
the voter being issued a pre-poll ordinary vote, the issuing officer
must make a record of the objection however, the voter will still be
entitled to receive a ballot paper.
56. Upon receipt of a ballot paper the voter must vote in accordance with
new section 200DK and immediately go to a voting compartment, mark his
or her vote in private, fold the ballot paper to conceal the vote and
place it in a ballot box. The voter must then leave the voting place
without delay.
57. The provision of assistance to certain voters is specified in new
section 200DL. If a voter is not able to complete the requirements of
voting without assistance, a person, chosen by the voter, may assist
the voter in accordance with the directions of the voter. The person
chosen by the voter may assist the voter with the requirements of the
pre-poll certificate for ordinary voting, completing his or her vote on
the ballot paper, folding the ballot paper and placing the completed
and folded ballot paper in the ballot box. The directions given by the
voter (to the person assisting) on how to complete the ballot paper may
be by reference to a 'how-to-vote card'.
58. After a voter has completed a pre-poll vote certificate for ordinary
voting and a marked ballot paper the person is not entitled, in
accordance with new section 200DM, to:
. remove the certificate or the ballot paper from the voting place; or
. vote again in the same election.
59. The treatment of ballot boxes used for housing pre-poll ordinary votes
must be in accordance with the provisions of new sections 200DN to
200DR. These new sections apply to the treatment of each ballot box
that is used for pre-poll ordinary voting and does not apply to ballot
boxes used for other types of votes (for example declaration votes or
votes cast at a polling place on polling day).
60. Before a ballot box is used for the first time, a voting officer must
exhibit and securely fasten its cover in a similar manner to that done
for polling on polling day. At the end of each day of pre-poll
ordinary voting the ballot boxes used on that day must be publicly
sealed. If a ballot box is to be used again on a subsequent day of pre-
poll ordinary voting the ballot box must be publicly examined and made
ready to receive ballot papers for that day of pre-poll ordinary
voting. This process must be followed for each subsequent day that a
ballot box is used.
61. New subsection 200DR(2) specifies that the DRO for the Division in
which the place at which pre-poll ordinary votes are being taken, is
geographically located may give directions (in writing or orally) about
the forwarding of sealed ballot boxes prior to the close of the poll.
New subsection 200DR(3) clarifies that if a direction under subsection
200DR(2) is made in writing by the DRO it is not a legislative
instrument within the meaning of section 5 of the Legislative
Instruments Act.
62. New section 200DR will provide for sealed ballot boxes housing pre-poll
ordinary votes to be delivered to a central place for the purposes of
scrutiny. For example if a PPVO is located in a place that is not
equipped to be used for the purposes of conducting the scrutiny on
polling night (e.g. a shopping centre) the DRO may direct the officers
working at the PPVO to bring the sealed ballot boxes to the DROs office
at the end of polling each night. This will ensure the ballot boxes
are secure. It will also provide for the DRO to make arrangements to
count the votes taken at that PPVO at the close of the poll on polling
day, either at the DROs office or another central scrutiny centre.
This will enable more votes to be counted at the close of polling on
polling day.
63. If the DRO does not make any directions about the treatment of ballot
boxes prior to the close of the poll then the sealed 'full' ballot
boxes containing pre-poll ordinary votes must be securely stored at the
place at which the votes were taken. Following the close of the poll
on polling day the sealed ballot boxes used for pre-poll ordinary
voting must be forwarded for the purposes of scrutiny. The scrutiny is
to be conducted in accordance with the provisions of existing Part
XVIII of the Electoral Act. The scrutiny may be undertaken at the
place at which the votes were issued or some other place.
64. New section 200DS specifies that a person who applies for a pre-poll
vote under Division 2 but is not entitled to a pre-poll ordinary vote
under Division 3 may vote by pre-poll declaration vote under Division
4.
Item 15 -Subsection 200E(1)
Item 16 - Paragraph 200E(1)(a)
Item 17 - Subsection 200E(9)
Item 18 - Section 200F
Item 19 - Subsection 200G(1)
Item 20 - Subsection 200G(1)
Item 21 - Subsection 200G(2)
Item 22 - Subsection 200G(2)
Item 23 - Paragraph 200J(1)(a)
Item 24 - Section 200K
Item 25 - Section 200K
Item 26 - Section 201
Item 27 - Subsections 202(1) and (2)
65. The Electoral Act currently provides for pre-poll voting in a
declaration envelope. Items 15 to 27 amend the current sections 200E,
200F, 200G, 200J, 200K, 201 and 202 of the Electoral Act to reflect
the fact that pre-poll voting in a declaration envelope is now known as
'pre-poll declaration voting' as distinguished from 'pre-poll ordinary
voting'.
Item 28 - At the end of section 208
66. Item 28 inserts new subsection 208(4) to make consequential amendments
to section 208 of the Electoral Act as necessitated by new section
200DG (inserted by item 14) to extend the obligation upon the Electoral
Commissioner to arrange for delivery of a copy of the certified list of
voters to be delivered to places at which pre-poll ordinary voting is
to take place.
Item 29 - Subsection 221(3)
67. Item 29 makes consequential amendments to subsection 221(3) of the
Electoral Act as necessitated by new section 200DI (inserted by item
14) requiring a person who is voting by pre-poll ordinary vote to be
asked the same questions as a person voting at a polling place on
polling day.
Item 30 - Section 230
68. Item 30 amends section 230 of the Electoral Act to extend the operation
of the section to pre-poll ordinary voting.
Item 31 - Subsection 238(1)
Item 32 - Subsection 238(1)
Item 33 - Subsection 238(4)
69. Items 31 to 33 amend section 238 of the Electoral Act to extend the
operation of the section to pre-poll ordinary voting.
Item 34 - Paragraph 268(1)(a)
Item 35 - Paragraph 273(2)(a)
Item 36 - Paragraph 273(2)(ab)
Item 37 - Paragraph 274(2)(a)
Item 38 - Paragraph 274(2)(ab)
70. Items 34 to 38 make consequential amendments to Part XVIII of the
Electoral Act as necessitated by the fact that the scrutiny of pre-poll
ordinary votes will be conducted in accordance with the scrutiny
procedures in existing Part XVIII.
Item 39 - Paragraph 393A(1)(f)
71. Item 39 makes consequential amendments to section 393A of the Electoral
Act to extend the operation of the section to pre-poll ordinary voting.
Referendum (Machinery Provisions) Act 1984
Item 40 - Subsection 3(1)
72. Item 40 inserts a new definition of compartment into section 3 of the
Referendum Act similar to the definition specified in the Electoral Act
at item 1 of this Schedule above.
Item 41 - Subsection 3(1) (paragraph (b) of the definition of declaration
vote)
73. Item 41 restricts the definition of a declaration vote to include a pre-
poll declaration vote and clarifies that a pre-poll ordinary vote is
not a declaration vote within the meaning of the Referendum Act.
Item 42 - Subsection 3(1)
Item 43 - Subsection 3(1)
74. Items 42 and 43 insert definitions for pre-poll declaration vote and
pre-poll ordinary vote into section 3 of the Referendum Act.
Item 44 - At the end of section 22
75. Item 44 makes consequential amendments to section 22 of the Referendum
Act as necessitated by new section 73CD (inserted by item 60) to extend
the obligation upon the Electoral Commissioner to arrange for a copy of
the certified list of voters to be delivered to places at which pre-
poll ordinary voting is to take place.
Item 45 - Subsection 32(1)
76. Item 45 amends section 32 of the Referendum Act to extend the operation
of the section to pre-poll ordinary voting for a referendum.
Item 46 - Subsection 38(1)(note 1)
77. Part IVA of the Referendum Act provides for pre-poll voting to take
place prior to polling day. An elector may apply for a pre-poll vote
on any of the grounds set out in Schedule 3 to the Referendum Act.
These grounds include such circumstances as the elector expecting to be
absent from the state or territory in which they are enrolled during
the hours of polling on polling day.
78. The Referendum Act currently specifies that a pre-poll vote must be
cast as a declaration vote. This means that once an elector has filled
out a ballot paper it is then inserted into an envelope upon which the
elector has completed their personal details and signed a declaration
that the elector is eligible for a pre-poll vote. The current process
for dealing with pre-poll votes prohibits the opening of any votes
contained in an envelope until the prescriptive preliminary scrutiny
process has been undertaken. This means that pre-poll votes cannot be
counted at the end of polling on polling day.
79. The amendments contained in Schedule 3 will specify two types of pre-
poll vote, the currently existing pre-poll vote to be known as pre-poll
declaration votes and the new home Division pre-poll vote to be known
as pre-poll ordinary votes.
80. Item 46 inserts a definition of the two different kinds of pre-poll
voting.
Item 47 - Subsection 41(1)
Item 48 - Subsection 41(1)
Item 49 - Subsection 41(4)
81. Items 47 to 49 amend section 41 of the Referendum Act to extend the
operation of the section to pre-poll ordinary voting.
Item 50 - Before section 72
82. Item 50 inserts new section 71A which specifies the manner in which the
two types of pre-poll ordinary votes must be cast as well as inserting
two of the four Division headings.
Item 51 - At the end of subsection 72(2)
83. Item 51 inserts a 'note' at the end of subsection 72(2) clarifying that
a person who is provisionally enrolled is not entitled to vote by pre-
poll ordinary vote.
Item 52 - Subsection 72(3)
84. Item 52 states that in this Part a reference to an 'elector' includes a
reference to a person who applies for a pre-poll ordinary vote and
excludes a person who is provisionally enrolled from voting by pre-poll
ordinary vote.
Item 53 - After subsection 73AA(1)
Item 54 - After subsection 73AA(3)
Item 55 - Subsection 73AA(4)
85. A place, other than the office of a Divisional Returning Officer, at
which pre-poll votes can be taken must be declared in writing. These
places are known as pre-poll voting offices (PPVO).
86. A place at which pre-poll ordinary voting is available is specified in
new section 73CD (see item 60 below). One of the places specified for
the taking of pre-poll ordinary votes is a PPVO that is located within
the geographical boundaries of a Division.
87. Item 53 inserts a new provision that enables the Electoral Commission
to declare either in a declaration under subsection 73AA(1) or as a
separate declaration under 73AA(1A) a PPVO as a place that can take pre-
poll ordinary votes for one or more specified other Divisions located
outside the divisional boundaries in which the PPVO is located..
88. Item 53 caters for PPVOs that take pre-poll ordinary votes for more
than one Division. These may include but are not limited to PPVOs
located near the boundary of an electoral Division (commonly known as
'dual booths') or for central city locations used to take votes for the
entire State or Territory (commonly known as 'super booths').
89. Item 54 requires a declaration made under subsection 73AA(1A) to be
published in the Gazette.
90. Item 55 amends subsection 73AA(4) to clarify that a declaration under
subsection 73AA(1A) is not a legislative instrument within the meaning
of section 5 of the Legislative Instruments Act.
Item 56 - At the end of subsection 73A(1)
Item 57 - At the end of subsection 73B(3)
91. Items 56 inserts a note at the end of subsection 73A(1) and item 57
inserts a note at the end of subsection 73B(3). The notes make it
clear that voting by pre-poll ordinary vote is not available at an
office of an ARO outside Australia. A person applying for a pre-poll
vote at the office of an ARO outside Australia must vote by pre-poll
declaration vote.
Item 58 - After paragraph 73C(a)
92. Item 58 makes amendments to section 73C of the Referendum Act which
applies when a referendum and an election are held on the same day.
93. Item 58 makes an amendment to section 73C of the Referendum Act
necessitated by item 9 which inserts a new provision into the Electoral
Act that enables the Electoral Commission to declare either in a
declaration under subsection 200BA(1) or as a separate declaration
under 200BA(1A) a PPVO as a place that can take pre-poll ordinary votes
for one or more specified Divisions located outside the geographical
location of the PPVO. Where an election and a referendum are held on
the same day a declaration in accordance with subsection 200BA(1A) will
apply to the referendum.
94. For voters enrolled in a Division those voters may be able to vote by
pre-poll ordinary vote at the following places:
. the office of the DRO for the voter's Division;
. a PPVO that is geographically located in the voter's Division; or
. a PPVO that is not geographically located within the Division but has
been declared, to be a PPVO for the voter's Division.
95. Despite the fact that a place meets one of the conditions above, the
Electoral Commissioner may determine in writing, in accordance with new
subsection 200DD(2), that pre-poll ordinary voting is not available at
that place generally or as specified. Item 58 makes a further
amendment to section 73C of the Referendum Act to have a determination
under subsection 200DD(2) of the Electoral Act apply to a referendum
held on the same day as an election.
Item 59 - Paragraph 73C(c)
96. Item 59 makes a consequential amendment to paragraph 73C(c) of the
Referendum Act necessitated by the fact that pre-poll ordinary votes
and pre-poll declaration votes have different certificates for the
voter to complete and sign. However, where an election and a
referendum are held on the same day an elector only has to fill in one
pre-poll vote certificate for voting in both the election and the
referendum.
Item 60 - After section 73CB
97. Item 60 inserts the substantive provisions relating to the manner in
which pre-poll ordinary votes are cast and counted at a referendum.
This item inserts new sections 73CC to 73CS into the Referendum Act
which mirror similar provisions in item 14 of this Schedule for the
Electoral Act. In accordance with JSCEM Recommendation 45 and to
ensure consistency between the provisions applying to elections and
referenda the application of the amendments to the Electoral Act for
pre-poll ordinary voting (as described in item 14 above) apply in a
consistent manner to the amendments to the Referendum Act contained in
item 60.
98. Item 60 inserts new subsection 73CD(3) which clarifies that a
declaration under subsection 73CD(2) is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act.
99. Item 60 inserts new subsection 73CR(3) into the Referendum Act which
clarifies that a direction under subsection 73CR(2) is not a
legislative instrument within the meaning of section 5 of the
Legislative Instruments Act.
Item 61 -Subsection 73D(1)
Item 62 - Subsection 73D(1)
Item 63 - Subsection 73D(9)
Item 64 - Section 73E
Item 65 - Subsection 73F(1)
Item 66 - Subsection 73F(1)
Item 67 - Subsection 73F(2)
Item 68 - Subsection 73F(2)
Item 69 - Paragraph 73H(1)(a)
Item 70 - Section 73J
Item 71 - Section 73J
Item 72 - Section 73K
100. The Referendum Act currently provides for pre-poll voting in a
declaration envelope. Items 61 to 72 amend the current sections 73D,
73E, 73F, 73H, 73J and 73K in the Referendum Act to reflect the fact
that pre-poll voting in a declaration envelope is now known as 'pre-
poll declaration voting' as distinguished from 'pre-poll ordinary
voting'.
Item 73 - At the end of subparagraph 90(1)(e)(i)
Item 74 - Subparagraph 90(1)(e)(iii)
Item 75 - Paragraph 93(1)(a)
101. Items 73 to 75 make consequential amendments to Part VI of the
Referendum Act as necessitated by the fact that the scrutiny of pre-
poll ordinary votes will be conducted in accordance with the existing
scrutiny procedures in existing Part VI.
Item 76 - Paragraph 142A(1)(f)
102. Item 76 amends section 142A of the Referendum Act to extend the
operation of the section to both pre-poll declaration voting and pre-
poll ordinary voting.
Part 2 - Application of amendments
Item 77 - Application of amendments
103. Item 77 makes it clear that the amendments relating to pre-poll voting
only apply prospectively to elections and referenda the writs for which
are issued on or after the commencement of Schedule 3. However, the
amendments do not apply to any by-elections held between Royal Assent
(for this Bill) and the first general election to which the amendments
apply.
Schedule 4 - Amendments relating to processing of enrolments
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Subsection 4(1) (at the end of the definition of officer)
104. The term 'officer' defined in subsection 4(1) of the Electoral Act
lists a range of office holders and job titles as people who come
within the definition of 'officer'. This technique provides a
shorthand means of referring to a range of people in the Electoral Act,
for example in Part XXI, with the use of only one word.
105. Item 1 clarifies that the term 'officer' includes those staff to whom
the Electoral Commissioner has delegated enrolment-related powers or
functions under proposed subsection 28(2) at item 3 below.
Item 2 - Section 28
106. Item 2 makes a consequential amendment to section 28 as a result of
item 3 inserting new provisions into that section.
Item 3 - At the end of section 28
107. Item 3 inserts three new subsections into section 28. New subsection
28(2) provides that the Electoral Commissioner may delegate all or any
of his or her enrolment powers and functions to any officer or any
other member of staff of the Electoral Commission. The need for this
new delegation power arises due to the approach adopted by Schedule 4
to deliver administrative efficiencies in enrolment processing, with
particular emphasis on the effective use of electronic technology.
108. The approach adopted to implement these efficiencies is to specify the
Electoral Commissioner as the person responsible for undertaking
enrolment-related tasks and functions. The Electoral Commissioner will
then delegate these powers and functions to any suitable person or
class of people in the AEC. The proposed approach is based upon JSCEM
recommendation 42, however it does not limit the processing of
enrolment transactions outside the Division in which a person is
enrolling to a Division within the same State or Territory. The broad
power to delegate enrolment-related powers and functions is required so
that all staff and geographical locations can be utilised to derive
maximum efficiency in enrolment processing.
109. Consistent with the current power for the Electoral Commissioner to
direct DROs, new subsection 28(3) requires a delegate to comply with
any directions of the Electoral Commissioner. New subsection 28(4)
limits the Electoral Commissioner's new power to delegate powers and
functions to those under specified sections and Parts of the Electoral
Act. These sections and Parts are those providing for enrolment-
related functions such as entering a person's details on the electoral
Roll or annotating an enrolment record to identify a special category
elector, such as an eligible overseas elector.
Item 4 - Subsection 86(3)
Item 5 - Subsection 86(4)
110. The operation of subsection 86(3) and (4) was to make either an
Australian Electoral Officer (AEO) or the Electoral Commissioner
responsible for informing electors that they had been transferred
between electoral Rolls following a redistribution. Item 4 implements
the policy outlined under the discussion at item 3 to specify the
Electoral Commissioner as the person responsible for this function.
Item 5 repeals subsection 86(4) as there is no longer any need to
distinguish the circumstances in which an AEO or the Electoral
Commissioner inform electors of the change.
Item 6 - Section 87
111. Section 87 specifies a DRO or an Assistant DRO as the person
responsible for amending new Rolls within a specified period. Item 6
specifies the Electoral Commissioner as the person responsible for this
function.
Item 7 - Subsection 93A(2)
Item 8 - Subsection 93A(2)
Item 9 - Subsection 93A(3)
Item 10 - Subsection 93A(4)
112. Section 93A provides that a DRO or an AEO can refuse to include a
person's name on the Roll in specified circumstances. If a DRO or an
AEO does refuse to include a person's name on the Roll, then the person
must be notified in writing of that decision. Items 7 to 10 substitute
references to 'Divisional Returning Officer' and 'Australian Electoral
Officer' with 'Electoral Commissioner', and make other minor
consequential changes. The right of a person to be notified of the
decision is unchanged.
Item 11 - Subsection 94(1)
Item 12 - Paragraph 94(2)(a)
Item 13 - Subsection 94(4)
Item 14 - Subsection 94(4)
Item 15 - Subsection 94(5)
Item 16 - Subsection 94(8)
Item 17 - Subsection 94(8)
Item 18 - Subsection 94(9)
Item 19 - Subsection 94(9)
Item 20 - Subsection 94(11)
Item 21 - Subsection 94(14)
Item 22 - Subsection 94(14)
Item 23 - Paragraph 94(15)(a)
Item 24 - Paragraph 94(15)(a)
113. Section 94 provides that, in specified circumstances, an elector who
ceases to reside in Australia may apply to be treated as an eligible
overseas elector. Items 11 to 24 substitute references to 'Divisional
Returning Officer' and 'DRO' with 'Electoral Commissioner', and make
other minor consequential changes, so that the Electoral Commissioner
becomes responsible for these functions rather than the DRO for the
Division in which the person is enrolled and seeks to be treated as an
eligible overseas elector. Other than these changes, the effect of the
current provisions remains the same.
Item 25 - Subsection 94A(1)
Item 26 - Paragraph 94A(2A)(b)
Item 27 - Subsection 94A(3)
Item 28 - Paragraph 94A(4)(a)
Item 29 - Subsection 94A(5)
Item 30 - Paragraph 94A(5)(b)
Item 31 - Subsection 94A(6)
114. Section 94A provides that in certain circumstances, a person may enrol
from outside of Australia. Items 25 to 31 substitute references to
'Australian Electoral Officer' and 'Divisional Returning Officer' with
'Electoral Commissioner', and make other minor consequential changes.
These amendments will make the Electoral Commissioner responsible for
these functions rather than the AEO for a State which contains the
Subdivision in which the person seeks to enrol. Other than these
changes, the effect of the current provisions remains the same.
Item 32 - Subsection 95(1)
Item 33 - Subsection 95(1)
Item 34 - Paragraph 95(2A)(b)
Item 35 - Subsection 95(4)
Item 36 - Subsection 95(4)
Item 37 - Subsection 95(4)
Item 38 - Subsection 95(5)
Item 39 - Paragraph 95(5)(c)
Item 40 - Subsection 95(6)
Item 41 - Subsection 95(8)
Item 42 - Subsection 95(8)
Item 43 - Subsection 95(9)
Item 44 - Subsection 95(9)
Item 45 - Subsection 95(11)
Item 46 - Subsection 95(14)
Item 47 - Subsection 95(14)
Item 48 - Paragraph 95(15)(a)
Item 49 - Paragraph 95(15)(a)
115. Section 95 provides that in certain circumstances, a person who is the
spouse or child of an eligible overseas elector may enrol from outside
Australia. These items generally substitute references to 'Divisional
Returning Officer' and 'DRO' with 'Electoral Commissioner', and make
other minor consequential changes, so that the Electoral Commissioner
becomes responsible for these functions rather than the DRO for the
Division in which the person seeks to be enrolled and treated as an
eligible overseas elector.
116. As the Electoral Commissioner has been given the responsibility for
all applications under section 95, consequential amendments are needed
to subsection 95(4). Items 35, 36 and 37 amend subsection 95(4) to
prevent the Electoral Commissioner enrolling someone in a Subdivision
after 8.00pm on the day that a writ is issued for an election in that
Division. The person may be enrolled after the close of polling in
that election.
117. Other than these changes, the effect of the current provisions remains
the same.
Item 50 - Section 95AB
Item 51 - Subsection 95AC(1)
118. Sections 95AB and 95AC are concerned with the enrolment of Norfolk
Island electors. These items generally substitute references to
'Divisional Returning Officer' with 'Electoral Commissioner', and make
other minor consequential changes, so that the Electoral Commissioner
becomes responsible for these functions rather than a DRO. Other than
these changes, the effect of the current provisions remains the same.
Item 52 - Subsection 95AC(2)
119. The amended subsection 95AC(1) will require the Electoral Commissioner
to annotate the Roll to indicate that a person is enrolled as a Norfolk
Island elector. To ensure the integrity of the Roll the AEC
intermittently reviews this category of enrolment. Subsection 95AC(2)
currently requires reviews of the records kept in relation to Norfolk
Island electors to be undertaken at the direction of the Electoral
Commission.
120. The amendments proposed by item 52 will provide that the Electoral
Commissioner may conduct a review in relation to electors to whom an
annotation under 95AC(1) applies. The responsibility for conducting
reviews is consistent with the approach for review of other elector
enrolment which is initiated internally by the AEC using 'objection
action'. The proposed amendment is also consistent with the Electoral
Commissioner's new enrolment-related responsibilities provided for
elsewhere in the Bill. Finally, it is appropriate that the Electoral
Commissioner as chief executive officer of the agency has the
responsibility for conducting reviews.
Item 53 - Subsection 96(1)
Item 54 - Subsection 96(2A)
Item 55 - Subsection 96(2B)
Item 56 - Subsection 96(4)
Item 57 - Subsection 96(5)
Item 58 - Subsection 96(5)
Item 59 - Subsection 96(6)
Item 60 - Subsection 96(7)
Item 61 - Subsection 96(10)
Item 62 - Paragraphs 96(10)(a) and (b)
Item 63 - Paragraph 96(11)(a)
121. Section 96 provides that, in specified circumstances, a person may
apply to be enrolled under this section as an itinerant elector. If a
person is enrolled under section 96 the Roll is annotated to indicate
that the person is an itinerant elector. These items generally
substitute references to 'Australian Electoral Officer' with 'Electoral
Commissioner', and make other minor consequential changes. These
amendments will make the Electoral Commissioner responsible for these
functions rather than the AEO for a State which contains the
Subdivision in which the person seeks to enrol.
122. Item 59 amends subsection 96(6) to provide that if the Electoral
Commissioner refuses an application, the person may seek a review of
the decision under Part X. While Part X is amended by items 143 to
160, the amendment proposed by item 59 does not substantively affect
the current review rights.
123. Other than these changes, the effect of the current provisions remains
the same.
Item 64 - Section 97
124. Item 64 makes consequential amendments to the application provisions
of Part VII. These consequential amendments are required due to the
'Electoral Commissioner' replacing references to 'Australian Electoral
Officer', 'Divisional Returning Officer' and 'Assistant Returning
Officer' throughout the Part.
Item 65 - Subsection 98A(2)
Item 66 - Subsection 98A(2)
Item 67 - Subsection 98A(3)
Item 68 - Subsection 98A(4)
125. Similar to section 93A in Part VII, section 98A provides that a DRO or
an AEO can refuse to include a person's name on the Roll in specified
circumstances. If a DRO or an AEO does refuse to include a person's
name on the Roll, then the person must be notified in writing of that
decision. Items 65 to 68 substitute references to 'Divisional
Returning Officer' and 'Australian Electoral Officer' with 'Electoral
Commissioner', and make other minor consequential changes. The right
of a person to be notified of the decision is unchanged.
Item 69 - Subparagraph 99A(4)(d)(ii)
126. Section 99A provides that, in specified circumstances, a person may
make a provisional claim for enrolment. Subparagraph 99A(4)(d)(ii)
provides that this claim may be made to any Australian Electoral
Officer or DRO. Item 69 makes a straightforward substitution of
'Electoral Commissioner' for 'Australian Electoral Officer or DRO'.
Item 70 - Subsection 99B(1)
Item 71 - Paragraph 99B(5)(b)
Item 72 - Subsection 99B(7)
127. Subsection 99B(1) provides that, in specified circumstances, a person
may apply to a Divisional Returning Officer for provisional enrolment.
Item 70 makes a straightforward substitution of 'the Electoral
Commissioner' for 'a Divisional Returning Officer'.
128. Items 71 and 72 make similar substitutions as item 70 with the effect
that the Electoral Commissioner becomes responsible for keeping records
under paragraph 99B(5)(b) or informing the person under subsection
99B(7), rather than the DRO for the Division in which the person is
provisionally enrolled.
Item 73 - Subsection 100(1)
129. If they meet other eligibility criteria, section 100 allows 17 years
olds to submit a claim for enrolment to any Divisional Returning
Officer or Australian Electoral Officer. Item 73 substitutes the
reference to 'any Divisional Returning Officer or Australian Electoral
Officer' with 'Electoral Commissioner'.
Item 74 - Subsections 101(1) and (1A)
Item 75 - Subsections 101(2) and (3)
Item 76 - Subsection 101(4)
Item 77 - Subsection 101(5)
Item 78 - Subsection 101(7)
130. Section 101 provides for the compulsory enrolment and transfer of
every person who is entitled to be enrolled. With the exception of
item 75, these items substitute references to 'Divisional Returning
Officer' and 'Australian Electoral Officer' with 'Electoral
Commissioner', and make other minor consequential changes.
131. Subsections 101(2) and (3) require an AEO or DRO to ensure that the
claim is delivered to the DRO for the Division in which the person is
entitled to be enrolled. Item 75 repeals subsections 101(2) and (3) as
these become redundant once the Electoral Commissioner is made
responsible for all functions under section 101.
Item 79 - Subsection 102(1)
Item 80 - Paragraph 102(1)(b)
Item 81 - Paragraph 102(1)(ba)
Item 82 - Paragraph 102(1)(c)
Item 83 - Paragraph 102(1)(c)
Item 84 - Subsection 102(1A)
Item 85 - Subsections 102(2) to (2E)
Item 86 - Subsection 102(3)
132. Section 102 provides for the action that must be taken when a claim
for enrolment or transfer of enrolment is received. Item 79
substitutes the references to 'Divisional Returning Officer' with
'Electoral Commissioner' and makes other consequential amendments to
provide that the Electoral Commissioner is obliged to deal with claims
received pursuant to section 101.
133. Item 80 recasts paragraph 102(1)(b) to substitute a reference to
'officer' with 'Electoral Commissioner' and modernise the wording. In
addition item 80 repeals the words 'in that Division' from subparagraph
102(1)(b)(iii) and repeals subparagraph 102(1)(b)(iv) as these become
redundant once the Electoral Commissioner is made responsible for
actioning claims under section 102.
134. Items 81 and 82 substitute references to 'officer' with 'Electoral
Commissioner'.
135. Item 83 repeals the words 'in a Subdivision of that Division' from
paragraph 102(1)(c) and substitutes 'for a Subdivision' as the words
'of that Division' become redundant once the Electoral Commissioner is
made responsible for actioning claims under section 102.
136. Item 84 substitutes the reference to 'a Divisional Returning Officer'
with 'the Electoral Commissioner' and makes other consequential minor
amendments.
137. Item 85 repeals subsections 102(2) to (2E), which provided that, in
specified circumstances, an AEO or a DRO could deal with claims for
enrolment for a Division outside the AEOs State or for a Division
outside the DROs Division but in the same State. These provisions were
designed to allow flexibility in managing workload during the busy
'close of Rolls' period. The flexibility introduced by the amendments
in Schedule 4 means that these subsections are no longer required.
138. Item 86 substitutes the reference to 'a Divisional Returning Officer'
with 'the Electoral Commissioner'.
Item 87 - Subsection 104(2)
Item 88 - Paragraph 104(4)(b)
Item 89 - Subsection 104(4)
Item 90 - Subsection 104(5)
Item 91 - Subsection 104(5)
Item 92 - Subsection 104(7)
Item 93 - Subsection 104(8)
Item 94 - Subsection 104(9)
139. Section 104 provides that, in specified circumstances, a person may
request that his or her address is not shown on the Roll or deleted
from the Roll. These people are known as 'silent electors'. With the
exception of item 92, these items substitute references to 'Divisional
Returning Officer' and 'DRO' with 'Electoral Commissioner', and make
other minor consequential changes so that the Electoral Commissioner
becomes responsible for these functions rather than a DRO.
140. The amended subsection 104(4) will require the Electoral Commissioner,
if satisfied with the request under subsection 104(1), to either not
include the applicant's address on the Roll or to delete the
applicant's address from the Roll. To ensure the integrity of the
Roll, the AEC intermittently reviews the Roll in relation to silent
electors. Subsection 104(7) currently requires such reviews to be
undertaken at the direction of the Electoral Commission.
141. The amendments proposed by item 92 will provide that it is the
Electoral Commissioner, and not the Electoral Commission, who may
conduct a review of the Roll in relation to silent electors. The
responsibility for conducting such a review is consistent with the
approach for reviews of other elector enrolment which is initiated
internally by the AEC using 'objection action'. The proposed amendment
is also consistent with the Electoral Commissioner's new enrolment-
related responsibilities provided for elsewhere in the Bill. Finally,
it is appropriate that the Electoral Commissioner as chief executive
officer of the agency has the responsibility for conducting reviews.
Item 95 - Subsection 105(1)
Item 96 - Paragraph 105(1)(f)
Item 97 - Subsection 105(2)
Item 98 - Subsection 105(4)
142. In addition to other provisions in the Electoral Act, section 105
provides for additional powers to alter the Roll. Items 95, 96 and 98
substitute references to the 'Divisional Returning Officer' and
'officer' with the 'Electoral Commissioner', and make other minor
changes so that these powers are given to the Electoral Commissioner.
Item 97 repeals subsection 105(2) and substitutes a recast provision to
recognise that the Electoral Commissioner is made responsible for
actioning all enrolment-related activities.
Item 99 - Section 106
143. Section 106 provides that where a person is enrolled by making a false
statement, that person's name may be removed from the Roll in specified
circumstances. Item 99 simply substitutes the reference to 'Divisional
Returning Officer for that Division' with 'Electoral Commissioner'.
Item 100 - Section 107
144. Section 107 provides for how the Roll is altered and applies to hard
copy Rolls (as subsection 111(5) provides that section 107 does not
apply to alterations of a Roll using a computer system). Item 100
places the obligations in section 107 on any person making alterations
to a Roll, rather than just the DRO or a person making the alteration
on behalf of the DRO.
Item 101 - Paragraph 108(a)
Item 102 - Paragraph 108(b)
145. Section 108 requires the Registrar-General to provide each month
specified details of each person aged 17 years or upwards who has died
in the preceding month. The section also requires the Registrar-
General to forward any information required under an agreement between
the Registrar-General or a Minister of State and the AEC. These items
amend section 108 to require the information to be forwarded to the
Electoral Commissioner or an officer nominated by the Electoral
Commissioner.
Item 103 - Subsections 109(1) and (2)
146. Similar to section 108, section 109 requires a Controller-General of
Prisons to provide specified information at specified times. This item
amends section 109 to require the information to be forwarded to the
Electoral Commissioner or an officer nominated by the Electoral
Commissioner.
Item 104 - Subsection 110(1)
Item 105 - Subsection 110(1)
Item 106 - Subsection 110(2)
147. Section 110 requires information received under sections 108 and 109
to be actioned in accordance with the Electoral Act. These items make
amendments to section 110 as a consequence of those made by items 101,
102 and 103.
Item 107 - Subsection 111(1)
Item 108 - Subsection 111(1)
Item 109 - Subsection 111(2)
Item 110 - Subsection 111(2)
Item 111 - Subsection 111(4)
Item 112 - Subsection 111(4)
Item 113 - Subsection 111(4)
148. Section 111 is concerned with computer records relating to a Roll.
These items substitute references in section 111 to 'Divisional
Returning Officer' and 'officer' with the 'Electoral Commissioner', and
make other minor changes so that these powers and functions are given
to the Electoral Commissioner.
Item 114 - Section 111A
149. Section 111A provides that a claim under Part VIII may be sent by fax.
As amendments proposed by item 181 will allow an enrolment-related
claim or notice to be sent to an electronic address in specified
circumstances, item 114 repeals section 111A as it is redundant.
Item 115 - Section 112
150. Item 115 makes consequential amendments to the application provisions
of Part VIII. These consequential amendments are required due to
'Electoral Commissioner' replacing references to 'Australian Electoral
Officer', 'Divisional Returning Officer' and 'Assistant Returning
Officer' throughout Part VIII.
Item 116 - Subsection 113(1)
Item 117 - Subsection 113(1) (definition of appropriate DRO)
Item 118 - Subsection 113(1) (definition of official objection)
Item 119 - Subsection 113(2)
151. Part IX sets out the procedures for how an elector is 'objected' off
the Roll. The amendments to Part IX do not substantially change the
manner in which objection action is currently undertaken.
152. Section 113 is the interpretation section for Part IX. These items
make minor amendments consequential to making the Electoral
Commissioner responsible for all enrolment-related activities.
Item 120 - Subsection 114(2)
Item 121 - Subsection 114(2)
Item 122 - Subsection 114(3)
Item 123 - Subsection 114(4)
Item 124 - Subsection 114(4)
Item 125 - Subsection 114(5)
Item 126 - Subsection 114(5)
153. Section 114 sets out who is entitled to make an objection action of a
particular kind. These amendments specify that the Electoral
Commissioner, rather than a DRO, is the person with the power to make
an AEC-initiated objection. While the DRO was limited by section 114
to objection action within his or her own Division, the amendments give
the power to the Electoral Commissioner to object on certain grounds to
an enrolment in any Division.
Item 127 - Subsection 115(2)
154. Consequent to the amendments made by the items directly above, item
127 amends section 115 so that a person must lodge a personally
initiated objection with the Electoral Commissioner, rather than a DRO.
Item 128 - Subsection 116(1)
Item 129 - Subparagraph 116(2)(b)(iv)
Item 130 - Subparagraph 116(2)(c)(i) and (ii)
Item 131 - Subsection 116(3)
Item 132 - Subsection 116(4)
155. Section 116 requires that a notice must be sent to an elector who is
the subject of an objection action (the challenged elector) setting out
specified information. The amendments made by these items mainly
substitute references to 'DRO' with 'Electoral Commissioner'. Item 129
amends the information in the notice that is sent to a challenged
elector by requiring that the notice advises the elector of what he or
she must do if he or she wishes to answer the objection. It is
intended that the notice will set out a range of options for the
challenged elector. This approach is to provide more flexibility in
how a challenged elector may answer an objection than that currently
provided by section 117.
Item 133 - Section 117
156. As noted directly above, the amendment proposed by item 129 seeks to
provide challenged electors with more flexibility in answering
objections. Accordingly, item 133 repeals section 117 as it is no
longer required.
Item 134 - Subsection 118(1)
Item 135 - Paragraph 118(1)(a)
Item 136 - Subsection 118(2)
Item 137 - Subsection 118(2)
Item 138 - Subsection 118(3)
Item 139 - Subsection 118(4)
Item 140 - Subsection 118(4A)
Item 141 - Subsection 118(5)
Item 142 - Subsection 118(6)
157. Section 118 provides for how an objection is determined. These
amendments substitute references to 'officer' and 'DRO' with 'Electoral
Commissioner'.
158. Part X provides for a review of specified enrolment-related decisions.
In most instances a review of a decision by a DRO is undertaken by an
AEO, and then if the person wishes, may seek a review of the AEO's
decision in the Administrative Appeals Tribunal (AAT). If an AEO makes
the decision at first instance then the person may seek a review in the
AAT if it is a decision that may be reviewed by the AAT. The
amendments to this Part proposed by the Bill do not seek to
substantially change the existing arrangements.
Item 143 - Before subsection 120(1)
Item 144 - Subsection 120(1)
Item 145 - Paragraphs 120(1)(a) and (b)
Item 146 - Subsection 120(1)
Item 147 - Subsection 120(2)
Item 148 - Subsection 120(2)
Item 149 - Subsection 120(3)
Item 150 - Paragraph 120(3)(aa)
Item 151 - Paragraphs 120(3)(a) and (b)
Item 152 - Paragraphs 120(3)(ba) and (bb)
Item 153 - Paragraphs 120(3)(c) and (ca)
Item 154 - Subsection 120(3)
Item 155 - Paragraphs 120(3)(d) and (fa)
Item 156 - Paragraph 120(3)(fb)
Item 157 - Subsection 120(3)
Item 158 - Subsections 120(4) to (9)
159. Section 120 provided for a review by an AEO of specified decisions
made by a DRO. The amendments recast the provision so that it applies
for an internal review of decisions made by a delegate of the Electoral
Commissioner who is not the Deputy Electoral Commissioner or an
Australian Electoral Officer. The amendments also substitute
references to Divisional Returning Officers and Australian Electoral
Officers with references to the Electoral Commissioner, and make other
minor amendments consequential to making the Electoral Commissioner
responsible for all enrolment-related activities.
160. Item 158 repeals and substitutes reworked subsections 120(4), (5) and
(6) essentially to remove the duplication with subsection 120(3). Item
158 also repeals subsections 120(7), (8) and (9) which are superfluous
given section 27A of the Administrative Appeals Tribunal Act 1975.
This provision requires a person to be informed of a reviewable
decision and that person's right to have the decision reviewed.
Item 159 - Before subsection 121(1)
Item 160 - Paragraphs 121(1)(a) to (d)
161. Section 121 provides that a person may apply to the AAT for review of
decisions made under specified provisions of the Electoral Act. These
items provide that a person may seek a review by the AAT of a decision
specified in subsection 121(1) made by the Electoral Commissioner, the
Deputy Electoral Commissioner, an Australian Electoral Officer or from
an internal review decision made under new subsection 120(5). These
amendments do not affect a person's current review rights.
Item 161 - Section 122
162. Item 161 makes consequential amendments to the application provisions
of Part X. These consequential amendments are required due to
'Electoral Commissioner' replacing any references to 'Australian
Electoral Officer', 'Divisional Returning Officer' and 'Assistant
Returning Officer' throughout Part X.
Item 162 - Subsection 184A(1)
Item 163 - Section 184B
163. Section 184A enables a person to apply to become registered as a
general postal voter if he or she satisfies one of the grounds
specified in subsection 184A(2). A Register of General Postal Voters
is then kept under section 184B at each Divisional Office for that
Division. These items amend references to the DRO and make other minor
changes to provide that a person applies to the Electoral Commissioner
to be registered as a general postal voter and that it is the Electoral
Commissioner who is tasked with the responsibility of keeping the
Register.
Item 164 - Subsection 185(1)
Item 165 - Subsection 185(1A)
Item 166 - Subsection 185(1A)
Item 167 - Subsection 185(1B)
Item 168 - Subsections 185(2) and (3)
Item 169 - Subsection 185(4)
Item 170 - Subsection 185(4A)
Item 171 - Subsections 185(5) and (6)
164. Section 185 provides for the registration of general postal voters.
These items make the necessary changes to entrust the Electoral
Commissioner, rather than a DRO, with the responsibility for
registering general postal voters. The substantive operation of the
provisions is unchanged.
Item 172 - Section 185B
165. The amendments proposed by item 172 will provide that it is the
Electoral Commissioner, and not the Electoral Commission, who may
conduct a review of the Roll in relation to general postal voters.
The responsibility for conducting such a review is consistent with the
approach for reviews of other elector enrolment which is initiated
internally by the AEC using 'objection action'. The proposed amendment
is also consistent with the Electoral Commissioner's new enrolment-
related responsibilities provided for elsewhere in the Bill. Finally,
it is appropriate that the Electoral Commissioner as chief executive
officer of the agency has the responsibility for conducting reviews.
Item 173 - Section 185C
166. Item 173 repeals section 185C and substitutes a new section to provide
that it is the Electoral Commissioner, and not a DRO, who may cancel an
elector's registration as a general postal voter. The previous
obligation on a DRO to provide written notice of the decision and
review rights available to the elector is now placed upon the Electoral
Commissioner. The new section does not limit the requirement to give
to the elector this notice either 'personally or by post' to provide
more flexibility in how the notice may be delivered.
Item 174 - Subsection 249(1)
Item 175 - Subsection 249(2)
Item 176 - Subsection 249(3)
Item 177 - Subsection 249(4)
Item 178 - Subsection 249(6)
167. Section 249 provides that an elector who is, or expects to be, in
Antarctica in the course of employment, may request to be treated as an
Antarctic elector. The amendments made by these items simply
substitute references to 'Divisional Returning Officer' and 'DRO' with
'Electoral Commissioner' and make other minor changes to provide that
it is the Electoral Commissioner and not a DRO responsible for this
function.
Item 179 - Subsection 343(1)
Item 180 - Subsection 343(1)
168. Section 343 requires any person who accepts, for transmission to a
DRO, specified enrolment claims must do so forthwith. These items
substitute the references to 'Divisional Returning Officer' with
'Electoral Commissioner'.
Item 181 - After section 381A
169. The amendments contained in this item give effect to recommendation 9
of the JSCEM Report. In particular, the amendments will enable
enrolled voters to provide electronic information to the AEC that can
be used to update the electoral Roll (parts VII, VIII, IX or X), make
an application to be a general postal voter (section 184A) or apply to
be an Antarctic elector (section 249) without the need for a signature.
170. New subsection 382(1) sets out the type of enrolment-related claims
and notices that may be sent electronically to the Electoral
Commissioner. New subsections 382(2), (3) and (4) contain a power for
the Electoral Commissioner to determine the addresses (including
electronic addresses) to which enrolment claims may be sent. The power
also enables the Electoral Commissioner to be able to determine
different addresses for different types of claims. When a person sends
a claim to an address determined by the Electoral Commissioner,
subsection 382(5) makes it clear that the claim will be taken to have
been sent to the Electoral Commissioner. New subsection 382(6) makes
it clear that a determination of an address by the Electoral
Commissioner is not a legislative instrument under the Legislative
Instruments Act.
171. New subsections 382(7) and (8) will enable certain categories of
claims to be received and acted upon by the Electoral Commissioner
without the need for the receipt of a hard copy document containing a
signature. New subsection 382(7) will enable the Electoral
Commissioner to act on enrolment-related claims on the receipt of
relevant details provided electronically by an enrolled voter. The
existing regime in the Electoral Act requires the submission to the AEC
of a hardcopy claim form. These amendments to the Electoral Act
provide for the making of regulations to enable the AEC to request
prescribed information from electors (e.g. date of birth and drivers
licence number) to ensure that the electronic transaction is authentic
and is being undertaken by the elector to whom the information relates.
The changes to enrolment-related claims without a signature are
limited by the requirements of paragraphs (a) to (c) which require that
the person is already enrolled.
172. In addition to the requirement that the person is already enrolled new
subsection 382(7) foreshadows the making of regulations which will
prescribe minimum identity verification information that will need to
be provided before the Electoral Commissioner can act on the electronic
communication. The use of a regulation making power will ensure that
as online eligibility checking methods and technology improve,
regulations can be made that adopt the new technology without the need
to amend the Electoral Act. However, at this time it is envisaged that
the regulations will refer to details that will only be known to the
enrolled voter such as motor vehicle licence number, passport number or
citizenship number which already form part of the evidence of identity
checks which are used by the AEC.
173. New subsection 382(8) will enable regulations to be made that exempt
the revised verification processes in subsection 382(7) from applying
to particular electronic communications to the AEC. This will enable
different eligibility checking and signature requirements to apply to
different categories of claims made under the Electoral Act in
recognition of the different needs and available sources of
verification information that is currently available and which may also
be made available in the future. Some types of claims are also
specifically excluded.
Referendum (Machinery Provisions) Act 1984
Item 182 - Subsection 3(1) (at the end of the definition of officer)
174. This item amends the definition of 'officer' for the same reasons as
discussed at item 1 but for the purposes of the Referendum Act.
Item 183 - Subsection 38(1)
Item 184 - Paragraph 38(5)(b)
Item 185 - Subsection 38(7)
175. Subsection 38(1) provides that, in specified circumstances, a person
may apply for provisional enrolment to a DRO. Item 183 makes a
straightforward substitution of 'the Electoral Commissioner' for 'a
Divisional Returning Officer'.
176. Items 184 and 185 make similar substitutions as item 183 with the
effect that the Electoral Commissioner becomes responsible for keeping
records under paragraph 38(5)(b) or informing the person under
subsection 38(7), rather than the DRO for the Division in which the
person is provisionally enrolled.
Item 186 - After section 38
177. Item 186 inserts a new section 39 into the Referendum Act. This new
section contains a power for the Electoral Commissioner to determine
the addresses (including electronic addresses) to which applications
under section 38 may be sent. The power also enables the Electoral
Commissioner to be able to determine different addresses for use in
different circumstances. When a person sends an application to an
address determined by the Electoral Commissioner, subsection 39(4)
makes it clear that the application will be taken to have been sent to
the Electoral Commissioner. New subsection 39(5) makes it clear that a
determination of an address by the Electoral Commissioner is not a
legislative instrument under the Legislative Instruments Act.
Item 187 - Subsection 74(2)
178. Section 74 is the interpretative section in relation to voting in
Antarctica at a referendum. The item makes a straightforward
substitution of 'Electoral Commissioner' for 'a Divisional Returning
Officer'.
Item 188 - Subsections 138(2) and (3)
179. This item amends the delegation power for the same reasons as
discussed at item 3 for the purposes of the Referendum Act.
Part 2 - Transitional, application and saving provisions
Item 189 - Regulations
180. Item 189 makes it clear that the Governor General may make regulations
of a transitional, application or saving nature in relation to the
amendments and repeals made by this Schedule 4.
Schedule 5 - Amendments relating to nomination of candidates
Commonwealth Electoral Act 1918
181. The amendments contained in this Schedule are aimed at addressing a
concern that the Electoral Act should contain restrictions on the
number of candidates that a single registered political party is able
to nominate as endorsed candidates for a single Division in any State
or Territory. One of the benefits that are given to a political party
that is registered under Part XI of the Electoral Act is that the mode
of nomination can be made solely by the registered officer without the
need to obtain the signatures of 50 nominators who are entitled to vote
in the election (see subsection 166(1)). A further benefit is that the
name, or registered abbreviation, of the registered political party is
printed on the ballot papers adjacent to the name of the candidate
endorsed by the registered officer of the political party.
182. At the by-election for the Division of Bradfield that was held on 5
December 2009 a total of 22 candidates appeared on the ballot paper.
This high number included 9 candidates nominated by the registered
officer of the Christian Democratic Party (Fred Nile Group). The
informal vote at the 2009 by-election for the Division of Bradfield was
9 per cent. This was more than double that at the 2007 election (3.99
per cent) where only 6 candidates appeared on the ballot paper and was
the highest ever recorded for the Division of Bradfield. The
amendments contained in this Schedule will provide that a registered
officer of a registered political party is only able to nominate one
candidate as an endorsed candidate for a single Division in any State
or Territory.
Item 1 - Subsection 166(1)
183. This is a technical provision which amends subsection 166(1) of the
Electoral Act by inserting a reference to the new section 166(1AA) so
that it is clear that the requirements of lodging a valid nomination in
subsection 166(1) are subject to the requirements of the new subsection
166(1AA).
Item 2 - After subsection 166(1A)
184. This amendment inserts new subsection 166(1AA) into the Electoral Act.
This new subsection makes it clear that for any House of
Representatives election (including a by-election) for a single
Division in any State or Territory that a registered officer is only
able to nominate one candidate as an endorsed candidate on behalf of
the particular registered political party. The note to this subsection
makes it clear that this amendment does not affect the existing
provisions relating to the withdrawal of consent of a candidate or
where a candidate dies after the nomination.
Item 3 - Subsection 172(1)
185. This is a technical amendment which amends subsection 172(1) of the
Electoral Act by inserting a reference to the new subsection 172(1A) so
that it is clear that a nomination shall be rejected where the
registered officer of a party fails to comply with the requirements of
the new subsection 166(1AA) by purporting to nominate more than one
endorsed candidate on behalf of the registered political party for a
single Division in any State or Territory.
Item 4 - After subsection 172(1)
186. This amendment inserts new subsection 172(1A) into the Electoral Act.
This new subsection addresses what action the AEC is required to take
where a bulk nomination under subsection 167(3) is received from a
registered officer of a political party which includes 2 or more
endorsed candidates for a single Division in breach of the requirements
of new subsection 166(1AA).
187. There are two ways in which a registered officer is able to nominate
endorsed candidates for a House of Representative election. The first
way that a candidate is able to be nominated by the registered officer
is by lodging a nomination form with the relevant DRO for that Division
(see subsection 167(2)). In the case where a nomination is made
containing 2 or more candidates in breach of the requirements of new
subsection 166(1AA) the nomination for all of the candidates must be
rejected.
188. The second way that a candidate is able to be nominated by a
registered officer is by lodging what is referred to as a 'bulk
nomination' with the relevant AEO for the State or Territory (see
subsection 167(3)). In this situation, the nomination must include
'all of the candidates' for the registered political party which have
been endorsed to stand for election in the Divisions situated in the
particular State or Territory for which the relevant AEO is
responsible.
189. The new subsection 172(1A) provides that where a bulk nomination has
been received by the AEO and it includes 2 or more candidates for a
single Division (in breach of the requirements of new subsection
166(1AA)), the AEO must reject the bulk nomination for the 2 or more
same Division candidates, but the remainder of the bulk nomination will
be valid.
190. The above amendments will not affect the existing application of the
Electoral Act where a bulk nomination will be invalidated under section
172 if the registered officer of the same registered political party
purports to lodge an individual nomination for an endorsed candidate
with a DRO and that candidate was not included in the bulk nomination
lodged with the AEO. In this situation the requirements of subsection
167(3) will not be met because the registered officer did not include
all of the candidates in the bulk nomination lodged with the AEO.
191. Accordingly, the existing practice will remain that if a registered
officer has forgotten to include a candidate in a bulk nomination this
is unable to be rectified by the registered officer lodging a single
nomination with a DRO. The registered officer will need to lodge
individual nominations with all the DROs in a State or Territory prior
to the close of nominations (which is 48 hours after the close of bulk
nominations - see subsection 170(2)) if they have forgotten to include
a candidate or have included 2 or more candidates for a single Division
in the bulk nomination.
Part 2 - Application of amendments
Item 5 - Application of amendments
192. Item 5 makes it clear that the amendments relating to nomination of
candidates only apply prospectively to elections the writs for which
are issued on or after the commencement of Schedule 5.