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2002-2003-2004
THE PARLIAMENT
OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
ELECTORAL AND
REFERENDUM AMENDMENT (PRISONER VOTING AND OTHER MEASURES) BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated with
the authority of the Special Minister of State,
Senator the Hon Eric
Abetz)
ELECTORAL AND REFERENDUM AMENDMENT (PRISONER VOTING AND OTHER MEASURES)
BILL 2004
OUTLINE
The Bill amends the Commonwealth
Electoral Act 1918 (the Electoral Act), the Referendum (Machinery
Provisions) Act 1984 (the Referendum Act) and the Electoral and
Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (the
Enrolment Integrity Act) to address operational problems identified with the
amendments made by the Senate during debate on 25 June 2004 of the
Enrolment Integrity Act.
The measures will:
• amend the Electoral Act to prevent prisoners serving a sentence of three years or longer from enrolling to vote;
• amend the Referendum Act to repeal early close of rolls provisions for referendums; and
• amend the Enrolment Integrity Act to clarify the commencement of the
name and address evidentiary requirements for enrolment and changes to enrolment
details, including the review by the Australian Electoral Commission
(AEC) of these requirements, and the cessation of the
requirements.
FINANCIAL IMPACT STATEMENT
The Bill has no
financial impact.
ELECTORAL AND REFERENDUM AMENDMENT (PRISONER VOTING
AND OTHER MEASURES) BILL 2004
NOTES ON
CLAUSES
Clause 1 – Short title
1. This clause
provides for the Act to be cited as the Electoral and Referendum Amendment
(Prisoner Voting and Other Measures) Act 2004.
Clause 2 –
Commencement
2. This clause sets out the commencement provisions for
the Bill. Sections 1 to 3 commence on Royal Assent. The items in Schedule 1
commence on 10 August 2004, immediately after the commencement of items 6,
7, 46, 71, 95 and 126 of Schedule 1 to the Enrolment Integrity Act. The reason
for this commencement provision is explained at the relevant items
below.
3. The items in Schedule 2 are taken to have commenced immediately
after the Enrolment Integrity Act received Royal Assent on 13 July 2004.
These items repeal redundant provisions and do not have any detrimental effect
on people’s rights.
4. The items in Schedule 3 commence immediately
after the commencement of item 132A of the Enrolment Integrity Act which
commences on 10 August 2004. The items clarify the operation of item 132A and
do not affect people’s rights.
Clause 3 –
Schedule(s)
5. This clause provides that each Act specified in a
Schedule is amended or repealed as set out in the Schedule, and any other item
in a Schedule has effect according to its terms.
Schedule 1 –
Amendments relating to prisoner voting
6. This Schedule amends the
Electoral Act and the Referendum Act.
Items 1 to 6 –
Prohibition on prisoners serving a sentence of three years or longer from
enrolling to vote
7. During debate of the Electoral and Referendum
Amendment (Enrolment Integrity and Other Measures) Bill 2004 in the Senate on
25 June 2004, items 6 and 7 relating to prisoner voting were amended
to provide that prisoners serving sentences of imprisonment that commenced on,
or before, the return of the writs for an election and continued after the issue
of the writs for any succeeding election are not entitled to be enrolled to
vote. These items commence on 10 August 2004.
8. In their
current form, the amendments relating to prisoner voting entitlements will not
achieve the outcome of preventing certain prisoners from enrolling to
vote.
9. The only available process for removing prisoners in the above
category from the roll is by objection action under Part IX of the Electoral
Act. Objection action can only take place when the relevant Divisional
Returning Officer (DRO) is satisfied that a person is not entitled to be
enrolled for that Division (subsection 114(2) of the Electoral Act). As the
prisoners would only be ineligible for enrolment on the issue of the writs,
objection action could not commence until that time.
10. The objection
process requires the DRO to give notice of an objection to the challenged
elector and provide the elector the opportunity to comment on the objection
(section 116 of the Electoral Act). Under subsection 118(1) of the Electoral
Act, a DRO can then make a decision about the objection either after the person
has responded to the objection or 20 days after the date of notification of the
objection, whichever is the sooner. In practice, an objection is usually
determined after the 20-day period from notification of the
objection.
11. Subsection 118(5) of the Electoral Act prevents a DRO from
finalising an objection action between the close of rolls for an election and
polling day. As the rolls close seven days after the issue of the writs for an
election (section 155 of the Electoral Act), there would be insufficient time to
complete an objection against a prisoner within the specified
category.
12. To correct this technical problem, this Bill amends the
Electoral Act to prevent a prisoner who is serving a sentence of three years or
more from enrolling to vote. This period also aligns with the electoral
cycle.
13. The amendments require the Controllers-General of Prisons in
the States and Territories to provide the AEC, on a monthly basis, information
on prisoners who are serving a sentence of imprisonment of three years or more.
DROs will then use the information provided by the Controllers-General of
Prisons to undertake objection action to remove these prisoners from the
roll.
14. Upon completion of their sentence, prisoners will be eligible
to re-enrol. Prisoners released on parole will also be eligible to re-enrol.
The provisions will not apply to prisoners serving sentences of periodic
detention or people serving a
non-custodial sentence.
15. Item 1
repeals paragraph 93(8)(b) of the Electoral Act and replaces it with another
paragraph that prohibits prisoners serving a sentence of imprisonment of three
years or longer for an offence against the law of the Commonwealth or a State or
Territory from enrolling to vote. This item is similar to paragraph 93(8)(b) of
the Electoral Act as it stood before amendment by the Enrolment Integrity Act,
save the reduction of the time period from five to three years.
16. Item
2 repeals and replaces subsection 93(8AA) of the Electoral Act which contained a
definition of imprisonment for the purposes of paragraph 93(8)(b). This
definition is no longer required as a result of the amendment to paragraph
93(8)(b) above. Item 2 specifies that the prohibition on enrolment for people
serving a sentence of three years or more applies to people who have commenced
their sentence on, or before, the commencement of Schedule 1 of this Bill. This
is consistent with the application of the provision at item 6 of the
Enrolment Integrity Act where the qualification for enrolment and
voting is based on a prisoner’s sentence having commenced before, or on,
the return of the writs for an election and continuing at the issuing of writs
for the succeeding election.
17. Item 3 amends section 109 of the
Electoral Act to ensure that the Controllers-General of Prisons in the States
and Territories provide the AEC with monthly reports containing information on
those prisoners serving a sentence of imprisonment of three years or longer.
This procedure is similar to the one that was in operation under the Electoral
Act prior to amendment by the Enrolment Integrity Act, apart from the period of
imprisonment.
18. Item 4 amends paragraph 184A(2)(d) of the Electoral
Act, which relates to the qualifications for applying to register as a general
postal voter, to maintain consistency with the amendments made to section 93 of
the Electoral Act. The amendment will provide that detention in custody
constitutes a legitimate reason for an elector to apply to register as a general
postal voter. This will ensure that people serving a sentence of less than
three years are eligible to apply to register as a general postal voter.
Prisoners serving a sentence of three years or more, once removed from the roll,
will not be eligible to register as a general postal voter as they will not be
classified as ‘electors’ within the definition at subsection 4(1) of
the Electoral Act.
19. Schedule 2 of the Electoral Act contains the
grounds for a person to apply for a postal or a pre-poll vote. Clause 9 of
Schedule 2 allows an elector who is under detention but not serving a sentence
of imprisonment within the meaning of subsection 93(8) to apply for either a
pre-poll or a postal vote. As a consequence of amending subsection 93(8) to
remove the definition of the sentence of imprisonment, item 5 amends Clause 9 of
Schedule 2 to remove the reference to that subsection of the Electoral Act and
provides for detention in custody to be a ground for an elector to apply to cast
a postal or a pre-poll vote. This will ensure that people imprisoned for less
than three years are able to cast a postal or a pre-poll
vote.
20. Schedule 3 of the Referendum Act contains the grounds for
application for a postal or a pre-poll vote, similar in form to those in the
Electoral Act. Item 6 amends Clause 9 of Schedule 3 to be consistent with the
amendment of the Electoral Act at Item 5 above.
21. The items in Schedule
1 commence on 10 August 2004. This will ensure that the items of the
Enrolment Integrity Act, which do not have the effect as agreed by the
Parliament, do not operate.
Schedule 2 – Amendments relating to
close of rolls
22. This Schedule amends the Enrolment Integrity
Act.
Items 1 and 2 – Repeal of provisions relating to the
early close of rolls for referendums
23. The Electoral and Referendum
Amendment (Enrolment Integrity and Other Measures) Bill 2004 contained a number
of amendments to the Electoral Act and the Referendum Act relating to the close
of rolls for an election and a referendum. Those amendments would have changed
the close of rolls for new enrolments from seven days after the issue of
the writs to 6.00pm on the day of the issue of the writs, and to 8.00pm on the
third day after the issue of the writs for changes to enrolment
details.
24. During debate in the Senate on 25 June 2004, the
majority of these amendments were not supported and were removed from the Bill.
However, two amendments to the Referendum Act relating to the close of rolls
were not omitted (items 107 and 108) and commence on proclamation. The items
have not been proclaimed.
25. Item 107 of the Enrolment Integrity Act
amends section 4 of the Referendum Act to insert a definition of the
postponement period where the AEC is unable to process enrolment applications or
alter the rolls during the period after the rolls have closed and prior to a
referendum.
26. Item 108 of the Enrolment Integrity Act amends
section 9 of the Referendum Act to change the day for the close of rolls from
seven days to three working days after the issue of the writs.
27. Item
1 of Schedule 2 of this Bill amends the commencement table of the Enrolment
Integrity Act to remove the reference to all of the provisions relating to the
early close of rolls for referendums. The commencement table was not amended
during debate of the Enrolment Integrity Bill and the provision is
redundant.
28. Item 2 repeals items 107 and 108 of the Enrolment
Integrity Act and will ensure consistency with the close of rolls provisions in
the Electoral Act and the Referendum Act.
Schedule 3 –
Amendments relating to proof of identity and address on
enrolment
29. This Schedule amends the Enrolment Integrity
Act.
Items 1 - 5 – Clarification of evidentiary
requirements for proof of name and address on enrolment
30. The
Enrolment Integrity Act contains provisions for the introduction of name
and address evidentiary requirements, as prescribed by regulations, for
enrolment and changes to enrolment details.
31. During debate of the
legislation in the Senate, a number of amendments were made to these provisions.
These included:
• inserting a requirement that
the regulations for proof of name and address for enrolment must require
electors to provide on their enrolment form either their driver’s licence
number or the signatures of two witnesses (item 18A);
• providing that where people provide their
driver’s licence number, they are not required to have their enrolment
form witnessed (item 19);
• providing that the
regulations must not be made until after 1 July 2005 (item 18A);
• inserting a requirement that the regulations
cease to have effect three years after the date of proclamation of the items in
the Enrolment Integrity Act relating to proof of name and address (item 132A);
and
• inserting a requirement that the AEC
commence a review of the evidentiary requirements on the second anniversary of
the proclamation of the items in the Enrolment Integrity Act relating to proof
of name and address (item 132A).
32. The commencement of the review of
the evidentiary requirements and the cessation of those requirements are linked
to the proclamation of all of the provisions relating to proof of name and
address (items 9, 12, 16, 18A, 19 and 42 of Schedule 1 of the Enrolment
Integrity Act). However, as a result of amendments made by the Senate, not
all of the provisions commence on proclamation. Item 132A also referred to a
number of provisions relating to proof of name and address for applicants from
overseas and itinerant applicants (items 9, 12 and 16) which were omitted from
the Enrolment Integrity Bill during debate in the Senate. Reference to these
redundant items has been removed as part of the amendments of item 132A at item
3 of Schedule 3 of this Bill.
33. In accordance with section 2 of the
Enrolment Integrity Act, item 18A commenced on Royal Assent, that is, on
13 July 2004, as no commencement date was specified for the provision
when it was added to the Enrolment Integrity Bill during debate. All of the
other provisions relating to proof of name and address commence on proclamation
and have not yet been proclaimed.
34. For consistency, and in order to
avoid any confusion about the commencement of the proof of name and address
provisions, the amendments in this Bill provide for all of the provisions
relating to proof of name and address to commence at the same time on
proclamation. As outlined in the explanatory memorandum to the Electoral and
Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004,
proclamation of these items is dependent upon consultation with the States and
Territories on the form of the regulations and the need for complementary
legislation where necessary. The amendments in Schedule 3 of this Bill also
clarify the commencement of the review of the proof of name and address
requirements and the cessation of those requirements.
35. Item 1 of
Schedule 3 amends table item 14 of subsection 2(1) of the Enrolment Integrity
Act to include item 18A. This will ensure that items 18A and 19 of the
Enrolment Integrity Act commence on proclamation. Item 19 requires proof of
name and address, as prescribed by regulations, to be provided for enrolment and
change of enrolment details.
36. Item 2 repeals item 132A of the Enrolment Integrity Act and substitutes
two new items (item 132A and 132B) which clarify the operation of the provision.
Amended item 132A provides that the evidentiary requirements cease to have
effect three years after the commencement of the requirement for proof of name
and address at item 19 of Schedule 1 of the Enrolment Integrity
Act.
37. New item 132B provides that the AEC must commence its review of
the evidentiary requirements on the first business day two years after the
commencement of the requirement for proof of name and address at item 19 of
Schedule 1 of the Enrolment Integrity Act. This item has been re-drafted to
include a reference to the sections of the Electoral Act that relate to the
evidentiary requirements.
38. The provision also specifies the issues
which the AEC must consider when conducting the review and clarifies that the
AEC must give copies of its written report of the review to the Minister and the
Joint Standing Committee on Electoral Matters at the same time.