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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL AND REFERENDUM AMENDMENT (PROVISIONAL
VOTING) BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Special Minister of State,
the Hon Gary Gray AO MP)
ELECTORAL AND REFERENDUM AMENDMENT (PROVISIONAL
VOTING) BILL 2011
OUTLINE
The Electoral and Referendum Amendment (Provisional Voting) Bill 2011 (the Bill)
amends the Commonwealth Electoral Act 1918 (the Electoral Act) and the
Referendum (Machinery Provisions) Act 1984 (the Referendum Act).
The Bill repeals the requirement for provisional voters to provide evidence of identity
before their votes are admitted to preliminary scrutiny. Provisional votes are a type of
declaration vote that can be cast by an elector on polling day. A provisional vote (like
all declaration votes) is a vote that is sealed inside an envelope. Written on the
outside of the envelope are the voter's details including name, address, date of birth
and signature.
The Electoral Act 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 Australian Electoral Commission (AEC)
officer by the first Friday following polling day. Failure to provide evidence of
identity for a provisional vote by the first Friday following polling day shall result in
the envelope containing the ballot papers being excluded from preliminary scrutiny.
The Bill implements recommendation 2 of the Joint Standing Committee on Electoral
Matters' Report on the conduct of the 2007 federal election and matters related
thereto.
FINANCIAL IMPACT STATEMENT
There are not expected to be any significant costs associated with the implementation
of the measure contained in this Bill.
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be cited as the Electoral and Referendum
Amendment (Provisional Voting) Act 2011.
Clause 2 - Commencement
2. This clause specifies that the Act is to commence upon 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amended or repealed as set out in the applicable items in the Schedule, and any other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 evidence of identity for
provisional votes
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Subsections 235(1B), (9) and (10)
4. 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.
5. Item 1 repeals the evidence of identity requirements contained in
subsections 235(1B), (9) and (10) of the Electoral Act.
Item 2 - After paragraph 3 of Schedule 3
Item 3 - Subparagraph 6(ca) of Schedule 3
6. 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. Subparagraph 6(ca) currently provides that if an
elector who casts a provisional vote fails to provide evidence of identity by the first
Friday following polling day, the envelope containing the provisional vote is excluded
from the count.
7. Item 2 inserts a new paragraph 3A 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
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at the election, then the DRO must check the signature against the most recent record
that contains the elector's signature. In most circumstances the most recent record
will be the signature on the claim for enrolment form.
8. Item 3 repeals the existing subparagraph 6(ca) of Schedule 3 to the Electoral
Act and substitutes a new subparagraph to ensure consistency with the requirements
of new paragraph 3A of Schedule 3. In cases 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, new subparagraph 6(ca) will operate so that the
declaration envelope is excluded at this point in the scrutiny process.
Referendum (Machinery Provisions) Act 1984
9. Provisional votes can be cast in a referendum in a similar manner and for the
same reasons as an election under the Electoral Act.
10. The amendments contained in items 4 to 6 give effect to recommendation 45 of
the JSCEM Report. This recommendation seeks to ensure consistency between
provisions applying to elections and referenda by making, where appropriate, similar
amendments to the Referendum Act as those proposed for the Electoral Act.
Item 4 - Subsections 37(1B), (9) and (10)
11. 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 the voting day.
12. Item 4 repeals the evidence of identity requirements contained in
subsections 37(1B), (9) and (10) of the Referendum Act.
Item 5 - After paragraph 3 of Schedule 4
Item 6 - Subparagraph 6(ca) of Schedule 4
13. Section 89A of the Referendum 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 4 to the Referendum Act. Subparagraph 6(ca) currently provides that if an
elector who casts a provisional vote fails to provide evidence of identity by the first
Friday following voting day, the envelope containing the provisional vote is excluded
from the count.
14. Item 5 inserts a new paragraph 3A in Schedule 4 to the Referendum Act. This
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 the most recent record will be the signature
on the claim for enrolment form.
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15. Item 6 repeals the existing subparagraph 6(ca) of Schedule 4 to the Referendum
Act and substitutes a new subparagraph to ensure consistency with the requirements
of new paragraph 3A of Schedule 4. In cases 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, new subparagraph 6(ca) will operate so that the
declaration envelope is excluded at this point in the scrutiny process.
Part 2 - Application of amendments
Item 7 - Application of amendments
16. 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 1.
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