Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL LEGISLATION AMENDMENT (CONTINGENCY MEASURES)
BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Special Minister of State,
the Hon Ben Morton MP)
Glossary
The following abbreviations and acronyms are used throughout this Explanatory
Memorandum.
Abbreviation Definition
AEC Australian Electoral Commission
Bill Electoral Legislation Amendment
(Contingency Measures) Bill 2021
Candidate An individual seeking nomination in an
election as a Senator or as a member of the
House of Representatives
Electoral Act Commonwealth Electoral Act 1918
Electoral Commissioner Australian Electoral Commissioner
appointed under section 18 of the Electoral
Act
Division An Electoral Division for the election of a
member of the House of Representatives.
ICCPR International Covenant on Civil and
Political Rights
Item Refers to an item in the Bill
JSCEM Joint Standing Committee on Electoral
Matters
Postal vote application A written request for a set of voting papers
which includes a declaration by a voter of
their entitlement to apply for a postal vote.
Postal vote certificate A signed and witnessed declaration with
the postal voter's personal details to verify
their entitlement to vote
Voter A person who is enrolled on the
Commonwealth Electoral Roll and entitled
to vote in an election
1
ELECTORAL LEGISLATION AMENDMENT (CONTINGENCY MEASURES)
BILL 2021
GENERAL OUTLINE
This Bill makes amendments to the Electoral Act to enable the Electoral Commissioner to
modify the operation of certain aspects of the conduct of elections when a Commonwealth
emergency law is in force. These amendments implement recommendations from the
JSCEM Report of the inquiry on the future conduct of elections operating during times of
emergency situations.
Part XXIII - Miscellaneous
The Bill amends the Electoral Act to provide the Electoral Commissioner with the power
to modify limited provisions in the Electoral Act, through a legislative instrument, in
circumstances where:
• an emergency declaration has been issued under a Commonwealth law;
• the Electoral Commissioner is satisfied on reasonable grounds that the emergency
to which the emergency declaration relates would interfere with the due conduct of
the election within the whole, or a specified subset of the geographical area to
which the declaration applies; and
• for certain cases, that the Electoral Commissioner is satisfied, on reasonable
grounds that this is necessary or conducive for the due conduct of the election in
the emergency area.
Before making such a legislative instrument, the Electoral Commissioner will be required
to notify the Prime Minister and the Leader of the Opposition in writing, including the
reasons why any modifications are considered necessary. The Electoral Commissioner will
also be required to publish any legislative instrument on the AEC website.
This amendment implements Recommendation 1 of the JSCEM Report of the inquiry on the
future conduct of elections operating during times of emergency situations.
Part XVI - The polling
The Bill amends Part II and Part XVI to uplift the existing power to adjourn or suspend
polling at a polling place or pre-poll voting office, removing this power from local polling
booth presiding officers, and granting the power to the Electoral Commissioner. This
power is to be non-delegable.
This amendment implements Recommendation 3 of the JSCEM Report of the inquiry on the
future conduct of elections operating during times of emergency situations.
Part XVIII - The scrutiny
The Bill amends Part XVIII to delay the commencement of the scrutiny of the House of
Representatives for a Division when the polling has been adjourned or temporarily
suspended at a polling place in the Division. The results for the Senate election in the
Division where polling has been adjourned or temporarily suspended will not be able to be
disclosed to the public until the close of the polls.
2
This amendment protects the integrity of the result by ensuring that voters are not influenced
by indicative results.
Part XV - Postal Voting
The Bill also includes two minor administrative amendments with respect to postal voting:
• amending the cut-off date for postal vote applications (PVA) to the Tuesday four
days prior to polling day; and
• allowing the AEC flexibility in relation to the format of the postal vote certificate
(PVC) that is included in the postal voting papers.
This will enable the AEC to meet the evolving challenges for the production of postal vote
certificates, and provide the AEC additional time to dispatch postal vote materials to voters.
FINANCIAL IMPACT STATEMENT
The measures in the Bill are expected to be cost neutral. There are no significant costs or
savings associated with the Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill. The amendments have been assessed as compatible with
Australia's human rights obligations.
3
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Electoral Legislation Amendment (Contingency Measures) Bill 2021
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Human rights implications
The impact of the Bill on the following rights of the ICCPR have been considered:
1. the right to freedom of expression under Article 19
2. the right to freedom of association under Article 22
3. the right to political participation under Article 25.
Article 19 - Freedom of expression and Article 22 - Freedom of association
1. The Bill engages the right to freedom of expression and association under Articles 19
and 22 of the ICCPR because the Electoral Commissioner, when a Commonwealth
emergency declaration is in force, may allow and direct the manner in which certain
core electoral activities, such as the canvassing for votes in an election, supply of
electoral matter to an elector, soliciting votes of an elector, or the exhibiting of a notice
or sign, are to be conducted at a polling place or pre-poll voting office, despite a
Commonwealth, State or Territory law which may otherwise prohibit these activities.
2. In addition, the Bill introduces a new offence to prevent scrutineers and AEC officers
from disclosing to the public the Senate election results for a Division that has adjourned
polling until after the close of the adjourned poll. These amendments place limitations
on, but do not prohibit the right to, the freedom of expression or the right to freedom of
association under certain conditions.
3. The right to freedom of expression and the right to freedom of association can be subject
to permissible limitations where these limitations are authorised by law and not
arbitrary; for example, they are necessary for the respect of the rights or reputation of
others, for the protection of national security, public order, or public health or morals.
4. The amendments relating to allowing certain core electoral activities will enable the
Electoral Commissioner to ensure that these may continue where a Commonwealth
emergency law is in force, despite a Commonwealth, State or Territory law to the
contrary. In allowing these activities to occur, the Electoral Commissioner may also
specify the manner in which these activities are to be conducted (for example, only
allowing a limited number of people to conduct these activities) to minimise the risk of
harm to voters, candidates and their representatives, and AEC employees and
contractors. The limitation is designed to operate only where necessary and to entail
conditions that are proportional to the relevant circumstances of an emergency.
Therefore, these safeguards ensure that the modifications are appropriate and
permissible by law.
5. These amendments do not prohibit electoral participants' freedom to associate or
express opinions and ideas. The modification powers of the Electoral Commissioner are
4
only enlivened during the electoral period and are limited to the period the
Commonwealth emergency declaration is in force and until the return of the writs. The
operation of the powers is confined to the necessary geographical area. The Electoral
Commissioner is required to notify both the Prime Minister and Leader of the
Opposition in the House of Representatives in writing prior to creating the instrument,
including the reasons why any modifications are considered necessary. The Electoral
Commissioner is also required publish any legislative instrument on the AEC website.
6. The limitation on the disclosure of indicative Senate election results to the general public
before the close of the poll for adjourned polling is provided by law and is intended to
prevent any public influence upon voters who are yet to vote. This limitation on the right
to freedom of expression is proportionate to the legitimate end sought and is reasonable
and necessary in the circumstances, as the limitation applies for a brief period of time,
and protects the rights of voters who are yet to vote to do so free from undue influence.
This is consistent with the general principle in the Electoral Act about not publishing
results from an area where voting is still underway.
7. The limitation of freedom of expression and association is therefore consistent with
Articles 19 and 22 of the ICCPR.
Article 25 - Political participation
8. The Bill engages the rights of citizens to take part in the conduct of public affairs directly
or through chosen representatives under Article 25 of the ICCPR because of the potential
of restrictions on the number of scrutineers present at the scrutiny of senate votes, as
well as the amendments relating to allowing and directing the manner in which certain
core electoral activities are to take place when an emergency declaration is in force.
9. The right to freedom of political participation is subject to permissible limitations where
these limitations are authorised by law and not arbitrary, and are necessary for the
respect of the rights or reputation of other, for the protection of national security, public
order, or public health or morals.
10. The United Nations Human Rights Committee General Comment number 25 states that
candidates or their agents provide an important oversight mechanism of elections
contributing to the transparency and accountability of electoral results when overseeing
the counting of ballots and the order of names on a ballot.
11. The amendment allows the number of people present to be limited to ensure that public
safety is maintained during an emergency situation. The amendment is intended to
minimise the risk of harm to voters, candidates and their representatives, and AEC
employees and contractors and the limitation is provided by law and proportionate to
the legitimate end sought. There remains a measured minimum scrutiny entitlement, so
that there will still be outside observation of the count by representatives of candidates.
The amendment only curtails the ratio of persons representing a group, in recognition
that each group of candidates is an aligned political collective (such as a party, or a
coalition). This will continue to provide external assurance of the accuracy and integrity
of the process.
12. The limitation of the right to freedom of political participation is therefore consistent
with Article 25 of the ICCPR.
Conclusion
5
13. The Bill is compatible with human rights because, to the extent it may limit human
rights, those limitations are reasonable, necessary and proportionate.
6
ELECTORAL LEGISLATION AMENDMENT (CONTINGENCY
MEASURES) BILL 2021
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 is a formal provision specifying the title of the Bill when enacted will be the
Electoral Legislation Amendment (Contingency Measures) Act 2021 (the Act).
Clause 2 - Commencement
2. Subclause 2(1) provides that the provisions in column 1 of the Commencement table
commence at the time set out in column 2.
3. Item 1 in the Commencement table provides that the whole of the Act commences on
the day after the Act receives the Royal Assent.
4. A note is inserted below the Commencement table stating that the table relates only
to the provisions of the Act as originally enacted and that the table will not be amended
to deal with any later amendments of the Act.
5. Subclause 2(2) provides that information in column 3 of the Commencement table is
not part of the Act. Information may be inserted into column 3, or information in
column 3 may be edited, in any published version of the Act.
Clause 3 - Schedules
6. Clause 3 provides that legislation specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to the Act has effect according to its terms.
7
Schedule 1 - Amendments
Part 1 - Contingency powers
Commonwealth Electoral Act 1918
1. Part I of the Electoral Act provides the definition for terms used throughout the
Electoral Act.
2. Item 1 inserts new section 396 to enable the Electoral Commissioner to make
modifications to the operation of the Electoral Act through a legislative instrument in
certain circumstances.
3. New subsection 396(1) provides that the power to modify aspects of the Electoral Act
applies where:
• an emergency declaration has been issued under a Commonwealth law
(however described); and
• the Electoral Commissioner is satisfied on reasonable grounds that the
emergency to which the emergency declaration relates, would interfere
with the due conduct of the election in a geographical area to which the
declaration applies.
4. This amendment ensures that any modifications made to the Electoral Act are only in
the case of an emergency declaration being made under a Commonwealth law. The
provision ensures that a modification to the Electoral Act can only be made where the
Electoral Commissioner is satisfied on reasonable grounds that the emergency would
otherwise interfere with the due conduct of the election in the geographical area to
which the declaration applies.
5. The Commissioner is required to discern the minimum necessary geographic area that
needs to be subject to modified arrangements. A modification would not necessarily
need to apply to the entire geographical area covered by an emergency declaration
under a Commonwealth law, and would depend on the specific geographic regions in
which there was interference with the due conduct of the election.
6. For example, if an entire State was subject to an emergency declaration under a
Commonwealth law, any modifications could only be made for the specific area
within the State (being a geographical area covered by the declaration) where the
emergency would interfere with the due conduct of the election.
7. The power to vary aspects of the polling in new subsection 396(2) will be limited to
the following:
• expanding the grounds in which a person in an emergency area can apply for
a postal vote or a pre-poll vote;
• extending the period which applications for pre-poll votes may be made to a
pre-poll voting officer at a place in the emergency area, limited to no earlier
than 5 days after the declaration of nominations; and
• limiting the number of scrutineers a group of candidates (with the same
meaning as in Part XX of the Electoral Act) is entitled to be represented by at
8
a computerised scrutiny of senate votes in the emergency area, but not less
than one scrutineer per group of candidates, per officer engaged in a scrutiny
or counting of ballot papers at that centre.
8. To ensure that the voters, candidates, and scrutineers can safely participate in an
election, new subsection 396(3) enables the Electoral Commissioner to allow persons
to travel (both to and from), and be present for activities in an emergency area, that
are conducted under the Electoral Act is necessary or conducive for the due conduct
of the election. This may, for example cover permitting candidates to be present for
the ballot draw or scrutineers to attend the scrutiny.
9. New subsection 396(3) also permits the Electoral Commissioner to allow persons to
travel, and be present for the following core electoral activities (defined in new
subsection 396(4)) within 100 metres of the entrance to a polling booth or pre-poll
voting office in an emergency area, or for a person to travel for the purposes of
conducting the activity:
• canvassing for votes in an election;
• supplying electoral matter to electors;
• soliciting the vote of an elector in an election; and
• exhibiting a notice or sign (other than an official notice or sign) relating to an
election.
10. Voting, as both a constitutional right and a legislated duty, is fundamental to the
concept of Australian citizenship. Subsection 396(3) is designed to ensure core
activities that occur as part of in-person voting, such as canvassing for votes are
protected, and allow elections to occur as closely as possible to their ordinary conduct,
as they should.
11. This will enable the AEC to conduct an election safely by minimising the risk of harm
to electors, employees and contractors when a Commonwealth emergency law is in
force, whilst maintaining transparency of the electoral process. If the Commissioner
permits such activity under the Act, travel for purposes of that activity is to be
permitted by the Commissioner.
12. New subsection 396(5) provides that a legislative instrument made under new
subsection 396(2) or (3) has effect according to its terms (despite other provisions in
the Electoral Act). The terms of the legislative instrument may, for example, include
the specific geographical areas where the modifications apply, the nature of the
relevant modifications, and the time period for which the instrument is to have effect.
13. New subsection 396(6) provides that before making such a legislative instrument, the
Electoral Commissioner will be required to notify the Prime Minister and the Leader
of the Opposition in writing, including the reasons why any modifications are
considered necessary, and how the modifications will be limited to the emergency
area, and the period for which the emergency declaration is in force. This ensures
adaptations for an emergency period are considered and well-justified.
14. New subsection 396(7) requires the Electoral Commissioner to publish the instrument
on the AEC's website, as well as allowing the Electoral Commissioner to publish the
instrument in any other way the Electoral Commissioner considers appropriate. This
9
ensures adaptations to normal arrangements for the conduct of an election are well
communicated to affected persons. Other methods for making the instrument known
may for instance include direct communication to registered political parties. The
modification instrument must also be published on the Federal Register of Legislation.
This ensures that there is a publicly accessible source of reliable information available
to communicate the particulars of any legislative instrument.
15. As per new subsections 396(8) and 396(9), the legislative instrument will be
conditional upon an emergency declaration (however described) being made under
the following Commonwealth emergency laws:
(a) the Biosecurity Act 2015;
(b) the National Emergency Declaration Act 2020;
(c) the National Health Act 1953;
(d) the National Health Security Act 2007; and
(e) any other Commonwealth law specified by the Minister by legislative
instrument.
16. As per new subsection 396(11), the Electoral Commissioner's modification powers
will cease to have effect when the emergency declaration is no longer in force or when
the writs for the election are returned, whichever occurs first. The power of the
Minister, to specify another law, includes an implied power to rescind an instrument
at an appropriate later time, if a particular law ceases to be relevant for purposes of
the Commissioner's modification powers.
Part 2 - Polling and scrutiny
Commonwealth Electoral Act 1918
17. Items 2 and 3 omit the words "presiding officer" from sections 240A, 241 and 242
and substitutes these with "Electoral Commissioner". This amendment removes these
existing powers from the presiding officer of the polling place and instead ensures that
only the Electoral Commissioner has the authority to temporarily suspend or adjourn
polling at a polling place according to the prescribed conditions in the Electoral Act.
18. This amendment aligns the reserve power to temporarily suspend or adjourn polling
with the decision making authority of the Electoral Commissioner, reflecting the
significance of the decision to adjourn or suspend polling as a measure of last resort.
19. Item 4 inserts a Note at the end of subsection 243 to refer to new subsection 265(3)
discussed in Item 6. This note clarifies that where the polling has been temporarily
suspended or adjourned at a polling place, the scrutiny must not commence for that
Division until the close of polls on the adjourned polling day.
20. This amendment protects the integrity of the election results by ensuring voters are
not influenced by indicative results where polling has been adjourned or temporarily
suspended.
21. Item 5 omits the word "It" and substitutes it with "Subject to subsection (3), the
scrutiny" at paragraph 265(1)(a).
22. Item 6 inserts new subsection 265(3) at the end of section 265. This amendment
clarifies that when the Electoral Commissioner adjourns or temporarily suspends the
10
polling at any polling place in a Division the scrutiny for the House of Representatives
election cannot commence for any polling place within the relevant Division until
after the close of the poll for the adjourned polling place.
23. This amendment is intended to delay the commencement of the scrutiny for a Division
until all voters in that Division have had an opportunity to vote. This amendment
protects the integrity of the election results by ensuring voters are not influenced by
indicative results, or discouraged from voting where polling has been adjourned or
temporarily suspended. Absent such a safeguard, voters who have not yet voted might
hear an official preliminary count reported in the news and incorrectly conclude that
the voting had ceased and it was unnecessary to vote.
24. Item 7 inserts new section 323A to prohibit scrutineers and AEC officers from
publicly divulging or communicating the results of a Senate election in a Division
where polling has been adjourned. This prohibition is lifted following the close of poll
at the adjourned polling place.
25. New section 323A is intended to prevent scrutineers and AEC officers from disclosing
indicative Senate election results to voters who, because of the adjourned polling, are
yet to cast a vote in the Senate election. These amendments do not affect the ability of
a scrutineer to attend and observe the count, or communicate to each other in the
course of the scrutiny. Senate voting counts in a Division may be perceived as
indicative of voting intentions for the House of Representatives in that same Division,
therefore, for the same reasons given above (Item 6), both sets of official counts
should not be published until after the close of polling at that Division.
Part 3 - Other amendments
Commonwealth Electoral Act 1918
26. Item 8 inserts new subsection 4(12) at the end of section 4. New subsection 4(12) will
allow the AEC to process a postal vote certificate placed inside an envelope as if it
were a postal vote certificate printed on an envelope. The amendment allows the AEC
to provide postal vote certificates in the approved form but not necessarily printed on
an envelope.
27. This amendment provides flexibility for the AEC to overcome challenges relating to
increased demand for postal ballot papers combined with supply chain disruptions due
to emergency situations. This entails no diminution of the integrity of the process,
because officials will continue to be required to check voter details from the certificate
to mark off a person against their entry on the Electoral Roll.
28. Item 9 inserts "and sections 240A, 241, 242 and 396" in subsection 28(1). This
amendment ensures that only the Electoral Commissioner will have the power to
temporarily suspend or adjourn the polling.
29. This amendment removes the authority from the presiding officer and places the
power to make decisions relating to adjournment and suspension of polling with the
Electoral Commissioner.
30. Items 10, 11 and 12 amend subsection 184(5) and 188(2) to change the current
deadline for postal vote applications from 6pm on the Wednesday that is three days
before polling day to 6pm the Tuesday that is four days before polling day. This
11
amendment changes the last day that postal vote applications can be received by the
Electoral Commissioner.
31. This amendment provides additional time for postal vote materials to be delivered to
electors. Although this is a marginal change to the cut-off point for applying for a
postal vote, it reduces the risk that people will receive forms too late to return them in
time to be counted. This therefore mitigates against accidental disenfranchisement, by
ensuring that those persons who seek to vote late in the final week of an election
choose a viable method of having their ballot admitted into the count.
32. Item 13 inserts new subsection 194(1B) after subsection 194(1A). New subsection
194(1B) provides instructions for an elector to complete the voter declaration and the
authorised witness declaration when a postal vote certificate is not printed on an
envelope.
33. This amendment is a consequential amendment as a result of Item 8 above. The
amendment provides an alternative sequence of events to follow section 194 where a
postal vote certificate is placed inside the envelope and is not printed on the envelope.
34. Item 14 repeals subsection 209(5) to streamline the printing of postal ballot papers by
removing unnecessary prescriptive instructions to postal voters to place postal ballot
papers in an envelope.
35. The repeal of this subsection is a consequential amendment as a result of Item 8 above
that will streamline the AEC's printing of postal ballot papers. It removes the
requirement to provide complex instructions to electors that may result in voter
confusion and informal ballot papers.
Part 4 - Application
Commonwealth Electoral Act 1918
36. Item 15 states that this schedule will apply to elections where the writs have been issued
on or after the commencement of this item.
12