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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL LEGISLATION AMENDMENT (ELECTORAL OFFENCES AND
PREVENTING MULTIPLE VOTING) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Assistant Minister for Electoral Matters,
the Hon Ben Morton MP)
Glossary
The following abbreviations and acronyms are used throughout this Explanatory
Memorandum:
Abbreviation Definition
Bill Electoral Legislation Amendment
(Electoral Offences and Preventing
Multiple Voting) Bill 2021
AAT Administrative Appeals Tribunal
AEC Australian Electoral Commission
Electoral Act Commonwealth Electoral Act 1918
Item Refers to an item in the Bill
ICCPR International Covenant on Civil and
Political Rights
JSCEM Joint Standing Committee on Electoral
Matters
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ELECTORAL LEGISLATION AMENDMENT (ELECTORAL OFFENCES AND
PREVENTING MULTIPLE VOTING) BILL 2021
GENERAL OUTLINE
Schedule 1 - Designated electors
New Part XVC is inserted to specify the circumstances where the Electoral Commissioner
can declare an elector to be a designated elector, requiring the elector to vote by
declaration vote. It also provides for the review of a declaration of designated elector to be
conducted by the Electoral Commissioner, a delegate of the Electoral Commissioner, or
the AAT.
Schedule 2 - Offence relating to interference with political liberty
Schedule 2 amends the penalty for the offence of interference with political liberty in
section 327, and inserts a note to provide examples of the types of conduct and behaviours
that may constitute an offence under the provision.
FINANCIAL IMPACT STATEMENT
In the context of the AEC's constitutional and legal obligations to undertake elections, it is
not possible to accurately estimate the total cost of any election in advance. Once true
costs are known the AEC will be in a position to work with the Department of Finance to
finalise the financial implications of the measures in 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.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Electoral Legislation Amendment (Electoral Offences and Preventing Multiple
Voting) 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.
The Bill introduces amendments to the Electoral Act to enable the Electoral Commissioner
or their delegate to declare a person to be a 'designated elector', on the basis of a
reasonable suspicion that the elector has voted more than once in the same election. The
amendments prescribe the circumstances in which a declaration that a person is a
designated elector can be made and when the declaration ceases to take effect. These
amendments also allow for decisions regarding declarations of designated electors to be
subject review by the Electoral Commissioner or the AAT.
The Bill also inserts a note after section 327 of the Electoral Act to provide examples of
the types of conduct and behaviours that may constitute the offence of interference with
political liberty, and increases the penalty for this offence.
Human rights implications
The impact of the Bill on the following rights from the ICCPR has been considered:
the right to political participation under Article 25.
Article 25 -- Political Participation
1. The Bill engages the rights of citizens to take part in the conduct of public affairs,
directly or through freely chosen representatives under Article 25 of the ICCPR
because it provides a mechanism for the restriction of the methods in which a person
can vote if the Electoral Commissioner has a reasonable suspicion that a person has
voted more than once under their own name in the same federal election.
2. The amendments restrict the designated elector to voting by declaration vote only.
Declaration votes include postal voting, pre-poll declaration voting, and an absent or
provisional vote. The designated elector is not entitled to an ordinary vote or ordinary
pre-poll vote, because that voting method can be used by an individual to lodge
multiple votes in some circumstances, for instance where the polling places attended
by the voter on election day do not have an Electronic Certified List to upload or
download data to indicate which voters have already voted.
3. The amendment to restrict the method in which a designated elector may vote is
intended to provide a mechanism for ensuring that only the first declaration vote
received from that voter is admitted to the scrutiny process in order to reduce instances
of multiple voting. This amendment is consistent with the 'one vote' principle of a
democracy, whereby each voter has an equal right to cast a single ballot in any
electoral contest.
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4. The rights of citizens to take part in the conduct of public affairs, directly or through
freely chosen representatives, may be subject to permissible limitations, where these
limitations are authorised by law and not arbitrary. In order for a limitation on the
rights of citizens to take part in the conduct of public affairs, directly or through freely
chosen representatives, to be permissible, the limitation must be authorised by law, be
for a reason consistent with the ICCPR, and be reasonable in the particular
circumstances. The United Nations Human Rights Committee has interpreted the
requirement of 'reasonableness' to imply that any interference with the right to
freedom of expression must be proportional to the end sought and be necessary in the
circumstances of any given case.
5. The amendment's limitation on the right of citizens to take part in the conduct of
public affairs, directly or through freely-chosen representatives, is proportionate to the
legitimate end sought and is reasonable and necessary in the circumstances. The
limitation on the right is proportionate because the restriction only applies to persons
about whom the Electoral Commissioner reasonably suspects have voted more than
once in the same federal election, and the limitation is reasonable and necessary
because it does not deprive designated electors of their legal right to cast a vote but
instead assists in the prevention of multiple voting.
6. The amendments protect the rights of other voters who act consistent with the law, by
ensuring their votes are not devalued by illegitimate ballots cast by persons who have
voted multiple times. It also ensures that Parliamentarians are elected on the basis of
genuine support from a requisite proportion of voters and that the composition of the
parliament as a whole is in turn representative of the voting public.
7. The limitations of the right are therefore consistent with Article 25 of the ICCPR.
Conclusion
8. The Bill is compatible with human rights, because to the extent it may limit human
rights, those limitations are reasonable, necessary and proportionate.
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ELECTORAL LEGISLATION AMENDMENT (ELECTORAL
OFFENCES AND PREVENTING MULTIPLE VOTING) 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 (Electoral Offences and Preventing Multiple
Voting) 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. Clause 1, 2 and 4 in the Commencement table provides that everything in the Act
will commence the day after the Act receives the Royal Assent, except for those
parts at Item 3.
4. Clause 3 in the Commencement table provides that Schedule 1, Part 2 commences
on the later of the start of the day the Act receives the Royal Assent, or immediately
after the commencement of Schedule 1 of the Electoral Legislation Amendment
(Counting, Scrutiny and Operational Efficiencies) Act 2021. Clause 3 further
provides the provision does not commence at all if Schedule 1 of the Electoral
Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021
does not commence.
5. A note is inserted below the Commencement table stating that the table relates only
to the provisions of this Act as originally enacted. The table will not be amended to
deal with any later amendments of this Act.
6. Subclause 2(2) provides that information in column 3 of the Commencement table
is not part of the Act. In any published version of the Act, information in Column 3
may be edited, or information may be inserted into Column 3.
Clause 3 - Schedules
7. This clause provides that legislation specified in a Schedule to this Act is amended
or repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its terms.
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SCHEDULE 1 -- Designated electors
Commonwealth Electoral Act 1918
Part I -- Main amendments
8. Item 1 inserts the definition "designated elector" into subsection 4(1), which refers
to subsection 202AH(1).
9. Item 2 inserts new subsection 84(3) to prohibit the inclusion of any reference to a
person's status as a designated elector in circumstances where the Rolls are shared
with states and territories. This is to maintain the privacy of a person's status as a
designated elector. Items 3, 5 and 6 of this Bill similarly have this purpose. This is
particularly important in the case of persons whose multiple voting behaviour may
be due to an underlying health issue such as memory loss, rather than any intention
to engage in multiple voting.
10. Item 3 inserts a new subsection 90B(6A) to provide that the Electoral Commission
must not disclose information about a person's status as a designated elector to
persons or organisations listed in the tables at subsections 90B(1) or (4).
11. Item 4 removes the word "Commission" in paragraph 185(4)(c) and substitutes it
with the term "Commissioner" to make the provision consistent with the other
subsections in section 184.
12. Item 5 inserts new subsection 185(4AA) after subsection 185(4). New subsection
185(4AA) provides that the Electoral Commissioner must not include any
information about a person's status as designated elector if registering the designated
elector as a general postal voter for a Division.
13. Item 6 inserts new subsection 189(2A) after subsection 189(2) that prevents the
Electoral Commissioner from including any particular details about a postal vote
applicant's status as a designated elector on the list of applications for postal votes
for a Division.
14. Item 7 inserts a new note at subsection 200A(2) to clarify that a designated elector is
not entitled to vote by pre-poll ordinary vote.
15. Item 8 is a consequential amendment to number the notes "Note 1" and "Note 2"
under 200A(2).
16. Item 9 inserts new paragraph 200DG(2)(ea) to provide that a voter is not entitled to
vote by pre-poll ordinary vote if the voter is a designated elector.
17. Item 10 inserts a new Part to the Electoral Act after Part XVB called 'Part XVC -
Designated electors'.
New Part XVC - Designated electors
18. New section 202AG inserts a simplified outline for this new Part.
19. New section 202AH enables the Electoral Commissioner to declare an elector to be
a "designed elector". This provides the Electoral Commissioner with mechanism for
electors who are reasonably suspected of having voted multiple times in the same
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election to safeguard against multiple voting in future elections. A reasonable
suspicion can be determined by any means available to the Electoral Commissioner.
For example, this may include consideration of records of certified-lists, which
contain multiple-marks recorded against an elector's name as having voted more
than once in a single election.
20. This approach aligns with other state jurisdictions that have taken steps to overcome
instances of multiple voting, and enhance the integrity of the election, in line with
the one-vote, one-value principle. For example New South Wales has a comparable
method for designating certain persons as 'special voters', where multiple voting
behaviour has been proven or is suspected on reasonable grounds.
21. New subsection 202AH(1) provides that the Electoral Commissioner may, in
writing, declare an elector is a "designated elector" if the Commissioner reasonably
suspects the elector has voted more than once in the same election. This declaration
can be made whether or not the elector has been convicted of a multiple voting
offence under subsection 339(1A) or (1C) of the Electoral Act.
22. New subsection 202AH(2) requires the Electoral Commissioner to provide the
elector with written notice of the decision to declare the elector a "designated
elector". This must include the elector's rights of review under new sections 202AJ
and 202AK.
23. New subsection 202AH(3) provides the circumstances in which a declaration that a
elector is a designated elector will cease to have effect. New paragraphs
202AH(3)(a) and (b) provide that, if the declaration relates to an elector who has
been convicted of a multiple voting offence but the conviction is quashed on appeal,
then the declaration ceases to have effect.
24. New paragraph 202AH(4) clarifies that a declaration that an elector is a 'designated
elector' is not a legislative instrument within the meaning of subsection 8(1) of the
Legislation Act 2003.
25. New sections 202AJ and 202AK set out the conditions and procedures for the
review of a decision to declare an elector a "designated elector" under section
202AH.
26. New subsection 202AJ(1) provides that an elector may apply to the Electoral
Commissioner for review of a decision under new subsection 202AH(1) where the
elector was declared to be a "designated elector".
27. New subsection 202AJ(2) provides the elector must make an application for review
in writing (202AJ(2)(a)) and include the elector's name, address and a statement of
the elector's reasons for making the application (202AJ(2)(b)). The application must
be made within 28 days of the day on which the elector was notified of the decision
to declare the elector a designated elector (202AJ(c)).
28. New subsection 202AJ(3) provides that when the Electoral Commissioner receives
an application for review under new subsection 202AJ(1), the Commissioner must
either personally review the original decision or assign the review to a delegate
exercising the Commissioner's powers and functions. If the review is performed by
a delegate, they must not have been involved in making the original decision.
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29. New subsection 202AJ(4) provides that the person that reviews the original decision
under subsection 202AJ(3) (the reviewer), must either confirm the original decision
or set aside the original decision and substitute it with a new decision.
30. New subsection 202AJ(5) specifies that the reviewer must give the elector written
notice of their decision, including the reasons for the decision.
31. New subsection 202AJ(6) provides that if the original decision was made by the
Electoral Commissioner personally, then section 202AJ does not apply.
32. New section 202AK establishes that an application for review by the AAT can be
made when a decision is personally made by the Electoral Commissioner, or if the
decision has been reviewed by a delegate.
33. New section 202AL sets out the effects of a declaration made under subsection
202AH(1). It requires a designated elector to vote by declaration vote to ensure their
first-in-time vote is valid but that any subsequent votes they cast in the same election
are discarded, supporting equal franchise and public confidence in the result of an
election.
34. New subsections 202AL(1) and 202AL(2) provide that a designated elector may
only vote by declaration vote, not by ordinary ballot vote. The note to new section
202AL references the rules for declaration voting under the Electoral Act. This
includes include postal voting (Part XV), pre-poll declaration voting (Part XVA) and
absentee and provisional voting (Part XVI).
35. Item 11 inserts a new subsection (2B) after 208(2A) which provides that a certified
list of voters must not include the address of a person who is on the Roll and is a
designated elector. This means for the purposes of voting designated electors will
appear on the electoral Roll as if they were a silent elector. Silent electors are only
permitted to cast a ballot by declaration vote as a consequence of their address not
appearing on the electoral Roll. Utilising the existing process for silent electors,
designated electors will therefore cast a declaration vote in all circumstances, while
maintaining the privacy of a person's status as a designated elector.
36. Item 12 makes a consequential amendments to the end of subsection 222(1) with a
note to update the Electoral Act in light of new provisions relating to a designated
elector.
37. Items 13 and 14 insert a note after subsections 339(1A) and 339(1C) to note the
Electoral Commissioner may declare a person a designated elector if they are
convicted of an offence under these subsections.
38. Item 15 provides that the Electoral Commissioner may declare a person a designated
elector in relation a reasonable suspicion that the person has voted more than once in
an election, including where the election occurred before the commencement of this
item.
Part 2 -- Contingent amendments
39. Item 16 repeals paragraph 17A(a) of Schedule 3 of the Electoral Act, substituting it
with paragraph 17A(a) and new sub-paragraph 17A(a)(i) to align with changes to the
early extraction of declaration votes in preliminary scrutiny outlined in the Electoral
Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Bill 2021.
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40. New sub-paragraph 17A(a)(ii) specifies that the ballot papers of designated electors
may only be withdrawn after the close of the poll to ensure these votes are not
extracted until after the close of polls.
SCHEDULE 2--Examples relating to interference with political liberty
Commonwealth Electoral Act 1918
41. Item 1 repeals the penalty in subsection 327(1), and substitutes it with
"Imprisonment for 3 years or 100 penalty units, or both". This amendment aligns the
penalty for interference with political liberty with the penalty for the offence
provision in the Criminal Code Act 1995 concerning interference with political
rights and duties. This increased penalty will provide a greater deterrent for persons
seeking to harass or otherwise interfere with another's free exercise or performance
of any political right or duty relevant to an election.
42. The ratio between the imprisonment term and penalty units in section 327 is aligned
to provide broad consistency with other offences in the Electoral Act, which
provides a differentiated ratio than would otherwise be provided by section 4B of the
Crimes Act 1914.
43. Item 1 also includes a note to clarify that the offence of 'interference with political
liberty' may, for example, also include violence, obscene or discriminatory abuse,
property damage, and harassment and stalking. Expanding this definition to capture
other antisocial behaviours will help to safeguard political liberties and enable
Australians to freely participate in democratic discourse. These amendments are in
response to Recommendation 16 from the JSCEM Report on the conduct of the 2019
federal election and matters related thereto.
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