Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of Senator the Hon Don Farrell, Special Minister of State)
1
Glossary
The following abbreviations and acronyms are used throughout this Supplementary
Explanatory Memorandum:
Abbreviation Definition
ABC Australian Broadcasting Corporation
AEC Australian Electoral Commission
Bill Referendum (Machinery Provisions)
Amendment Bill 2022
Broadcasting Services Act Broadcasting Services Act 1992
Electoral Act Commonwealth Electoral Act 1918
ICCPR International Covenant on Civil and
Political Rights
Item Refers to an Item in the Bill (as
amended by the Parliamentary
Amendments)
JSCEM Joint Standing Committee on Electoral
Matters
Parliamentary Amendments Amendments in ZB195, ZD205, PX149,
PX150 and PX151
Referendum Act Referendum (Machinery Provisions) Act
1984
SBS Act Special Broadcasting Service Act 1991
SBS Special Broadcasting Service
Corporation
2
AMENDMENTS TO THE REFERENDUM (MACHINERY PROVISIONS)
AMENDMENT BILL 2022
GENERAL OUTLINE
The Parliamentary Amendments will expand the current mobile polling period in the
Referendum Act from 12 days to 19 days in circumstances where a standalone referendum is
held. Where a referendum and federal election are to be held on the same day, the mobile
polling period for referendums will be consistent with the 12 days currently provided for in
the Electoral Act. The amendments will also consequentially allow the AEC to extend pre-
poll voting services at designated mobile polling places, in order to enable out-of-state voters
to cast pre-poll declaration votes at mobile polling booths. This amendment will allow the
AEC to support increased referendum participation, particularly voters in remote
communities. This responds to JSCEM's advisory report into the Bill, which recommended
consideration of further amendments to the Bill to support increased enrolment and
participation.
The Parliamentary Amendments will also amend the Bill to remove the temporary suspension
of the distribution of a pamphlet containing arguments for and against a proposal.
Additionally, the Parliamentary Amendments make changes to improve consistency between
the Electoral and Referendum Acts by introducing a broadcasting blackout period for
referendums equivalent to the existing three-day broadcasting blackout period for election
advertisements, to improve consistency of scrutineer entitlements, and to introduce a
transitional provision to freeze the 'disclosure threshold' amount applicable to the
referendum financial disclosure obligations in new Part XIIIA of the Bill. These amendments
will achieve greater alignment between elections and referendums and support operational
processes.
FINANCIAL IMPACT
In the context of the AEC's legal obligations to distribute the referendum pamphlet, it is not
possible to accurately estimate the total cost 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 the Parliamentary Amendments to the 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
Referendum (Machinery Provisions) Amendment Bill 2022
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
1. The Parliamentary Amendments that would replicate the electoral broadcasting blackout
period in the referendum context (ZB195) engage the right to freedom of expression
under Article 19 of the ICCPR.
2. The Parliamentary Amendments to the Bill engage this right by amending the
Broadcasting Services Act and the SBS Act to introduce a three-day broadcasting
blackout period for referendums equivalent to existing prohibitions for federal, state and
territory elections. This means that television and radio broadcasters will not be permitted
to broadcast referendum advertisements in the three days before voting day for
referendums.
3. The rights under Article 19 of the ICCPR can be subject to permissible limitations where
these limitations are provided by law, not arbitrary, and are necessary for respect of the
rights or reputation of others or for the protection of national security, public order, public
health, or morals.
4. To the extent these amendments limit the rights in Article 19, the limitation supports the
right to political participation under Article 25 of the ICCPR by enabling voters the time
to consider all arguments ahead of determining their own voting position ahead of voting
on referendum voting day.
5. The amendments are appropriately limited to apply only to broadcast advertisements that
contain 'referendum matter' - that is, matter communicated for the dominant purpose of
influencing the way electors vote at a referendum. The amendments do not limit the
communication of all referendum matter. Those wishing to communicate referendum
matter will be able to express these views via other media, including newspapers, online
platforms, or through campaign materials distributed at polling places such as 'how-to-
vote' cards.
6. The Parliamentary Amendments to the Bill are compatible with human rights because, to
the extent that it may limit human rights, those limitations are reasonable, necessary, and
proportionate to the legitimate objectives sought.
7. The Parliamentary Amendments that go to improving consistency of scrutineer
entitlements (PX149) and expanding mobile polling (PX151) promote right to political
participation under Article 25 of the ICCPR.
8. The Parliamentary Amendments will align the scrutineer entitlements of the Governor-
General, State Governors, the Chief Minister of the Australian Capital Territory and the
4
Administrator of the Northern Territory, with the entitlements of political parties. This
will promote the right to political participation under Article 25 of the ICCPR by
promoting participation in the scrutiny process for a referendum by providing consistency
for the appointment of scrutineers for referendums.
9. The Parliamentary Amendments that will expand the mobile polling period from 12 days
to 19 days support the right of political participation under Article 25 by allowing the
AEC to deliver mobile polling in remote areas over 19 days, supporting opportunities to
maximise participation within remote communities for the referendum. This responds to a
recommendation of JSCEM to allow the AEC to support increased enrolment and
participation, particularly of Aboriginal and Torres Strait Islander people, including in
remote communities.
10. Therefore, the Parliamentary Amendments are compatible with human rights because the
amendments promote the right to political participation under Article 25 of the ICCPR.
11. The Parliamentary Amendments that would remove the temporary suspension of the
pamphlet distribution (ZD205) and would 'freeze' the indexation of the disclosure
threshold (PX150) do not engage any relevant human rights.
5
AMENDMENTS TO THE REFERENDUM (MACHINERY PROVISIONS)
AMENDMENT BILL 2022
PX151
Amendment 1
1. Amendment 1 of the Parliamentary Amendments amends the Bill to insert Schedule 1A,
which expands the current mobile polling period in subsection 51(5) of the Referendum
Act from 12 days to 19 days where a standalone referendum is held.
Referendum (Machinery Provisions) Act 1984
2. Item 1 repeals subsection 51(5) and substitutes new subsection 51(5). New subsection
51(5) clarifies the mobile polling period for a day notified by the Electoral Commissioner
for the purposes of taking mobile polling votes under paragraph 51(4)(b).
3. New paragraph 51(5)(a) provides that if the voting day for the referendum is the same day
as a federal election, then days determined for mobile polling can be any of the 12 days
before voting day. This is consistent with the existing mobile polling period in the
Electoral Act.
4. For a standalone referendum, new paragraph 51(5)(b) provides that the days determined
for mobile polling can be any of the 19 days before voting day.
5. New paragraphs 51(5)(c) and (d) provide that mobile polling may occur on voting day or
a day to which the taking of votes of the electors at the referendum is adjourned.
6. These amendments increase the number of days from 12 days to 19 days in which mobile
polling is able to take place during a referendum. This responds to a recommendation of
JSCEM to consider possible amendments to the Bill to allow the AEC to support
increased enrolment and participation, particularly of Aboriginal and Torres Strait
Islander people, including in remote communities.
7. Item 2 inserts new subsection 73AA(2A) which provides that a place specified to be a
pre-poll voting office for a referendum may be a place that has been determined under
paragraph 51(4)(a) to be a place that teams will visit for the purposes of taking mobile
polling votes at the referendum.
8. This ensures that voters in remote locations, who may not otherwise be able to easily
access another polling booth or other voting services, such as postal voting, are able to
exercise their franchise.
9. Item 3 provides that amendments made by Schedule 1A will apply in relation to elections
the writs for which are issued on or after the commencement of the Schedule, and for
referendums the writs for which are issued on or after the commencement of the
Schedule.
6
Amendment 2
10. Amendment 2 of the Parliamentary Amendments amends Item 4 in Schedule 2 of the
Bill to omit and substitute subsection 73AA(1AA). This is a consequential amendment to
Amendment 1 above.
11. New paragraph 73AA(1AA)(a) provides that if a mobile polling booth is also a pre-poll
voting office for a referendum, then the period must not be earlier than the day that is 19
days before the voting day for the referendum.
12. New paragraph 73AA(1AA)(b) provides that if new paragraph 73AA(1AA)(a) does not
apply, the pre-poll voting period must not be earlier than the day that is 12 days before the
voting day for the referendum.
13. The AEC conducts mobile polling throughout remote areas of Australia during election
and referendum periods. This amendment will enable voters who attend mobile polling
places that have also been designated as pre-poll voting offices during this period to cast a
pre-poll declaration vote in remote locations outside their enrolled State. This is known
operationally as the 'Remote Area Mobile Polling program' (RAMP).
14. Consistent with the JSCEM's recommendation in their advisory report, this amendment
ensures that voters in remote areas have greater access to voting services through
expanding the mobile polling period to 19 days.
15. For the avoidance of doubt, if a mobile polling place is not co-located with a pre-poll
office, then the pre-poll period will remain 12 days before voting day. In addition, mobile
polling will remain 12 days for referendums that are held concurrently with federal
elections, to ensure a consistent voting experience.
ZD205
Amendment 1
16. Amendment 1 of the Parliamentary Amendments omits Clause 4 of the Bill and
substitutes new Clause 4.
Referendum (Machinery Provisions) Act 1984
17. New Clause 4 amends the Bill to remove the provisions that would have resulted in the
temporary suspension of the requirement for the distribution of a pamphlet containing
arguments for and against a proposal to every enrolled household. The effect of this
amendment is to retain the existing requirement for a referendum pamphlet.
18. New Clause 4 retains the temporary suspension of the funding restrictions contained in
section 11(4) of the Referendum Act in the Bill. Temporary suspension of subsection
11(4) is consistent with the approach in the 1999 referendum and proposed 2013
referendum.
19. The temporary suspension applies so that section 11(4) of the Referendum Act does not
prevent expenditure by the Commonwealth in respect of things done (whether or not by
7
the Commonwealth) during the period beginning on the day this section commences and
ending on polling day for the first general election of the members of the House of
Representatives held after the commencement of this section.
20. This amendment has been drafted in similar terms to an amendment which the Parliament
passed to support the 1999 referendum and proposed 2013 referendum.
ZB195
Amendment 1
21. Amendment 1 of the Parliamentary Amendments adds at the end of the Bill a new
Schedule (Schedule 9) of amendments to the Bill, to amend the Broadcasting Services
Act.
Schedule 9--Advertising blackout period
22. Schedule 2 of the Broadcasting Services Act prohibits broadcasters from broadcasting
election advertisements in relation to an election from the Wednesday before polling day
to the end of the close of polls on polling day. This is generally known as the 'media
blackout period'.
23. The blackout period currently applies to general elections and by-elections for state,
territory and federal elections. The blackout period applies to the broadcasters defined in
clause 3A(1) of Schedule 2 to the Broadcasting Services Act, which includes television
and radio broadcasters, who broadcast in the area to which the election relates.
24. Schedule 9 of the Bill amends the Schedule 2 to Broadcasting Services Act to introduce a
blackout period for referendums, equivalent to existing prohibitions for election
advertisements during the final three days of voting.
25. The purpose of the blackout period is to provide a "cooling off period" for electors to
consider their stance on the issues without the influences of broadcasting. The
amendments to expand the blackout period to referendums provides voters with space to
consider all arguments ahead of determining their own voting position ahead of voting on
referendum voting day.
26. Consequential amendments will also be made to the Special Broadcasting Service Act to
extend this blackout period to SBS.
27. As the Australian Broadcasting Corporation Act 1983 contains a general prohibition on
broadcast advertising on the ABC, a consequential amendment is not required to extend
the blackout period to the ABC.
Broadcasting Services Act 1992
28. Item 1 inserts the new definition of referendum advertisement in subclause 1(1) of
Schedule 2. A referendum advertisement is an advertisement that contains referendum
matter (within the meaning of Item 2 of Schedule 3 of the Bill) that relates to that
8
referendum and, in respect of the broadcasting of which, the relevant licensee has
received or is to receive any money or other consideration.
29. Item 2 repeals the definition of relevant period and substitutes a new definition that
applies to both elections and referendums. There is no change to the relevant period for
elections. This amendment ensures consistency in terminology used for both referendums
and elections.
30. The relevant period for a referendum would commence at the end of the Wednesday
before the voting day for the referendum and ends at the close of voting on that day,
which is consistent with the relevant period for elections.
31. Item 3 inserts new clause 3B into Schedule 2. Subclause 3B(2) prohibits broadcasters
from broadcasting a referendum advertisement in relation to a referendum during the
relevant period for the referendum. This will apply to the same broadcasters as to whom
the existing election blackout period applies, with new subclause 3B(1) replicating the
definition in existing subclause 3A(1).
32. For avoidance of doubt, the blackout period would only apply to referendums conducted
under the Referendum Act therefore there is no need for clause 3B to differentiate
between broadcasting licence areas within Australia.
33. Items 4-6 are consequential to Item 3 and update the cross-references in paragraphs
7(1)(j), 8(1)(i), 9(1)(i), 10(1)(i) and 11(1)(d) of Schedule 2 and paragraph 24(1)(a) and
subclause 24(4) in Schedule 6 of the Broadcasting Services Act to also reference new
clause 3B of Schedule 2.
34. The broadcasting blackout period for referendums will only apply to referendums to
change the Australian Constitution. This contrasts to the blackout period for elections,
which applies to federal (including by-elections), state and territory parliamentary
elections.
Special Broadcasting Service Act
35. Items 7 and 8 make amendments to the Special Broadcasting Service Act to extend this
referendum advertising blackout period to the SBS.
36. Item 7 is a consequential amendment to Item 8.
37. Item 8 inserts new section 71. New subsection 71(1) provides that the SBS must not
broadcast a referendum advertisement in relation to a referendum during the relevant
period for the referendum.
38. New subsection 71(2) inserts the definitions "referendum", "referendum advertisement"
and "relevant period" in relation to a referendum, consistent with the definitions inserted
into the Broadcasting Services Act inserted by Items 1 and 2 above.
39. Item 9 provides that amendments made by Schedule 9 will apply in relation to
referendums for which the writs are issued on or after the commencement of this
Schedule.
9
PX149
Amendment 1
40. Amendment 1 of the Parliamentary Amendments inserts new items 6A and 6B into the
Bill.
Referendum (Machinery Provisions) Act 1984
41. Item 6A amends subsection 89(2) to allow the Governor-General, or their authorised
officer, to appoint scrutineers during the scrutiny at each counting centre, up to the
number of officers who are engaged in the scrutiny at each counting centre.
42. Item 6B, replicates the amendment of Item 6A for subsection 89(3) regarding the
appointment of scrutineers by the Governor of a State, or their authorised officer.
43. Item 6C replicates the amendment of Item 6A for subsection 89(3A) regarding the
appointment of scrutineers by the Chief Minister for the Australian Capital Territory, or
their authorised officer.
44. Item 6D replicates the amendment of Item 6A for subsection 89(4) regarding the
appointment of scrutineers by the Administrator of the Northern Territory, or their
authorised officer.
45. Scrutineers play a significant role in supporting the integrity of a referendum. This
amendment would align the arrangements for the appointment of scrutineers at each
counting centre to be consisted with the entitlements of registered political parties.
PX150
Amendment 1
46. Amendment 1 of the Parliamentary Amendments amends the Bill to include a
transitional provision for new Part VIIIA - Disclosure of referendum expenditure and
gifts - inserted by Schedule 4 of the Bill.
47. This transitional provision will provide greater certainty to referendum entities and their
donors when submitting a return to the AEC disclosing referendum expenditure and/or
gifts for that purpose. The transitional provisions will apply for referendums held until the
first general election of the House of Representatives following commencement of the
Bill.
Referendum (Machinery Provisions) Act 1984
48. Amendment 1 inserts new subitems, subitem 1A and subitem 1B into the application
provisions for the amendments contained in Schedule 4 of the Bill.
10
49. Schedule 4 of the Bill establishes financial disclosure obligations in the Referendum Act.
This includes the insertion of new definitions into the Referendum Act, including the
definition of 'disclosure threshold' linked to the definition of 'disclosure threshold' in the
Electoral Act.
50. While JSCEM noted broad support in evidence for the establishment of a financial
disclosure and foreign donation restrictions framework in the Referendum Act, modelled
on the relevant provisions in the Electoral Act, some members of the Committee noted
the need for consideration of the implementation of the framework, including the
retrospective nature of both the disclosure and foreign donations requirements. This
amendment will help address this concern by providing certainty about the disclosure
threshold amount as a transitional provision.
51. New subitem 1A provides that for the purposes of the definition of 'disclosure threshold'
in the Referendum Act, the disclosure threshold amount will be temporarily fixed during
the period beginning the day after the subitem commences and ending on polling day for
the first general election for the House of Representatives held after the commencement
of the subitem.
52. This allows the disclosure threshold amount to be known from the commencement of the
Bill. This is to provide referendum campaigners and their donors with certainty about the
amount of referendum expenditure and donations that will be applicable from now until
the next federal election.
53. This amount is relevant to individuals' and entities' qualification as a 'referendum entity',
as defined in Item 1 of Schedule 4, and to the return obligations in sections 109E, 109F
and 109G. It is also relevant to the restrictions on foreign donations to referendum entities
established in new section 109J of the Bill.
54. New subitem 1B clarifies that transitional provisions in new subitem 1A apply despite
section 321A of the Electoral Act, which provides for the indexation of the disclosure
threshold each financial year based on the consumer price index.
11
Index]
[Search]
[Download]
[Bill]
[Help]