Bills Digest no. 191 2006–07
Electoral and Referendum Legislation Amendment Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Electoral and Referendum Legislation
Amendment Bill 2006
Date
introduced: 30 November 2006
House:
House of Representatives
Portfolio:
Special Minister of State
Commencement:
Most of Schedules 1, 2 and 3 commence on Royal Assent,
however Schedule 3 Part 1 commences on a day to be fixed by Proclamation
or six months after Royal Assent
To amend the Commonwealth Electoral
Act 1918 (CEA) and the Referendum (Machinery Provisions) Act 1984
(RMPA) to:
-
extend some provisions for postal voting, including the range of
AEC officers who may receive postal votes,
-
to allow for trials of electronic voting for the sight-impaired and
overseas serving defence personnel,
-
to extend the capacity of the Australian Electoral Commission to
establish pre-poll voting offices, and
-
to make miscellaneous changes to the CEA.
Note that this Bill has already been passed into
law. This Bills Digest has been prepared to complete the historical record.
This Bill is the second in a number of Government amendments
to electoral legislation. The first Bill, the Electoral and Referendum
Amendment (Electoral Integrity and Other Measures) Bill 2005, was discussed
in Bills Digest No. 95, 2005-06.(1) That Bill contained amendments
which brought forward the closure of the electoral roll after the issuing
of writs, introduced new requirements regarding identity for provisional
voters, changed the rules governing donations to political parties and
excluded certain prisoners from voting. It was a contentious Bill which
elicited a significant degree of opposition and controversy. This Bill,
in contrast, is likely to be non-contentious and receive widespread support.
It contains measures arising out of the Joint Standing Committee on Electoral
Matters report on the inquiry into the conduct of the 2004 federal election.(2)
The proposal to remove criminal defamation provisions
in Part 3 is not so immediately clear in its implications as other proposals
in the Bill, so some background is provided here.
In its submission to the enquiry to the 2001 election,
the Australian Electoral Commission (AEC) recommended that the current
provisions regarding criminal defamation be removed.(3)
Section 350 currently provides that there is an offence
committed if false or defamatory statements are made about a candidate.
There is a defence if the person making the statement believed, on reasonable
grounds, that it was true. There are also provisions for restraint by
injunction to stop the repetition of a defamatory statement.
The AEC argued that the provisions were unnecessary,
in part because according to ‘the Director of Public Prosecutions’ (DPP’s)
records, there has not been any prosecution for defamation under section
350 of the Act.’ It is to be noted that there had been complaints made
to the DPP under the section, but none had been found to be sustainable
(partly because the offence, as a criminal defamation provision, attracts
a higher burden of proof).
The AEC argued that two cases had made s. 350 even more
difficult to utilise. Dow Jones & Company Inc v Gutnick(4)
was a case in which a Victorian court found that defamation had occurred
in Victoria because of material published in the US. The broadening of
the traditional understanding of jurisdictional issues has concerned the
AEC regarding s. 350, because additional material, which would be difficult
to ‘police’, would fall within the provision. They were also concerned
by the case of Roberts v Bass,(5) which had given a
broader protection to political speech by finding that material published
during an election period would effectively be covered by the implied
freedom of political communication. Given this outcome, the Commission
argued that the provisions of s. 350 would be even less likely to be used.
It should be noted that Senator Murray ‘supported the
removal of the section, or its amendment to include a clause making
it clear that defamatory material had significantly affected the outcome
of an election. This might facilitate prosecution of defamatory political
comment on the internet through the Court of Disputed Returns, which handles
allegations of corruption of the electoral process.’ (6)[emphasis
added]
This alternative proposal was not pursued. While the
removal of the section would not seem to have many practical implications,
according to the AEC’s analysis, the amendment may be less productive
than some alternative solutions, such as that possible alternative proposed
by Senator Murray. The issue has, however, received the attention of
two Joint Standing Committees on Electoral Matters, both of which have
recommended the removal of the section.
Items 1–4 insert various definitions that will
subsequently provide a legislative basis to enable Australian Federal
Police (AFP) members and members of the defence forces or ‘defence civilians’
(civilians who are serving with the Australian Defence Force (ADF) and
are bound by Defence Force discipline) to be given particular rights to
vote overseas. Under changes made by items 8–10 this would include
a capacity to enrol as a postal voter before leaving Australia. Items
5 and 11 insert provisions that would ensure that their service overseas
is not information given out by the AEC.
Item 6 brings forward the time by which an application
for a postal vote must be made (from 6pm on the Friday to 6pm on the Thursday
before polling day), but this more restrictive provision is explained
as being necessary to ensure that the applicant can be more likely to
receive the voting papers. Item 6 also introduces new provisions
which require the AEC to do its best to ensure that those who did not
meet the Thursday deadline know that they are not eligible for a postal
vote and will need to make alternative arrangements to vote.
Items 14–24 expand the range of AEC officers who
can receive postal votes, and make consequential amendments.
Items 29–35 mirror the amendments made to expand
the range of AEC officers who can receive postal votes in the Referendum
(Machinery Provisions) Act 1984.
This Schedule introduces a new Part XVA to the
CEA which will allow for two trials of electronic voting methods. One
of these is a trial of ‘electronically assisted voting for sight-impaired
people’ (Division 1) and the other is for defence personnel serving
outside Australia (Division 2). In recognition of the ‘pilot’
nature of these arrangements, and in order to allow for flexibility in
these matters, there are broad provisions for the making of regulations.
There are also specific provisions recognising that the Minister may decide
that the electronically assisted voting trials are ‘not to proceed’ (proposed
sections 202AF and 202AM). The new Parts do specify certain minimum
provisions, such as the need to keep a record of who has voted in this
way and the need to keep a printed record of the vote, in the case of
the sight-impaired trials, and the need to transmit electronic votes to
the AEC, in the case of the defence force trials. Mirror provisions inserting
Part IVB are proposed for the RMPA.
The Electoral and Referendum Amendment (Electoral
Integrity and Other Measures) Act 2006 introduced additional requirements
for those applying to be added to the electoral roll. These amendments
recognise that it may be more difficult for overseas applicants to utilise
an Australian driver’s license and consequently that a passport may be
used in the alternative (proposed subsection 98AA(1)).
The proposed amendments to both the CEA and the RMPA
would allow the AEC to establish pre-poll voting offices more easily.
Under proposed s. 200BA of the CEA the AEC would need to let candidates
know as soon as possible after establishing a pre-poll voting office and,
in their discretion, publish the information in a relevant newspaper.
Under proposed s. 73AA of the RMPA the need to alert people is
modified (there being no candidates in a referendum) and the AEC must
alert registered political parties.
This Part contains a single item proposing to remove
section 350 of the CEA. This section currently provides that a person
is guilty of an offence ‘if the person makes or publishes any false and
defamatory statement in relation to the personal character or conduct
of a candidate.’ This provision does not apply if the person proves that
he or she had a reasonable ground for believing, and did believe, the
statement to be true. The section further provides that
any person who makes a false and defamatory statement
in relation to the personal character or conduct of a candidate in contravention
of this section may be restrained by injunction at the suit of the candidate
aggrieved, from repeating the statement or any similar false and defamatory
statement.
The
implications of removing the section are discussed above in the ‘Background
to the Bill’.
The Bill does not contain provisions likely to attract
controversy.
- Jerome Davidson, ‘Electoral
and Referendum Amendment (Electoral Integrity and Other Measures) Bill
2005’, Bills Digest, no. 95, Parliamentary Library, Canberra,
2005–06, http://www.aph.gov.au/library/pubs/bd/2005-06/06bd095.pdf.
- Joint Standing Committee on
Electoral Matters, Inquiry into the Conduct of the 2004 Federal Election
and Matters Related Thereto, September 2005, http://www.aph.gov.au/house/committee/em/elect04/report.htm,
accessed on 23 March 2007.
- AEC, ‘Fifth
Submission in Response to Questions on Notice’, Submission No. 198
to the Joint Standing Committee on Electoral Matters Inquiry into the
2001 Federal Election,
24 April 2003, pp. 4–7.
- Dow Jones Company Inc v
Gutnick [2001] VSCA 249 (21 September 2001) http://www.austlii.edu.au/au/cases/vic/VSCA/2001/249.rtf,
accessed on 21 March 2007.
- Roberts v Bass
(2003) 194 ALR 161, http://www.austlii.edu.au/au/cases/cth/HCA/2002/57.html,
accessed on 23 March 2007.
- Joint Standing Committee on
Electoral Matters, op. cit., p. 282.
Kirsty Magarey
29 June 2007
Bills Digest Service
Parliamentary Library
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