Bills Digest no. 184 2009–10
Electoral and Referendum Amendment (Close of Rolls and Other Measures) Bill (No. 2) 2010
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
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Electoral and Referendum Amendment (Close of Rolls and Other Measures) Bill (No. 2) 2010
Date introduced: 2 June 2010
House: House of Representatives (the Bill passed the House on 16 June
2010)
Portfolio: Special Minister of State
Commencement: The day the Act receives Royal Assent
Links: The links to the Bill, its Explanatory
Memorandum and second reading speech can be found on the Bills page, which is
at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
The purpose of the Bill is to amend the Commonwealth
Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 (Cth)
so as to:
- fix the seventh day after the issue of federal election writs as
the date for the close of rolls, and
- repeal the evidence of identity requirements for provisional
electors and provide for a signature checking procedure.
The Bill reproduces Schedules 1 and 2 of the original
Electoral and Referendum Amendment (Close of Rolls and Other Measures) Bill
2010. The Bill is one of a package of four electoral Bills introduced into the
House of Representatives on 2 June 2010.
In 2006 the Howard Government introduced a suite of
significant changes to electoral and referendum administration with the Electoral
and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth).
Changes included:
- the introduction of evidence of identity requirements for
enrolments and provisional voting
- changing the date for the close of rolls from the seventh day
after the issue of the federal election writs to the third working day after
the issue of the writs for certain categories of enrolment (for updating
details; for those turning 18 years of age between the issue of the writs and
polling day; and for those gaining citizenship between the issue of the writs
and polling day), and
- changing the date for the close of rolls from the seventh day
after the issue of the federal election writs to the date of the issue of the
writs for other new enrolments and re-enrolments.[1]
The measures in the Electoral and Referendum Amendment
(Electoral Integrity and Other Measures) Act 2006 (Cth) were controversial
and were opposed by the Australian Labor Party (ALP) (then in Opposition) and
by the minor parties.[2]
The Second Reading speech states that the Bill fulfils two
ALP election commitments.[3] In its 2007 National Platform the ALP indicated that it would reverse a number
of the 2006 Howard Government changes to electoral administration including the
changes to the date for the close of rolls and evidence of identity
requirements.[4]
The Second Reading speech also indicates that the Bill
implements recommendations arising from the Joint Standing Committee on
Electoral Matters’ (JSCEM) inquiry into the conduct of the 2007 federal
election and related matters (referred to the JSCEM by the Special Minister of
State on 27 February 2008 and by the Senate on 12 March 2008).[5] In its inquiry report (June 2009), a majority of the JSCEM made 53
recommendations relating to a range of electoral administration matters
including the date for the close of rolls, evidence of identity, enrolment and
participation, pre-poll voting, informal voting, electoral administration,
penalties, prisoner voting rights, and overseas electors.[6] Specific recommendations relevant to the Bill included:
- fixing the date for the close of rolls to seven days after the
date of federal election writs (Recommendation 1)
- repeal of the evidence of identity requirements for provisional
electors and the introduction of a signature checking process for declaration
votes where necessary (Recommendation 2)
The Bill is part of the Government’s broader electoral
reform agenda. In December 2008 the Government issued a green paper examining
electoral finance reform issues, and in September 2009 a second green paper was
issued examining broader electoral reform issues.[7] Both green papers identified reform possibilities and invited comment.
In 2008 and 2009 the Government introduced Bills making
significant changes to the law relating to electoral funding, political
donations, disclosure and reporting, and certain offences and penalties.[8] The 2008 Bill was defeated in the Senate in March 2009 and the 2009 Bill, which
is a revised version of the 2008 Bill, was introduced and passed in March 2009
in the House of Representatives and is currently before the Senate.
On 11 February 2010 the Government introduced the Electoral
and Referendum Amendment (Close of Rolls and Other Measures) Bill 2010 into the
House of Representatives. Schedules 1 and 2 of that Bill contained the same
provisions relating to the close of rolls and evidence of identity requirements
for provisional electors as the current Bill. The original Bill also included a
range of other provisions to:
- make provision for electronic updating of electors’ details
- enable the AEC to process enrolment transactions outside the
electoral division for which a person is enrolling
- ‘enable pre-poll votes cast in an elector’s ‘home’ division to be
cast and counted as ordinary votes, wherever practicable’
- ‘restrict the number of candidates that can be endorsed by a
political party in each Division’, and
- enable electronic voting for sight-impaired electors.[9]
The original Bill was passed by the House of Representatives
on 10 March 2010 and introduced into the Senate on 15 March 2010. The Bill is
still before the Senate.
The current Bill reproduces Schedules 1 and 2 of the
original Bill. The remaining provisions of the original Bill are now contained
in the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures)
Bill 2010, which was also introduced into the House of Representatives on 2
June 2010 and which passed the House on 16 June 2010 and the Senate on 17 June
2010.[10]
In addition, two further electoral Bills were introduced
into the House of Representatives on 2 June 2010: the Electoral and Referendum
Amendment (Modernisation and Other Measures) Bill 2010 and the Electoral and
Referendum Amendment (How-to-Vote Cards and Other Measures) Bill 2010. These
Bills passed the House of Representatives on 16 June 2010 and were
introduced into the Senate on 16 June 2010.[11]
On 13 May 2010 the Senate referred the provisions of ‘all
bills introduced into the House of Representatives after 13 May 2010 and before
3 June 2010 that contain provisions commencing on or before 1 July 2010’ to
Senate committees for consideration and report by 15 June 2010.[12]
On 15 June 2010 the Senate Finance and Public Administration
Legislation Committee tabled a report in the Senate indicating that the
Committee had considered both the Electoral and Referendum Amendment (Close of
Rolls and Other Measures) Bill (No. 2) 2010 and the Electoral and Referendum
Amendment (Pre-poll Voting and Other Measures) Bill 2010, and had ‘determined
that there are no substantive matters that require examination’.[13]
Consistent with its stance in relation to Schedules 1 and 2
of the original Electoral and Referendum Amendment (Close of Rolls and Other
Measures) Bill 2010, the Opposition opposes the Bill.[14] The Opposition’s stance is also consistent with the JSCEM Opposition members’
dissent, in the Committee’s report on the 2007 election, from the majority
recommendations concerning the close of rolls and evidence of identity for
provisional electors.[15]
The Australian Greens endorsed the original Electoral and
Referendum Amendment (Close of Rolls and Other Measures) Bill 2010 but also
proposed amendments creating offences for inaccurate and misleading electoral
advertising and for pre-election automated telephone calls to electors intended
to affect voting.[16] The Greens may propose such amendments again in relation to the current Bill.
The Electoral and Referendum Amendment (How-to-Vote Cards and Other Measures)
Bill 2010 proposes to bring material published by telephone or the internet
within the existing provisions in the Electoral Act prohibiting the printing,
publication or distribution of misleading or deceptive material.[17]
Independent Senator Nick Xenophon proposed amendments to the
original Electoral and Referendum Amendment (Close of Rolls and Other Measures)
Bill 2010 retaining the existing evidence of identity requirements for
provisional electors in the Commonwealth Electoral Act 1918 but also providing
for a signature checking procedure which, if satisfied, would mean that the
evidence of identity requirements did not apply.[18] Senator Xenophon may propose such amendments again in relation to the current
Bill.
Family First Senator Steve Fielding has not yet indicated his
position on the Bill.
The Government estimates that the cost of implementing the
measures in the Bill will be just over $0.2 million.[19]
Currently under the Commonwealth Electoral Act 1918 (the
Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (Cth)
(the Referendum Act) the electoral and referendum rolls close on the third
working day after the issue of the federal election/referendum writs for those
updating their details and for those turning 18 years of age or gaining
citizenship between the issue of the writs and polling day. For other new
enrolments and for re-enrolments the electoral rolls close on the date of the
issue of the writs. The rolls close at 8 pm on the relevant day as this is the
deadline by which claims or applications for enrolment must be made.
The Bill proposes to amend the Electoral Act and Referendum
Act so as to fix the seventh day after the issue of the federal
election/referendum writs as the date for the close of the rolls. This closure
date would apply for all categories of enrolment including new enrolments,
updating details, those applying for enrolment at 17 years of age, and
applications for enrolment from eligible overseas electors, itinerant electors,
and those set to gain citizenship between the issue of the writs and polling
day. The deadline for the making of claims or applications for enrolment (and
therefore the point at which the rolls would close) would be 8 pm on the
seventh day after the issue of the writs.
The new date for the close of the rolls would also apply to
the removal of electors from the rolls resulting from an objection to their
enrolment, so that removal could not occur between 8 pm on the day of the close
of rolls and the close of polling on polling day.
The Second Reading speech states that the new measures in
Schedule 1 will ‘provide sufficient time for new voters to enrol to vote for a
federal election or existing electors to update their address details with the
AEC’.[20] Reversal of the reduction in the close of rolls changes introduced by the
Howard Government in 2006 has been ALP policy since before the 2007 election
(see above). The main issues in contention in relation to roll closure have
been electoral roll integrity and voting fraud and restriction of the
vote/disenfranchisement.[21]
Whereas currently the Electoral Act and Referendum Act both
specify that the close of rolls is to take place on the third working day after
the issue of the writs (defined as any day except a Saturday, Sunday or a
public holiday in any state or territory), the proposed amendments fixing the
seventh day after the issue of the writs as the date for the close of rolls
does not specify that the seventh day must be a working day. The Bill proposes
to repeal the current definition of ‘working day’ from the Electoral Act and
the Referendum Act. In relation to the latter Act, the Explanatory Memorandum
states this is because it is ‘now otiose’.[22]
Currently under the Electoral Act and the Referendum Act
electors casting provisional votes at elections and referendums are required to
provide evidence of identity either at the time of voting or by the first
Friday following the polling day.[23] If provided at the time of voting, the evidence of identity must be the
original of either the elector’s driver’s licence or one of a prescribed set of
documents (e.g. a birth certificate, a certificate of Australian citizenship, a
current Australian passport, or a current credit or bank account card). If
provided by the first Friday after the polling day, the evidence of identity
must be the original or an attested copy of the elector’s driver’s licence or
prescribed document. If the prescribed evidence of identity is not provided
within the timeframe the provisional vote is not counted.
The Bill proposes to repeal the evidence of identity
requirements for provisional electors from both the Electoral Act and the
Referendum Act. In place of these requirements, Divisional Returning Officers
(DROs) would be required to check the signature of an elector on the envelope
containing the provisional vote against the most recent record of that
elector’s signature (if any) where the DRO had reason to doubt that the
signature on the envelope was genuine. If the signature on the envelope was not
that of the elector, the provisional vote would not be counted. The Explanatory
Memorandum states that in most cases the most recent record ‘will be the
signature on the claim for enrolment form’[24];
the Bill is silent however regarding arrangements where no recent record of an
elector’s signature was available.
The Second Reading speech states that, along with Schedule
1, the new measures in Schedule 2 will ‘implement recommendations of the JSCEM
supported by the Government as necessary to provide eligible electors with the
greatest opportunity to enrol and vote in an election’.[25] Reversal of the evidence of identity requirements introduced by the Howard
Government in 2006 has been ALP policy since before the 2007 election (see
above). The main issues in contention in relation to evidence of identity for
provisional electors have been enrolment integrity and integrity of the
provisional voting system, and restriction of the vote/disenfranchisement.[26]
Only significant amendments are detailed in this part of the
Digest. In most instances amendments to the Electoral Act are mentioned as most
amendments to the Referendum Act are in similar terms.
Item 6 repeals subsections 102(4), (4AA) and (4AB) and substitutes new section 102(4) of the Electoral Act to ensure that a
claim by a person, made after the close of polls and before the election, to
have his or her name put on the roll cannot be considered until after the close
of polling (that is, until after the election).
The major amendment in this Schedule is made by item 12 which repeals and substitutes section 155 of the Electoral Act to
provide that the date for the close of the rolls is the seventh day after the
date of the writ. Item 14 makes the same amendment to the Referendum Act
by the repeal and substitution of subsection 9(1) of that Act.
By repealing the whole of section 155, the definition of
‘working day’ in subsection 155(2) is repealed, and item 15 repeals the
definition of ‘working day’ from the Referendum Act.
Schedule 2 amends both the Electoral Act and the
Referendum Act to provide that the DRO must check the most recent record of an
elector’s signature in the circumstance that the DRO has doubts about the
authenticity of the elector’s signature on the envelope that purports to
contain the provisional vote ballot paper. As discussed above, the proposed
amendment does not address the possibility that there may be no earlier
signature on record.
Members, Senators and
Parliamentary staff can obtain further information from the Parliamentary
Library on (02) 6277 2500.
Nicholas Horne
21 June 2010
Bills Digest Service
Parliamentary Library
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