Bills Digest no. 133 2009–10
Electoral and Referendum Amendment
(Close of Rolls and Other Measures) Bill 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 2010
Date introduced: 11 February 2010
House: House of Representatives (the Bill passed the House on 10 March
2010)
Portfolio: Special Minister of State
Commencement: Sections 1–3, Schedules 1–3, and Schedules 5–6 commence on
the day the Act receives Royal Assent. Schedule 4 commences on a day to be
fixed by Proclamation, or on the day after 6 months from Royal Assent,
whichever occurs first.
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, 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 main 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
- repeal the evidence of identity requirements for provisional electors
and provide for a signature checking procedure
- 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’,[1] and
- enable electronic voting for sight-impaired electors.[2]
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)
- 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, and
- increasing political finance disclosure thresholds from $1 500 to
more than $10 000 (CPI indexed).[3]
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.[4]
The Second Reading speech states that the Bill fulfils two
ALP election commitments.[5] 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.[6]
The Second Reading speech also states that the Bill
implements a number of 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).[7] 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.[8] 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)
- provision for the establishment of an enrolment website for
enrolled electors to facilitate timely updating of the electoral roll by the AEC
(Recommendation 9)
- provision ‘to allow pre-poll votes cast at a pre-poll voting
centre in an elector’s home division prior to polling day to be cast as
ordinary votes, wherever practicable’ (Recommendation 22)
- provision for the AEC to manage its workload between elections by
‘allowing enrolment transactions to be processed outside the division for which
the person is enrolling, provided
that those transactions are processed by a division that is within the same
state or territory’ (Recommendation 42), and
- incorporation of recommended amendments to the Commonwealth
Electoral Act 1918 into the Referendum (Machinery Provisions) Act 1984 (Cth) where appropriate ‘to
ensure consistency between the provisions applying to elections and referenda’ (Recommendation
45).[9]
Opposition members of the JSCEM dissented from a number of
the Committee majority’s recommendations including Recommendations 1 and 2
concerning the close of rolls date and evidence of identity for provisional
electors.[10]
The Second Reading speech further indicates that the
amendments in the Bill restricting the number of candidates that can be
endorsed by a political party in a single electoral division arise from the
2009 Bradfield by-election. At the Bradfield by-election there were 22
candidates, nine of whom were endorsed by one political party; the informal
vote was nine per cent.[11] The Second Reading speech states that:
The practice of multiple candidates for a single Division
being endorsed by the registered officer of a political party has not emerged
on this scale prior to the 2009 Bradfield by-election. Legislative amendment is
required to prevent a similar rise in the informality rate in multiple
Divisions at the next federal election.[12]
Government amendments to the Bill to enable electronic
voting for sight-impaired electors give effect to recommendation 49 of the
JSCEM report on the 2007 election and recommendation one of the JSCEM report on
the electronic voting trials at that election.[13]
The Bill’s proposed amendments to the Referendum
(Machinery Provisions) Act 1984 (Cth) do not implement the recommendations
made by the House of Representatives Standing Committee on Legal and
Constitutional Affairs in its recent report on the effectiveness of that Act as
a framework for conducting referendums.[14]
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.[15] 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.[16] 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.[17]
In addition to the Electoral and Referendum Amendment (Close
of Rolls and Other Measures) Bill 2010, the Government is currently proposing
to introduce two further items of electoral legislation in the 2010 Autumn
sittings:
- a second electoral and referendum amendment Bill to ‘correct
technical errors and make amendments of a minor nature in the Commonwealth
Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984’
in order to ‘enable the Australian Electoral Commission to administer electoral
laws more effectively’, and
- an electoral amendment Bill to ‘implement further reforms to the
campaign funding and financial disclosure laws’ in order to ‘implement the
Government’s legislative response to the issues raised in the Electoral
Reform Green Paper “Donations, Funding and Expenditure” (released in
December 2008) and related submissions’.[18]
The Opposition has indicated that it will oppose the
measures in Schedules 1 and 2 of the Bill relating to the close of rolls and evidence
of identity for provisional electors, but will support the other measures in Schedules
3–6 of the Bill.[19] The Opposition’s stance on Schedules 1 and 2 is 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.[20]
The Australian Greens have endorsed the Bill but have also signalled
their intention to move an amendment in the Senate requiring truth in political
advertising.[21]
Family First Senator Steve Fielding and Independent Senator
Nick Xenophon have not yet indicated their positions on the Bill.
The Government estimates that the cost of implementing the
measures in schedules 1–5 of the Bill will be just over $1 million. The
estimated cost of implementing the measures in schedule 6 of the Bill
(electronic voting for sight-impaired people) is $370,000. However, the
Government expects that the measures in the Bill will also result in net
savings of $5.7 million over the forward period due mainly to ‘efficiencies in
pre-poll voting at the next and subsequent federal elections’.[22]
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 8:00 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 8:00 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 8:00 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’.[23] 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.[24]
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’.[25]
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.[26] 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’;[27] 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.[28] 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.[29]
Under current legislation, pre-poll votes are not counted on
election night as each declaration accompanying each vote is required to be
scrutinised to determine that the elector has a valid entitlement to vote.[30] The Bill proposes to amend the Electoral Act and the Referendum Act to provide
a new category of pre-poll vote, ‘pre-poll ordinary votes’, as distinct from
the renamed category of ‘pre-poll declaration votes’. The inclusion of pre-poll
ordinary votes would enable pre-poll votes cast in an elector’s ‘home’ division
to be treated as ordinary votes and counted on election night. ‘Home’ division
refers to the division in which the elector is enrolled.
Under the measures in the Bill pre-poll ordinary voting
would take place in a pre-poll voting office or the office of the DRO within an
elector’s division in separate voting compartments where voting can be
undertaken in private. The AEC could also determine, in writing, the
availability of pre-poll ordinary voting at specified places. Those
provisionally enrolled and those applying at the office of an Assistant
Returning Officer (ARO), including an ARO outside of Australia, would not be
entitled to cast a pre-poll ordinary vote.[31] The Bill also proposes to introduce new procedures for the handling and
transportation of boxes housing pre-poll ordinary votes.
Over successive elections, the long-held assumption that
electors will vote in person at their local polling booth on election day is
becoming less realistic. Changes to demographic and work patterns over recent
decades have driven an increase in demand for early voting, particularly in
pre-poll and postal voting. At the 1993 federal election, the number of pre-poll
votes cast was just under 400 000. By 2007 the number of pre-poll votes cast
had more than doubled to about 1.1 million votes.[32] Pre-poll votes comprised about 38 per cent of all declaration votes cast at the
2007 election. The number of pre-poll votes cast from within electors’ home
divisions amounted to 667 625 votes or 60 per cent of all pre-poll votes. In
total, home pre-poll votes account for 5 per cent of all votes cast at the
election.[33]
The growth in early voting at elections has a number of implications.
Early voting adds to the administrative cost of elections as each declaration
vote must be individually assessed to confirm their validity in accordance with
electoral law. Given that early votes are not counted on election night, a
growth in their proportion of the total vote would decrease the probability of
reaching a definitive result on election night. At the 2007 election, ordinary
votes made up around 80 per cent of the total vote. If home division pre-poll
votes were treated as ordinary votes at that election, 85 per cent of all votes
cast would have been counted on election night.[34]
In its submission to the JSCEM, the AEC noted some
advantages of the proposed reform including:
- reducing the likelihood of delaying the election result until after
election night when the pre-poll votes are counted; and
- decreasing the work required to scrutinise declaration votes as
electors using pre-poll votes would be marked off the certified vote list
within their home divisions.
The AEC has also noted that the procedure is in operation at
the federal level for mobile polling and has been adopted and used in Victoria,
Queensland, Tasmania and the territories.[35]
Since 1993 the AEC has advocated for home division pre-poll
votes be counted as ordinary votes on polling night. However, the reform has
been resisted by the JSCEM in the past, primarily because the Committee wanted
to encourage electors to vote in person on polling day.[36]
Currently under the Electoral Act and the Referendum Act the
AEC processes enrolment applications and enrolment changes during the
non-election period in the home divisions of electors. After an election is
called the Electoral Act enables the AEC to process enrolment transactions
across its divisional office network. The Bill proposes to enable the AEC to
share its enrolment workload across its divisional offices during non-election
periods so that it can manage its work with greater flexibility, as it
currently does during the election period. The aim of the proposal is to enable
the AEC to more efficiently manage its workload regardless of the stage of the
election cycle. In its submission to the JSCEM 2007 election inquiry the AEC noted
that the measure would provide more effective handling of roll close processing
arrangements and broader work scheduling concerning staff availability and
training requirements.[37]
The proposal departs from JSCEM’s recommendation in one
respect. The Committee recommended that the AEC be enabled to process enrolment
transactions outside the home division of electors, but within the same state
or territory. The proposed measure in the Bill does not stipulate that
transactions be processed within the home state or territory of electors. The
Bill proposes to provide greater flexibility than the JSCEM recommendation ‘so
that all staff and geographical locations can be utilised to derive maximum
efficiency in enrolment processing’.[38] In making its recommendation, the JSCEM expressed concern that the AEC does not
alter the current divisional office structure and its physical presence in
almost all divisions across the country.[39] The Bill does not propose to do so.
The proposed measure specifies the Electoral Commissioner as
responsible for receiving and processing enrolment transactions rather than the
DRO or the Australian Electoral Officer. New provisions would then enable the
Electoral Commissioner to delegate his or her enrolment powers to any office or
staff member within the AEC. Enrolment transactions covered under the proposal
include ‘entering a person’s details on the electoral roll or annotating an
enrolment record to identify a special category of elector, such as an eligible
overseas elector’.[40]
Currently electors are required to complete and sign a hard
copy form in order to enrol or update their enrolment details.[41] Provisions under Schedule 4 of the Bill propose to enable electors who are
already on the roll to update their details electronically. The Bill also provides
for the making of regulations to prescribe minimum verification information,
such as date of birth and drivers licence details, to confirm the authenticity
of online transactions.
At June 2009 it was estimated that 1 232 935 eligible people
were not on the electoral roll, equating to 8.2 per cent of the eligible
population. Over the past ten years, the estimated proportion of eligible
people enrolled has fluctuated between a high of 93.2 per cent at the 2001
election and just over 90 per cent in June 2006.[42] The AEC conducts
enrolment campaigns and writes to electors as part of its roll review and
stimulation activities, although ultimately it is an elector’s responsibility
to enrol and maintain their own enrolment. Currently practices to update the
roll have not been particularly effective. Of the letters sent by the AEC to over
three million people in 2007-08, only 700 000 completed application forms
were returned.[43]
The proposed measures to enable electronic enrolment updates
are part of a broader government plan to reform and modernise electoral
administration to increase enrolment and the integrity of the roll. In 2009 the
Special Minister of State asked the JSCEM to inquire into the New South Wales
Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill
and its consequences for the purposes of Commonwealth elections.[44] That Bill,
which gained royal assent on 14 December 2009, amended the Parliamentary
Elections and Elections Act 1912 (NSW) to, inter alia, implement the
‘Smart roll’ system of automatic enrolment for state and local government
elections and to enable electors to enrol and cast a provisional vote on
polling day.[45]
In its February 2010 inquiry report the JSCEM noted that the
AEC supported the NSW amendments. A majority of the Committee recommended that
the Electoral Act be amended to harmonise with NSW by enabling the automatic
enrolment of electors on the basis of data provided by trusted agencies, and
providing enrolment on polling day for provisional voting.[46] Opposition members of
the JSCEM dissented from the majority recommendations.[47] The report now awaits a
government response.
Currently under the Electoral Act there is no limitation on
the number of candidates that can be endorsed by a single party in one
division. The Bill proposes to limit the number of candidates that can be
endorsed by a registered political party in a single division to one. As noted
above, this measure arises from the circumstances at the 2009 Bradfield
by-election where nine of the 22 candidates were endorsed by a single party,
the Christian Democratic Party (Fred Nile Group). Given the large number of
candidates standing for that division, the possibility of electors making
inadvertent errors increased, and there was an unusually high rate of informal
votes at 9 per cent.[48] The rate of informal votes at the by-election were the highest recorded for the
division and more than double the nation average of informal votes of 3.95 per
cent at the 2007 election. The aim of the proposal is to prevent such a high
informal vote from reoccurring as a result of the endorsement of multiple
candidates by one party in a single division.[49]
In order to be registered in accordance with the Electoral
Act, a political party must have at least 500 members and meet other
conditions.[50] Candidates of registered parties only require the endorsement of a single
registered officer of their party to stand for election. They also benefit
having their party name listed alongside their own name on the ballot paper.
Independent candidates, and candidates who do not obtain the official
endorsement of a registered political party, are required to demonstrate, among
other things, the support of 50 electors in the division in which they are
seeking to nominate in order to be listed on the ballot. Under the proposal, if
a registered party wished to nominate more than one candidate in a division,
the nomination for all of those candidates in that division would be rejected.
At the most recent federal election there were no divisions
in which more than one candidate was endorsed by one party. The practice of
registered parties endorsing more than one candidate in a single division
appears to be rare in federal electoral history. This suggests that such a
practice may not be in the electoral interests of political parties.[51] While there
may not be a clear electoral advantage for a registered party to endorse more
than one candidate in a division, the need to set the limit per division at
one, in electoral law, could be questioned. For example, is it worth limiting
democratic choice for a possible reduction in the rate of informal voting? Some
relevant election statistics in relation to the endorsement of candidates by
registered parties include:
- at the 2007 federal election, at total of 1 054 candidates stood
for election in the 150 House of Representatives seats across Australia, with
an average of about seven per division. In each of those divisions, there was a
maximum of one candidate endorsed by each registered political party. The division
with the highest number of candidates in 2007 was Bennelong with 13 candidates.[52]
- by-elections have tended to attract a greater number of candidates
per division compared with general elections, with an average of about 10.4
candidates per by-election since 2000.[53]
- the 2009 by-election in the division of Bradfield equalled the
record for the highest number of candidates for a division (at 22 candidates).
Until 2009, the election or by-election with the highest number of candidates
was the 1992 by-election in the Victorian division of Wills, vacated by the
former Prime Minister Bob Hawke. In that by-election, 22 candidates competed
for the seat, four of which were endorsed by political parities. The informal
vote recorded at that by-election was 6.4 per cent.[54]
- the rate of informal voting at the Bradfield by-election was 9
per cent. The highest rate of informal voting at the 2007 general election was
9.5 per cent in the NSW division of Blaxland. The highest rate of informal
voting over the previous four general elections was in 2001 in the NSW division
of Fowler.[55]
- the rate of informal voting at the Higgins by-election which was
contested by 10 candidates (and held on the same day as the Bradfield
by-election) was 4.2 per cent. The Australian Labor Party did not endorse a
candidate in each of those by-elections, continuing the historically recent
trend of governments not nominating candidates for by-elections in their
opponents’ safe seats.[56]
The AEC conducted a trial of electronic voting for
sight-impaired electors and defence personnel serving outside Australia as part
of the 2007 federal election. The provision for electronic voting was a one-off
trial for the 2007 election only, enabled by the Electoral and Referendum
Amendment Act 2007. The Bill proposes to amend the Electoral Act and
Referendum Act to establish a framework for providing electronically assisted
voting for sight impaired electors at future referenda and at general, Senate
and by- elections. The Bill would also enable the further development of
electronically assisted voting methods in the future. Finally, the Bill
provides for the making of regulations to address procedural matters regarding
the process of casting electronically assisted votes, dealing with privacy and
secrecy issues, the availability of electronically assisted voting and the retention
and treatment of records of such votes.[57] The amendments would not reinstate the conduct of electronic voting for defence
personnel serving outside Australia.
Under the proposed measure, electors who met the conditions
for casting electronically assisted votes would be able to do so at an AEC
Divisional Office. The conditions for casting electronically assisted votes
will be set out in regulations. The previous practice of applying to use an
electronic assisted facility would no longer be required. Regulations will also
provide that a record of the vote can be printed, handwritten or provided in
electronic form.[58] As an interim measure (for the next federal election), the AEC intends to
implement assisted voting by providing a private area within its Divisional
Offices where eligible electors can cast a secret vote by speaking with call
centre operators who will then complete the ballots according to their instructions.[59] One possible area of contention concerning the planned implementation is that, without
detail on how secrecy and the independence of voters are to be protected, the
method may not facilitate a fully secret and independent vote.[60] Another possible area of contention is that the trial of electronic voting for
defence personnel serving outside Australia will not be continued.
The method of electronic voting used in the trial at the
2007 election was via a machine, with a 21-inch flat screen monitor for those
with some vision or with pre-recorded voice or Braille instructions for blind
electors. The preferences of voters were recorded on a two-dimensional barcode
to protect the secrecy of the vote. The trial was implemented in 29 sites
across Australia (compared with over 8 000 polling places).[61] The cost of implementing the trial of electronic voting for sight impaired electors
was $2.2 million.[62] By contrast, the intended implementation of the proposed measure, via a call
centre, is estimated to cost $370 000.[63] It was estimated that 910–1 550 voters would use the facility in 2007. The
actual number of voters who used the facility was 881. Estimates of the number
of Australians who are blind or have low vision varies from about 160 000 to up
to 300 000.[64]
Prior to the trial of electronic voting, electors with
impaired vision required the assistance of another person to complete their
ballot papers. As a result, the votes of vision impaired electors were not
secret and, potentially, not independent. Previously concerns were also raised
about the application of traditional voting methods for Australian defence
personnel in conflict zones overseas. In response to these issues, in its
report on the 2004 federal election the JSCEM recommended a trial of electronically
assisted voting.[65] The 2007 trial of electronic voting for sight impaired and overseas defence
personnel was reviewed in a separate inquiry of the JSCEM. In that inquiry, the
Committee noted that the combined cost of both trials at over $4 million equated
to an average cost of $2 597 per vote for sight impaired electors and $1 159
per vote for defence force personnel serving overseas, compared with the
average cost per elector at the 2007 election of $8.36.[66] In view of these costs, the Committee recommended, among other things, that the
trials be discontinued.[67] In its report on the 2007 election, the committee further examined the issue
and recommended continued investigation into the ‘viability and sustainability
of assisted voting arrangements aimed at providing secret and independent
voting for electors who are blind or have low vision’.[68] The proposed new measures to enable electronic voting for sight-impaired electors
are a response to that recommendation.
Only significant amendments are dealt with 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 Electoral 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.
Part 1 items 1-39 amend the Electoral Act, and items
40-76 amend the Referendum Act in a similar way. The effect of the
amendments is that there are 2 types of pre-poll vote, the ordinary vote, and
the declaration vote (new section 200AA). As discussed in the
background section of this Digest the new category of pre-poll ordinary votes
would enable pre-poll votes cast in an elector’s ‘home’ division to be treated
as ordinary votes and counted on election night.
A pre-poll ordinary vote is made in accordance with Division
3, and a pre-poll declaration vote is made in accordance with Division 4.
Item 7 amends subsection 200A(2) to add a note that
explains that a person who is provisionally enrolled is not entitled to vote by
pre-poll ordinary vote. Item 14 inserts new Division 3 sections 200DC to 200DR which determine how voting by pre-poll ordinary vote is to occur.
New section 200DD provides that pre-poll ordinary
voting can be carried out at:
- any pre-poll voting office in the division
- any other specified place declared by the Electoral Commission
(see new subsection 200BA(1A))
- the office of the DRO for the division.
New section 200DG provides for when a voter is and is
not entitled to vote by pre-poll ordinary vote. The circumstances for when a
voter is not entitled to vote are set out in new subsection 200DG(2) and
include matters such as failure to comply with the requirements relating to signing
the pre-poll vote certificate for ordinary voting, failing the tests relating
to answering to questions set out in new section 200DI (name, address
and whether voter has already voted), if the information on the roll is not in
accordance with the requirements or if the voter is provisionally enrolled.
Division 4 makes minor amendments to the Electoral
Act to incorporate the concept of a (pre-poll) declaration vote into the part
of the Act relating to pre-poll voting. The Division applies to persons who
have applied to pre-poll vote who are not entitled to vote by (pre-poll)
ordinary vote.
Much of Schedule 4 concerns the ability of the Electoral
Commissioner to delegate his or her powers and functions to any officer or
member to the staff of the Electoral Commission.
New subsection 28(4) extends the powers and functions
of the Electoral Commissioner that can be delegated to those contained in:
- sections 86 and 87
- the provisions of Parts VII, VIII, IX and X
- sections 184A to 185C, and
- section 249.
These pertain to new rolls and additions to the rolls,
qualifications and disqualifications for enrolment and voting, enrolment,
objections, review of decisions, postal vote applications and processes, and
Antarctic electors respectively. As explained in the background to this
Digest, these amendments will enable the AEC to share its enrolment workload
across its divisional offices during non-election periods.
Item 2 inserts new subsection 166(1AA) into
the Electoral Act so that in a House of Representatives election the registered
officer of a registered political party is prohibited from nominating more than
one candidate for a particular Division.. If they do so the nominations will be
rejected under section 172(1), although item 4 inserts new subsection
172(1A) which has the effect that where:
a bulk nomination has been received by the AEO and it
includes 2 or more candidates for a single Division (in breach of the
requirements of new subsection 166(1AA)), the AEO must reject the bulk
nomination for the 2 or more same Division candidates, but the remainder of the
bulk nomination will be valid.[69]
Part XVB of the Electoral Act relating to electronic voting
methods is amended so that it applies only to electronic assisted voting for
sight-impaired people. Item 20 accordingly repeals Division 2 of Part
XVB which provides for remote electronic voting for defence personnel serving
outside Australia.
Nicholas Horne, Mark Rodrigues and Diane Spooner
15 March 2010
Bills Digest Service
Parliamentary Library
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