Bills Digest No. 61, 2012–13

1 February 2013

Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012

Brenton Holmes
Politics and Public Administration Section 

Date introduced: 29 November 2012

House: House of Representatives

Portfolio: Special Minister of State

Commencement: Sections 1 to 3 commence on the day the Act receives the Royal Assent. Of Schedule 1, all but items 26, 49 and 50 commence the day after the Act receives Royal Assent. Items 26, 49 and 50 of Schedule 1 commence on the later of the day after the Act receives Royal Assent or the commencement of the Electoral and Referendum Amendment (Improving Electoral Procedure) Act 2012.[1] Schedule 2 commences on 1 January 2014.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012 (the Bill) is to amend three Acts—the Commonwealth Electoral Act 1918 (the Electoral Act[2]), the Referendum (Machinery Provisions) Act 1984 (the Referendum Act[3]) and the Taxation Administration Act 1953 (the Taxation Act[4])—to implement electoral and voting measures recommended by the Joint Standing Committee on Electoral Matters (JSCEM) in its report entitled The 2010 Federal Election: Report on the conduct of the election and related matters.[5]

Structure of the Bill

Schedule 1, which is in two parts, sets out (in Part 1) the main amendments being proposed to the three Acts and (in Part 2) the application provisions.

Items 1–28 propose amendments to the Electoral Act, and deal with:

·         the timeframe for objections to decisions on electoral redistributions[6]

·         administrative aspects of pre-poll voting, including removal of the requirement for a pre-poll voter to sign a certificate[7] and

·         new procedures to be followed in the event that a ballot box is opened prematurely before the close of the poll.[8]

Items 29–52 propose amendments to the Referendum Act that mirror the amendments proposed for the Electoral Act.[9]

Item 53 proposes an amendment to the Taxation Act to enable the Commissioner of Taxation to disclose relevant information to the Electoral Commissioner.[10]

Item 54 deals with application and commencement matters.

Schedule 2 of the Bill is in two parts. Part 1 proposes amendments to postal vote application requirements in the Electoral Act and the Referendum Act that will come into effect (Part 2) for elections and referendums for which writs are issued on or after 1 January 2014.[11]

Background

The amendments proposed by this Bill arise from recommendations 3, 9, 10, 11, 15, 29, 30 and 37 made by the JSCEM in its report into the 2010 Federal Election.[12] The Government is keen to promote measures that it believes will broaden the franchise and facilitate voting by electors. The Government is concerned that of an estimated 15.7 million Australians eligible to be enrolled, only 14.2 million are on the roll[13] and Parliament has recently passed legislation to allow the Australian Electoral Commission to directly enrol voters (on the basis of information obtained from reputable sources such as a state’s Road Traffic Authority and elsewhere).[14]

A continual rise in the number of electors wishing to avail themselves of pre-poll and postal voting has also prompted moves to enhance the administration and logistics of these voting options.

An incident in the 2010 Federal Election where some ballot boxes were opened before they were lawfully authorised to be opened has prompted the tightening of both the rules and procedures and the training of officials concerning the handling of ballot boxes.[15]

Committee consideration

On 29 November 2012 the House of Representatives Selection Committee referred the Bill to JSCEM for inquiry and report. No reporting date was set, but JSCEM invited interested persons and organisations to make submissions addressing the Bill by 21 December 2012. Further information on the inquiry is available here.[16]

The Bill has not yet been considered by the Senate Standing Committee for the Scrutiny of Bills.

Policy position of non-government parties/independents

Of the JSCEM recommendations which the Government supports, and upon which the Bill largely rests, the Coalition is opposed to recommendations 3, 10 and 11.[17] That is, the Coalition opposes:

·         amending relevant legislation governing the protection of personal data collected by the Australian Taxation Office (ATO), which would prevent the ATO from providing enrolment relevant data to the Australian Electoral Commission (AEC), to allow such data to be shared with the AEC for the purposes of facilitating enrolment

·         repealing the requirement at section 200DH of the Electoral Act for an applicant for a pre-poll ordinary vote to complete and sign a certificate and

·         amending section 200D of the Electoral Act to provide that an application for a pre-poll vote cannot be made before the Monday, 19 days before polling day.[18]

The Coalition’s view includes:

·         that pre-poll voting be open on the Monday 12 days before the election and not 19 days before, as the longer period would ‘take the focus off the polling day itself’ and the AEC has ample time after the close of nominations to prepare ballot papers[19]

·         that electors continue to be required to sign a declaration when casting a pre-poll vote, because the task is not onerous and militates against fraudulent voting[20]

·         that current dates for the receipt of postal vote applications from overseas voters should be maintained, and that voters should not be disadvantaged by being given less time to receive ballot papers[21] and

·         that electors wishing to cast a valid declaration vote must provide correct information about their address prior to the close of rolls, and failure to do this will result in their vote not being included in the count.[22]

Financial implications

The Explanatory Memorandum states that the costs associated with these measures will be absorbed by the AEC from existing resourcing.[23]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[24] These issues are explored more fully under ‘Key Issues and Provisions’. The Parliamentary Joint Committee on Human Rights is scheduled to report on the Bill on 6 February 2013.[25]

Key issues and provisions

Electoral redistributions—managing objections

Part IV of the Electoral Act deals with electoral divisions, and section 72 regulates the way in which objections, initial comments and further objections concerning electoral redistributions are to be managed. In the event that objections and/or comments regarding a proposed redistribution are lodged, an augmented AEC must inquire into the matter(s) and make a public announcement of its findings, stating in particular whether the augmented AEC’s redistribution proposal is significantly different from the original proposal. [26] If this is the case further objections are invited and are to be provided ‘forthwith upon the making of the public announcement’ by the AEC. Items 1–3 of Schedule 1 of the Bill amend section 72 of the Act to remove the requirement to provide further objections ‘forthwith’ and instead specify a period of seven (7) days within which such further objections may be lodged in writing. Item 4 specifies that the augmented AEC must complete its inquiry into such objections within 14 days of the expiry of the period during which such objections may be lodged.

Direct enrolments

Recent amendments to the Electoral Act allow the Electoral Commissioner to directly update or transfer a person’s enrolment, or enrol an unenrolled person, without claim or notice from the person (sections 103A and 103B of the Electoral Act). Before taking such action, the Electoral Commissioner must be satisfied of various matters including, as currently relevant, the person’s current address. Item 53 of Schedule 1 of the Bill will facilitate ‘direct’ or ‘automatic’ enrolments of eligible people over 18 years of age on the electoral roll by allowing the Taxation Commissioner to disclose information to the Electoral Commissioner for roll update and maintenance purposes. Only information obtained by the Tax Commissioner on or after the day this Bill is assented to can be disclosed to the Electoral Commissioner. (See the commencement information on page 2 of the Bill.)

Premature opening of ballot boxes

Other key Schedule 1 provisions—items 24 and 32—relate to clarifying procedures for dealing with situations where a ballot-box is opened prematurely. These items insert proposed sections 238B (Electoral Act) and 41AB (Referendum Act) to provide that votes contained in a wrongly opened ballot-box will be excluded from the scrutiny under Part XVIII of the Electoral Act and Part VI of the Referendum Act. That is, the votes from such a ballot-box will not be included in the count.

These proposed provisions are discussed at length in the Explanatory Memorandum’s Statement of Compatibility with Human Rights, as they can be seen as restricting people’s right to vote. The Parliamentary Joint Committee on Human Rights is scheduled to report on the Bill on 6 February 2013.

The Government argues that, on balance, excluding votes from improperly opened ballot-boxes ‘would maintain the integrity of the voting process’ and that with better handling procedures and electoral staff training, such situations would rarely arise in future.[27] In any event, the fact that the AEC can file a petition disputing an election[28] means that if the excluded ballot papers are likely to affect a result, the excluded votes may still count towards any petition seeking to void the election or referendum.[29]

Pre-poll issues

At present, under section 200DH of the Electoral Act and section 73CH of the Referendum Act, a voter who is entitled to a pre-poll vote must complete and sign a pre-poll vote certificate before proceeding to cast a vote. Items 12 and 40 of Schedule 1 propose to repeal those requirements. Thus the elector would no longer have to declare in writing that he or she is entitled to vote, and can simply make a verbal declaration to that effect. Flowing from the abolition of the requirement, a number of technical changes are proposed.

In its submission to the JSCEM inquiry into the 2010 Federal Election, the AEC noted:

Written declarations for pre-poll votes are no longer required in a number of state jurisdictions and none of these have reported any issues arising from the move to oral declarations. Similarly, the introduction of home division ordinary pre-poll votes at the 2010 federal election did not give rise to any issues in relation to apparent multiple voting.

In practice, the process of issuing home division ordinary pre-poll votes now more closely aligns with the process of issuing ordinary votes on polling day. … The requirement for electors to complete and sign a certificate appears unnecessary. Removal of this requirement would speed up the vote issuing process and provide efficiencies in polling place management.[30]

Items 6 and 7 propose to extend from two days to four days the period that must elapse between the declaration of nominations of candidates for an election and the making of an application for a pre-poll vote. This extension ensures sufficient time for ballot papers to be printed and distributed to pre-poll voting centres. Items 33 and 34 propose to ensure that when a referendum is held in conjunction with an election, pre-poll voting for both starts at the same time by making the equivalent amendment to the Referendum Act.

Postal voting

Items 1–6 of Schedule 2 of the Bill propose changes to the arrangements for postal vote applications, and will apply from 1 January 2014. The effect would be to bring forward the deadline for applications for postal votes by one day from the Thursday two (2) days before polling day to the Wednesday three (3) days before polling day. The Government justifies the changes in the following terms:

This is a practical amendment that reflects the reality that there is limited chance of electors receiving postal voting materials that are sent out after the current deadline of 6pm on the Thursday before polling day. The existing deadline is potentially misleading to electors who might expect that as long as they have met the deadline, they will receive their postal voting materials in time for them to be able to cast their vote before the close of polling.[31]

Concluding comments

The Bill is likely to remain controversial in the light of the Coalition’s dissenting remarks about pre-poll and postal voting in the JSCEM report on the 2010 Federal Election, and the Coalition’s ongoing opposition to the implementation of direct enrolment of eligible voters. There may well be further debate about the human rights aspects of the provisions dealing with the handling of prematurely opened ballot boxes which involves the setting aside of votes so affected.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

[1].              The Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012 is currently before the Senate. The homepage for that Bill is at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DId%3A%22legislation%2Fbillhome%2Fr4863%22;rec=0

[2].              The Commonwealth Electoral Act 1918 is available at http://www.comlaw.gov.au/Details/C2012C00581

[3].              The Referendum (Machinery Provisions) Act 1984 is available at http://www.comlaw.gov.au/Details/C2012C00570

[4].              The Taxation Administration Act 1953 is available at http://www.comlaw.gov.au/Details/C2013C00069

[5]               Joint Standing Committee on Electoral Matters, The 2010 Federal Election: report on the conduct of the election and related matters, House of Representatives, Canberra, June 2011, viewed 22 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect10/index.htm

[6]               Corresponds to JSCEM recommendations no. 29 and no. 30.

[7]               Corresponds to JSCEM recommendations no. 10 and no. 11.

[8]               Corresponds to JSCEM recommendation no. 9.

[9]               Corresponds to JSCEM recommendation no. 37.

[10]               Corresponds to JSCEM recommendation no. 3.

[11]               Corresponds to JSCEM recommendation no. 15.

[12].              S Smith (on behalf of the Special Minister of State), ‘Second reading speech: Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012’, House of Representatives, Debates, 29 November 2012, p. 13 885, viewed 19 December 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F9b96ae59-96ca-4e39-b984-8b520b432ef5%2F0018%22

[13].              Ibid.

[14].              Electoral and Referendum Amendment (Protecting Elector Participation) Act 2012, viewed 22 January 2013, http://www.comlaw.gov.au/Details/C2012A00111/Download

[15].              S Smith, op. cit.

[16].              House of Representatives Joint Standing Committee on Electoral Matters, Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012, inquiry page, viewed 22 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/improvingelectoraladmin/index.htm

[17].              B Bishop and others, The 2010 Federal Election: report on the conduct of the election and related matters, JSCEM, Canberra, June 2011, viewed 19 December 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect10/report.htm

[18].              Ibid., p. 179.

[19].              Ibid., p. 188.

[20].              Ibid.

[21].              Ibid., p. 190.

[22].              Ibid., p. 179.

[23].              Explanatory Memorandum, Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012, viewed 19 December 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4930_ems_4b3abd33-bcee-4463-b553-df1858a37bca%22,

[24].              The Statement of Compatibility with Human Rights can be found at pages 2–5 of the Explanatory Memorandum to the Bill.

[25].              Verbal advice from Committee Secretary.

[26]               An augmented AEC is established to consider objections to the Proposed Redistribution and to make a final determination of the names and boundaries of the Electoral Divisions for the state or territory. Under subsection 70(2) of the Electoral Act, the augmented AEC consists of members of the Redistribution Committee plus the Chairperson of the AEC and the non-judicial Commissioner (currently the Australian Statistician). The augmented AEC has 60 days to consider objections (including initial and any further objections) (subsection 72(2)). After considering any objections, the augmented AEC will make its own proposed redistribution of the state or territory (subsection 72(10)).

[27].              Explanatory Memorandum, op. cit., pp. 4–5.

[28].              See section 357 of the Electoral Act and section 102 of the Referendum Act.

[29].              Explanatory Memorandum, op. cit., p. 5.

[30].              Australian Electoral Commission (AEC), Submission to Joint Standing Committee on Electoral Matters, Inquiry into the conduct of the 2010 Federal Election and matters related thereto, 21 February 2011, p. 79, viewed 19 December 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=em/elect10/subs.htm

[31].              Explanatory Memorandum, op. cit., p. 15.