BILLS DIGEST NO. 55, 2018–19              11 February 2019

Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018

Damon Muller
Politics and Public Administration Section

Date introduced: 29 November 2018

House:  House of Representatives

Portfolio: Special Minister of State

Commencement: Schedules 1 and 2 commence on the earlier of a day or days to be fixed by Proclamation, or six months after Royal Assent; Schedule 3 commences on the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at February 2019.

Purpose of the Bill

The purpose of the Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018 (the Bill) is to amend the Commonwealth Electoral Act 1918 (the CEA) and the Referendum (Machinery Provisions) Act 1984 (the RMPA) to:

•       require candidates nominating for federal elections to complete a qualification checklist relating to their eligibility under section 44 of the Australian Constitution

•       streamline certain procedural provisions in relation to how the Australian Electoral Commission (AEC) receives nominations and handles votes during the counting process

•       no longer require AEC divisional offices to be pre-poll voting centres and

•       change the makeup of the redistribution committee for redistributions of the Australian Capital Territory (ACT).

Structure of the Bill

The Bill is in three schedules.

Schedule 1 relates primarily to the CEA and contains a number of provisions that relate to the process of nominating as a candidate for a federal election. It includes a proposed qualification checklist to be included with the nomination form.

Schedule 2 contains amendments to the CEA and the RMPA relating to voting and vote scrutiny processes.

Schedule 3 contains amendments to the CEA relating to the composition of the redistribution committee for redistributions of the ACT.

Background

The provisions of the Bill relating to the citizenship declaration and the changes to the AEC’s vote handling process are responses to inquiries undertaken by the Joint Standing Committee on Electoral Matters (JSCEM) during the 45th Parliament.

On 28 November 2017 the Prime Minister referred matters relating to section 44 of the Australian Constitution to the Committee for inquiry and report.[1] In particular, the Terms of Reference included:

How electoral laws and the administration thereof could be improved to minimise the risk of candidates being found ineligible pursuant to section 44(i) (this could involve, among other matters, a more comprehensive questionnaire prior to nominations, or assistance in swiftly renouncing foreign citizenship).[2] 

Further information regarding the inquiry, including the full terms of reference, is available on the inquiry homepage.

The reference from the Prime Minister followed seven senators and two members of the House of Representatives either being disqualified by the Court of Disputed Returns or resigning due to their invalidity under section 44(i) of the Constitution, due to dual citizenship. This series of disqualifications was referred to in the media as Parliament’s ‘citizenship crisis’.[3]

Between the start of the 45th Parliament and the introduction of the Bill a total of 15 Members of Parliament had been disqualified or resigned due to section 44(i): seven members of the House of Representatives and eight Senators.[4]

The Committee, in its report, noted that the problems with the operation of section 44 were not new, and that ‘20 years of Parliamentary Committee reports and a Constitutional Convention have all predicted that without constitutional reform to parts or all of s. 44, challenges would occur to otherwise qualified and validly elected Members of Parliament’.[5] The Committee recommended that the Government hold a referendum to either repeal or amend sections 44 and 45 of the Constitution in order to solve the problem.[6]

The Committee noted the citizenship registers put in place by resolution in the Senate and the House of Representatives in late 2017.[7] While the Committee did not recommend implementing a citizenship declaration at the time of nomination for election as part of its formal recommendations, it did recommend ‘that all candidates for election be required to make a public disclosure of family citizenship history at time of nomination’ in the short term, pending a referendum being held. It recommended that ‘this disclosure would be in the same format as that required by the citizenship registers of current Members of Parliament’.[8]

In addition, the minority report authored by the Member for Tangney, Liberal MP Ben Morton, recommended legislating ‘a requirement for candidates to disclose, at the time of nomination, all information that may be relevant to potential disqualification under Section 44’.[9]

The Explanatory Memorandum of the Bill notes that the Bill responds to recommendation 3 of the report.[10] That is:

In the event that a referendum does not proceed or does not pass, that the Australian Government consider strategies to mitigate the impact of section 44 as outlined in this report.[11]

In addition to the issue of citizenship and eligibility, the JSCEM also considered more mundane issues of electoral administration during the 45th Parliament.

Following each federal election the Special Minister of State typically provides a reference to the JSCEM to inquire into and report on all aspects of the conduct of the federal election. While not specifically included in the terms of reference for the inquiry into the 2016 federal election, the provisions relating to AEC procedure arose from the Committee’s third interim report released as part of that inquiry.[12] In particular, the Bill provides a partial response to Recommendation 1:

The Committee recommends that the Commonwealth Electoral Act (1918) and the Referendum (Machinery Provisions) Act (1984) be amended, based upon the Australian Electoral Commission’s proposals contained in Appendix A of this report.[13]

Further information regarding the inquiry, including the full terms of reference, is available on the inquiry homepage.

The AEC’s recommendations to the Committee, as referenced in the Committee’s Recommendation, were relatively extensive, however mostly dealt with technical provisions of the CEA.[14] The AEC argued that the recommendations would allow it to run elections more efficiently. The Committee referred to these as ‘technical amendments to legislation’. For example, the AEC recommended removing the legislative requirement that pencils be provided in polling booths, as the scanning of ballot papers for counting might benefit from voters filling out the ballot in a pen instead. The AEC also recommended making the AEC positions responsible for certain activities or decisions under the CEA at an election more generic, so the Electoral Commissioner could delegate to an appropriate AEC officer.[15]

Specifically, the Committee summarised the AEC’s recommendations as:

•       improving consistency between the referendum legislation and the electoral legislation

•       allowing the AEC to undertake electoral processes more efficiently without compromising integrity

•       aligning legislation with contemporary AEC management structures and administrative arrangements and

•       correcting minor errors and omissions in the electoral legislation.[16]

Beyond endorsing the AEC’s recommendations, the Committee provided little additional commentary on the recommended changes or their effect on the electoral system.

The remaining four Recommendations from the third interim report would not require legislation. They related to funding of the AEC, AEC systems and training, the use of electronic certified lists for voter mark-off, and timelines for the AEC to report to the JSCEM.[17]

Committee consideration

Joint Standing Committee on Electoral Matters

The provisions of the Bill are a response to recommendations of two inquiries by the JSCEM following the 2016 federal election. These are discussed in detail in the Background section of this Bills Digest.

Senate Standing Committee for the Scrutiny of Bills

The Bill was considered by the Senate Standing Committee for the Scrutiny of Bills and reported in Scrutiny Digest 15/18. The Committee noted that the requirements of the qualification checklist could potentially require publication of personal details of third parties who have not consented to the release of that information, such as ‘citizenship and birth places of the applicant's parents, grandparents (including biological or adoptive parents or grandparents) and former or current spouses or similar partners’.[18] This information will be made publically available on the AEC’s website (and, although not mentioned by the Committee, when tabled in Parliament, potentially be published as a Parliamentary Paper).

The Committee has sought the Minister’s justification as to why that information could not be provided to the AEC without the corresponding requirement that the AEC publish the information. The Committee also sought the Minister’s advice as to whether the Bill could be amended to require the AEC to consider the impact on the privacy of third parties when publishing the information.[19]

At the time of publication the Committee website noted that a response had been received from the Minister, however the response had not yet been published.

Policy position of non-government parties/independents

At the time of publication the Bill has been introduced in the House of Representatives but has not been debated. There appears to have been no public commentary on the Bill or its provisions by non-government parties or independents.

Position of major interest groups

The Bill does not appear to have attracted any commentary or been discussed in the media at the time of publication. No interest groups appear to have expressed any public views on the Bill.

Financial implications

The Explanatory Memorandum to the Bill states that cost of implementing the provisions in Schedule 1 of the Bill is estimated to be $10 million over the forward estimates.[20] It is likely that these costs relate to the requirements for the AEC to vary the enrolment process to include the qualification checklist, potentially to implement a system for the lodgement of those forms, and to process and publish the contents of each nomination.

The current nomination forms, which are contained in Schedule 1 of the CEA, require the name, address, date of birth, occupation and signature of the candidate(s). Four qualification check boxes are also required to be completed by candidates. The qualification checklist in item 83 of Schedule 1 of the Bill contains 15 check boxes and 21 free text fields (not all of the free text fields will have to be completed by every candidate, depending on their responses and citizenship history).

In 2016 a total of 994 candidates nominated for the House of Representatives election and 631 candidates nominated for the Senate.[21] If similar numbers of candidates nominate at the next election each of these candidates will have to submit a qualification checklist to the AEC. The AEC must also publish these nomination forms on its website (Schedule 1, item 54, proposed section 181A of the CEA) ‘as soon as practicable’ after the declaration of nominations (24 hours after the close of nominations, CEA section 176).

While the CEA requires a nomination form to be delivered or faxed to the AEC, Schedule 1 of the Bill includes provisions to allow for the AEC to specify that the nomination may be made in an approved manner, such as ‘by using a specified web portal’ (item 2). While it is likely that the AEC will create an online form for submitting the nomination and the additional required information (although it may not have time to do so before an election in 2019, depending on the timing of the passage of the Bill and the 2019 general election), these provisions will still place a considerable data processing burden on the AEC.

The financial impact of the provisions in Schedules 2 and 3 are, according to the Explanatory Memorandum, either unquantifiable or are to be absorbed by the AEC, respectively.[22]

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.[23]

Parliamentary Joint Committee on Human Rights

At the time of publication the Bill has not yet been considered by the Parliamentary Joint Committee on Human Rights.

Key issues and provisions

The Bill makes a number of changes to the CEA (and some equivalent changes to the RMPA) that are unlikely to be of specific interest to anyone other than the AEC and its staff, and appointed scrutineers who are observing the count. These generally relate to delegations and to ballot paper handling procedures and will be discussed under Other Provisions, below.

The main proposed changes that will be noticed more widely are:

•       the addition of the qualification checklist to the nomination process

•       increasing the nomination deposit to $2,000 (from $1,000) for House of Representatives candidates

•       mechanical changes to the nomination process

•       the removal of divisional offices as pre-poll voting centres and

•       the replacement of the requirement to provide pencils to voters with more inclusive requirements relating to the marking of ballot papers

These provisions will be discussed in turn in this section. Unless otherwise noted, the items in this section relate to Schedule 1 of the Bill.

The qualification checklist

The qualification checklist is added in item 83 of Schedule 1, and will constitute Form DB in Schedule 1 of the CEA. Schedule 1 of the CEA already includes forms such as the nomination forms for House of Representatives and Senate candidates. Item 70 provides that the form may be altered by disallowable regulation.

The purpose of the qualification checklist is to require a candidate to consider whether they may be disqualified from standing for election under section 44 of the Australian Constitution. An objects clause for the checklist to this effect is provided in item 29.

The requirements of section 44 of the Constitution are:

Any person who:

(i)                   is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

                     (ii)                is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

                    (iii)                              is an undischarged bankrupt or insolvent; or

                    (iv)                holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

                     (v)                has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

The checklist will not in itself determine the eligibility of a candidate, as this can only be determined by the High Court, sitting as the Court of Disputed Returns.

The AEC will be required to publish the completed checklist ‘as soon as practicable after nominations for an election are declared’ (item 54, proposed subsection 181A(1)) and the AEC must submit the checklists completed by candidates elected to Parliament to the respective chamber for tabling ‘as soon as practicable after the return of the last writ for the election’ (proposed section 181B). Under proposed subsection 181A(2) the documents must also remain publically available (it is implied but not stated that they will remain on the AEC website) ‘until a petition disputing the election or return can no longer be filed under section 355’, which is 40 days after the return of the writs .

Proposed Form DB is essentially similar to the qualification checklist used in the by-elections of Longman (Qld), Mayo (SA), Braddon (Tas.), Fremantle (WA) and Perth (WA) held on 28 July 2018.[24] The inclusion of the checklist in the nomination form was enabled by the Electoral and Referendum Amendment (Eligibility) Regulations 2018 (the Regulations), which amended the Electoral and Referendum Regulation 2016 and included the checklist itself in Schedule 3 to the primary Regulations.[25]

While proposed Form DB covers the same general topics as the by-election form, it does so in considerably more detail. The proposed form also explicitly provides for the possibility that the answer to the question may not be known by the candidate, which was not a feature of the forms in Schedule 3 of the Regulations.

The form also, in question 10a, requires that any candidates who have ever been a subject or a citizen of any country other than Australia must provide at least one document that the candidate is satisfied supports their eligibility. The form notes that this may be an official document or a statutory declaration.

The form is also similar, though considerably more detailed, to the Citizenship Register established for Members and Senators through resolution in the 45th Parliament.[26] Unlike the parliamentary Citizenship Register the proposed qualification checklist does not allow the candidate to make an assertion of lack of dual citizenship which is not backed by documentation. The proposed form also includes questions in relation to ineligibility under section 44 other than section 44(i) (that is, the dual citizenship provision), whereas the parliamentary Citizenship Registers only contain questions in relation to citizenship.

Given the proposed requirement to table the completed qualification checklist with the respective chamber for successful candidates there remains a question as to whether the Parliament will require a separate Citizenship Register in the future. It is also unknown whether the Senate will require the same detailed eligibility information as per proposed Form DB for senators who are appointed to casual vacancies under section 15 of the Constitution and who have therefore not contested an election. The Explanatory Memorandum notes that that section 15 appointments do not constitute an election, and that the eligibility of individuals so appointed is a matter for the Senate.[27]

While completing ‘every mandatory question’ is a requisite for a valid nomination under section 170 of the CEA (item 27), the nomination is still valid if answers to the questions are incorrect, false or inadequate (proposed subsection 170(1A), item 28). Any question in the checklist where the answer is yes, no, unknown or N/A is a mandatory question (item 6)—that is, every question in the questionnaire that is not a free text field.

Documents that support the assertions made in the nomination form of a candidate that they have renounced citizenship of another country or lost the status as citizen or subject must also be provided with the nomination for it to be valid (proposed subsection 170(1B), item 28). Further details about the form and content of this documentation are provided in proposed section 170B (item 29).

The AEC cannot use the information on the checklist to determine the eligibility of the candidate to stand for election (only whether the candidate has answered every mandatory question, item 29, proposed subsection 170A(2)).

However if the nomination is accepted by the AEC but either all of the mandatory questions were not answered or the documentation was not provided, that does not invalidate the nomination and hence any resulting election (proposed subsection 170A(4)).

The CEA includes provisions under Division 1 of Part XXII to petition the Court of Disputed Returns to dispute the validity of any election. Paragraph 355(c) allows the petition to be submitted by a candidate in the disputed election or any person qualified to vote in that election, and paragraph 355(e) requires the petition to be filed within 40 days after the return of the writ for the election.

It is highly likely that unsuccessful candidates and voters in an election may attempt to use the information contained in the qualification checklist of a successful candidate to dispute the successful candidate’s election by petition to the Court of Disputed Returns on the grounds of invalidity under section 44 of the Constitution. The requirement that the forms be available specifically for the period of time in which the election can be appealed to the Court of Disputed Returns suggests that the forms are designed to aid such challenges.

The effect of this Bill may be that such petitions to the Court of Disputed Returns become a common post-election occurrence.

Under section 357 the AEC is also entitled to file a petition disputing an election.

The nomination deposit

Section 170 of the CEA requires that as a requisite for nomination for election, an amount (referred to by the AEC as the nomination deposit) must accompany the nomination paper (subsection 170(2)) as legal tender or a bank cheque (subsection 170(3)). The amount of the nomination deposit is $2,000 for nomination as a Senator or $1,000 for nomination as a member of the House of Representatives.

Item 28 of Schedule 1 to the Bill repeals and replaces subsections 170(2) and (3) and imposes a nomination deposit of $2,000 for nominations to both the Senate and the House of Representatives. It also requires that the nomination deposit be made in a manner approved by the Electoral Commissioner, including electronic funds transfer (proposed subparagraph 170(2)(b)(ii)) and provides that the Electoral Commissioner may in writing approve a manner of giving a deposit (proposed subsection 170(3)).

The Explanatory Memorandum notes that the increase in the nomination deposit for the House of Representatives brings it to parity with nomination to the Senate.[28] Changes to the nomination deposit were not among the recommendations from the JSCEM’s report.

The nomination process

In addition to the nomination deposit and the qualification checklist, the Bill would implement a number of other changes to the mechanics of the nomination process. These changes largely fall into two categories. The first is removing references to a ‘nomination form’ and replacing the form with a less paper-centric nomination process, allowing for online lodgement of nominations. The second is removing the requirements that nominations be to a specific AEC officer, allowing the Electoral Commission more flexibility in delegating these functions.

The process of nomination is governed by Part XIV of the CEA. Subsection 170(2) specifies that a nomination is not valid unless the ‘nomination paper or a facsimile of it’ is received by a specified AEC officer. The CEA defines a facsimile as ‘a copy of a nomination paper that has been reproduced by facsimile telegraphy or any other means’ (subsection 4(1)). Fax machines, however, are no longer the ubiquitous form of communication they once were, and reference to facsimile is removed from section 170 by item 28 while the definition of facsimile in subsection 4(1) is repealed by item 5.

A number of items in the Bill serve to replace the requirement to fill out a paper nomination form (which in most cases is simply a printed version of a document the candidate has downloaded from the AEC’s website) with a more flexible requirement that the Electoral Commissioner ‘may determine, in writing, the manner in which nominations are lodged’ (item 13, proposed section 167). Item 2 includes an amendment to subsection 4(1) that notes that an ‘approved form’ might be published on the AEC website, and might involve giving a notice through ‘a specified web portal’.

The removal of the requirement to complete a paper-based form means that the Bill contains a number of provisions removing reference to a ‘nomination paper’ or ‘nomination form’, and substituting that with ‘nomination’ (eg., items 9, 11, 12 and 26). Further, in place of a facsimile, the Bill requires only that the ‘nomination is received’ (item 28).

Enabling an online submission of a nomination also allows for a means of transmitting any additional information required by the qualification checklist to the AEC. Proposed subsection 170B(1) (item 29) requires that documents supporting claims made in the qualification checklist must be provided with the nomination form, and proposed paragraph 170B(2)(b) provides that the Electoral Commissioner may determine the documents be in a particular electronic format. This provision appears to serve the dual purpose of enabling a submission of the required documentation, but also enabling the publication of that documentation by the AEC, as required by proposed section 181A (item 54).

These proposed changes also generally include provisions that formalise the ‘bulk nomination’ process, which is the process by which a registered officer of a political party may nominate multiple endorsed candidates to House of Representatives seats (eg., items 4 and 13). While the concept of bulk nominations exists in the CEA, the way these nominations are referred to across the Act is not consistent (for example, while bulk nominations are currently enabled by subsection 167(3), the term ‘bulk nomination’ is only actually used in the Act in section 177). Item 13 repeals section 167 and replaces it with a section that makes explicit the capacity for bulk nominations without substantially changing the operation of that section.

A number of other items are purely consequential to the Bill’s use of the term bulk nominations. These include items 31, 36 and 53.

The CEA requires that nominations for election to the House of Representatives must be made to the Divisional Returning Officer (DRO) of the division to which the candidate is nominating and nominations for election to the Senate must be made to the Australian Electoral Officer (AEO) of the state to which the candidate is nominating (section 176). Bulk nominations may be made to the AEO of the state in which the candidates are nominating.

A substantial proportion of Schedule 1 of the Bill relates to removing the provisions containing references requiring specified officers to receive nominations and the like, and replacing those with references to the Electoral Commissioner for those purposes, and consequential amendments flowing from this change. This includes items 12, 13, 14, 15, 16, 18, 20, 22, 28 (proposed subsection 170(2)), 29 (proposed subsection 171(2)), 30, 37, 40, 44 and 45 (Electoral Commissioner added to the officers who can conduct a declaration of nominations), 46, 48, and 51. The nomination forms in Schedule 1 of the CEA are also amended to address the nomination to the Electoral Commissioner (items 71, 74, 76, 78 and 81).

In addition, several references to the Electoral Commission are replaced with references to the Electoral Commissioner. This includes items 10, 19 and 21.

The AEC’s recommendations to the JSCEM included giving the Electoral Commissioner more discretion to delegate certain specific functions, however not specifically in relation to the nomination process.[29] While the AEC submission did recommend amendments to the CEA to allow nominations by means other than fax (such as email), the submission does not appear to envisage that nominations be made to anyone other than the relevant DRO or AEO.[30]

The CEA requires either the DRO or AEO to conduct a declaration of nominations (section 176) where the AEO or DRO publicly produces all nomination papers and declares the names of the candidates and their addresses. The Bill introduces provisions to allow the Electoral Commissioner to nominate an officer to conduct the declaration of nominations (items 37, 40, 44 and 45), to no longer publicly produce the nomination papers (items 38 and 41), and requires the declaration only of the candidate’s town or suburb of residence (items 39 and 42).

Divisional offices as pre-poll polling places

Subsections 200D(1) and 200DD(1) of the CEA provide that ‘the office of the DRO during ordinary office hours or during the hours of polling on polling day’ is a polling place for pre-poll votes. Items 7–9 and 12 of Schedule 2 of the Bill repeal the relevant provisions, leaving designated pre-poll voting centres the only venues for pre-poll voting. The Explanatory Memorandum for the Bill notes that divisional offices could still be declared to be pre-poll polling places under section 200BA of the CEA.[31]

While the AEC has historically had ‘divisional offices’ in each electoral division, it has been increasingly consolidating to fewer offices that hold more AEC staff as the functions for which it once used a ‘shopfront’, such as enrolment, have primarily moved online. This amendment will allow the AEC more flexibility in how it physically locates its staff and other resources for an election.

Pencils in polling places

In one of its recommendations to the JSCEM the AEC recommended that ‘that section 206 of the Commonwealth Electoral Act (1918) be amended to remove the prescription for pencils and allow for pens or pencils to be provided in polling booths’.[32] The AEC argued that it should have the flexibility to provide pens rather than pencils as pens may aid the electronic scanning of Senate ballot papers.[33]

Items 23 (for the CEA) and 95 (for the RMPA) of Schedule 2 of the Bill enact these changes for election day polling places. Item 13 does likewise for pre-poll polling places (for the CEA).

Other provisions

The bulk of Schedule 2 of the Bill, apart from those provisions discussed above, relates to scrutiny processes. Scrutiny is the term used to describe checking and counting of the ballot papers and the logistical processes that make that possible.[34] The term scrutineer, as used in sections 200DA and 200DB of the CEA, is not so much from their role in providing scrutiny over the vote counting process, but in that they are observers of the scrutiny. As such, in general the usage of the term scrutiny in this context does not refer to observers but rather the process of counting the votes.

Items 1 through 93 of Schedule 2 contain provisions implementing amendments to the CEA and items 94 onwards contain essentially identical amendments to the respective provisions of the RMPA. As these simply repeat the CEA provisions they will not be discussed separately here.

Only a small number of the items in Schedule 2 are likely to be noticed by anyone who is not working at a polling place as a polling official or a scrutineer. One main change in the legislation that affects voters is the three questions asked of voters (their name, their address and have they already voted) will be less prescriptive. The CEA states an officer must ask the voter the ‘following questions’ (subsections 200DI(1) and 229(1)) whereas the proposed amendments require the asking of ‘questions in order to ascertain’ that same information (item 15 for pre-poll voting and 52 for election day voting).

Another voter-facing change is that the CEA requires the officer to mark the voter off the certified list after handing the voter the ballot paper(s), whereas the proposed amendments state the name is to be marked off before the ballot paper is given to the voter (item 17 for pre-poll voting and 56 for election day voting). It is likely that this change simply reflects common practice (if a polling officer has just looked up a voter on the certified list it would make sense that they would mark off that voter before handing the voter the ballot papers, rather than risk losing their place in a long list of names).

Item 2 repeals the prohibition on the AEC sending postal ballot papers by means such as fax or email where the material may not have sufficient time to reach the voter by post, and authorises the AEC to send the material in a way that is ‘the most reasonable and practicable in the circumstances’.

Item 24 responds to recommendation 7 from the AEC to the JSCEM to allow the AEC to place administrative markings on ballot papers.[35] This would mean, for example, that batch numbers of scanned ballot papers could be printed on a ballot paper to more easily reconcile the ballot paper and its scanned image.

Item 22 allows the Electoral Commissioner to delegate certain functions in relation to the scrutiny of declaration votes, which the CEA requires be performed by a DRO. Declaration votes are votes that are placed in an envelope and must undergo additional checks before they are entered into the count. These include pre-poll votes cast outside the elector’s home division and postal votes, which must be returned to the home division to be counted, and provisional votes, where the elector could not be found on the certified list.

Items 33 through 50 respond to recommendation 16 of the AEC in relation to declaration vote processing.[36] The amendments create a role for an Assistant Returning Officer, appointed by the Divisional Returning Officer, in receiving votes from polling places. The amendments create a requirement for recording of processing and documentation for all of the officers who handle the declaration votes.

Recommendation 17 of the AEC to the JSCEM relates to the procedures in the CEA around counting and packaging ballot papers to ‘speed up procedures without compromising any element of the process’.[37] These recommendations are implemented in items 65 through 77.

Items 78 through 87 amend a number of provisions in section 340 to either consolidate and simplify the provisions, or expand provisions that apply to polling places to also apply to pre-poll polling places. These include the restriction on certain activity, such as canvasing for votes, within six metres of a polling place or pre-poll polling place, as noted by the Minister in his second reading speech.[38]

Item 91 replaces Form E, the Senate ballot paper layout, to correct a number of drafting errors identified by the AEC in their recommendation 9 to the JSCEM.[39]

A number of the provisions seek to modernise the language in the Acts without changing their meaning. Items 35, 36, 45, 51 and 57 simply replace the word ‘shall’ with ‘must’. This is consistent with the Office of Parliamentary Counsel’s Plain English Manual.[40]

Schedule 3 contains a number of provisions that replace the requirement for the senior DRO for the ACT be appointed to the Redistribution Committee for a redistribution of the ACT’s electoral divisions. The Electoral Commissioner may appoint an AEC staff member to the position instead. The Explanatory Memorandum for the Bill notes that this appointed staff member would be a more senior position to the DRO (who is usually an APS6 officer) and more in line with the requirements for other state redistributions that require the AEO for the state being appointed (usually a Senior Executive Service AEC officer).[41]

Concluding comments

With the possible exception of the increase of the House of Representatives candidate deposit to $2,000, the provisions of the Bill are likely to be uncontroversial. If the Bill is to pass in the 45th Parliament, the currently proposed Parliamentary sitting calendar leaves little time for the provisions of the Bill to commence and for the AEC to put in place the legislated changes to their processes before any elections in 2019.

The vast majority of the provisions in the Bill are a result of the highly prescriptive nature of the federal electoral process. The requirement to legislate to allow the AEC to, for example, change the manual handling processes for declaration votes or to provide pens for voters, is at odds with the AEC’s efforts to be an efficient and effective statutory agency. And while it is understandable that Parliament would want some oversight of the AEC’s practices, enshrining those practices in legislation appears overly restrictive. Electoral legislation of the sort presented by the Bill is likely to be a low priority in terms of the overall legislative agenda of most governments, and introducing such legislation with an election imminent, requiring last minute changes to AEC training and processes, creates considerable risk for the electoral process.

Moving these mechanical elements out of the CEA and into a disallowable legislative instrument would allow the AEC to be much more responsive to its own identified needs, such as ballot paper security practices, while still allowing executive policy making and Parliamentary oversight of these practices.

Many of the AEC’s recommendations to the JSCEM have not been implemented in this Bill. Some of the recommendations relate to the electoral finance provisions of the CEA, and might be addressed in specific future legislation. However some of the recommendations which were not addressed, such altering the form specifying the format of the House of Representatives ballot paper to include the year to ensure consistency with the Senate ballot paper, seem reasonably uncontroversial and would conceivably have been within the scope of this Bill. The Government has not commented on why these missing recommendations have not been addressed, however the Explanatory Memorandum notes that further changes to the CEA are envisaged in the future.[42]

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[1].              Joint Standing Committee on Electoral Matters, Inquiry into matters relating to Section 44 of the Constitution, inquiry homepage.

[2].              Joint Standing Committee on Electoral Matters, Inquiry into matters relating to Section 44 of the Constitution, Terms of Reference, Canberra, 2017.

[3].              See, for example, G Pemberton, ‘Exactly when did Britain become a foreign power?’, The Australian, 7 November 2017, p. 14.

[4].              M Killoran, ‘Citizenship poll risks remains’, The Herald Sun, 9 July 2018, p. 6.

[5].              Joint Standing Committee on Electoral Matters (JSCEM), Excluded: the impact of section 44 on Australian democracy, JSCEM, Canberra, May 2018, p. x.

[6].              Ibid.

[7].              House of Representatives, ‘Citizenship register – 45th Parliament’, Australian Parliament website; Senate, ‘Citizenship register’, Australian Parliament website.

[8].              JSCEM, Excluded, op. cit., p. 60.

[9].              B Morton, Minority report, JSCEM, Excluded, op. cit.

[10].              Explanatory Memorandum, Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018, p. 3.

[11].              Excluded, op cit., p. xix.

[12].              JSCEM, Third interim report on the inquiry into the conduct of the 2016 federal election: AEC modernisation, Canberra, JSCEM, June 2017.

[13].              Ibid, p. xiii.

[14].              Australian Electoral Commission (AEC) Submission to the Inquiry into and Report on all Aspects of the 2016 Federal Election and Related Matters, [submission 66], various dates. 

[15].              JSCEM, Third interim report, op. cit., pp. 38–39.

[16].              Ibid., p. 16.

[17].              Ibid., pp. xiii–xiv.

[18].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 15, 2018, 5 December 2018, p. 7.

[19].              Ibid., p. 10.

[20].              Explanatory Memorandum, p. 5.

[21].              AEC, House of Representatives Nominations by state and Senate Nominations by state, 2016 Federal Election Tally Room, AEC website.

[22].              Explanatory Memorandum, p. 5.

[23].              The Statement of Compatibility with Human Rights can be found at page 7 of the Explanatory Memorandum to the Bill.

[24].              AEC, Changes to nomination process for candidates, media release, 31 May 2018.

[25].              Electoral and Referendum Amendment (Eligibility) Regulations 2018 and Electoral and Referendum Regulation 2016.

[26].              C Pyne, ‘Proposed Citizenship Register’, House of Representatives, Votes and proceedings, 88, 2016–17, 4 December 2017, p. 1235; G Brandis, ‘Proposed Citizenship Register’, Senate, Journals, 68, 2016–17, 13 November 2017, p. 2179.

[27].              Explanatory Memorandum, op. cit., p. 20.

[28].              Ibid., p. 22.

[29].              AEC, Submission, op. cit.

[30].              JSCEM, Third interim report, op. cit., pp. 37-38.

[31].              Explanatory Memorandum, op. cit., p. 42.

[32].              JSCEM, Third interim report, op. cit., p. 38.

[33].              Ibid.             

[34].              AEC, ‘Scrutineers Handbook: The Scrutiny’, AEC website, 1 June 2018.

[35].              Third interim report, op. cit., pp. 31–32.

[36].              Third interim report, op. cit., pp. 35–36.

[37].              Third interim report, op. cit., p. 37.

[38].              A Hawke, ‘Second reading speech: Electoral Legislation Amendment (Modernisation and Other Measures) Bill 2018’, House of Representatives, Debates, 29 November 2018, p. 11979.

[39].              Third interim report, op. cit., p. 32.

[40].              Office of Parliamentary Counsel (OPC), Plain English manual, OPC, Canberra, 1993.

[41].              Explanatory Memorandum, op. cit., p. 70.

[42].              Explanatory Memorandum, op. cit., p. 4.