Introductory Info

Date introduced: 12 August 2021
House: House of Representatives
Portfolio: Finance
Commencement: All provisions in the Bills commence the day after Royal Assent, except for Schedule 1, Part 2 of the Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021 which commences on the later of the day after Royal Assent and immediately after the commencement of Schedule 1 to the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021.

The Bills Digest at a glance

The Bills Digest examines the issues and provisions in four Bills that propose to amend the Commonwealth Electoral Act 1918. The key features that are discussed in this Bills Digest in each of the Bills are listed below.

Electoral Legislation Amendment (Party Registration Integrity) Bill 2021 (Party Registration Integrity Bill):

• prevents a new party being registered with a name that includes a word that is in the name of an already registered political party, unless the latter party consents to the registration and allows a political party (the first registered party) to object to the continued use of another registered party’s name (the later registered party), if the later registered party uses a word in its name which is also in the first registered party’s name and
• increases the required number of members for registration of a political party from 500 to 1,500.

Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021 (Electoral Offences and Preventing Multiple Voting Bill):

• requires a person who is suspected or convicted of multiple voting to only vote at elections by declaration vote and
• increases the penalty and clarifies the scope of behaviour covered by the offence of interfering with political liberty.

Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Bill 2021 (Counting, Scrutiny and Operational Efficiencies Bill):

• restricts early voting to 12 days prior to polling day
• allows the Australian Electoral Commission to sort ordinary pre-poll votes into candidate piles, but not count the votes, from 4 pm on polling day, and to perform certain processing of declaration votes, such as postal votes, but not count the votes, in the five days before polling day
• removes the requirements to list the printer and the printer’s address for election material such as leaflets and stickers
• allows certain postal votes to be counted if they are not correctly placed inside the envelope attached to the postal vote certificate and
• clarifies the number of scrutineers allowed to observe the counting of Senate ballot papers.

Electoral Legislation Amendment (Political Campaigners) Bill 2021 (Political Campaigners Bill):

• decreases the required expenditure for an entity to be classed as a political campaigner for the purposes of reporting donations and other political finance matters.

Purpose of the Bills

The purpose of the Bills is to amend the Commonwealth Electoral Act 1918 (the Act) to implement a selection of changes recommended by the Parliamentary Joint Standing Committee on Electoral Matters (JSCEM) from recent post-election inquiries. These include changes to political party registration requirements, changes to the time permitted for early voting and some of the counting processes for early votes and declaration votes, and the requirements for classification as a political campaigner. The Bills also contain a range of other minor provisions, consequential amendments, and some minor legislative tidying.

Structure of the Bills

The structure of the Bills is relatively straightforward, with each Bill having one or two major provisions and several minor provisions. The only notable feature is that Schedule 1, Part 2 of the Electoral Offences and Preventing Multiple Voting Bill is contingent on the passage of Counting, Scrutiny and Operational Efficiencies Bill 2021 as it amends proposed clause 17A of Schedule 3, which would be inserted by item 26 of the latter Bill.

Background

The JSCEM routinely conducts an inquiry into each federal election and releases one or more reports with recommendations. The recommendations generally respond to issues which occurred during the particular election or have been long-standing issues around elections. Generally, the Australian Electoral Commission (AEC) will also make one or more detailed submissions to the inquiry, often with its own recommendations.[1] While the Government has a majority on the Committee, governments typically do not take up all or most of the recommendations that JSCEM reports make.

The Bills discussed in the current Bills Digest were introduced by the Government with little warning or fanfare. While many of the provisions respond in some way to recommendations from JSCEM election inquiries, they represent something of a random assortment of recommendations, with little or no apparent rhyme or reason.

Prior to the introduction of these four Bills the responsible Minister released an Exposure Draft of proposed amendments to the candidate qualification checklist in the Act, which must accompany candidate nominations for election.[2] This presumably was the basis for the Electoral Legislation Amendment (Candidate Eligibility) Bill 2021, which was noted by the Senate Selection of Bills Committee along with the four Bills discussed here.[3] It is not known when that Bill might be introduced or why it was not introduced with the other Bills.

The four Bills each address a number of issues, and the specific backgrounds of each of these issues is addressed under the ‘Key issues and provisions’ section of this Bills Digest.

Committee consideration

The Senate Selection of Bills Committee has deferred consideration of the Bills[4] at the time of publication. The Senate Standing Committee for the Scrutiny of Bills has not yet considered the Bills, nor has the Parliamentary Joint Committee on Human Rights.

The provisions in the Party Registration Integrity Bill in particular might benefit from a referral to the JSCEM. In recent years most electoral Bills have been referred to JSCEM for consideration before debate, however, most recent electoral Bills have also been introduced into the Senate. It is therefore possible that when the Bills pass the House of Representatives and arrive in the Senate, the Senate will refer them to the JSCEM for consideration and report.

Policy position of non-government parties/independents

In a media release, the Greens expressed an objection to several of the provisions of the Bills:

We oppose the increase of members from 500 to 1500 for a political party to gain federal registration. Whether a party gets representation in the parliament should be based on how many people vote for them, but this Government wants to stop smaller parties from being able to even seek votes.

We also reject the proposal to lower to $100,000 the electoral expenditure threshold at which an individual or organisation would have to register as a political campaigner. This is another dangerous attack on civil society groups and an attempt to limit their advocacy by adding additional financial and disclosure burdens.

We are also concerned about the plan to block parties from using names similar to existing parties. While we have some sympathy for ensuring that parties don’t impersonate rivals for electoral gain, there’s a fine line between preventing deliberate misrepresentation and excluding smaller parties from electoral politics.

In context with the other proposed changes it’s clear the Government’s motivation is to prevent legitimate and democratic challenges to their grip on power.[5]

Media reports have indicated that senators Rex Patrick and Jacqui Lambie also oppose the Party Registration Integrity Bill.[6] The provisions of the other Bills do not appear to have drawn any commentary.

It has been reported that Labor will support most of the Bills, but will not back the provisions to change the threshold at which a third party is considered a political campaigner (the provisions of the Political Campaigners Bill).[7]

Position of major interest groups

The Bills have been in the public sphere for a relatively short period at the time of publication of this Digest and have received relatively little commentary other than by those with a deep interest in the minutiae of electoral law.

ABC election analyst Antony Green published a blog post summarising the provisions and is generally supportive of the changes. On the topic of the party name provisions he notes:

The other change in this Bill concerns tightening rules on allowed party names. The new rules make it much clearer that parties cannot be registered if they have a name that is similar to that of another party. Words like "Alliance", "Democratic", "Australia" and "Party" are excluded in deciding whether names are similar.

I think there is one loophole on my reading in that "Coalition" is not currently the name of a registered party and so could be used in a new party name, even though it is a term in common use to describe the Liberal-National Party Coalition.

Clearly, this amendment is designed to stop incidents such as occurred at March’s Western Australian election when the Flux Party re-named itself "Liberals for Climate". The Liberal Party have complained in the past about the registration of "liberals for Forests", the "Liberal Democrats", and most recently the "New Liberals".[8]

As discussed later in this Bills Digest Mr Green also discussed the party membership number provision in more detail in a separate post. Again, he is generally supportive of the measures.[9]

Election law expert Professor Graeme Orr examined the party naming provisions of the Party Registration Integrity Bill. He succinctly noted:

People may differ about the Bill’s justification. But one thing is clear to a lawyer: as drafted, the Bill is cooked. It overreaches and is not well drafted.[10]

Professor Orr’s main objection to the increase in the number of party members for registration is that it will favour richer parties that can afford not to have their members pay.[11]

Tasmanian-based election analyst Dr Kevin Bonham also considered the proposed party name provision. He notes:

The evidence… has been that many voters across the full spectrum, when seeing one party name on the ballot that resembles a major party's name, will draw the conclusion that it is the major party and vote for it before they have even seen the other party's name - and given the size of some Senate ballot papers this is hardly surprising. The most famous case was the 2013 election of David Leyonhjelm (Liberal Democrats) as a Senator for NSW courtesy of drawing Column A on a ballot paper so massive that magnifying glasses were needed and issued to read it, with the Liberals buried way over in Column Y. However there has also been the systematic evidence re the ballot paper placements of the LDP and DLP and how that impacts on their votes.[12]

Dr Bonham notes that an issue with the Bill is how it privileges the party that ‘got there first’, regardless of whether that party espouses the politics implied by their party name. Dr Bonham also considers the increased party membership requirements, which he notes will likely result in the deregistration of some small parties.

Financial implications

According to the Explanatory Memoranda for the Bills, the financial implication of the Bills is either cost neutral, in the case of the Political Campaigners Bill, or unquantifiable, in the case of the other three Bills.[13]

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 Bills’ 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 Bills are compatible.[14]

Key issues and provisions

The key issues and provisions of the Bill are discussed below (and in the ‘Other provisions’) section. The issues are ordered roughly by significance, rather than the order in which they appear in the Bills.

Party names

Probably the most contentious of the provisions of the four Bills are those in the Party Registration Integrity Bill that relate to the naming of political parties. In short, these provisions would:

• prevent the AEC from registering a new political party with a name that includes a word that is in the name of an already registered political party, unless the latter party consents to the registration and
• allow a political party (the first registered party) to object to the continued use of another registered party’s name (the later registered party), if the later registered party uses a word in its party name which is also in the first registered party’s name.

Section 129 of the Act specifies certain restrictions on the use of party names. These include a party name that:

3. is the name, or is an abbreviation or acronym of the name, of another political party (not being a political party that is related to the party to which the application relates) that is a recognised political party;
4. so nearly resembles the name, or an abbreviation or acronym of the name, of another political party (not being a political party that is related to the party to which the application relates) that is a recognised political party that it is likely to be confused with or mistaken for that name or that abbreviation or acronym, as the case may be; or

105. is one that a reasonable person would think suggests that a connection or relationship exists between the party and a registered party if that connection or relationship does not in fact exist.[15]

These provisions have generally not been successful at preventing the registration of party names that are similar to existing party names, including in some cases where there is reasonable evidence that it has led to voter confusion.[16] The operation of the provision is contentious enough that the AEC has an explainer on its website as to how it has approached the topic and the legal basis for that approach.[17]

Item 7 of the Party Registration Integrity Bill would amend section 129, to provide that once a party has been registered, the words in that party’s name cannot be used in the name of another party without the first party’s consent. Items 10 through 14 would amend section 134A and apply similar word-use restrictions in relation to the continued use of a registered party name. That is, the same requirements will apply for new party names and existing party names (if another party objects to the use of the word, in the case of existing party names, or does not consent in the case of new party names).

The exceptions to the reserved word requirements are words that are:

1. a function word; or
2. a collective noun for people; or
3. the name of a country, the word “country”, or a recognised geographical place in Australia; or
4. the word “democratic”.[18]

In relation to those specific terms, the Explanatory Memorandum states:

The phrases “a function word”, “a collective noun for people”, and “the name of a country”, and word “country” in new subsection 129(4) [sic] are to be given their ordinary meaning.

The Macquarie Dictionary of Australia defines a ‘function word’ to mean “a word, like the or of , which may add meaning to, or show relationships between, content words in a given sentence but does not refer the mind to any entity outside the sentence”.

‘Collective noun for people’ is intended to include words including, but not limited to ‘Party’, ‘Group’, ‘Alliance’, ‘Network’ and ‘Team’.[19]

The consent to use a reserved word (and here reserved is being used to indicate that another party had registered a party name with that word first—there is no actual process to reserve a name other than having it occur in a registered party’s name first), and the right of objection to use the word (item 14), falls to the party with that word that was registered first. However, it is worth noting that party registration has only been required since 1984 (prior to 1984 ballot papers did not include party names, only candidate names), so even the longest-standing party registrations for Australian federal elections only date to 1984 (22 June 1984 for the Liberal Party and 31 May 1984 for the Nationals and Australian Labor Party, according to the AEC’s register of political parties).[20]

In relation to the objection to continuing use of a party name (section 134A), the Bill specifies that if two parties share a word in their name (unless the word is a function word, a collective noun for people, the name of a country or place or the word ‘democratic’, item 7), the first party that was registered (and only the first party) may lodge an objection to the AEC in relation to the continued use of that name by the second party. If the AEC is satisfied that this is the case, it must uphold the objection and the second party will be given the option to change their name (within one month) or be deregistered.[21]

Subitems 20(4) and 20(5) of the Bill specify how the provisions relating to party names will take effect.

Item 20(4) provides that the amendments to sections 129 and 129A will apply to applications for registration of new parties (section 129) and party logos (section 129A) made after commencement. As set out above, the Party Registration Integrity Bill commences on the day after Royal Assent.

Item 20(5) provides that the amendments to section 134A (objections to continued use of a party name) apply to all parties, whether registered before, on or after the Bill commences.

The actual process of deregistration is specified in existing section 137 of the Act, and it involves a number of steps, including an opportunity for the party subject to deregistration to submit a statement ‘setting out reasons why the party should not be deregistered under this section’ (subsection 137(2)), which must be considered by the Electoral Commission (subsection 137(5)).

Section 141 provides a process for review of decisions, including review of a decision to deregister a party (paragraph 141(1)(e)). In short, if the original decision was made by a delegate of the Electoral Commission it can be reviewed (and potentially reversed) by the Electoral Commission (subsection 141(2)) and a decision to deregister by the Electoral Commission, or a review of a delegate’s decision by the Electoral Commission, can be reviewed by the Administrative Appeals Tribunal (AAT, subsection 141(5)).

The case of the Liberal Democrats in the 2013 NSW Senate election noted above is one example of where party names have been contested in the past, however, the most famous case under the Act is the case of ‘liberals for forests’ (the party name was registered with the initial ‘L’ as lower case).

Liberals for forests applied for registration in 1999, and when the registration application was published the AEC received nine objections, including from the Liberal Party of Australia and the Liberal Party of Western Australia. The application was rejected by the delegate of the Electoral Commissioner and on appeal to the Electoral Commissioner the delegate’s decision was upheld. An application was then lodged with the AAT and the Tribunal set aside the Electoral Commissioner’s decision and ordered that ‘liberals for forests’ should be registered as a political party under the Act.[22]

Relatedly, it is at least possible that the name of a political party constitutes political speech, as it often conveys a political message. If this is the case, then the intended purpose of preventing confusion may not be sufficient to pass the threshold to be an allowable burden on the freedom of political communication. Thus, the provision may potentially be overturned by the High Court on the basis that it violates the implied freedom of political communication in the Australian Constitution. A full examination of this issue is beyond the scope of this Bills Digest, however, it is worth highlighting as an unresolved issue.

It seems quite likely that any deregistration on the grounds of reserved party names, particularly of long-standing political parties that have had legitimate, long-standing engagement in Australian federal electoral politics, is likely to result in appeals (certainly to the AAT, and potentially to the High Court), and that the process will inevitably place the AEC in the position of adjudicating between political parties on the basis of little more than who was there first.

As an example of the potential effects of the party name provisions, according to the provisions of the Bill the Australian Labor Party (ALP) should have standing to appeal the continued use of the Democratic Labour Party’s (DLP) name as the ALP was first registered on 31 May 1984 and the DLP on 20 July 1984 as they both include the word Labo(u)r.[23] This is despite the fact that the DLP has been involved in Australian federal electoral politics for almost 40 years and has had its candidates elected to the Parliament. Section 134A with the proposed amendment makes it clear that the Electoral Commissioner must require the DLP to change its name or be deregistered if it receives an objection from the ALP.

Party membership numbers

Items 1 to 4 of the Party Registration Integrity Bill seek to increase the number of members that a non-Parliamentary political party must have for registration for Australian federal elections from 500 to 1,500 members.

Item 2 clarifies that, for the purposes of having sufficient members for registration, a person cannot be relied upon by more than one party, and if more than one party nominates that person as a member that person must specify which of those parties their membership should be counted against. This does not mean that a person may not be a member of more than one political party, only that the person cannot be counted against two parties for the purpose of establishing that the parties have 1,500 members.

Item 3 clarifies that the minimum membership numbers only applies to a party that is not a Parliamentary party. A Parliamentary party is defined under subsection 123(1) as ‘a political party at least one member of which is a member of the Parliament of the Commonwealth’. Parliamentary parties do not have a membership requirement.

The Parliamentary party provisions have been used most commonly in recent years by parliamentarians, particularly senators, who have been elected under one party and leave that party to form their own party. In practice, it helps incumbents have their name above the line on the Senate ballot paper when they next face election.

Item 20 allows currently existing political parties three months after Royal Assent to establish that they have 1,500 unique members before they risk deregistration due to membership numbers.

None of the provisions in the Bill or the Act place any requirement on the form that party membership must take. All that is required is that the member is enrolled and, if contacted by the AEC, confirms that they are a member of the party.

The Explanatory Memorandum for the Bill notes that the provisions respond to Recommendation 4 from the interim report of the JSCEM inquiry into the 2013 federal election and Recommendation 4 from the JSCEM inquiry into the 2016 federal election.[24]

Recommendation 4 of the interim report into the 2013 federal election states:

The Committee recommends that sections 126, 132, 134 and any other relevant section of Part XI of the Commonwealth Electoral Act 1918 be amended to provide for stronger requirements for party registration, including:

• an increase in party membership requirements to a minimum 1 500 unique members who are not relied upon for any other party in order for a federally registered party to field candidates nationally;
• the provision to register a federal party, that can only run in a nominated state or territory, with a suitable lower membership number residing in that state or territory, as provided on a proportionate population or electorate number basis;
• the provision of a compliant party constitution that sets out the party rules and membership process;
• a membership verification process;
• the conduct of compliance and membership audits each electoral cycle; and
• restriction to unique registered officers for a federally registered party.

The Committee further recommends that the Government adequately resource the Australian Electoral Commission to undertake the above activities.[25]

Recommendation 4 of the JSCEM report into the 2016 federal election was:

The Committee recommends that the Commonwealth Electoral Act 1918 be amended to:

• increase party membership requirement to a minimum 1,000 unique members who are not relied upon for any other party in order for a federally registered party to field candidates in a federal election; and
• require that parliamentary parties not be exempt from party registration requirements by virtue of their Parliamentary representation.[26]

The context of the 2013 recommendation was the increasingly unwieldy size of the Senate ballot paper and the contribution of the proliferation of ‘micro’ parties that had no real policy or membership base to preference harvesting. This issue was essentially remedied by the Commonwealth Electoral Amendment Act 2016, which changed the Senate voting system, removing group voting tickets and the easy ability to engage in preference harvesting.

In its 2016 election report the JSCEM reported that the Senate voting system reforms ‘had met the intent expressed by this Committee’s predecessor’, but considered that it was worth revisiting the party registration rules.[27]

Nonetheless, the Committee considers that it is timely to review party registration requirements. While the Committee does not wish to discourage people from forming political parties and engaging in our democratic processes, the Committee also does not want voters to be confronted with such a large ballot paper that they cannot find who they want to vote for.

Increasing political party membership requirements strikes an appropriate balance between these two aims. Therefore the Committee is recommending that party registration criteria be strengthened and all current parties be deregistered and required to re-register against the strengthened criteria.[28]

It is worth noting that the Recommendation that the Bill responds to also recommended removing the Parliamentary party provisions. The Committee stated in relation to Parliamentary parties:

In addition, the Committee questions the provisions in the Act that provides automatic political party status to any parliamentary party that has a member in the Parliament. If current Senators and Members have community support, meeting general party registration requirements should not be onerous.[29]

The Government has not responded to that report of the JSCEM and the Explanatory Memorandum does not mention Parliamentary parties other than to note that they are not covered by the provisions of the Bill.

In his relatively detailed analysis of the party number changes in the Bill, ABC election analyst Antony Green wrote:

There is nothing magical about the 500 membership number, or 1,500. But it is my opinion that given the ease with which parties can nominate candidates in comparison to the hurdle faced by Independents, there is justification for introducing a higher membership threshold.

After all, it is evident from Senate results at the 2019 Senate election that voters are not craving the quantity of parties offered on ballot papers. Voter support for some parties is so low, you have to ask whether voters would notice if they weren't there.[30]

He noted that the 500 member number dated from the introduction of party registration in Australian federal elections in 1984, and was essentially arbitrary. He further noted that most states now have much more stringent registration requirements than federal party registration.

Early voting

Currently, the start of early voting is dependent on the dates of other key election processes, as specified by the writ for the election. Under section 200D of the Act an application for a pre-poll vote may be made no earlier than the fifth day after the close of declaration of nominations. The declaration of nominations is the day after the close of nominations (subsection 175(2)) and the close of nominations is specified by the writ and must be between 10 and 27 days after the issue of the writ (subsection 156(1)). The pre-poll period then extends to the day before election day.

The fixing of the start of the pre-poll period to the date of nominations, which is variable, means that the pre-poll period length varies from election to election, depending on the dates specified in the writ. The relationship of the elements that determine the length of pre-poll period is presented in more detail in Appendix A of a Library publication on election dates.[31] Essentially, however, depending on the dates specified by the writs, the pre-poll period can currently be between 18 and 25 days.

Due to the timings nominated by the writs the 2019 federal election saw a pre-poll period of three weeks, whereas in 2013 and 2016 early voting commenced on the Tuesday three weeks before the election, resulting in a pre-poll period that was one day shorter.[32]

In its report into the 2019 federal election the JSCEM recommended that early voting be limited to two weeks before the election. Recommendation 8 stated:

The Committee recommends that, as per its recommendation in the 2016 election report, the pre-poll period be statutorily limited to be a maximum of two weeks prior to election and that the Australian Electoral Commission provides parties and candidates with the earliest possible advice about pre-poll locations as they are booked.[33]

The Committee noted that, while pre-poll voting was convenient for voters, it was less convenient for parties and candidates.

Pre-poll creates expense for the AEC and presents challenges for candidates and political parties to staff booths.

The JSCEM notes that the AEC has acted within the remit of the Electoral Act and the pre-poll period for the 2019 election was only a day longer than the 2016 election. However, more significantly, the AEC sizeably increased the number of pre-poll locations. While this intentionally mitigated against the risk of queues on election day, and was an effective strategy for that purpose, it adversely affected those who contested the election because of the challenge of finding volunteers to canvas for support at each location.

The JSCEM recommended in its report on the 2016 election that pre-poll be reduced to two weeks. Subsequent reaction to the 2019 election, at which the AEC stepped up its pre-poll footprint, has led to renewed calls for a two week limit. The consensus is that a two week period best balances the opportunity to participate in an election as a voter, with the logistic demands placed on those who participate as contestants. A two week period is still a lengthy time window in which electors can choose to vote.

The JSCEM finally notes that a shorter pre-poll period will provide an improved opportunity for the AEC to select the best locations that offer superior access in terms of parking, disabled entry, toilets and waiting areas that are sheltered from the weather and/or afford seating for people who have difficulty standing. The extra time to plan and secure pre-poll locations should also help mitigate against uneven geographic selection of sites, where booths are either in excessive proximity or excessively distant.[34]

Item 6 of the Counting, Scrutiny and Operational Efficiencies Bill would amend section 200BA to require the Electoral Commissioner to declare the dates for which pre-poll voting is available (existing paragraph 200BA(1)(b)) be no more than 12 days before the polling day of the election, and that the dates for early voting must not be a public holiday in the state or territory for which it applies. This implies that the Electoral Commissioner could require different pre-polling voting periods for different states and territories. This section currently requires the Electoral Commission to declare in writing places and times for pre-poll voting (within the pre-poll period specified by the writ).

Item 7 would repeal the subsections of section 200D that specified that pre-poll voting could commence five days after the close of nominations, as the dates will now be specified by the Electoral Commissioner.

Interestingly, these proposed provisions do not appear to impose an obligation on the Electoral Commissioner to set a minimum, or in fact any, period for pre-poll voting. The Explanatory Memorandum for the Bill does nothing to contradict this interpretation. While the Electoral Commissioner has always had the discretion as to where to locate pre-poll voting centres (with the exception of the requirement to allow AEC divisional offices to be pre-poll centres, which was repealed with the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020), the discretion of the Electoral Commissioner to specify how long the pre-poll voting period will be is new.

Under the proposed amendments, the time period specified by the Electoral Commissioner in proposed subsection 200BA(1AA) would apply for both ordinary pre-poll votes (generally, a pre‑poll vote cast in the elector’s division) and declaration pre-poll votes (which are generally votes outside the elector’s division). The Bill will not change the time allowed for postal voting.

Counting early votes

Items 16 to 18 and 24 to 26 of the Counting, Scrutiny and Operational Efficiencies Bill relate to the scrutiny process (the physical process of unboxing, sorting and counting the votes) in relation to pre-poll ordinary votes and declaration votes (provisional, postal and early votes cast outside the elector’s division are declaration votes).

In short, these provisions would allow the AEC to open pre-poll ordinary vote ballot boxes and sort the votes into piles for each first preference candidate and informal votes, but not to count the votes, from 4 pm on polling day (which is two hours before the close of polls). In addition, the provisions would allow declaration votes to undergo the declaration scrutiny process and have the ballot papers removed from the declaration envelope and placed in a ballot box, for later counting, from five days before polling day.

Items 17 and 18 of the Bill propose to amend section 274, which relates to the scrutiny of votes in House of Representatives elections. Item 18 would insert a new subsection (proposed subsection 274(2AA)) which would allow certain actions to be performed in relation to pre-poll ballots from 4 pm (two hours before the close of polls) on polling day. Item 17 specifies that the actions allowed in proposed subsection 274(2AA) includes that pre-poll ballot papers may be removed from the ballot box and sorted into piles for each candidate and another pile for informal votes. Proposed section 274(2AA) notes that the allowed actions before 4 pm on polling day do not include the counting of the ballot papers.

Item 18 specifies that scrutineers may be present during the removal of the ballot papers before 4 pm on polling day, however, item 9 would add proposed subsection 218(2B) which makes it an offence if a scrutineer discloses any information about the ballot papers (such as a count of votes for candidates) to a person outside the counting centre before the close of the polls. The penalty for a breach of the proposed provision is imprisonment for six months or 10 penalty units or both.[35] While the Bill would not allow for the counting of ballot papers, it would not necessarily stop a scrutineer from discerning what they could of the count while the ballot papers are folded, and this provision would prevent the scrutineer from sharing that information before the close of polls.

Items 24 through 26 relate to declaration votes. Declaration votes are any votes where the ballot paper is placed in an envelope and the voter signs a declaration saying that the ballot in the envelope is their vote and was completed in accordance with the requirements of the Act. This includes pre-poll declaration votes, absent votes and provisional votes, though the vast majority of declaration votes are postal votes. Declaration votes must pass through a process specified in Schedule 3 of the Act where the details of the declaration vote are verified (is the voter’s address correct, and are they entitled to vote in that division, amongst other things) before the vote is removed from the envelope and placed in a ballot box for counting.

Items 24 through 26 propose to amend Schedule 3 to allow the declaration scrutiny, up to the point where the ballot papers are placed in a ballot box for counting, to take place up to five days before polling day.

The provisions of the Bill do not allow declaration votes to be counted before the close of polls, however, generally declaration votes are counted at a central location for each division (such as the divisional office or another divisional counting centre) from the day after polling day. The proposed provisions should allow postal votes to be entered into the count more rapidly after polling day, however, subsection 228(5A) requires postal votes to be accepted up to 13 days after polling day, so there is a limit as to how much the process can be sped up.

Multiple voting

The provisions in Schedule 1 of the Electoral Offences and Preventing Multiple Voting Bill would create the ability for the Electoral Commissioner to require that a person who is reasonably suspected, or convicted, of multiple voting, to only vote at elections by declaration vote.

As explained elsewhere in this Bills Digest, a declaration vote involves placing the ballot paper in an envelope that bears a signed declaration from the elector that the vote is their vote and that they are entitled to cast it. If, under the provisions of the Bill, an elector is a placed in this category, they will still be able to vote, but if they cast multiple votes under the same name any additional votes will be able to be identified and excluded from the count. However, in practice, it is likely that this is more intended as a disincentive for the specific individual to engage in multiple voting than necessarily a way to identify and exclude multiple votes.

Item 10 would amend the Act to insert proposed Part XVC. Within this Part, proposed section 202AH allows the Electoral Commissioner to declare that an elector is a ‘designated elector’ if the Electoral Commissioner reasonably suspects that person has voted more than once in an election, regardless of whether they have been convicted of multiple voting (however, item 14 specifically notes that a person who has been convicted of multiple voting may be declared a designated elector). This includes multiple voting before the commencement of the Bill (item 15). If the person is charged and convicted of multiple voting, and the conviction is quashed on appeal, the person can no longer be classed as a designated voter (proposed subsection 202AH(3)).

The voter must be given written notice by the Electoral Commissioner of the declaration (proposed subsection 202AH(2)) and the person who is the subject of the declaration can apply for a review of the decision to the Electoral Commissioner (if the original decision was by a delegate of the Electoral Commissioner) under proposed section 202AJ. The voter may also apply to the AAT to review a decision by the Electoral Commissioner or a reviewer (proposed section 202AK).

The primary effect of being a designated elector is that the elector will appear on the certified list of voters at a polling place in the electorate as if they are a silent elector, due to item 11, which requires that a designated elector’s address not be included on the certified list. Silent elector status, which is provided for by section 104 of the Act, allows electors to have their enrolled address suppressed on the roll where ‘the person considers that having his or her address so shown places the personal safety of the person or of members of his or her family at risk’ (paragraph 104(2)(b)). Silent electors are required to vote by declaration vote.

Proposed section 202AL at item 10 requires a designated elector to vote by declaration vote. However, if a designated elector attempts to vote by ordinary vote on polling day (or by pre‑poll ordinary vote), from the perspective of a polling place worker that person will appear as a silent elector and they will be directed to vote by declaration vote.

Designated elector status is not included on any electoral roll extracts prepared by the AEC for, for example, candidates and political parties (items 2 to 6). Once the elector has been notified that they are a designated elector by the Electoral Commissioner, the only externally observable effect of that designation will be that they appear as if they are a silent elector on the roll at the polling place.

The only other effect if the designated elector casts a postal vote, an absent vote, a provisional vote or a pre-poll declaration vote is that, in the declaration scrutiny process, the elector’s ballot papers must not be removed from the declaration envelope before the close of polls, if the early declaration processing provisions discussed above are passed (item 16). Presumably this is to allow officials to determine that no more than one vote from the designated voter will be allowed into the count (once the ballot has been removed from the declaration envelope and placed in the ballot box for counting it is no longer possible to determine who the vote belonged to, to remove it from the count).

The Explanatory Memorandum for the Bill notes that similar provisions are in effect in New South Wales state elections.[36] The Memorandum is silent on what amount of multiple voting the Electoral Commissioner must reasonably suspect before they should take in classifying whether a person who has not been convicted of multiple voting offences should be a designated voter. However, it is worth noting that the worst outcome for an unjustly designated voter is that voting on election day will take a few minutes longer (the time required to fill in a declaration envelope rather than just putting their ballot in the ballot box), and the provisions should never remove the franchise from a voter. The provisions appear more suited to a deliberate and persistent multiple voter than for someone who had a single episode of forgetfulness.[37]

As such, these provisions seem like a proportionate response, however, it is interesting that the Bill does not require the AEC to report in any way how many people the provision applies to, nor that the designation is not time limited or automatically reviewable.

Authorisation provisions

Items 19 through 22 of the Counting, Scrutiny and Operational Efficiencies Bill propose to amend the authorisation provisions for printed electoral material. The effect of the provisions would be to remove the requirement to include the name and the address of the printer for electoral communication that is ‘is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how to vote card authorised by a disclosure entity’ (subsection 321D(5)). The name and address of the entity authorising the communication will still be required. Item 23 is a consequential amendment following from the removal of the requirement to include the details of the printer.

Political campaigners

The Political Campaigners Bill is a short Bill that contains only four items.

The concept of a political campaigner was introduced to the Act with the passage of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 in November 2018.[38] Previously, the Act had imposed identical political finance disclosure requirements on all third parties (that is, those entities that engaged in electoral expenditure that were not political parties, candidates, or associated entities of political parties).[39]

The 2018 Bill amended the Act to divide third parties into third parties and political campaigners; classification of an entity as a political campaigner depended on their electoral expenditure, as set out in subsection 287F(1) of the Act. The main effect of being required to register as a political campaigner is that political campaigners have annual reporting obligations in relation to donations received, debts, and total income and expenditure that are essentially the same as political parties (section 314AB). Political campaigners also have restrictions on receiving donations from foreign donors, which are, again, essentially identical to the restrictions on political parties (section 302D).

The original requirements to register as a political campaigner were the amount of electoral expenditure by the entity (as defined by section 287AB) being $500,000 or more in any one of the past three financial years, or $100,000 or more and electoral expenditure was at least two-thirds of the entity’s revenue during the previous financial year. These amounts are not indexed.

The Bill would change these thresholds to $100,000 in any one of the previous three financial years (item 1, from $500,000) or at least equal to the disclosure threshold in that financial year (item 2, from $100,000) and at least one-third of the revenue during the previous financial year (item 3, from two-thirds). The disclosure threshold is an indexed amount defined in section 287 and is $14,500 for the period 1 July 2021 to 30 June 2022.[40]

In May 2021 the JSCEM released the report of its inquiry into the Review of the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018. The Committee discussed the level at which the political campaigner threshold was set but made no specific recommendations in relation to the level of the threshold. It stated:

The committee also received evidence on whether the political campaigner threshold should be lowered to $100,000. The committee notes that the evidence provided by the AEC is that 27 of 84 third parties are also registered charities and of those, just 10 of those third parties that are charities would be required to register as political campaigners if the threshold were lowered to $100,000.[41]

The Committee concluded:

In summary the committee considers that the relevant parts of the Act are working effectively and have become understood by affected groups. The committee notes there are a variety of conflicting views about possible amendments, but this reflects diverse interest from observers of the political system and is not suggestive of fundamental structural problems.[42]

The Explanatory Memorandum for the Bill notes that this change responds to Recommendation 18 of the JSCEM’s inquiry into the 2019 federal election.[43] The recommendation was:

The Committee recommends that the threshold for political campaigners be reduced to $100,000 or, circumstances where an entity’s expenditure on electoral matter exceeds one third of its annual income, whichever is lower.[44]

The recommendation did not extend to the change proposed by item 2 relating to the disclosure threshold.[45]

Other provisions

The Counting, Scrutiny and Operational Efficiencies Bill contains a number of modernisation or technical provisions which should be non-controversial and are explained adequately in the Explanatory Memorandum for the Bill. These provisions will not be discussed here.

The remining minor provisions in the four Bills are discussed below.

Postal votes in envelopes

When a voter applies for a postal vote the AEC will send them a ‘postal vote certificate’, which is effectively an envelope that has space for the voter’s declaration (their signature and other information). The intention is that the voter will enclose their ballot within the envelope, so that the details of the postal vote can be verified without seeing the ballot paper.

Item 5 of the Counting, Scrutiny and Operational Efficiencies Bill would allow a postal vote to be entered into the scrutiny if the ballot is within an outer envelope, which contains another envelope containing the postal vote certificate, even if the ballot is not within the postal vote certificate envelope.

Number of scrutineers at Senate counting centres

Subsection 264(2) of the Act specifies that a candidate may have no more scrutineers at a counting centre than there are ‘officers’ (who are mostly temporarily engaged staff employed by the AEC). However, Senate ballot papers in elections since 2016 are scanned to perform a computerised count of the votes at centralised counting centres.[46]

During the JSCEM inquiry into the 2016 federal election a question was raised as to whether the data entry operators at the central Senate scrutiny centres counted as officers for the purpose of this calculation. In its report the Committee recommended that ‘data entry operators’ be included as officers for the purpose of this calculation and item 15 of the Counting, Scrutiny and Operational Efficiencies Bill responds to this recommendation.[47]

The specific wording of the inclusion of ‘persons performing the function of second tier data entry operator conducting exception checks at the centre’ in the proposed amendment seems unnecessarily specific, and provides little allowance for specific roles and techniques of scanning which may evolve over time. This level of specificity could have the future effect of excluding persons whom the legislation intends to include. According to the Explanatory Memorandum for the Bill:

The role “second tier data entry operator conducting exception checks” is not a term defined in the Electoral Act. The functions duties of this role include checking and recording the preferences from a ballot paper that has prevented the ballot paper from being determined in the initial data capture and entry process. These reasons for this may include, where:

• there are one or more interpretation differences from the first tier data capture;
• the recorded ballot paper preferences have a sequence error or breakdown, or would make the ballot paper informal;
• an AEC operator is required to make a decision on a captured preference or any other aspect of the ballot paper, or resolve a scrutineer challenge; or
• preferences are required to be entered from the actual ballot paper, or there was an issue with the scanned image requiring resolution.[48]

Penalty for electoral offences

Item 1 of Schedule 2 of the Electoral Offences and Preventing Multiple Voting Bill increases the penalty for breaches of subsection 327(1). The offence is:

A person shall not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under this Act.

The Bill would increase the penalty from imprisonment for six months and/or ten penalty units to imprisonment for three years and/or 100 penalty units. One penalty unit is $222 from 1 July 2020.[49] The item would also add a note that ‘Violence, obscene or discriminatory abuse, property damage and harassment or stalking are examples of conduct that may be an offence under this subsection.’

The Explanatory Memorandum for the Bill notes that this item is in response to Recommendation 16 from the JSCEM report into the 2019 federal election.[50] In its report the JSCEM stated:

Unfortunately, a number of incidences of abusive and damaging behaviour took place throughout the election campaign period which endangered the safety of workers, volunteers and those attending to vote, and marred an otherwise successful event.

Parliamentarians, candidates, campaign staff and party volunteers were subjected to abuse, and properties and vehicles damaged by vandals. In the most extreme example of violence during the campaign, a campaign volunteer was attacked and stabbed with a corkscrew.

Other parliamentarians were subjected to horrific and obscene personal abuse, with incidences of stalking and harassment of a female candidate and anti-Semitic vandalism occurring at various times throughout the campaign.

This escalation in abusive behaviour requires serious consideration and action in order to make the campaign period, and polling day, a safe place for candidates and anyone attending.[51]

The specific recommendation of the Committee was:

The Committee recommends that new offence of ‘electoral violence’ be added to the Electoral Act to address behaviour arising in an election such as violence, obscene or discriminatory abuse, property damage, and stalking candidates or their supporters to intimidate them or make them feel unsafe.[52]

The Memorandum notes that the penalty for the offence was increased in order to align it with other offences in the Act, but does not state why the Government chose to clarify the definition of the subsection 327(1) offence rather than create the new offence, as recommended by the Committee. The Library was unable to find any evidence of a person having previously been convicted under subsection 327(1), or the types of behaviours which may have been caught under the provision.

Concluding comments

The changes to the Act proposed by the four Bills are mostly straightforward and sensible, and generally follow recommendations from the JSCEM inquiries into recent elections. While the cross-partisan nature of the JSCEM’s report and recommendations have varied over recent years as the composition of the Committee has changed, the election inquiries remain a robust and thorough forum for ventilating views on how Australian federal elections are and should be run.

For the most part, the Government has quarantined the most controversial amendments into the Party Registration Integrity Bill.

While the change to the membership requirements for political party registration has attracted some commentary, ultimately the number needs to be set at some level, and that level will inevitably be somewhat arbitrary. Failure to achieve party registration does not prevent contesting an election, it merely means those individuals will need to contest as independents. A party that can only muster either 500 or 1,500 members (who do not need to be charged money for membership) is equally likely to fail to have enough support to win an election, or even reach the four per cent threshold to claim back their nomination deposit,[53] in the smallest Australian federal electorate (which, as of July 2021, was Solomon in the Northern Territory, which had 70,950 enrolled electors).[54]

The decision of the Government to not also remove the Parliamentary party provisions at the same time, as recommended by the 2016 election JSCEM report, is less explicable. It could be argued that the provisions serve no function beyond facilitating the registration of vanity party names. A current Member or Senator, with the national platform that being in the federal parliament affords, who is unable to secure the support of 500 or even 1,500 electors to register their party name, probably stands little chance of re-election anyway.

The new party name provisions will almost certainly result in legal challenges and appeals. There is certainly evidence of party name confusion in federal elections, so there exists ample justification for tightening up the party name registration provisions. However, the provisions as drafted appear contrary to the broader political history of Australian electoral politics, which is replete with party splits and mergers and frequent re-use of certain words and concepts.[55]