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2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL AND REFERENDUM AMENDMENT
(ENROLMENT AND PRISONER VOTING)
BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Special Minister of State, the Hon Gary Gray AO MP)
TABLE OF CONTENTS
OUTLINE ..................................................................................................................... 2
Financial Impact Statement ................................................................................3
NOTES ON CLAUSES................................................................................................ 4
Clause 1 - Short title ..........................................................................................4
Clause 2 - Commencement ................................................................................4
Clause 3 - Schedule(s) .......................................................................................4
Schedule 1 - Amendments relating to close of Rolls ............................................. 4
Overview ............................................................................................................4
Human Rights.....................................................................................................5
Part 1 - Amendments ........................................................................................... 6
Commonwealth Electoral Act 1918....................................................................... 6
Item 1 - After subsection 4(7)............................................................................6
Item 2 - Subsection 94A(4), Item 3 - Subsection 95(4) and Item 4 -
Subsection 96(4) ..................................................................................7
Item 5 - Section 102...........................................................................................8
Item 6 - Subsection 118(5) ..............................................................................10
Item 7 - Section 155.........................................................................................11
Item 8 - Subparagraphs 10(a) and 11(a) of Schedule 3 ...................................11
Referendum (Machinery Provisions) Act 1984 .................................................. 11
Item 9 - Subsections 4(2) and (3) ....................................................................11
Item 10 - Subsection 9(1) ................................................................................12
Item 11 - Subsection 9(3) ................................................................................12
Item 12 - Subparagraph 10(a) of Schedule 4 ...................................................12
Part 2 - Application ............................................................................................ 13
Item 13 - Application .......................................................................................13
Schedule 2 - Prisoner Voting ................................................................................ 13
Overview ..........................................................................................................13
Human Rights...................................................................................................14
Part 1 - Amendments ......................................................................................... 14
Commonwealth Electoral Act 1918 ..................................................................... 14
Item 1 - Subsection 93(2) ................................................................................14
Item 2 - Subsections 93(8) and (8AA).............................................................15
Item 3 - Section 109.........................................................................................16
Item 4 - Subsection 208(2) ..............................................................................18
Item 5 - Subsection 221(3) ..............................................................................19
Referendum (Machinery Provisions) Act 1984 .................................................. 19
Item 6 - At the end of subsection 22(2) ...........................................................19
Part 2 - Application and transitional................................................................ 19
Item 7 - Application and transitional ...............................................................19
ELECTORAL AND REFERENDUM AMENDMENT
(ENROLMENT AND PRISONER VOTING) BILL 2010
OUTLINE
The primary purpose of the Electoral and Referendum Amendment (Enrolment and
Prisoner Voting) Bill 2010 (the Bill) is to amend the Commonwealth Electoral
Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984
(Referendum Act) to give effect to two decisions of the High Court of Australia:
· Rowe v Electoral Commissioner [2010] HCATrans 207 (Rowe), decided on
6 August 2010, which concerned the process following the calling of an
election through the formal issue of a writ, and the period of time allowed for
relevant voters to either ensure that they are on the electoral Roll, or to
update their details (close of Rolls); and
· Roach v Electoral Commissioner (2007) 233 CLR 162 (Roach), decided on
30 August 2007, with reasons published on 26 September 2007, which
concerned the franchise for relevant people who may be serving a sentence
of imprisonment.
Schedule 1 to the Bill addresses the Rowe decision and contains amendments relating
to the close of Rolls. Schedule 2 to the Bill addresses the Roach decision and contains
amendments relating to prisoner voting.
In short, the Bill would, if enacted, update the text of the Electoral Act to reflect the
current legal position, as declared by the High Court, to:
· restore the close of Rolls period to 7 days after the date of the writ for a
federal election; and
· reinstate the previous disqualification, for prisoners serving a sentence of
imprisonment of 3 years or longer, from voting at a federal election.
Consequential amendments to the Referendum Act would be made to ensure
consistency between the two Acts. In this context, a referendum is the formal
constitutional amendment process, set out in section 128 of the Australian
Constitution.
Two other related matters are also addressed by the Bill.
First, on 22 June 2009, the Joint Standing Committee on Electoral Matters (JSCEM)
delivered a report entitled Report on the conduct of the 2007 federal election and
matters related thereto (JSCEM Report). The Bill would implement the
Government's Response, of 18 March 2010, to Recommendation 47 of the JSCEM
Report. The amendments would ensure that while prisoners serving a sentence of
imprisonment of 3 years or longer will be disqualified from voting, they may remain
on, or be added to, the electoral Roll.
Second, the Bill would include an interpretative provision to ensure that certain
references in the Electoral Act to "an election for a Division", or similar expressions,
can operate in the event of a half Senate election held independently from an election
of the House of Representatives. This addresses an anomaly in the Electoral Act.
2
Financial Impact Statement
Any costs associated with implementation of the measures contained in this Bill are
not expected to have an impact on the Budget.
3
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 provides for the Act to be cited as the Electoral and Referendum
(Enrolment and Prisoner Voting) Act 2010.
Clause 2 - Commencement
2. Clause 2 provides for the Act to commence on the day it receives Royal Assent.
Clause 3 - Schedule(s)
3. Clause 3 provides for each Act, specified in a Schedule to the Bill, to be
amended or repealed as set out in the applicable items in each of the Schedules. It
also provides that any other item in a Schedule has effect according to its terms: this
relates to provisions such as application and transitional provisions.
Schedule 1 - Amendments relating to close of Rolls
Overview
4. On 6 August 2010, the High Court delivered Orders in Rowe declaring invalid
items 20, 24, 28, 41, 42, 43, 44, 45 and 52 of Schedule 1 to the Electoral and
Referendum (Enrolment Integrity and Other Measures) Act 2006 (the 2006 Act).
5. These items of the 2006 Act had purported to reduce the close of Rolls period
by providing that the electoral Roll closed at 8 pm on the third working day after the
issue of the writ. Persons not on the Roll were generally not able to be added to the
Roll in the period between 8 pm of the day of the issue of the writ and polling day.
Exceptions to this general rule were made: for certain persons not on the Roll (being
those who, between the issue of the writ and polling day, were expected to turn 18 or
to be granted citizenship); and for persons updating their enrolment details. Persons
in these categories could apply for enrolment until 8 pm of the day of the close of the
Rolls (that is, 3 working days after the day on which the writ was issued).
6. Schedule 1 to the Bill would implement the Rowe decision, by repealing and
substituting provisions of the Electoral Act, the whole or part of which, had been
amended by items of the 2006 Act that had been declared invalid. The prior
legislative scheme, under which the date fixed for the close of the Rolls was the
seventh day after the date of the writ for an election, would be reinstated.
This approach ensures that the legislation reflects the current law, as declared by the
High Court.
7. Consequential amendments to the Referendum Act would also be made to
ensure consistency between the close of Rolls provisions in the Referendum Act and
the Electoral Act (given that the electoral Roll is also used to determine those eligible
to vote in a referendum to amend the Constitution).
8. An interpretative provision has been added that would, if enacted, ensure that
certain references in the Electoral Act to "an election for a Division", or similar
expressions, can operate in the event of a half Senate election, held independently
4
from a House of Representatives election. As many of the provisions in which this
potential anomaly arises are proposed to be amended in the Bill, this interpretive
provision has also been addressed in Schedule 1.
9. In repealing and substituting certain provisions within the Electoral Act,
Schedule 1 to the Bill would make changes to the text of the Electoral Act, as in force
prior to the passage of the invalid items of Schedule 1 to the 2006 Act, in the interests
of consistency with current drafting practice and to achieve greater consistency within
the Electoral Act.
Human Rights
10. Australia is a party to the International Covenant on Civil and Political Rights
(ICCPR). Article 25 of the ICCPR provides that:
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
...
(b) To vote and to be elected at genuine periodic elections which shall be
by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors; ...
11. The Bill would amend the text of the Electoral Act to reflect that the close of
Rolls period is not 3 working days after the date of the writ, but is the seventh day
after the date of the writ. Consequently, all applications for enrolment or transfer of
enrolment would be allowed up to 8 pm of the day of the close of the Rolls, reflecting
the current constitutional position.
12. The Bill would aim to ensure that any limitation on the right to vote as a
consequence of the 7 day close of the Rolls period is objective, reasonable,
proportionate and non-discriminatory, and hence falls within the ambit of restrictions
allowable by the ICCPR. The aim of providing a cut-off date for the close of the
Rolls is to ensure that, for practical purposes, a certified list of eligible voters can be
prepared in advance of the election. This is particularly important from a logistical
perspective as voting is compulsory in federal elections. Also, in light of compulsory
enrolment, 7 days following the issue of writs for an election provides individuals
with reasonable time to ensure that they are on the Roll.
13. Accordingly, the Bill is also intended to give better effect to Article 25 of the
ICCPR.
5
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - After subsection 4(7)
14. Item 1 would insert a new subsection 4(7A) in the Electoral Act, clarifying that
unless the contrary intention appears, all references in the Electoral Act to an election
or poll in, for or in relation to, a Division or Subdivision1, include a reference to a
Senate election, or a poll for a Senate election, for the State or Territory that includes
the Division or Subdivision.
15. Under subsection 4(1) of the Electoral Act a Division is defined as "an Electoral
Division for the election of a member of the House of Representatives". Certain
references in the Electoral Act to "an election for a Division", or similar expressions,
appear to inadvertently limit the application of those provisions to elections for the
House of Representatives. It follows that, in the event of a half Senate election held
independently from an election for the House of Representatives, these provisions of
the Electoral Act may not operate as intended.
16. The new interpretative provision inserted by item 1 would apply throughout the
Electoral Act. In particular, new subsection 4(7A) would apply to the following
references in the Electoral Act, as amended by this Bill:
· references to "election to be held in a Division" in paragraph 94A(4)(a) and
subsections 95(4) and 118(5);
· reference to "election to be held in the Division" in subsection 96(4);
· references to "election for the Division" in subsections 102(4) and 109(2),
and section 106;
· references to "election for the Subdivision" in subparagraphs 99B(1)(a)(i)
and 99B(1)(a)(ii);
· reference to "taking of a poll in that Division" in subsection 80(2);
· reference to "taking of a poll in a Division" in subsection 80(3);
· reference to the "close of the poll for a Division" in subsection 266(1);
· references to the "close of the poll in a Division" in paragraphs 17 and
23 of Schedule 3; and
· reference to a person having "voted in the election in relation to the
Division" in paragraph 260(3)(b).
1
Under subsection 4(4) of the Electoral Act, where a Division is not divided into Subdivisions, a
reference in the Electoral Act to a Subdivision shall, in relation to that Division, be read as a reference
to that Division.
6
17. Examples of where a contrary intention appears in the Electoral Act, which
would exclude the operation of the new interpretative provision in subsection 4(7A),
include:
· reference to an "election to be held in a Division or Divisions" in
subsection 154(4): this section relates to writs for the election of members
of the House of Representatives only;
· reference to "polling in each Division" in section 160: this section relates to
a general election for the House of Representatives only; and
· references throughout the Electoral Act to "election for a Division", or
similar expressions, which expressly refer to elections for the House of
Representatives, including those in subsections 166(1AA), 166(1E) and
167(3), paragraph 169(3)(b), subparagraphs 169B(1)(b)(ii) and 176(4)(b)(ii)
and subsections 177(2) and 177(3).
18. The examples of the operation or exclusion of new subsection 4(7A) listed
above are not intended to be exhaustive, but rather are provided as an aid to
interpretation.
Item 2 - Subsection 94A(4), Item 3 - Subsection 95(4) and Item 4 -
Subsection 96(4)
19. Items 2, 3 and 4 would repeal and substitute subsections 94A(4), 95(4) and
96(4) of the Electoral Act. These subsections deal with applications for enrolment
from three categories of persons:
(a) eligible overseas electors who are located outside Australia (section 94A);
(b) the spouse or child of an eligible overseas elector (section 95); and
(c) itinerant electors (section 96).
20. Items 20, 24 and 28 of Schedule 1 to the 2006 Act had purported to amend
paragraph 94A(4)(a), subsection 95(4) and subsection 96(4) of the Electoral Act, to
prevent these categories of persons from being added to the electoral Roll after 8 pm
on the date of a writ for an election, until after the close of the poll for that election.
21. Items 20, 24 and 28 of Schedule 1 to the 2006 Act were declared invalid by the
High Court in Rowe.
22. The substituted subsections 94A(4), 95(4) and 96(4) would remove this
restriction in the text of the Electoral Act and reflect the current constitutional
position, as declared by the High Court, reverting to the arrangements prior to the
invalid amendments introduced by the 2006 Act.
23. Under the substituted provisions:
(a) if an application for enrolment for a Subdivision is received by the Electoral
Commissioner from a person in one of these three categories, after 8 pm on
the day of the close of the Rolls for an election to be held in a Division; and
(b) the application relates to a Subdivision of that Division,
then the person's name would be prevented from being added to the electoral Roll
until after the close of the poll for that election.
7
24. In relation to substituted subsections 95(4) and 96(4), this prohibition would
also extend to the required annotation of the Roll under subsections 95(1) and 96(2B),
to indicate that the person is an eligible overseas elector or an itinerant elector,
respectively.
25. Substituted section 155 would respecify the date fixed for the close of the Rolls
as the seventh day after the date of the writ (see item 7).
26. Under subsection 4(4) of the Electoral Act, where a Division is not divided into
Subdivisions, a reference in the Electoral Act to a Subdivision shall, in relation to that
Division, be read as a reference to that Division.
27. In relation to the proposed subsection 4(7A) of the Electoral Act, that would, if
enacted, be introduced by item 1 of Schedule 1, references in substituted subsections
94A(4), 95(4) and 96(4) to "an election to be held in a Division" also extend to a
Senate election that includes the Division.
28. In the interests of consistency within the Electoral Act, subsections 95(4) and
96(4) have been redrafted in a style consistent with subsection 94A(4), within their
current legal meaning, as in force prior to the invalid amendments contained in the
2006 Act. Additionally, various wording changes in the substituted sections have
been made for consistency with current drafting practice, for example, changing
"where" to "if" in subsection 95(4).
Item 5 - Section 102
29. Item 5 would repeal and substitute section 102 of the Electoral Act, which deals
with actions on the receipt of claims for enrolment and transfer of enrolment made
pursuant to section 101.
30. Items 41 to 45 of Schedule 1 to the 2006 Act purported to amend subsection
102(4), paragraph 102(4A)(a), subparagraph 102(4A)(b)(ii), subsection 102(4B) and
paragraphs 102(4B)(a) and 102(4B)(b) of the Electoral Act.
31. The 2006 Act had restricted the consideration of new claims for enrolment
received under section 101 between:
(a) 8 pm on the date of the writ for an election for the Division to which the
claim related; and
(b) the close of the poll for the election.
32. In effect, this had provided that for new enrolees wishing to vote at an
upcoming election, the electoral Roll closed on 8 pm on the date of the writ.
33. The 2006 Act had also restricted the consideration of claims by persons
currently enrolled who update their details, and by persons not enrolled who, between
the day on which the writs were issued and polling day, would attain 18 years of age
or acquire Australian citizenship. These claims could not be considered between:
(a) 8 pm on the purported date of the close of the Rolls for an election for the
Division to which the claim related; and
(b) the close of the poll for the election.
8
34. In effect, this had provided that for such enrolments and transfers of enrolment,
the electoral Roll closed on 8 pm of the third working day after the date of the writ.
35. Items 41 to 45 of Schedule 1 to the 2006 Act had been declared invalid by the
High Court in Rowe.
36. The change to section 102 (Action on receipt of claim) of the Electoral Act
made by item 39 of Schedule 1 to the 2006 Act (inserting a reference to subsection
(4AA) in subsection 102(1)) would be included in the substituted section 102, despite
not having been expressly found in Rowe to be invalid. This is because subsection
102(4AA) itself was inserted by item 41 of Schedule 1 to the 2006 Act, which had
been expressly found to be invalid. As such, this consequential change to subsection
102(1) of the Electoral Act is necessary for the internal coherence of section 102.
37. The change made to the Electoral Act by item 40 of Schedule 1 to the 2006 Act
(amending subsection 102(2A) to substitute the reference to "the day on which the
Rolls for the election close" with "the date of the writ or writs for the election") was
not expressly found to be invalid in Rowe. It does not require inclusion in the
substituted section 102 as the provision which it had been amending, subsection
102(2A), was repealed by item 85 of Schedule 2 to the Electoral and Referendum
Amendment (Pre-poll Voting and Other Measures) Act 2010.
38. The substituted section 102 would, if enacted, remove the previous restrictions
on the consideration of claims for enrolment and transfer of enrolment, and would
reinstate the prior 7 day close of Rolls period, reflecting the current legal position, as
declared by the High Court in Rowe.
39. Generally, under the substituted subsection 102(4), a claim received by the
Electoral Commissioner under section 101, during the suspension period, which
would be defined as:
(a) starting at 8 pm on the day of the close of the Rolls for an election to be
held in a Division; and
(b) ending on the close of the poll for the election,
where the claim relates to a Subdivision of that Division, would not be considered
until after the end of the suspension period.
40. The suspension period in new subsection 102(4) would also apply to claims for
enrolment under subsection 100(2) and subsection 99B(2), that are taken to be made
under section 101. Under subsection 101(1A), persons entitled to be enrolled for any
Subdivision under section 95AA of the Electoral Act may fill in and sign a claim to
enrol. As these claims are also made under section 101, the suspension period in new
subsection 102(4) would also apply to these claims.
41. Substituted section 155 would respecify the date fixed for the close of the Rolls
as the seventh day after the date of the writ (see item 7).
42. In the interests of consistency within the Electoral Act, the new subsection
102(4) has been drafted in a style more consistent with substituted subsections
94A(4), 95(4) and 96(4) (within its current legal meaning, as in force prior to the
amendments contained in the 2006 Act).
9
43. Under the new subsection 4(7A) of the Electoral Act, introduced by item 1 of
Schedule 1, the reference in new subsection 102(4) to "an election to be held in a
Division" would also extend to a Senate election that includes the Division.
44. Under subsection 4(4) of the Electoral Act, where a Division is not divided into
Subdivisions, a reference in the Electoral Act to a Subdivision shall, in relation to that
Division, be read as a reference to that Division.
45. In the interests of readability, subsections 102(4A) and 102(4B) would be
amalgamated into a single new subsection 102(5). Generally, the opportunity has
been taken to renumber new section 102 into consecutive integers and letters, as many
amendments throughout the years to section 102 had left the numbering ad hoc.
Item 6 - Subsection 118(5)
46. Item 6 would repeal and substitute subsection 118(5) of the Electoral Act, which
deals with the determination of objections by the Electoral Commissioner that may
result in a person being removed from the electoral Roll in accordance with the
requirements contained in section 114 (Objection to enrolment).
47. Item 51 of Schedule 1 to the 2006 Act purported to amend the Electoral Act to
prevent the removal of an elector's name from the electoral Roll during the period
between:
(a) 8 pm on the date of the writ for an election in a Subdivision; and
(b) the close of the poll.
48. Prior to the passage of item 51 of Schedule 1 to the 2006 Act, the
commencement of the suspension period described in paragraph (a) above had been
specified as the date of the close of the Rolls, that is, 7 days after the issue of a writ
for an election. Although the High Court in Rowe had not expressly found this item to
be invalid, subsection 118(5) would be amended to reinstate the prior legal regime.
This would be done to achieve consistency in the close of Rolls provisions in the
Electoral Act, as would be amended by Schedule 1 to this Bill, which would repeal
the other close of Rolls amendments contained in the 2006 Act that were declared
invalid.
49. Substituted subsection 118(5) would prevent the removal of an elector's name
from the electoral Roll during the period:
(a) starting at 8 pm on the day of the close of the Rolls for an election to be
held in a Division; and
(b) ending on the close of the poll for the election.
50. Substituted section 155 would specify the date fixed for the close of the Rolls as
the seventh day after the date of the writ (see item 7).
51. In the interests of consistency within the Electoral Act, the substituted
subsection 118(5) has been redrafted, in a style more consistent with substituted
subsections 94A(4), 95(4), 96(4) and 102(4), within its current legal meaning, as in
force prior to the amendments contained in the 2006 Act.
10
52. Under the new subsection 4(7A) of the Electoral Act, introduced by item 1 of
Schedule 1, the reference in new subsection 118(5) to "an election to be held in a
Division" would also extend to a Senate election that includes the Division.
53. Under subsection 4(4) of the Electoral Act, where a Division is not divided into
Subdivisions, a reference in the Electoral Act to a Subdivision shall, in relation to that
Division, be read as a reference to that Division.
Item 7 - Section 155
54. Item 7 would repeal and substitute section 155 of the Electoral Act, which
specifies the date for the close of the Rolls.
55. Item 52 of Schedule 1 to the 2006 Act had purportedly amended the Electoral
Act to shorten the close of Rolls period from 7 days after the date of the writ, to the
third working day after the date of the writ.
56. Item 52 of Schedule 1 to the 2006 Act had been declared invalid in Rowe.
57. The substituted section 155 reflects the current legal position, as declared by the
High Court, and reverts to the legal position prior to the invalid amendments
introduced by the 2006 Act.
58. The substituted section 155 would specify that the date fixed for the close of the
Rolls is the seventh day after the date of the writ.
59. This amendment would also give effect to Recommendation 1 of the JSCEM
Report.
Item 8 - Subparagraphs 10(a) and 11(a) of Schedule 3
60. Item 8 would substitute the reference to subsection 102(4A) in paragraphs 10
and 11 of Schedule 3 to the Electoral Act with a reference to subsection 102(5).
This would reflect the new numbering of substituted section 102 (see item 5).
Referendum (Machinery Provisions) Act 1984
Item 9 - Subsections 4(2) and (3)
61. Item 9 would repeal subsections 4(2) and 4(3) of the Referendum Act and
substitute them with a new subsection 4(2).
62. Subsections 4(2) and 4(3) of the Referendum Act had been inserted by items
104 to 106 of Schedule 1 to the 2006 Act, to ensure that the suspension periods
affecting the consideration of claims for enrolment or transfer of enrolment under the
Electoral Act, as well as the suspension period affecting the removal of an elector's
name by objection pursuant to subsection 118(5) of the Electoral Act, were consistent
with the Referendum Act.
11
63. Although the Rowe decision did not expressly find items 104 to 106 of
Schedule 1 to the 2006 Act to be invalid, as the corresponding provisions in the
Electoral Act were declared invalid, item 9 would amend the relevant suspension
periods in subsection 4(2) of the Referendum Act to ensure consistency with the close
of Rolls provisions in the Electoral Act.
64. Substituted subsection 4(2) of the Referendum Act would specify that for the
purposes of voting at a referendum, applications or claims for enrolment, or transfer
of enrolment, under the Electoral Act that are received during the suspension period,
defined as:
(a) starting at 8 pm on the day of the close of the Rolls for a referendum; and
(b) ending on the close of voting at a referendum,
would not be considered until after the suspension period.
65. Substituted subsection 4(2) of the Referendum Act would also specify that a
name must not be removed from a roll under section 118 of the Electoral Act during
the suspension period.
66. To the greatest extent possible, subsection 4(2) of the Referendum Act has been
drafted in a style consistent with new subsection 102(4) of the Electoral Act.
Item 10 - Subsection 9(1)
67. Item 10 would repeal and substitute subsection 9(1) of the Referendum Act,
which fixes the day for the close of the Rolls for a referendum.
68. Item 107 of Schedule 1 to the 2006 Act amended the Referendum Act
purportedly to shorten the close of the Rolls period for referendums from 7 days after
the issue of a writ to 3 working days after the issue of the writ.
69. Although the High Court in Rowe had not declared item 107 of Schedule 1 to
the 2006 Act to be invalid, item 10 would substitute subsection 9(1) of the
Referendum Act to specify that the day fixed for the close of the Rolls is the seventh
day after the issue of the writ for a referendum. This would ensure consistency
between the close of Rolls period in the Electoral Act and the Referendum Act.
Item 11 - Subsection 9(3)
70. Item 11 would repeal the now redundant definition of "working day" previously
contained in subsection 9(3).
Item 12 - Subparagraph 10(a) of Schedule 4
71. Item 12 would substitute the reference to subsection 102(4A) of the Electoral
Act in subparagraph 10(a) of Schedule 4 to the Referendum Act with a reference to
subsection 102(5). This would reflect the new numbering of substituted section 102
of the Electoral Act (see item 5).
12
Part 2 - Application
Item 13 - Application
72. Item 13 would clarify that the repeal of the amendments contained in the
2006 Act relating to the close of Rolls provisions applies prospectively to all elections
and referendums, the writs for which are issued on or after the commencement of
Schedule 1.
Schedule 2 - Amendments relating to prisoner voting
Overview
73. On 30 August 2007, the High Court delivered Orders in Roach, declaring
subsection 93(8AA) and paragraph 208(2)(c) of the Electoral Act (as inserted by
items 15 and 61 of Schedule 1 to the 2006 Act) to be invalid. The High Court also
declared sections 93, 109 and 208 and subsection 221(3) of the Electoral Act (as in
force prior to amendments contained in items 3, 4, 13, 14, 15, 50, 61 and 62 of
Schedule 1 to the 2006 Act) to be in force and valid. On 26 September 2007, the
High Court published its reasons.
74. The items of Schedule 1 to the 2006 Act listed above had purportedly removed
voting rights from all prisoners serving a sentence of full-time imprisonment.
Under these amendments, prisoners serving a sentence of imprisonment, although
disqualified from voting, would be entitled to remain on, or be added to, the electoral
Roll. The disqualification from voting was achieved by ensuring that prisoners did
not appear on certified lists of voters. Prisoners serving sentences of imprisonment
were identified in monthly lists of convictions, forwarded by the Controllers-General
of Prisons of each State and Territory.
75. As a result of the High Court's decision, voting eligibility reverted to the legal
position prior to the amendments contained in the 2006 Act. Under this position,
prisoners serving a sentence of imprisonment of 3 years or longer were disqualified
from voting. Their names were removed from the electoral Roll by a process of
objection, following receipt of information from Controllers-General of Prisons.
76. Schedule 2 to the Bill would implement the Roach decision by reinstating the
previous disqualification, for prisoners serving a sentence of imprisonment of 3 years
or longer, from voting at a federal election.
77. Schedule 2 to the Bill would also implement the Government's Response to
Recommendation 47 of the JSCEM Report to ensure that while prisoners serving a
sentence of imprisonment of 3 years or longer would be disqualified from voting, they
would remain on, or be able to be added to, the electoral Roll. This was an aspect of
the legislative scheme in place under the amendments contained in the 2006 Act. This
aspect of the 2006 Act was not itself affected by the reasons supporting the Roach
decision.
13
78. To ensure that the Electoral Act reflects the constitutional position, Schedule 2
to the Bill would repeal and substitute provisions of the Electoral Act, the whole of
which were declared to be invalid, as well as those which had been amended by items
of the 2006 Act, the effect of which was disregarded by the High Court in Roach, in
declaring the law as in force and valid.
79. Consequential amendments to the Referendum Act would also be made to
ensure consistency between certified lists of voters at referendums and federal
elections.
Human Rights
80. In Hirst v United Kingdom (No 2) (2006) 42 EHRR 41, the European Court of
Human Rights considered a blanket ban on the right of convicted prisoners to vote,
under the equivalent provision of the European Convention on Human Rights to
Article 25 of the ICCPR. The European Court found that the purpose of the measure
(to prevent crime by sanctioning the conduct of convicted prisoners and enhance civic
responsibility and respect for the rule of law) was legitimate. However, the European
Court also found that a blanket ban on the right of prisoners to vote was not
proportionate to this legitimate aim, and hence breached the European Convention on
Human Rights.
81. In Roach, the High Court decision had a similar outcome and invalidated the
disqualification of all prisoners serving a sentence of imprisonment from voting, as
introduced by the 2006 Act. However, the High Court's reasoning was based on
constitutional, rather than human rights, grounds.
82. The Bill would amend the text of the Electoral Act to reduce the disqualification
from voting from all prisoners serving a sentence of imprisonment (as described under
the amendments introduced by the 2006 Act) to those prisoners serving a sentence of
imprisonment of 3 years or longer. This would reflect the current constitutional
position.
83. The principle of proportionality requires a degree of seriousness in the offence
to warrant suspension of a basic political right. Sentences of 3 years or more are
indicative of the seriousness of the offence. The Bill aims to ensure that the limitation
on the right to vote as a consequence of the disqualification from voting by prisoners
serving a term of imprisonment of 3 years or longer is objective, reasonable,
proportionate and non-discriminatory and is intended to give better effect to
Article 25 of the ICCPR.
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Subsection 93(2)
84. Item 1 would repeal and substitute subsection 93(2) of the Electoral Act, which
allows an elector whose name is on the Roll for a Division to vote at House of
Representatives elections for that Division and at Senate elections which include the
Division.
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85. Item 13 of Schedule 1 to the 2006 Act had amended subsection 93(2) to subject
its operation to subsection 93(8AA). Subsection 93(8AA) had been inserted by
item 15 of Schedule 1 to the 2006 Act and contained the disqualification for all
prisoners, serving a sentence of imprisonment, from voting.
86. The High Court in Roach had declared that section 93, as in force prior to the
amendments contained in the 2006 Act (including item 13 of Schedule 1 to the
2006 Act), to be in force and valid.
87. Schedule 2 to the Bill would also repeal and substitute subsection 93(8AA) in a
form reflecting the constitutional position (see item 2). As such, subsection 93(2)
would be repealed and substituted in the same form.
88. A minor wording change would be made to refer to "Members of the House of
Representatives" rather than "Members of House of Representatives".
Item 2 - Subsections 93(8) and (8AA)
89. Item 2 would repeal and substitute subsections 93(8) and (8AA) of the
Electoral Act.
90. Item 14 of Schedule 1 to the 2006 Act had purportedly repealed paragraph
93(8)(b) which had provided that persons serving a sentence of imprisonment of
3 years or longer for an offence against the law of the Commonwealth, or of a State or
Territory, were not entitled to have their names placed on, or retained on, the electoral
Roll, or to vote in federal elections.
91. Item 15 of Schedule 1 to the 2006 Act had replaced subsection 93(8AA) to
specify that a person serving a sentence of imprisonment for any offence against the
law of the Commonwealth or of a State or Territory is not entitled to vote at any
federal elections.
92. In effect, the 2006 Act had moved the disqualification from voting for prisoners
from subsection 93(8) into subsection 93(8AA). In this way, it had removed the prior
ban on prisoners, serving a sentence of imprisonment of 3 years or longer, from being
entitled to be placed on, or retained on the electoral Roll.
93. Items 3 and 4 of Schedule 1 to the 2006 Act had also introduced, as subsection
4(1A) of the Electoral Act, a definition of "sentence of imprisonment" to clarify that
the disqualification only applied to prisoners serving a sentence of full-time detention.
The Explanatory Memorandum to the 2006 Act explains that prisoners serving
alternative sentences (such as periodic or home detention, as well as those serving a
noncustodial sentence or released on parole), would not be disqualified from voting.
94. The High Court in Roach had declared that section 93, as in force prior to the
amendments contained in the 2006 Act (including items 3, 4, 14 and 15 of Schedule 1
to the 2006 Act), to be in force and valid.
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95. Item 2, if enacted, would retain the disqualification of prisoners serving a
sentence of imprisonment from voting at federal elections in substituted subsection
93(8AA). However, the duration of the sentence of imprisonment necessary to
disqualify a prisoner from voting is increased to 3 years or longer, reflecting the
current constitutional position.
96. Item 2 would retain the definition of sentence of imprisonment contained in
subsection 4(1A) of the Electoral Act. Although this definition is not expressly
repealed and reinstated, if the Electoral Act were to be amended by this Bill, the
Electoral Act would be interpreted anew in light of the amendments, and its validity
and operation would turn on the manner in which the amendments interact with the
other provisions of the Electoral Act, including the definitional sections contained in
section 4.
97. Item 2 would also renumber the paragraphs contained in subsection 93(8).
98. Substituted subsection 93(8AA) would not include the words "for an offence
against the law of the Commonwealth or of a State or Territory", previously contained
in paragraph 93(8)(b), prior to the amendments enacted by the 2006 Act, and in
subsection 93(8AA), following the 2006 Act amendments. Given that subsection
93(8AA) relies on the term sentence of imprisonment, which is defined in subsection
4(1A) as "detention on a full-time basis for an offence against a law of the
Commonwealth or a State or Territory", it is not necessary to retain these words
within subsection 93(8AA).
Item 3 - Section 109
99. Item 3 would repeal and substitute section 109 of the Electoral Act.
100. Item 50 of Schedule 1 to the 2006 Act had repealed and replaced section 109 of
the Electoral Act.
101. Prior to the 2006 Act amendments, the Controller-General of Prisons was
required to forward lists of names, addresses, occupations and sexes of all persons
who, during the preceding month, had been convicted in the State (or Territory) and
were serving a sentence of imprisonment of 3 years or longer.
102. By virtue of section 112 of the Electoral Act, the reference to a "State"
throughout section 109 is deemed to also include a reference to the Australian Capital
Territory and the Northern Territory.
103. Subsection 109(1), as inserted by the 2006 Act, had expressed this requirement
in greater detail, by requiring the Controllers-General of Prisons to include
information about prisoners who had both commenced, and ceased, sentences of
imprisonment during the preceding month. By referring to sentences of imprisonment
and not sentences of imprisonment of 3 years or longer, it had also reflected the
purported disqualification of all prisoners serving a sentence of imprisonment from
voting, introduced by the 2006 Act.
104. Section 109, as inserted by the 2006 Act, had also contained a subsection (2),
which had allowed for the update of the monthly lists in the event of the issue of a
writ for a federal election, up to the date of the writ.
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105. The High Court in Roach had declared that section 109, as in force prior to the
amendments contained in the 2006 Act (including item 50 of Schedule 1 to the 2006
Act) to be in force and valid.
106. Item 3 would retain the more detailed form of section 109, as introduced by the
2006 Act, whilst updating it to reflect the constitutional position post Roach.
107. Item 3 would substitute subsection 109(1) to require the Controller-General of
Prisons of a State (or Territory) to forward to the Electoral Commissioner, at the
beginning of each month, a list of the names, addresses, occupations and sexes of all
persons who, in the preceding month:
(a) began serving a sentence of imprisonment of 3 years or longer in the State
(or Territory); and
(b) ceased to serve a sentence of imprisonment of 3 years or longer in the State
(or Territory).
108. Item 3 would also substitute subsection 109(2), to require the
Controller-General of Prisons of a State (or Territory) to forward to the Electoral
Commissioner, within 4 days of the close of the Rolls for an election, a list of persons
who, between the last monthly list forwarded under subsection 109(1) and the day of
the close of the Rolls:
(a) began serving a sentence of imprisonment of 3 years or longer in the State
(or Territory); and
(b) ceased to serve a sentence of imprisonment of 3 years or longer in the State
(or Territory).
109. The reference to the "close of the rolls" in substituted section 109, rather than to
the "issue of the writ" as contained in the section 109 inserted by the 2006 Act, would
reflect the close of Rolls amendments contained in Schedule 1 to this Bill.
110. The substituted section 109 would not include references to persons who "were
convicted in the State" which had been contained in previous subparagraphs
109(1)(a)(i), 109(2)(b)(i), 109(2)(a)(i) and 109(2)(b)(i), as inserted by the 2006 Act.
As the disqualification of prisoners from voting contained in substituted subsection
93(8AA) is related to the serving of a sentence of imprisonment, defined in subsection
4(1) of the Electoral Act, the reference to a conviction is not necessary. This also
resolves a potential anomaly as to which list transferred prisoners are to be included
in, that is, persons convicted of an offence in one State (or Territory) and serving a
sentence of imprisonment in a different State (or Territory).
111. Under the substituted section 109, this issue would not arise, as the monthly list
would be based on the physical presence of the person in a prison under the control of
a State or Territory Controller-General of Prisons. Paragraph 109(1)(b) and 109(2)(b)
are intended to be read to include persons who have finished serving a sentence of
imprisonment in the State (or Territory), regardless of whether the whole term was
served in that State.
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112. The reference to "convicted in the State" in the section 109, as inserted by the
2006 Act, operated as a method of linking the lists forwarded by each
Controller-General of Prisons, to sentences of imprisonment in the State or Territory
over which he or she has control. In the substituted section 109, this would be
achieved by adding the words "in the State" after references to sentences of
imprisonment of 3 years or longer.
113. The substituted section 109 would also not include the words "for any offence"
which had been included in subparagraphs 109(1)(a)(ii) and 109(2)(a)(ii), and
paragraphs 109(1)(b) and 109(2)(b) of section 109, as inserted by the 2006 Act. The
term sentence of imprisonment is defined in subsection 4(1) and these additional
words are not necessary.
114. The reference to the term "month" throughout substituted section 109 is
intended to refer to the calendar month, meaning the months of January, February,
March etc., and not the period of one month, such as 15 January to 14 February.
115. The term Controller-General of Prisons is defined in subsection 4(1) of the
Electoral Act.
116. Under new subsection 4(7A) of the Electoral Act (that would, if enacted, be
introduced by item 1 of Schedule 1) the reference in substituted section 109 to
"an election for a Division" also extends to a Senate election that includes the
Division.
Item 4 - Subsection 208(2)
117. Item 4 repeals and substitutes subsection 208(2) of the Electoral Act, which
deals with certified lists of voters.
118. Item 61 of Schedule 1 to the 2006 Act had inserted paragraph 208(2)(c) into the
Electoral Act, which removed prisoners serving a sentence of imprisonment
(as disqualified from voting in federal elections by subsection 93(8AA), inserted by
the 2006 Act) from the certified list of voters.
119. Prior to the 2006 Act amendments, as prisoners serving a sentence of
imprisonment had not been able to be retained on, or added to the electoral Roll,
removal from the certified list was not necessary.
120. The High Court in Roach had declared paragraph 208(2)(c), as inserted by the
2006 Act, to be invalid. The High Court had also declared that section 208, as in
force prior to the amendments contained in the 2006 Act (including item 61 of
Schedule 1 to the 2006 Act), to be in force and valid.
121. Schedule 2 to the Bill would also repeal and substitute, in a form reflecting the
constitutional position, subsection 93(8AA) (see item 2). As such, item 4 substitutes
subsection 208(2), in the form contained in the 2006 Act amendments.
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Item 5 - Subsection 221(3)
122. Item 5 repeals and substitutes subsection 221(3) of the Electoral Act.
Subsection 221(3) provides that, for the purposes of section 221 and subject to the
exceptions listed, the electoral Rolls in force at the time of the election are conclusive
evidence of the right of each person enrolled on the Rolls to vote as an elector.
123. Item 62 of Schedule 1 to the 2006 Act had amended subsection 221(3) to add
prisoners covered by the disqualification from voting (contained in subsection
93(8AA), as inserted by the 2006 Act) as an exception to the general rule that the
electoral Rolls in force at an election are conclusive evidence of a person's
entitlement to vote.
124. Prior to the 2006 Act amendments, as prisoners serving a sentence of
imprisonment had not been able to be retained on, or added to the electoral Roll, this
exception was not necessary.
125. The High Court had declared that subsection 221(3), as in force prior to the
amendments contained in the 2006 Act (including item 62 of Schedule 1 to the
2006 Act), to be in force and valid.
126. Schedule 2 to the Bill would also repeal and substitute, in a form consistent with
the constitutional position, subsection 93(8AA) (see item 2). As such, item 5 would
substitute subsection 221(3), in substantially the same form as had been contained in
the amendments in the 2006 Act.
127. For readability, the exceptions to the general rule listed in subsection 221(3)
would be contained in separate paragraphs, and minor wording changes would be
made to reflect current drafting practice.
Referendum (Machinery Provisions) Act 1984
Item 6 - At the end of subsection 22(2)
128. Item 6 adds a new paragraph (c) at the end of subsection 22(2) of the
Referendum Act, which deals with certified lists of voters for referendums.
129. New paragraph 22(2)(c) of the Referendum Act would mirror paragraph
208(2)(c) of the Electoral Act, and ensure that certified lists of voters are consistent
for referendums and federal elections.
Part 2 - Application and transitional
Item 7 - Application and transitional
130. Subitem 7(1) would ensure that amendments made by Schedule 2 to this Bill
apply in relation to elections and referendums the writs for which are issued on or
after the commencement of the amendments.
131. Subitem 7(2) would ensure that subsection 109(1), as inserted by item 3 of
Schedule 2 to this Bill, applies in relation to months beginning on or after the
commencement of the Bill as an Act.
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132. Subitem 7(3) would ensure that subsections 93(8AA) and paragraphs 109(1)(b)
and 109(2)(b), as amended by Schedule 2 to this Bill, apply to sentences of
imprisonment beginning before, on or after commencement of this Bill.
133. Subitem 7(4) would ensure that if subsection 109(2) (as amended by Schedule 2
to this Bill) enters into force and a writ for an election is issued before the first list is
forwarded under subsection 109(1) (as amended by Schedule 2 to this Bill) then the
reference to the last list forwarded under subsection 109(1) in subsection 109(2) of
this Bill should be read as a reference to a list forwarded under section 109 (as in
force prior to the amendments contained in the 2006 Act). Subitem 7(4) is intended to
apply separately in relation to each Controller-General of Prisons.
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