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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL AND REFERENDUM AMENDMENT (CLOSE OF ROLLS AND OTHER MEASURES) BILL
(No. 2) 2010
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Special Minister of State,
Senator the Hon Joseph Ludwig)
ELECTORAL AND REFERENDUM AMENDMENT (CLOSE OF ROLLS AND OTHER MEASURES) BILL
2010
OUTLINE
The Electoral and Referendum Amendment (Close of Rolls and Other Measures)
Bill (No. 2) 2010 (the Bill) amends the Commonwealth Electoral Act 1918
(the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the
Referendum Act).
The Joint Standing Committee on Electoral Matters (JSCEM) conducted an
inquiry into the conduct of the 2007 federal election and the resulting
report is entitled Report on the conduct of the 2007 federal election and
matters related thereto (JSCEM Report). The Bill will implement the
Governments response to two of the recommendation in the JSCEM Report.
The Bill contains provisions that will:
. restore the close of Rolls period to seven days after the issue of the
writ for an election; and
. repeal the requirement for provisional voters to provide evidence of
identity before their votes are admitted to scrutiny.
FINANCIAL IMPACT STATEMENT
The costs associated with implementation of the measures contained in this
Bill are estimated at just over $0.2M.
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be cited as the Electoral and
Referendum Amendment (Close of Rolls and Other Measures) Act (No. 2)
2010.
Clause 2 - Commencement
2. This clause specifies that this Act commences upon Royal Assent.
Clause 3 - Schedule(s)
3. This clause specifies that each Act specified in a Schedule to this Act
is amended or repealed as set out in the applicable items in the
Schedule, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1 - Amendments relating to close of Rolls
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Paragraph 94A(4)(a)
4. Item 1 amends section 94A of the Electoral Act which deals with claims
for enrolment lodged by eligible overseas electors who are located
outside Australia. This item removes the current restriction contained
in paragraph 94A(4)(a) of the Electoral Act that prevents a person
being added to the Rolls after 8pm on the date of the issuing of the
writs and substitutes the day of the close of Rolls that is specified
in the new section 155 (see item 12 below).
Item 2 - Subsection 95(4)
5. Item 2 amends section 95 of the Electoral Act which deals with claims
for enrolment from the spouse or child of an eligible overseas elector.
This item removes the current restriction contained in subsection
95(4) of the Electoral Act that prevents a person being added to the
Rolls after 8pm on the date of the issuing of the writs and substitutes
the day of the close of Rolls that is specified in the new section 155
(see item 12 below).
Item 3 - Subsection 96(4)
6. Item 3 amends section 96 of the Electoral Act which deals with claims
for enrolment from itinerant electors. This item removes the current
restriction contained in subsection 96(4) of the Electoral Act that
prevents a person being added to the Rolls after 8pm on the date of the
issuing of the writs and substitutes the day of the close of Rolls that
is specified in the new section 155 (see item 12 below).
Item 4 - Subsection 102(1)
Item 5 - Subsection 102(2A)
Item 6 - Subsections 102(4), (4AA) and (4AB)
Item 7 - Paragraph 102(4A)(a)
Item 8 - Subparagraph 102(4A)(b)(ii)
Item 9 - Subsection 102(4B)
Item 10 - Paragraphs 102(4B)(a) and (b)
7. Items 4 to 10 amend section 102 of the Electoral Act which deals with
making changes to the electoral Roll after the receipt of claims for
enrolment (including transfer of enrolment). Existing subsections
102(4), (4AA), (4AB) and (4A) of the Electoral Act contain restrictions
on taking action to add new voters to the electoral Roll after 8pm on
the date of the issuing of the writs for an election. The amendments
remove this restriction and substitutes the day of the close of Rolls
that is specified in the new section 155 (see item 12 below).
Item 11 - Subsection 118(5)
8. Item 11 amends section 118 of the Electoral Act which deals with the
determining of objections by a Divisional Returning Officer that
results in a person being removed from the electoral Roll in accordance
with the requirements contained in section 114. This item removes the
current restriction contained in subsection 118(5) of the Electoral Act
that prevents a person being removed from the Rolls after 8pm on the
date of the issuing of the writs and substitutes the day of the close
of Rolls that is specified in the new section 155 (see item 12 above).
Item 12 - Section 155
9. Item 12 contains the major change to section 155 of the Electoral Act
by repealing the existing time period contained in this section for the
close of the Rolls for the purposes of an election and substituting a
new section 155 which specifies that the date fixed for the close of
Rolls is the 7th day after the date of the writ. The amendments give
effect to JSCEM Recommendation 1 and return the close of Rolls period
to that which existed at the 2004 federal election.
Referendum (Machinery Provisions) Act 1984
Item 13 - Subsections 4(2) and (3)
10. Item 13 amends section 4 of the Referendum Act which deals with making
changes to the electoral Roll after the receipt of claims for enrolment
and objection action. Existing section 4 of the Referendum Act
contains restrictions on taking action to add new voters, transfer the
address details of existing voters or remove voters in specified
circumstances generally from the issue of the writ for an election.
This item removes the current restrictions relating to the issue of the
writ and substitutes the day of the close of the Rolls that is
specified in new subsection 9(1) (see item 14 below).
Item 14 - Subsection 9(1)
11. Item 14 contains the major change to section 9 of the Referendum Act by
repealing the existing time period contained in this section for the
close of the Rolls for the purposes of a referendum and substituting
the new subsection 9(1) which specifies that the date fixed for the
close of the Rolls is the 7th day after the issue of the writ. The
amendments give effect to JSCEM Recommendation 1 and return the close
of Rolls period to that which existed at the 2004 federal election.
Item 15 - Subsection 9(3)
12. Item 15 repeals the now otiose definition of working day.
13. The amendments contained in items 13 to 15 give effect to JSCEM
Recommendation 45 which states that amendments to the Electoral Act
should where appropriate be incorporated into the Referendum Act to
ensure consistency between the provisions applying to elections and
referenda.
Part 2 - Application of amendments
Item 16 - Application of amendments
14. Item 16 makes it clear that the repeal of the amendments relating to
the close of the Rolls only applies prospectively to all elections and
referenda the writs for which are issued on or after the commencement
of Schedule 1.
Schedule 2 - Amendments relating to evidence of identity for provisional
votes
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Subsections 235(1B), (9) and (10)
Item 2 - After paragraph 3A of Schedule 3
Item 3 - Subparagraph 6(ca) of Schedule 3
15. Provisional votes are a type of declaration vote that can be cast by an
elector on polling day. Section 235 of the Electoral Act sets out the
requirements for casting a provisional vote. Section 235 currently
specifies that an elector who casts a provisional vote at a polling
place on polling day must provide a polling official with evidence of
identity at the time of voting or provide it to an AEC officer by the
first Friday following polling day. Section 266 of the Electoral Act
sets out the requirements for conducting preliminary scrutiny of
declaration votes, which includes declaration envelopes that contain
provisional votes. The process for preliminary scrutiny is set out in
Schedule 3 to the Electoral Act which includes the current requirement
in subparagraph 6(ca) that failure to provide evidence of identity for
a provisional vote by the first Friday following polling day shall
result in the envelope containing the provisional vote being excluded
from the count.
16. The amendments contained in items 1 to 3 of Schedule 2 give effect to
JSCEM Recommendation 2 with amendments to section 235 and Schedule 3 to
the Electoral Act. The amendments repeal the requirement for the
provision of evidence of identity either at the time that a provisional
vote is cast or by the first Friday following polling day.
17. Item 1 repeals the evidence of identity requirements contained in
subsections 235(1B), (9) and (10) of the Electoral Act.
18. Item 2 inserts a new paragraph 3B in Schedule 3 to the Electoral Act
which enables the Divisional Returning Officer (DRO) to examine the
declaration envelope that contains a provisional vote during
preliminary scrutiny. Where the DRO has some reason to doubt that the
signature on the declaration envelope containing the provisional vote
ballot-paper is the actual signature of a person who is entitled to
vote at the election, then the DRO must check the signature against the
most recent record that contains the elector's signature. In most
circumstances this will be the signature on the claim for enrolment
form.
19. Item 3 repeals the existing subparagraph 6(ca) of Schedule 3 to the
Electoral Act and substitutes a new subparagraph that contains a
similar requirement to new paragraph 3B of Schedule 3. It is only
where the DRO is of the view that the signature on a declaration
envelope containing the provisional vote and the signature on other
records is not the same that the declaration envelope is to be excluded
at this point in the scrutiny process.
Referendum (Machinery Provisions) Act 1984
Item 4 - Subsections 37(1B), (9) and (10)
Item 5 - After paragraph 3A of Schedule 4
Item 6 - Subparagraph 6(ca) of Schedule 4
20. Provisional votes can be cast in a referendum in a similar manner and
for the same reasons as an election under the Electoral Act.
Subsections 37(1B), (9) and (10) of the Referendum Act require that an
elector who casts a provisional vote on a voting day for a referendum
must provide a polling official with evidence of identity at the time
of voting or provide it to an AEC officer by the first Friday following
voting day.
21. The amendments contained in items 4 to 6 give effect to JSCEM
Recommendation 45 which states that amendments to the Electoral Act
should where appropriate be incorporated into the Referendum Act to
ensure consistency between the provisions applying to elections and
referenda.
22. Item 4 repeals the evidence of identity requirements contained in
subsections 37(1B), (9) and (10) of the Referendum Act.
23. Item 5 inserts a new paragraph 3B in Schedule 4 to the Referendum Act
which enables the DRO to examine the declaration envelope that contains
a provisional vote during preliminary scrutiny. Where the DRO has some
reason to doubt that the signature on the declaration envelope
containing the provisional vote ballot-paper is the actual signature of
a person who is entitled to vote at the referendum, then the DRO must
check the signature against the most recent record that contains the
elector's signature. In most circumstances this will be the signature
on the claim for enrolment form.
24. Item 6 repeals the existing subparagraph 6(ca) of Schedule 4 to the
Referendum Act and substitutes a new subparagraph that contains a
similar requirement to new paragraph 3A of Schedule 4. It is only
where the DRO is of the view that the signature on a declaration
envelope containing the provisional vote and the signature on other
records is not the same that the declaration envelope is to be excluded
at this point in the scrutiny.
Part 2 - Application of amendments
Item 7 - Application of amendments
25. Item 7 makes it clear that the repeal of the evidence of identity
provisions for dealing with provisional votes only applies
prospectively to all elections and referenda the writs for which are
issued on or after the commencement of Schedule 2.