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2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL AND REFERENDUM LEGISLATION
AMENDMENT BILL 2006
EXPLANATORY MEMORANDUM
(Circulated with the authority of the Special Minister of State,
the Hon Gary Nairn MP)
ELECTORAL AND REFERENDUM LEGISLATION AMENDMENT BILL 2006
OUTLINE
The Electoral and Referendum Legislation Amendment Bill 2006 (the Bill) contains
measures arising from the Government's response to the Joint Standing Committee on
Electoral Matters' Report: The 2004 Federal Election: Report of the Inquiry into the
Conduct of the 2004 Federal Election and Matters Related Thereto (the JSCEM's
report). The Government's response was tabled in the Parliament on 31 August 2006.
The Bill amends the Commonwealth Electoral Act 1918 (the Electoral Act) and the
Referendum (Machinery Provisions) Act 1984 (the Referendum Act) and follows reform
measures that were passed by the Parliament on 21 June 2006 in the Electoral and
Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (the
Electoral Integrity Act).
The Bill contains provisions that will:
· provide for a trial of electronically assisted voting for sight-impaired people;
· provide for a trial of remote electronic voting for Australian Defence Force (ADF)
members and defence civilians serving outside Australia;
· specifically enable members of the ADF and Australian Federal Police (AFP)
personnel serving outside Australia, and persons registered as eligible overseas
electors, to apply for registration as general postal voters;
· provide that the deadline for postal vote applications is 6.00pm on the Thursday prior
to polling day. The Australian Electoral Commission (AEC) will not be required to
post or deliver postal voting material to those electors whose postal vote applications
are received after that time. The AEC will be required to make reasonable efforts to
contact applicants whose postal vote applications are received after the deadline to
advise them of the need to vote by other means;
· amend arrangements for the delivery of postal voting material by the AEC;
· expand the range of AEC officers who can receive completed postal vote envelopes;
· amend the requirements for the establishment of pre-poll voting centres to enable
them to be quickly established by the AEC in exceptional circumstances;
· amend provisions relating to enrolment from outside Australia to allow applicants
the option of providing an Australian passport number, rather than a current driver's
licence number, to satisfy the requirements of the proof of identity scheme
established by the Electoral Integrity Act; and
· repeal section 350 of the Electoral Act which relates to defamation of electoral
candidates.
FINANCIAL IMPACT STATEMENT
The Australian Government will provide additional funding to the AEC with a fiscal
balance impact of $5.0 million over five years from 2006-07 (including $2.7 million in
capital). The majority of the funding is being provided in 2006-07 ($3.8 million).
The funding will be used for the purchase of computer hardware and software related to
the trial of electronically assisted voting for sight-impaired people and for the trial of
remote electronic voting by ADF personnel serving overseas. Funding will also be used
for the delivery of postal voting material to postal vote applicants by means other than
post.
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ELECTORAL AND REFERENDUM LEGISLATION AMENDMENT BILL 2006
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the short title of the Act.
Clause 2 - Commencement
2. This clause provides that, except for Part 1 of Schedule 3, all items commence
upon Royal Assent. Part 1 of Schedule 3 commences on a single day to be fixed by
Proclamation or, if not proclaimed earlier, six months following the date of Royal Assent.
Clause 3 - Schedule(s)
3. This clause provides that each Act specified in the Schedules is amended or
repealed as set out in the Schedules, and any other items in the Schedules have effect
according to their terms.
Schedule 1 - Postal voting
Commonwealth Electoral Act 1918
Item 1 - Subsection 4(1)
4. This item provides for the definition of `AFP officer or staff member'. The
insertion of this definition is consequential to item 7 which expands the grounds for
application as a general postal voter to include enrolled AFP officers and staff members
serving outside Australia.
Item 2 - Subsection 4(1)
5. This item provides for the definition of `capital city office' to be included in
subsection 4(1) as a consequence of item 16 which expands the range of AEC personnel
who may receive completed postal voting envelopes to include particular AEC officers
and employees at capital city offices.
Items 3 and 4 - Subsection 4(1)
6. These items provide for the definition of `defence civilian' and `defence
member'. The insertion of these definitions is consequential to item 7 which expands the
grounds for application as a general postal voter to include enrolled defence civilians and
enrolled defence members serving outside Australia.
Item 5 - After subsection 90B(8)
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7. This item inserts a provision to require that no information that, to the knowledge
of the AEC, would disclose specified details of ADF or AFP personnel who are serving
overseas be made publicly available or otherwise disclosed by the AEC. This is intended
to protect ADF and AFP operational security and personnel, and is consequential to the
amendment at item 7.
Item 6 - Subsection 184(5)
8. Part XV of the Electoral Act provides that electors who for various reasons cannot
attend a polling place on polling day in the State or Territory for which they are enrolled
may apply for a postal vote. The Divisional Returning Officer (DRO) or Assistant
Returning Officer (ARO) will send to postal vote applicants postal voting material as
specified in existing subsection 188(1). This includes a postal vote certificate and postal
ballot papers which must be completed on, or before, polling day. The postal voting
material should therefore be despatched to postal voters within a reasonable time before
polling day.
9. Subsection 184(5) currently provides that an application shall be regarded as not
having been made if it reaches the relevant AEC officer after 6.00pm on the day before
polling day (which would be a Friday). Item 6 repeals subsection 184(5) and substitutes
a new subsection to provide that the deadline by which postal vote applications must be
received in order to be processed is 6.00pm on the Thursday that is two days before
polling day. This amendment is intended to enhance the prospect of postal voters
receiving postal voting material in time for completion on, or before, polling day.
10. The item also inserts a new subsection 184(6) to provide that, for postal vote
applications received after this new deadline, the AEC is required to make reasonable
efforts to contact those applicants to advise them that their applications have not met the
deadline and of the need for them to vote by other means.
11. This item gives effect to the Government's response to part of recommendation 9
of the JSCEM's report.
Item 7 - At the end of subsection 184A(2)
12. This item inserts three new paragraphs into subsection 184A(2) to enable enrolled
defence members, defence civilians, AFP officers or AFP members of staff who will be
serving outside Australia, and electors registered as eligible overseas electors, to also
register as general postal voters. For the period of their registration as a general postal
voter, which is intended to be no longer than the period of their service or residence
outside Australia, these electors will automatically be sent ballot papers for each election
and referendum without first having to lodge a postal vote application.
13. This item gives effect to the Government's response to part of recommendation 9
of the JSCEM's report.
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Item 8 - At the end of section 184A
14. Item 8 adds new subsection 184A(5) allowing defence members, defence
civilians, and AFP officers or staff members, who will be serving outside Australia, to
apply for registration as general postal voters before leaving Australia.
15. The item also adds new subsection 184A(6) to enable regulations to be made to
clarify whether applicants are considered to be serving outside Australia for the purposes
of satisfying the grounds for registration in new subsections 184A(2)(i) or (j).
Item 9 - Subsection 185(1)
16. This item makes a consequential amendment as a result of the insertion of a new
subsection by item 10.
Item 10 - After subsection 185(1)
17. This item inserts subsections 185(1A) and 185(1B) to provide that the general
postal voter registration of relevant ADF and AFP members who applied to become
general postal voters before leaving Australia, as allowed by item 8, does not take effect
until they have left Australia. The item provides grounds that the DRO may consider in
determining that the applicant has left Australia. This will ensure that these categories of
applicants will only be considered to be general postal voters for the period of their
overseas service.
Item 11 - After subsection 185(4)
18. This item inserts a provision, similar to item 5, that prohibits a DRO or an ARO
from including in the Register of General Postal Voters information that, to the
knowledge of the DRO or ARO, would disclose specified details of AFP or ADF
overseas service. This is intended to protect the security of the deployment and
personnel.
Items 12 and 13 - Subsections 188(1) and 188(2)
19. Section 188 currently provides for the delivery of postal voting material specified
in subsection 188(1), which includes a postal vote certificate and postal ballot papers, in
response to postal vote applications that have been received by the DRO or the ARO.
Subsection 188(2) currently provides that where postal vote applications have been
received after the last mail clearance at the nearest post office on the last Thursday before
polling day, the AEC shall not post the postal voting material to those applicants.
20. Item 12 amends subsection 188(1) to provide that postal voting material will be
sent or delivered to postal vote applicants whose applications are received by the new
deadline of 6.00pm on the Thursday prior to polling day. The posting or delivery of the
postal voting material will be in accordance with the requirements of new
subsection 188(2).
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21. In addition to providing a clearer deadline of 6.00pm, rather than the last mail
clearance (which may vary between post offices), this amendment will enable a greater
period of time for applicants to lodge their applications, for example, for applications
delivered by hand or courier.
22. Item 13 repeals subsection 188(2) and substitutes it with a new provision that sets
out the delivery requirements in relation to postal vote applications received by the AEC
by a specified time. The amendments provide:
· for postal vote applications received up to and including 6.00pm on the Friday
eight days before polling day, the AEC is required to despatch postal voting
material to the applicant by post or other appropriate means (not being electronic
means). However if, in accordance with the approved form, the applicant has
specified another means of delivery (not being electronic means) which the DRO
or ARO considers to be reasonable and practicable, then the AEC is required to
despatch postal voting material by those specified means; and
· for postal vote applications received after 6.00pm on the Friday eight days before
polling day and up to and including 6.00pm on the Thursday before polling day
(the new deadline), the AEC is required to despatch the postal voting material to
the applicant by the most reasonable and practicable means (not being electronic
means).
23. This amendment is intended to enhance the prospect of applicants receiving
postal voting material in time to complete and return for inclusion in the scrutiny.
24. Due to the operation of item 6, a note to item 13 reiterates that postal vote
applications received after 6.00pm on the Thursday before polling day fail to meet the
deadline and that no postal voting material is required to be sent to those applicants under
subsection 188(1).
25. These items give effect to the Government's response to part of
recommendation 9 of the JSCEM's report.
Item 14 - At the end of paragraph 194(2)(c)
26. This item makes a consequential amendment as a result of the insertion of a new
subsection by item 16.
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Item 15 - Paragraph 194(2)(e)
27. This item is consequential to the amendment at item 16. Mobile polling team
leaders and some electoral visitors are deemed to be presiding officers under
subsection 225(6) or paragraph 227(8)(c) of the Electoral Act. However, paragraph
194(2)(e) applies to postal vote envelopes received by presiding officers on polling day
only. Item 15 qualifies the definitions of `presiding officer' in paragraph 194(2)(e) to
specifically exclude electoral visitors and mobile polling team leaders. New subsections
194(2)(f) and 194(2)(g), which are added by item 16, provide that electoral visitors and
mobile polling team leaders can receive postal vote envelopes without limiting the time
period to polling day.
28. Item 15 is also linked to item 22 which outlines the various requirements and
procedures for dealing with postal vote envelopes received by the range of AEC
personnel.
Item 16 - At the end of subsection 194(2)
29. The Electoral Act currently provides that an elector who casts a postal vote shall
post or deliver the completed postal voting envelope, on which the postal vote certificate
is printed, to the appropriate DRO. Where it is unlikely that the completed postal voting
envelope would reach the appropriate DRO within 13 days after polling day, the
Electoral Act currently allows for the envelope to be returned to other AEC officers.
These other officers are any DRO, an ARO outside Australia, a pre-poll voting officer or
a polling place presiding officer.
30. To provide postal voters with greater flexibility and options for returning their
postal voting material in time to be included in the scrutiny, this item expands the range
of AEC officers who can receive completed postal voting envelopes. Whilst engaging in
their normal work, these officers will be able to receive postal voting envelopes where it
is unlikely that the appropriate DRO will receive them within 13 days after polling day.
The expanded range includes electoral visitors at hospitals and prisons, mobile polling
team leaders, and certain office holders and ongoing employees at the AEC's capital city
offices.
31. This item gives effect to part of the Government's response to part of
recommendation 9 of the JSCEM's report.
Items 17 and 18 - Subsection 194(3)
32. These items amend subsection 194(3) as a consequence of item 16.
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Item 19 - Subsection 195A(1)
33. This item amends subsection 195A(1) as a consequence of item 16. It extends the
definition of `officer' for this section to include the expanded range of AEC officers who
can receive postal voting envelopes. The item also qualifies the definition of `presiding
officer' to specifically exclude electoral visitors or mobile polling team leaders who are
deemed to be presiding officers as outlined at paragraph 27 above.
Item 20 - Paragraph 195A(2)(d)
34. This item amends paragraph 195A(2)(d) relating to procedures for dealing with
postal voting envelopes and certificates as a consequence of items 16 and 22.
Item 21 - Paragraphs 195A(2)(f) and (g)
35. This item repeals paragraphs 195A(2)(f) and (g) regarding processes for DROs or
officers to deal with postal voting envelopes and inserts a new paragraph 195A(2)(f) to
provide for postal voting envelopes to be dealt with in accordance with new
subsections 195A(4), 195A(5) and 195A(6).
Item 22 - At the end of section 195A
36. This item amends section 195A as a consequence of items 16 and 20. The
amendments set out the requirements for dealing with postal voting envelopes by the
range of different AEC officers who receive completed postal voting envelopes. The
envelope received must be endorsed by the officer who receives it and must be kept in a
ballot box by the AEC and eventually dealt with in accordance with section 228.
37. A ballot box will be made available for storing postal voting envelopes received
by AEC employees at capital city offices by the DRO for the Division in which the
capital city office is located. This DRO will need to instruct the AEC employees at the
capital city offices on how this ballot box is to be delivered or collected.
38. This item specifically expresses that the instructions of the DRO to an AEC
officer or employee at a capital city office are not legislative instruments within the
meaning of the Legislative Instruments Act 2003. This provision is merely declaratory
and has been included in the Bill to assist the reader.
Item 23 - Paragraph 228(2)(a)
39. This item makes a consequential amendment to paragraph 228(2)(a) as a result of
items 16 and 22. As electoral visitors and mobile team leaders are no longer deemed to
be presiding officers for the purpose of dealing with postal voting envelopes,
paragraph 228(2)(a) needs to be amended to allow the ARO to be able to accept records
forwarded by the expanded range of officers.
Item 24 - After subsection 228(3)
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40. This item inserts new subsection 228(3A) to provide procedures for the relevant
DRO to follow when they obtain ballot boxes under new paragraph 195(6)(b) containing
postal voting envelopes received at capital city offices. The procedures are consistent
with other procedures in section 228, and are necessary due to the expansion of AEC
personnel who may receive postal voting envelopes.
Referendum (Machinery Provisions) Act 1984
Item 25 - Subsection 3(1)
41. This item inserts a definition of `capital city office' into subsection 3(1) of the
Referendum Act and is consequential to the amendment at item 33 which expands the
range of AEC personnel who may receive completed postal voting envelopes to include
particular AEC officers and employees at capital city offices.
Item 26 - Paragraph 46A(2)(a)
42. This item makes a consequential amendment to paragraph 46A(2)(a) of the
Referendum Act in the same way as item 23 amends the Electoral Act.
Item 27 - After subsection 46A(3)
43. This item inserts new subsection 46A(3A) into the Referendum Act to provide
procedures for the relevant DRO to follow when they obtain ballot boxes under new
paragraph 67(6)(b) containing postal voting envelopes received at capital city offices.
The procedures are the same as those at item 24 which amends the Electoral Act.
Item 28 - Subsection 55(5)
44. This item makes the same amendments to section 55 of the Referendum Act for
postal vote applications received for referendums as item 6 for postal vote applications
received for elections. This will ensure consistency between procedures for applications
for postal votes for elections and referendums.
Items 29 and 30 - Subsections 61(1) and 61(2)
45. Section 61 of the Referendum Act provides for the delivery of postal voting
material for a referendum in response to postal vote applications that have been received
by the DRO or the ARO. Items 29 and 30 make the same amendments for the delivery of
postal voting material for a referendum as items 12 and 13 do for an election. This will
ensure consistency in the delivery of postal voting material for elections and
referendums.
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Item 31 - At the end of paragraph 65(2)(c)
46. This item makes a consequential amendment as a result of the insertion of a new
paragraph by item 33.
Item 32 - Paragraph 65(2)(e)
47. This item makes a consequential amendment due to item 33 in the same way as
item 15 does as a result of item 16.
Item 33 - At the end of subsection 65(2)
48. This item expands the range of AEC officers and employees who can receive
completed postal voting envelopes for a referendum in the same way as item 16 does for
elections.
Items 34 and 35 - Subsection 65(3)
49. These items amend subsection 65(3) as a consequence of item 33.
Item 36 - Subsection 67(1)
50. This item amends subsection 67(1) as a consequence of item 33. It extends the
definition of `officer' for this section to include the expanded range of AEC officers who
can receive postal voting envelopes and qualifies the definition of `presiding officer' in
the same way as item 19 does for the Electoral Act.
Item 37 - Paragraph 67(2)(d)
51. This item amends paragraph 67(2)(d) as a consequence of items 33 and 39.
Item 38 - Paragraphs 67(2)(f) and (g)
52. This item repeals paragraphs 67(2)(f) and (g) regarding processes for DROs or
officers dealing with postal voting envelopes and inserts a new paragraph 67(2)(f)
providing that postal voting envelopes are to be dealt with under new subsections 67(4),
67(5) and 67(6).
Item 39 - At the end of section 67
53. This item amends section 67 as a consequence of items 33 and 37. The
amendments set out the requirements for the range of different AEC officers who receive
completed postal voting envelopes. These requirements are consistent with the previous
paragraphs of subsection 67(2), which were amended by item 38, in that the envelope
received must be endorsed by the officer who receives it and must be kept in a ballot box
by the AEC and eventually dealt with in accordance with section 46A.
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54. A ballot box will be made available for storing postal voting envelopes received
by AEC employees at capital city offices by the DRO for the Division in which the
capital city office is located. This DRO will need to instruct the AEC employees at the
capital city offices on how this ballot box is to be delivered or collected.
55. This item specifically expresses that the instructions of the DRO to an AEC
officer at a capital city office are not legislative instruments within the meaning of the
Legislative Instruments Act 2003. This provision is merely declaratory and has been
included in the Bill to assist the reader.
Schedule 2 - Trials of electronic voting methods
Commonwealth Electoral Act 1918
Item 1 - After Part XVA
56. This item inserts new Part XVB into the Electoral Act entitled `Trials of
electronic voting methods' and consists of two Divisions. Division 1 provides for a trial
of electronically assisted voting for sight-impaired people and Division 2 provides for a
trial of remote electronic voting for defence personnel serving outside Australia.
57. Division 1 gives effect to the Government's response to recommendations 27, 41
and 42 of the JSCEM's report, while Division 2 gives effect to the Government's
response to recommendation 43 of the JSCEM's report.
Division 1 - Trial of electronically assisted voting for sight-impaired people
New section 202AA - Definitions
58. This section provides for the definition of `sight-impaired person' and `vote
record' for Division 1.
New section 202AB - Regulations may provide for voting by an electronically
assisted voting method
59. New section 202AB provides for a trial of electronically assisted voting to be
implemented by regulations to enable sight-impaired people to cast a secret vote at
specified locations. The trial will take place at the next federal election held after the
section commences.
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60. Although regulations may be made to cover other issues, new section 202AB sets
out a number of matters that the regulations may address. These include the actual voting
method itself, which may include matters such as how a person indicates a vote on an
electronic voting machine and the form of output from the machine.
61. Regulations may also be made to address general voting issues such as the
process of applying for an electronically assisted vote, how assistance is given to people
using the electronically assisted method, how the output is treated once the person has
voted, and ensuring that a person can vote in private and that the ballot is secret. Officers
of the AEC will provide assistance to sight-impaired people to ensure that the elector is
familiar with the voting method before the elector casts an independent secret vote.
62. The regulations may also provide for which persons may use the electronically
assisted voting method. It is intended that following a comprehensive advertising
campaign, a person would request to use the electronic voting method at the polling
place. In some situations, an AEC officer may make known to an elector that such a
facility is available.
63. The regulations will also determine where and when a person may cast an
electronically assisted vote. It is intended that electronically assisted voting will be
available at 30 locations utilising the pre-poll voting centres established to accept votes
before polling day. This will allow a sight-impaired person to cast an electronically
assisted vote on, or before, polling day.
64. The regulations may also provide for other matters relating to the integrity of the
use of the electronically assisted voting method.
65. New section 202AB also requires the electronically assisted voting method to
provide a person using the method with the same information and the same voting
options as a person marking his or her traditional paper ballot paper for a House of
Representatives or Senate election. Accordingly, the electronic voting machine will need
to be able to display the candidates' names, with any appropriate party affiliation, in the
same order as a traditional paper ballot paper.
66. The Electoral Act currently provides for a range of offences in relation to voting,
such as those in Part XVA for pre-poll voting. Consistent with this approach, new
section 202AB provides that regulations may provide for offences, and penalties for
those offences not exceeding 50 penalty units, in relation to electronically assisted voting.
New section 202AB also clarifies that the electronically assisted voting trial does not
authorise any person to vote more than once at an election.
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New section 202AC - There must be a record of who has voted using the
electronically assisted voting method
67. This section provides that the regulations must provide for a record of each
person who has voted using the electronically assisted voting method and that the
regulations may specify the information to be included in that record. Similar provisions
exist in the Electoral Act, such as for pre-poll voting, to provide transparency for scrutiny
purposes and for compliance with compulsory voting requirements.
New section 202AD - There must be a printed record of the vote
68. The proposed method will produce a printed record of the vote that the person has
cast. Once a person has cast an electronically assisted vote, the vote record will be
placed in an envelope upon which a completed declaration has been made. While the
vote record will not be capable of identifying the elector, consistent with the process
adopted for pre-poll voting, information on the outside of the envelope will enable
preliminary scrutiny to take place.
69. To ensure the secrecy of the vote is maintained, the vote record produced at the
pre-poll voting office will not be required to be an exact replication of the ballot paper.
However, the vote record must be capable of producing a document, whether it be a
replication of the ballot paper or otherwise, that accurately reflects the voter's intention
for scrutiny purposes.
70. New section 202AD provides that regulations must provide for the production of
a printed record of the vote that the person has cast and for the vote record to be placed
inside the declaration envelope.
New section 202AE - How this Act applies in relation to voting using the
electronically assisted voting method
71. This section provides that, other than Part XVA and Schedule 2 of the Electoral
Act, the Electoral Act applies to electronically assisted voting as if the vote were a
pre-poll vote. This approach has been adopted so that existing general polling provisions
of the Electoral Act, such as those relating to the scrutiny and counting of votes, can be
utilised for electronic vote records and do not need to be duplicated in the Bill.
72. Part XVA and Schedule 2 of the Electoral Act do not apply to electronically
assisted voting as these provisions relate to pre-poll voting. New section 202AE
specifically identifies particular instances where the vote or declaration envelope for
electronically assisted voting is to be treated like a vote or declaration envelope for
pre-poll voting. These provisions enable the current polling provisions of the Electoral
Act to apply to the envelope and vote created through the electronically assisted voting
method.
73. New section 202AE also clarifies that a vote cast by the electronically assisted
voting method is taken to satisfy an elector's right to receive a ballot paper under the
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Electoral Act. To ensure that electronically assisted voting procedures mesh smoothly
with existing provisions of the Electoral Act, regulations may make additional provisions
relating to how the Electoral Act is to apply to electronically assisted voting.
New section 202AF - Minister may decide that electronically assisted voting trial is
not to proceed
74. This section provides for the Minister to decide in writing that the electronically
assisted voting trial for sight-impaired people is not to proceed for any reason.
A decision not to proceed with the trial would take into account consideration of risks to
the integrity of the vote, including any software or hardware issues.
75. Any regulations that are in force when, and if, such a decision were made, would
cease to have effect. This allows the greatest flexibility should problems arise once
regulations have been made.
76. The Minister's decision would be a legislative instrument under the Legislative
Instruments Act 2003. As the reason for not proceeding with the trial would be based on
an assessment of the risks to the integrity of the vote, including a software or hardware
failure, it would not be appropriate for such a decision to be subject to disallowance by
the Parliament. Therefore, new subsection 202AF(3) provides that section 42 of the
Legislative Instruments Act does not apply to an instrument for a decision not to proceed
with the trial.
Division 2 - Trial of remote electronic voting for defence personnel serving outside
Australia
New section 202AG - Definitions
77. This section provides for the definition of `electronic vote record' and `printed
vote record' for Division 2.
New section 202AH - Regulations may provide for remote electronic voting by
defence personnel serving outside Australia
78. New section 202AH provides for a trial to be implemented by regulations to
enable ADF personnel serving outside Australia at specified locations to vote by a remote
electronic voting method. The trial will take place at the next federal election held after
the section commences.
79. Although regulations may be made to cover other issues, new section 202AH sets
out a number of matters that regulations may address. These include the actual voting
method itself, such as how a person indicates a vote on an electronic voting machine, a
means of verifying the identity of people using the electronic voting machine, ensuring
that a person can vote in private and that the ballot is secret. To assist in verifying the
identity of the person using the remote electronic voting method, before a person can use
the method he or she will need to register with the AEC as a Remote Electronic Voter.
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80. The regulations will also determine where and when a person may cast a remote
electronic vote. It is intended that remote electronic voting will only be available at
locations where the infrastructure is available for the electronic voting machines to
operate and where it is safe to do so. Depending on the availability of the infrastructure,
it is intended that a person may cast a vote before polling day as well as on polling day.
81. The regulations may also provide for any other matters related to the integrity of
the use of the remote electronic voting method.
82. New section 202AH also requires the remote electronic voting method to provide
a person using the method with the same information and the same voting options as a
person marking his or her traditional paper ballot paper for a House of Representatives or
Senate election. Accordingly, the electronic voting machine will need to be able to
display the candidates' names, with any appropriate party affiliation, in the same order as
a traditional paper ballot paper.
83. The Electoral Act currently provides for a range of offences in relation to voting,
such as those in Part XVA for pre-poll voting. Consistent with this approach, new
section 202AH provides that regulations may provide for offences, and penalties for
those offences not exceeding 50 penalty units, in relation to remote electronic voting.
New section 202AH also clarifies that the electronically assisted voting trial does not
authorise any person to vote more than once at an election.
New section 202AI - Regulations must provide for registration of remote electronic
voters
84. This section provides that the regulations must provide for which ADF personnel
may apply, and the process for applying, for registration as a Remote Electronic Voter.
As noted under section 202AH, registration is one means of assisting to verify the
identity of the person using the remote electronic voting method. New section 202AI
also requires regulations to provide for the processing of applications and the cancellation
of registration as a Remote Electronic Voter.
85. New section 202AI provides that the regulations must require a register of
registered remote electronic voters to be kept by the AEC. To protect the security of
deployment information, the register will not be publicly available or otherwise disclosed
by the AEC.
86. The regulations may also provide for other matters regarding registration of
Remote Electronic Voters.
New section 202AJ - There must be a record of who has voted using the remote
electronic voting method
87. This section provides that the regulations must require a record of each person
who has voted using the remote electronic voting method and may specify the
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information to be included in the record. Similar provisions exist in the Electoral Act,
such as for pre-poll voting, to provide transparency for scrutiny purposes.
New section 202AK - Transmission of electronic votes to the Electoral Commission
and scrutiny of votes
88. Unlike the provisions for the electronically assisted voting trial for sight-impaired
voters, the remote electronic voting method is unlikely to produce a hard copy record of
the vote at the place where the vote was cast. Once the vote is cast, an electronic vote
record will be securely stored before being transmitted to the AEC. Once at the AEC, a
printed record of each electronic vote record transmitted to the AEC will be made for
scrutiny purposes. These records must not be capable of identifying the elector.
89. New section 202AK requires regulations to provide for the secure storage and
transmission of an electronic vote record, as well as a printed record of each electronic
vote record received by the AEC.
90. This section also provides for other issues to be covered by the regulations
relating to these matters.
New section 202AL - How this Act applies in relation to voting using the remote
electronic voting method
91. This section provides that the Electoral Act is to apply to a printed vote record as
if it were a vote on a traditional ballot paper. Similar to the provisions for the
electronically assisted voting trial for sight-impaired voters, this approach has been
adopted so that existing general polling provisions of the Electoral Act, such as those
relating to the scrutiny and counting of votes, can be utilised for electronic vote records
and do not need to be duplicated in the Bill.
92. New section 202AL also provides that the requirements of the Electoral Act
regarding an elector's right to receive a ballot paper is satisfied if a person casts a vote
using the remote electronic voting method. The regulations may make additional
provisions relating to the application of the Electoral Act to votes cast using the remote
electronic voting method.
16
New section 202AM - Minister may decide that remote electronic voting trial is not
to proceed
93. This section provides for the Minister to decide in writing that the remote
electronic voting trial for the ADF personnel is not to proceed for security or any other
reasons. A decision not to proceed with the trial would take into account consideration of
security risks to the vote, including any software or hardware issues.
94. Any regulations that are in force when, and if, such a decision were made, would
cease to have effect. This allows the greatest flexibility should problems arise once
regulations have been made.
95. The Minister's decision would be a legislative instrument under the Legislative
Instruments Act 2003. As the reason for not proceeding with the trial would be based on
an assessment of the security risks or any other risks to the integrity of the vote, including
a software or hardware failure, it would not be appropriate for such a decision to be
subject to disallowance by the Parliament. Therefore, new subsection 202AM(3)
provides that section 42 of the Legislative Instruments Act does not apply to an
instrument for a decision not to proceed with the trial.
Referendum (Machinery Provisions) Act 1984
Item 2 - After Part IVA
96. This item inserts into the Referendum Act a new Part to parallel the amendments
made to the Electoral Act by item 1 of Schedule 2. As with the amendments to the
Electoral Act, new Part IVB of the Referendum Act is entitled `Trials of electronic voting
methods' and consists of two Divisions. Division 1 provides for a trial of electronically
assisted voting at a referendum for sight-impaired people and Division 2 provides for a
trial of remote electronic voting at a referendum for defence personnel serving outside
Australia.
97. Electronic voting will only be available at a referendum if the referendum is held
on the same day as an election at which sight-impaired people, or defence members or
defence civilians, may vote electronically.
Division 1 - Trial of electronically assisted voting for sight-impaired people
New section 73L - Definitions
98. This section provides for the definition of `sight-impaired person' and `vote
record' for Division 1.
17
New section 73M - Regulations may provide for voting by an electronically assisted
voting method
99. New section 73M provides for a trial of electronically assisted voting to be
implemented by regulations to enable sight-impaired people at specified locations to vote
in a referendum. A person may vote in a referendum using an electronic voting method
only at the first referendum held after the commencement of this section if the
referendum is held on the same day as a general election at which sight-impaired people
may vote electronically.
100. Although regulations may be made to cover other issues, new section 73M sets
out a number of matters that regulations may address. These include the actual voting
method itself, which may include matters such as how a person indicates a vote on an
electronic voting machine and the form of output from the machine. Regulations may
also be made to address general voting issues such as the process of applying for an
electronically assisted vote, how assistance is given to people using the electronically
assisted method, how the output is treated once the person has voted, and ensuring that a
person can vote in private and that the ballot is secret. Officers of the AEC will provide
assistance to sight-impaired people to ensure that the elector is familiar with the voting
method before the elector casts an independent secret vote.
101. The regulations will also determine where and when a person may cast an
electronically assisted vote. It is intended that electronically assisted voting for the
referendum will be available at the same 30 locations at which people may vote in the
election. This will enable a person to cast an electronically assisted vote on or before
voting day for the referendum.
102. The regulations may also provide for which persons may use the electronically
assisted voting method. It is intended that following a comprehensive advertising
campaign, a person would request to use the electronic voting method at the polling
place. In some situations, an AEC officer may make known to an elector that such a
facility is available.
103. New section 73M also requires the electronically assisted voting method to
provide a person using the method with the same information and the same voting
options as a person marking his or her traditional paper ballot paper for the referendum.
104. The Referendum Act currently provides for a range of offences in relation to
voting, such as those in Part IVA for pre-poll voting. Consistent with this approach, new
section 73M provides that regulations may provide for offences, and penalties for those
offences not exceeding 50 penalty units, in relation to electronically assisted voting.
New section 73M also clarifies that the electronically assisted voting trial does not
authorise any person to vote more than once at a referendum.
New section 73N - There must be a record of who has voted using the electronically
assisted voting method
18
105. This section requires the regulations to provide for a record of each person who
has voted using the electronically assisted voting method and may specify the
information to be included in the record. Similar provisions exist in the Referendum Act,
such as for pre-poll voting, to provide transparency for scrutiny purposes, and
compliance with compulsory voting provisions.
New section 73P - There must be a printed record of the vote
106. Unlike other electronic voting methods that store a person's vote until the close of
the poll, the proposed electronically assisted voting method will produce a printed record
of the vote that the person has cast. Similar to pre-poll voting, once a person has cast a
vote, the vote record will be placed in an envelope upon which a completed declaration
has been made. While the vote record will not be capable of identifying the elector,
consistent with the process adopted for pre-poll voting, information on the outside of the
envelope will enable preliminary scrutiny to take place.
107. To ensure the secrecy of the vote is maintained, the vote record produced at the
pre-poll voting office will not be required to be an exact replication of the ballot paper.
However, the vote record must be capable of producing a document, whether it be a
replication of the ballot paper or otherwise, that accurately reflects the voter's intention
for scrutiny purposes.
108. New section 73P requires regulations to provide for a printed record of the vote
the person has cast and for the record to be placed inside the envelope.
New section 73Q - How this Act applies in relation to voting using the electronically
assisted voting method
109. This section provides that, other than Part IVA and Schedule 3, the Referendum
Act applies to electronically assisted voting as if the vote were a pre-poll vote. This
approach has been adopted so that existing general polling provisions of the Referendum
Act, such as those relating to the scrutiny and counting of votes, can be utilised for
electronic vote records and do not need to be duplicated in the Bill.
110. Part IVA and Schedule 3 of the Referendum Act do not apply to electronically
assisted voting as these provisions relate to pre-poll voting. New section 73Q
specifically identifies particular instances where the vote or declaration envelope for
electronically assisted voting is to be treated like a vote or declaration envelope for pre-
poll voting. These provisions enable the current polling provisions of the Referendum
Act to apply to the envelope and vote created through the electronically assisted voting
method.
111. New section 73Q also clarifies that a vote cast by electronically assisted voting is
taken to satisfy an elector's right to receive a ballot paper under the Referendum Act. To
ensure that electronically assisted voting procedures mesh smoothly with existing
provisions of the Referendum Act, regulations may make additional provisions relating to
how the Referendum Act is to apply to electronically assisted voting.
19
Division 2 - Trial of remote electronic voting for defence personnel serving outside
Australia
New section 73R - Definitions
112. This section provides for definitions of `defence civilian', `defence member',
`electronic vote record', `printed vote record', and `registered remote electronic voter'.
New section 73S - Regulations may provide for remote electronic voting by defence
personnel serving outside Australia
113. New section 73S provides for a trial to be implemented by regulations to enable
defence members and defence civilians at specified locations to vote by a remote
electronic voting method in a referendum. A person may vote in a referendum using an
electronic voting method only at the first referendum held after the commencement of
this section if the referendum is held on the same day as a general election at which ADF
personnel may vote electronically.
114. Although regulations may be made to cover other issues, new section 73S sets out
a number of matters that regulations may address. These include the actual voting
method itself, such as how a person indicates a vote on an electronic voting machine, a
means of verifying the identity of people using the electronic voting machine, ensuring
that a person can vote in private and that the ballot is secret. To assist in verifying the
identity of the person using the remote electronic voting method, before a person can use
the method he or she will need to register with the AEC as a Remote Electronic Voter,
discussed at paragraphs 84 to 86 above.
115. The regulations will also determine where and when a person may cast a remote
electronic vote. It is intended that remote electronic voting will be available at locations
where the infrastructure is available for the electronic voting machines to operate and
where it is safe to do so. Depending on the availability of the infrastructure, it is intended
that a person may cast a vote before voting day as well as on voting day.
116. New section 73S also requires the remote electronic voting method to provide a
person using the method with the same information and the same voting options as a
person marking his or her traditional paper ballot paper for a referendum.
20
117. The Referendum Act currently provides for a range of offences in relation to
voting, such as those in Part IVA for pre-poll voting. Consistent with this approach, new
section 73S provides that regulations may provide for offences, and penalties for those
offences not exceeding 50 penalty units, in relation to electronically assisted voting.
New section 73S also clarifies that the electronically assisted voting trial does not
authorise any person to vote more than once at a referendum.
New section 73T - There must be a record of who has voted using the remote
electronic voting method
118. This section requires the regulations to provide for a record of each person who
has voted using the electronically assisted voting method and may specify the
information to be included in the record. Similar provisions exist in the Referendum Act,
such as for pre-poll voting, to provide transparency for scrutiny purposes.
New section 73U - Transmission of electronic votes to the Electoral Commission and
scrutiny of votes
119. Unlike the provisions for the electronically assisted voting trial for sight-impaired
voters, the remote electronic voting method is unlikely to produce a hard copy record of
the vote at the place where the vote was cast. Once the vote is cast, an electronic vote
record will be securely stored before being transmitted to the AEC. Once at the AEC, a
printed record of each electronic vote record transmitted to the AEC will be made for
scrutiny purposes. These records must not be capable of identifying the elector.
120. New section 73U requires regulations to provide for the secure storage and
transmission of an electronic vote record, as well as a printed record of each electronic
vote record received by the AEC.
New section 73V - How this Act applies in relation to voting using the remote
electronic voting method
121. This section provides that the Referendum Act is to apply to a printed vote record
as if it were a vote on a traditional ballot paper. Similar to the provisions for the
electronically assisted voting trial for sight-impaired voters, this approach has been
adopted so that existing general polling provisions of the Referendum Act, such as those
relating to the scrutiny and counting of votes, can be utilised for electronic vote records
and do not need to be duplicated in the Bill.
122. New section 73V also provides that the requirements in the Referendum Act
regarding an elector's right to receive a ballot paper is satisfied if a person casts a vote
using the remote electronic voting. The regulations may make additional provisions
relating to how the Referendum Act is to apply to remote electronic voting.
21
Schedule 3 - Other amendments
Part 1 - Proof of identity for people enrolling from outside Australia
Commonwealth Electoral Act 1918
123. Items 2 and 3 amend section 98AA of the Electoral Act as inserted by item 29 of
Schedule 1 to the Electoral Integrity Act relating to the requirements that must be
contained in regulations for documentary evidence of proof of identity by applicants for
enrolment. Item 29 commenced on 21 November 2006. The Electoral Act, as amended
by the Electoral Integrity Act, provides that the proof of identity requirements will not
apply unless regulations are in operation. The regulations are expected to be made as
soon as possible.
124. The proof of identity scheme has three tiers. Under the first tier, enrolment
applicants will be required to provide their driver's licence number on their enrolment
application. If enrolment applicants do not have a driver's licence then they will be
required to show a prescribed document to an elector in a prescribed class (second tier).
If they do not have a driver's licence or a prescribed identity document that they can
show to an elector in a prescribed class, they will be required to have their enrolment
application countersigned by two electors who have known them for at least one month
and who can confirm their name (third tier).
125. The regulations to support the proof of identity requirements will specify that the
driver's licence must be issued by an Australian State or Territory and will provide for a
broad range of documents and classes of electors to whom the prescribed documentation
may be shown.
126. Sections 94A and 95 of the Electoral Act provide that, subject to a number of
conditions, a person residing outside Australia may apply for enrolment. As it is possible
that not all overseas applicants may be able to provide an Australian driver's licence
number or meet either the second or third tier of the other requirements, an alternative
proof of identity mechanism, as set out under item 3 below, is required to suit these
applicants.
127. These items will commence on Proclamation with a default commencement of
six months after Royal Assent of this Bill. This is consistent with the commencement
provisions for the proof of identity requirements in the Electoral Integrity Act (on
Proclamation or eight months after Royal Assent) and will allow sufficient time for the
regulations for overseas enrolment applicants to be made.
22
Item 1 - Subsection 4(1)
128. This item provides for the definition of `Australian passport' as a consequence of
item 3.
Item 2 - Subsection 98AA(1)
129. This item makes a minor change to subsection 98AA(1) as a consequence of the
amendments to subsection 98AA at item 3.
Item 3 - Paragraphs 98AA(1)(a) and (b)
130. This item repeals and substitutes a new paragraph 98AA(1)(a) to provide for
alternate documentary evidence that may be supplied by people enrolling from overseas
under sections 94A and 95 of the Electoral Act. In order to assist people enrolling from
overseas to meet the first tier requirement, new paragraph 98AA(1)(a) provides these
people with the option of supplying either their Australian passport number or their
driver's licence number as documentary evidence of their name.
131. New paragraph 98AA(1)(b) provides that where an overseas applicant does not
have either an Australian passport or a driver's licence, the applicant will be subject to
the second tier requirements.
Item 4 - Saving - regulations under paragraph 98AA(1)(a) and (b)
132. This item saves any regulations that were in force for the proof of identity
requirements prior to item 3 and allows those regulations to be amended or repealed.
Part 2 - Pre-poll voting offices
Commonwealth Electoral Act 1918
Item 5 - Subsection 4(1) (definition of pre-poll voting office)
133. This item amends the definition of `pre-poll voting office' as a consequence of
item 6 which relates to the declaration of pre-poll voting offices.
Item 6 - After section 200B
134. The Electoral Act currently provides that an application for a pre-poll vote may be
made at a place, during the days and opening hours, gazetted by the AEC. The
requirement to gazette this information before a pre-poll office can operate prevents the
AEC from establishing pre-poll voting facilities quickly in response to changing or
unanticipated circumstances.
135. New subsection 200BA(1) makes it explicit that the AEC may declare the place,
days and hours of operation of pre-poll voting offices. Paragraph 200BA(2)(a) provides
23
that the declaration must be published in the Gazette prior to the first day of operation of
the pre-poll voting office.
136. Paragraph 200BA(2)(b) allows the AEC to establish a pre-poll voting office
when, due to exceptional circumstances, it would not be possible to gazette the
declaration prior to commencement of the operation of the pre-poll voting office. This
provision will operate as an exception to the general requirement to gazette pre-poll
voting offices. This will allow pre-poll voting offices to be established in circumstances
where the AEC is required to quickly ensure that electors are able to cast votes. The
AEC must publish a copy of the declaration in the Gazette as soon as practicable after the
declaration has been made (subparagraph 200BA(2)(b)(ii)).
137. Where a pre-poll voting office has been declared under exceptional
circumstances, subsection 200BA(3) requires the AEC to take all reasonable steps to
make the details of such a declaration known to each of the candidates for the Division in
which the pre-poll voting office is located and to the political parties running a candidate
in that Division, and to place appropriate press advertising. This must be done as soon as
practicable after the declaration has been made. These requirements provide for the
minimum levels of notification the AEC can provide, and do not prevent the AEC from
advising other appropriate people and organisations.
138. Subsection 200BA(4) clarifies that a declaration made under subsection
200BA(1) is not a legislative instrument within the meaning of the Legislative
Instruments Act 2003. This provision is merely declaratory and has been included in the
Bill to assist the reader.
139. This item gives effect to the Government's response to recommendation 16 of the
JSCEM's report.
Item 7 - Subsection 200D(2)
140. This item is a consequential amendment, due to item 6, specifying the place, day
and time when applications for pre-poll votes are to be made.
Item 8 - Subsection 200DB(3)
141. This item makes a consequential amendment, due to item 6, to a provision
relating to scrutineers at pre-poll voting offices.
Item 9 - Subparagraph 348(4)(c)(ii)
142. This item makes a consequential amendment, due to item 6, to provisions relating
to the control of behaviour at polling places.
Referendum (Machinery Provisions) Act 1984
Item 10 - Subsection 3(1) (definition of pre-poll voting office)
24
143. This item amends the definition of `pre-poll voting office' as a consequence of
item 11 below.
Item 11 - After Section 73
144. This item inserts new section 73AA in the Referendum Act in relation to pre-poll
voting offices for voting in a referendum. The provisions are the same as those at item 6
above. However, as there are no candidates in a referendum, new subsection 73AA(3)
requires the AEC, as soon as practicable and if appropriate to do so, to publish advice
about the pre-poll voting office only in the Division in which the polling place is located.
The AEC will also be required to take all reasonable steps to inform each registered
political party that it considers appropriate to inform about the pre-poll voting
arrangements. These requirements provide for the minimum notification the AEC can
provide, and do not prevent the AEC from advising other appropriate people and
organisations.
145. Subsection 73AA(4) clarifies that a declaration made under subsection 73AA(1)
is not a legislative instrument within the meaning of the Legislative Instruments Act
2003. This provision is merely declaratory and has been included in the Bill to assist the
reader.
Item 12 - Subsection 73B(2)
146. This item is a consequential amendment, due to item 11, specifying the place, day
and time when applications for pre-poll votes are to be made.
Items 13 and 14 - Paragraph 73C(a)
147. These items are consequential amendments, due to item 11, to provisions relating
to pre-poll voting offices when a referendum is held on the same day as an election.
Item 15 - Subsection 73CB(3)
148. This item makes a consequential amendment, due to item 11, to provisions
relating to scrutineers at pre-poll voting offices.
Item 16 - Subparagraph 135(4)(c)(ii)
149. This item makes a consequential amendment, due to item 11, to provisions
relating to the control of behaviour at polling places.
Part 3 - Removal of provision relating to defamation of candidates and false
statements
Commonwealth Electoral Act 1918
25
Item 17 - Section 350
150. This item repeals section 350 which makes it an offence if a person makes or
publishes any false and defamatory statement in relation to the personal character or
conduct of a candidate.
151. Following repeal of the section, cases of defamation will be dealt with in
accordance with the civil law of defamation existing in the relevant State or Territory
jurisdiction. This will bring candidate defamation actions in line with existing laws and
with the move to uniform national defamation laws.
152. This item gives effect to the Government's response to recommendation 46 of the
JSCEM's report.
26
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