Commonwealth Numbered Regulations - Explanatory Statements

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ELECTORAL AND REFERENDUM AMENDMENT (PRESCRIBED AUTHORITIES) REGULATIONS 2020 (F2020L01058)

 EXPLANATORY STATEMENT

Electoral and Referendum Amendment (Prescribed Authorities)
 Regulations 2020

Issued by Authority of the Minister for Finance

Commonwealth Electoral Act 1918

Legislative Authority

Section 395 of the Commonwealth Electoral Act 1918 (the Electoral Act) provides that the Governor-General may make regulations, not inconsistent with the Electoral Act, prescribing all matters which by that Act are required or permitted to be prescribed, or when are necessary or convenient to be prescribed for giving effect to the Electoral Act.

Purpose

The first purpose of the Electoral and Referendum Amendment (Prescribed Authorities) Regulations 2020 (the Regulations) is to amend the Electoral and Referendum Regulation 2016 (the Principal Regulation) to include the statutory agency called the National Disability Insurance Scheme Launch Transition Agency, commonly known as the National Disability Insurance Agency (NDIA) to the list of prescribed authorities for the purposes of the Electoral Act. As a prescribed authority listed in Schedule 1, the Electoral Commission may give the NDIA Commonwealth electoral Roll information for the permitted purposes described in the table in clause 1 to Schedule 1 to the Regulation, namely for the purposes of preventing, detecting or investigating fraud and non-compliance matters in relation to the NDIA's purposes (within the meaning of the Public Governance, Performance and Accountability Act 2013).

The second purpose of the Regulations is to amend the reference to the prescribed authority in item 18 of the table in Schedule 1 to the Principal Regulation from the 'Department administered by the Minister administering the Human Services (Medicare) Act 1973' to 'Services Australia'. This amendment reflects the Machinery of Government changes that came into effect on 1 February 2020 and established Services Australia as an executive agency. It ensures the continuation of the provision of electoral Roll data to Services Australia for the existing permitted purpose set out under item 18 of the table in Schedule 1 to the Principal Regulation.

Operation

Specific provisions in the Electoral Act provide that regulations may be made to support particular electoral or enrolment activity.

The definition of 'prescribed authority' in section 4, and circumstances specified in item 4 of the table in subsection 90B(4) of the Electoral Act establish a scheme where the Australian Electoral Commission (AEC) can provide Roll information to Commonwealth government agencies specified in the regulations. The Principal Regulation now allows the provision of Roll information to the NDIA, and specifies the purposes for which the Roll information may be used, namely preventing, detecting or investigating fraud and non-compliance matters in relation to the NDIA's purposes.

The Principal Regulation is now also amended to reflect the change of name of the prescribed authority in item 18 of the table in Schedule 1 to 'Services Australia'.

Details of the proposed Regulation are set out in the Attachment.

Consultation

Consultation was undertaken between the Minister for the National Disability Insurance Scheme, the Minister for Finance and the Australian Electoral Commission for the addition of item 28 to the table in Schedule 1 to the Principal Regulation. This consultation resulted in agreement on the addition of the NDIA to the Regulation and that Commonwealth electoral Roll information may be provided to the NDIA for the prescribed purpose of preventing, detecting or investigating fraud and non-compliance matters in relation to the NDIA's purposes (within the meaning of the Public Governance, Performance and Accountability Act 2013).

Consultation was undertaken between the Department of Social Services, Services Australia, the Department of Finance and the Australian Electoral Commission for the amendment of item 18 in the table in Schedule 1 to the Principal Regulation. This consultation resulted in agreement on the amendment of the name of the prescribed authority in that item to 'Services Australia'.

Statement of compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Electoral and Referendum Amendment (Prescribed Authorities) Regulations 2020

These Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the disallowable Legislative Instrument

Section 395 of the Commonwealth Electoral Act 1918 (the Electoral Act) provides that the Governor-General may make regulations, not inconsistent with the Electoral Act, prescribing all matters which by that Act are required or permitted to be prescribed, or necessary or convenient to be prescribed for giving effect to the Electoral Act.  

The Electoral and Referendum Amendment (Prescribed Authorities) Regulations 2020 (the Regulations) amends the Electoral and Referendum Regulation 2016 (the Principal Regulation) to include the statutory agency called the National Disability Insurance Scheme Launch Transition Agency, commonly known as the National Disability Insurance Agency (NDIA), to the list of prescribed authorities for the purposes of the Electoral Act. As a prescribed authority listed in Schedule 1, the Electoral Commission may give the NDIA Commonwealth electoral Roll information for the permitted purposes described in the table in clause 1 to Schedule 1 to the Regulation, namely for the purposes of preventing, detecting or investigating fraud and non-compliance matters in relation to the NDIA's purposes (within the meaning of the Public Governance, Performance and Accountability Act 2013).

The Regulations also amend the reference to the prescribed authority in item 18 of the table in Schedule 1 to the Principal Regulation from the 'Department administered by the Minister administering the Human Services (Medicare) Act 1973' to 'Services Australia'. This amendment reflects the Machinery of Government changes that came into effect on 1 February 2020 and established Services Australia as an executive agency. It ensures the continuation of the provision of electoral Roll data to Services Australia for the existing permitted purpose set out under item 18 of the table in Schedule 1 to the Principal Regulation.

Human rights implications

The amendment to the name of the prescribed authority in item 18 of the table in Schedule 1 to the Principal Regulation is an administrative change and does not engage any human rights.

The addition of the NDIA as a prescribed authority to the Principal Regulation by these Regulations engages the following human rights:

Article 17 of the International Covenant on Civil and Political Rights (the ICCPR) provides, that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. It further sets out that everyone has the right to the protection of the law against such interference or attacks.

Australia accepts the principles stated in Article 17, and to the right to enact and administer laws which, insofar as they authorise action which impinges on a person's privacy, family, home or correspondence, are necessary in a democratic society in the interests of national security, public safety, the economic well-being of the country, the protection of public health or morals, or the protection of the rights and freedoms of others.

The amendment to the Principal Regulation adds the NDIA to the list of prescribed authorities for the purposes of the Electoral Act. As a prescribed authority listed in Schedule 1, the Electoral Commission may give the NDIA Commonwealth electoral Roll information for the purposes as described in the table in clause 1 to Schedule 1 to the Principal Regulation, namely for the purposes of preventing, detecting or investigating fraud and non-compliance matters in relation to the NDIA's purposes (within the meaning of the Public Governance, Performance and Accountability Act 2013).

Providing an elector's information to prescribed authorities in the prescribed circumstances assists with law enforcement and compliance with Commonwealth laws. Currently the NDIA is not a prescribed authority for receiving Commonwealth electoral Roll information for the prescribed purpose.

The disclosure of Commonwealth electoral Roll information to the NDIA is a permissible limitation, as it is necessary in the interests of the protection of public health and the economic well-being of the country.

The disclosure of such information is protected in the first instance by the discretion of the Electoral Commission, which can decide when and how to give this information to the prescribed authority. Information is only given for a specific purpose.

Many prescribed authorities at Schedule 1 to the Principal Regulation engage in law enforcement and compliance work. The NDIA's own intelligence, detection and investigation capabilities in respect of fraud occurring within the National Disability Insurance Scheme will be considerably enhanced by receiving Commonwealth electoral Roll information.

Given the above, the Regulations are a permissible limitation on Article 17 of the ICCPR as they are reasonable, necessary and sufficiently precise to ensure that they operate only to further the legitimate objective of preventing, detecting and investigating fraud and non-compliance matters in the National Disability Insurance Scheme.

Conclusion

These Regulations are compatible with human rights because, to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.

ATTACHMENT

Details of the proposed Electoral and Referendum Amendment (Prescribed Authorities) Regulations 2020

Section 1 - Name of Regulation

This section provides that the title of the Regulations is the Electoral and Referendum Amendment (Prescribed Authorities) Regulations 2020.

Section 2 - Commencement

This section provides for the Regulations to commence the day after registration on the Federal Register of Legislation.

Section 3 - Authority

This section provides that the Regulations are made under the Commonwealth Electoral Act 1918.

Section 4 - Schedule

This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 - Amendments

Clause 1 of Schedule 1 repeals the cell at table item 18 under the column headed 'Agency or authority' in clause 1 of Schedule 1 to the Electoral and Referendum Regulation 2016, and substitutes for it 'Services Australia'.

Clause 2 of Schedule 1 adds item 28 to the end of the table in clause 1 of Schedule 1 to the Electoral and Referendum Regulation 2016. This item prescribes the agency covered by section 117 of the National Disability Insurance Scheme Act 2013 (the Statutory Agency consisting of the Chief Executive Officer and staff) as the prescribed authority. This item also prescribes the permitted purpose for which the prescribed authority can use the electoral Roll data to be 'preventing, detecting or investigating fraud and non-compliance matters in relation to the Agency's purposes (within the meaning of the Public Governance, Performance and Accountability Act 2013)'.