Electoral and Referendum Amendment Act 1991
No. 167 of 1991
An Act to amend the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984, and for related purposes
[Assented to 13 November 1991]
The Parliament of Australia enacts:
PART 1—PRELIMINARY
Short title
1. This Act may be cited as the Electoral and Referendum Amendment Act 1991.
Commencement
2. (1) Subject to this section, the provisions of this Act commence on a day or days to be fixed by Proclamation.
(2) Sections 1, 2, 3, 33 and 44 commence on the day on which this Act receives the Royal Assent.
(3) Section 45 is to be taken to have commenced on 30 September 1990.
(4) If a provision of this Act, other than a provision referred to in subsection (2) or (3), does not commence under subsection (1) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
PART 2—AMENDMENTS OF THE COMMONWEALTH ELECTORAL ACT 1918
Principal Act
3. In this Part, "Principal Act" means the Commonwealth Electoral Act 19181.
Interpretation
4. Section 4 of the Principal Act is amended by inserting in subsection (1) the following definitions:
" 'facsimile', in relation to a nomination paper, means:
(a) a copy of a nomination paper that has been reproduced by facsimile telegraphy or any other means; or
(b) a copy of a copy referred to in paragraph (a);
‘video recording' includes a video recording that is recorded on means other than a videotape.".
Times at which redistributions are to commence
5. Section 59 of the Principal Act is amended:
(a) by omitting from subsection (5) "one year" and substituting "10 months";
(b) by omitting from subsection (7) "sub-section (8)" and substituting "subsections (8) and (9a)";
(c) by inserting before paragraph (7) (a) the following paragraph:
"(aa) forthwith after the making of a determination under subsection 48 (1) that results in an alteration of the number of members of the House of Representatives to be chosen in the Territory at a general election; and";
(d) by inserting in subsection (8) "by virtue of paragraph (7) (a) or (b)" after "Territory" (first occurring);
(e) by inserting after subsection (9) the following subsections:
"(9a) Where:
(a) a direction under subsection (1) is, but for this subsection, required by subsection (7) (including that subsection as affected by subsection (9)) to be made in relation to the Australian Capital Territory at any time within 10 months after the day of the first meeting of a House of Representatives; and
(b) a determination under subsection 48 (1) has not been made after the day of that first meeting; and
(c) the Electoral Commission is of the opinion that the next following determination under subsection 48 (1) will or may result in an alteration of the number of members of the House of Representatives to be chosen in the Territory at a general election;
the Electoral Commission may, by notice published in the Gazette, direct that subsection (7) does not apply in relation to the Territory until the making of the determination referred to in paragraph (c).
"(9b) Where:
(a) the Australian Capital Territory is undergoing redistribution into Divisions; and
(b) a direction under subsection (1) is made in relation to the Territory by virtue of paragraph (7) (aa);
the redistribution of the Territory into Divisions, being the redistribution referred to in paragraph (a), is, by force of this subsection, terminated.";
(f) by omitting paragraph (11) (b) and substituting the following paragraph:
"(b) the redistribution of the State or Territory has not been terminated under subsection (6) or (9b), as the case requires; and".
Provision of Rolls and habitation indexes to political parties etc.
6. Section 91 of the Principal Act is amended by inserting after subsection (10) the following subsection:
"(10a) Nothing in section 91c, 91d or 91e derogates from the requirement of the Electoral Commission to provide copies of the latest print of the Rolls under this section.".
Insertion of new sections
7. After section 91b of the Principal Act the following sections are inserted:
Provision of certified list of voters to candidates
"91c. The Electoral Commission, as soon as practicable after the close of the Rolls, must give to each candidate in a House of Representatives election a copy of the certified list of voters for the Division for which he or she is seeking election.
Provision of certified list of voters to members of House of Representatives
"91d. (1) The Electoral Commission, as soon as practicable after a candidate in a House of Representatives election has been declared elected under section 284, must give to the successful candidate 3 copies of the certified list of voters for the Division for which he or she was elected.
"(2) The Electoral Commission, as soon as practicable after the result of a Senate election has been declared under section 283, must give to each member of the House of Representatives 3 copies of the certified list of voters for the Division for which the member was elected that was provided for the purposes of paragraph 203 (1) (b) for the Senate election.
"(3) Subsection (2) does not, after a Senate election, entitle a member of the House of Representatives to copies of the certified list of voters for a Division if the member would have been so entitled by virtue of a House of Representatives election held at the same time as the Senate election.
Provision of certified list of voters to Senators
"91e. (1) The Electoral Commission, as soon as practicable after the result of a Senate election has been declared under section 283, must give to each Senator 3 copies of the certified list of voters for each Division in the State or Territory that he or she represents.
"(2) The Electoral Commission, as soon as practicable after a candidate in a House of Representatives election has been declared elected under section 284, must give to each Senator who represents the State or Territory in which the Division for which the election was held is situated 3 copies of the certified list of voters for the Division.
"(3) Subsection (2) does not, after a House of Representatives election, entitle a Senator to copies of the certified list of voters for a Division in the State or Territory which that Senator represents if the Senator would have been so entitled by virtue of a Senate election held at the same time as the House of Representatives election.".
Claims for age 17 enrolment
8. Section 100 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:
"(1) A person who:
(a) is 17 years of age; and
(b) would be entitled to be enrolled for a Subdivision if he or she were 18 years of age;
may send or deliver a claim to have his or her name placed on the Roll for that Subdivision to any Divisional Returning Officer or Australian Electoral Officer.".
Action on receipt of claim
9. Section 102 of the Principal Act is amended:
(a) by adding at the end of subparagraph (1) (b) (iii) "and";
(b) by omitting subparagraph (1) (b) (v);
(c) by inserting after paragraph (1) (b) the following paragraph:
"(ba) if the claim is in order but the officer is satisfied that the claimant is already properly enrolled in the Subdivision for which he or she is entitled to be enrolled—notify the claimant, in writing, that he or she has been enrolled for that Subdivision; and";
(d) by inserting in subsection (1a) ", (ba)" after "(1) (b)".
Mode of nomination
10. Section 166 of the Principal Act is amended:
(a) by omitting from subsection (1) "A nomination" and substituting "Subject to subsections (1a) and (1b), a nomination";
(b) by inserting after subsection (1) the following subsections:
"(1a) Where:
(a) a candidate in a Senate election is:
(i) a Senator; or
(ii) in the case of an election following a dissolution of the Senate, a person who was, immediately before the dissolution, a Senator; and
(b) the candidate's name is, under subsection 99 (4), enrolled on the Roll for any Subdivision of a Division of the State or Territory that he or she represents or represented;
the candidate may set out in his or her nomination the address recorded in that enrolment rather than his or her place of residence.
"(1b) Where:
(a) a candidate in an election for the House of Representatives was, immediately before the dissolution or expiration of the House of Representatives that preceded the election, a member of the House of Representatives; and
(b) the candidate's name is, under subsection 99 (4), enrolled
on the Roll for any Subdivision of the Division that he or she represented;
the candidate may set out in his or her nomination the address recorded in that enrolment rather than his or her place of residence.".
Repeal of section and substitution of new section
11. Section 167 of the Principal Act is repealed and the following section is substituted:
To whom nominations made
"167. (1) Nominations of candidates for election to the Senate must be made to the Australian Electoral Officer.
"(2) Subject to subsection (3), nominations of candidates for election to the House of Representatives must be made to the DRO.
"(3) A nomination of all of the candidates endorsed by a registered political party for election to the House of Representatives in respect of the Divisions situated in a particular State or Territory may be made by the registered officer of the party to the Australian Electoral Officer for that State or Territory.
"(4) If a nomination for a House of Representatives election is made to the Australian Electoral Officer, the Australian Electoral Officer:
(a) must deliver to the DRO for each Division for which a candidate has been so nominated, as soon as practicable before the hour of nomination, a facsimile of the nomination paper; and
(b) must advise the DRO for each Division for which a candidate has been so nominated, forthwith after a sum is deposited with the Australian Electoral Officer under section 170, being a sum that is, or includes an amount, in respect of that candidate, that it was so deposited; and
(c) must deliver to the DRO for each Division for which a candidate has been so nominated, as soon as practicable after the Australian Electoral Officer advises the DRO as required under paragraph (b) but before polling day, the sum required to be deposited under section 170 in respect of that candidate.".
Repeal of section and substitution of new section
12. Section 170 of the Principal Act is repealed and the following section is substituted:
Requisites for nomination
"170. (1) A nomination is not valid unless, in the nomination paper, the person nominated:
(a) consents to act if elected; and
(b) declares that:
(i) the person is qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator or a member of the House of Representatives, as the case may be; and
(ii) the person is not, and does not intend to be, a candidate in any other election to be held on the same day as the election to which the nomination relates; and
(c) states whether the person is an Australian citizen by reason of birth in Australia, having been granted a certificate of Australian citizenship or other means and provides:
(i) in the case of citizenship by birth in Australia—the date and place of birth; or
(ii) in the case of citizenship by reason of having been granted a certificate of Australian citizenship—the date on which the person became an Australian citizen; or
(iii) in the case of citizenship by any other means—particulars of those means.
"(2) A nomination is not valid unless:
(a) the nomination paper or a facsimile of it:
(i) if it is a nomination for a Senate election—is received by the Australian Electoral Officer after the issue of the writ and before the hour of nomination; or
(ii) if it is a nomination for a House of Representatives election made to the Australian Electoral Officer—is received by the Australian Electoral Officer after the issue of the writ and not less than 48 hours before the hour of nomination; or
(iii) if it is a nomination for a House of Representatives election made to the DRO—is received by the DRO after the issue of the writ and before the hour of nomination; and
(b) if, for the purpose of the nomination, a nomination paper is delivered to the Australian Electoral Officer or the DRO—the person nominated, or some person on his or her behalf, deposits with that officer, at the time of delivery of the nomination paper, a sum determined under subsection (3); and
(c) if, for the purpose of the nomination, a facsimile of a nomination paper is received by the Australian Electoral Officer or the DRO—the person nominated, or some person on his or her behalf deposits with that officer, before the latest time at which such a facsimile could have been received so that the nomination is valid, a sum determined under subsection (3).
"(3) For the purposes of paragraphs (2) (b) and (c), the sum to be deposited by or on behalf of a person nominated is:
(a) if a person is nominated as a Senator—$500; or
(b) if a person is nominated as a member of the House of Representatives—$250;
in legal tender or in a banker's cheque.".
Repeal of section and substitution of new section
13. Section 176 of the Principal Act is repealed and the following section is substituted:
Declaration of nominations
"176. (1) Subject to subsection (3), in the case of a Senate election, the Australian Electoral Officer must, at the hour of nomination, attend at the place of nomination, publicly produce all nomination papers received by him or her, and, in respect of each candidate, declare:
(a) the name of the candidate; and
(b) either:
(i) if an address has been specified by the candidate under subsection 166 (1a)—that address; or
(ii) in any other case—the place of residence of the candidate.
"(2) Subject to subsection (3), in the case of a House of Representatives election, the DRO must, at the hour of nomination, attend at the place of nomination for the Division, publicly produce all nomination papers received by him or her, and, in respect of each candidate, declare:
(a) the name of the candidate; and
(b) either:
(i) if an address has been specified by the candidate under subsection 166 (1b)—that address; or
(ii) in any other case—the place of residence of the candidate.
"(3) The Australian Electoral Officer or the DRO, as the case requires, must not declare:
(a) the address specified by a candidate under subsection 166 (1a) or (1b); or
(b) the place of residence of a candidate;
if the candidate's address has been excluded from the Roll under section 104.".
Application for registration as general postal voter
14. Section 184a of the Principal Act is amended by omitting paragraph (2) (a) and substituting the following paragraph:
"(a) the applicant's real place of living is not within 20 kilometres, by the shortest practicable route:
(i) of any polling place; or
(ii) of any place determined under paragraph 227 (4) (a) to be a place that will be visited by mobile polling teams for the purposes of section 227;".
Inspection of applications
15. Section 189 of the Principal Act is amended:
(a) by omitting from subsection (3) "All applications" and substituting "Subject to subsection (4), all applications";
(b) by adding at the end the following subsection:
"(4) Before a DRO makes applications for postal votes available for public inspection he or she must remove from the applications the address of any person whose address has been excluded from the Roll under section 104.".
Repeal of sections 191 and 200h
16. Sections 191 and 200h of the Principal Act are repealed.
Repeal of section and substitution of new section
17. Section 205 of the Principal Act is repealed and the following section is substituted:
Use of licensed premises as polling booth
"205. Premises licensed for the sale of intoxicating liquor may be used for the purpose of a polling booth if, and only if, the Electoral Commissioner declares, in writing, that he or she is satisfied that, during the hours of polling on polling day:
(a) intoxicating liquor will not be available for sale or consumption on the part of the premises proposed for use for the purpose of a polling booth; and
(b) the part of the premises proposed for use for the purpose of a polling booth will be segregated from the part of the premises where intoxicating liquor will be available for sale or consumption; and
(c) access to the part of the premises proposed for use for the purpose of a polling booth will not involve passing through the part of the premises where intoxicating liquor will be available for sale or consumption.".
Printing of Senate ballot-papers
18. Section 210 of the Principal Act is amended by inserting after paragraph (1) (a) the following paragraph:
"(b) the order of the names of the candidates, who have only made a request under paragraph 168 (1) (a), must be determined by the Australian Electoral Officer in accordance with section 213;".
Individual voting tickets
19. Section 211a of the Principal Act is amended by omitting from subsection (8) "shall" and substituting "and the name of the candidate must".
Mobile booths—Remote Divisions
20. Section 227 of the Principal Act is amended by omitting paragraph (4) (a) and substituting the following paragraph:
"(a) may, by notice published in the Gazette:
(i) at any time, determine the places that will be visited by teams for the purposes of the section; and
(ii) from time to time, determine, in respect of each such place, the day and time of the visit to be made by a team for the purposes of a particular election; and".
Compulsory voting
21. Section 245 of the Principal Act is amended by omitting subsections (2) to (14) inclusive and substituting the following subsections:
"(2) The Electoral Commissioner must, after polling day at each election, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the election.
"(3) Subject to subsection (4), within the period of 3 months after the polling day at each election, each DRO must send by post to each elector whose name appears on the list prepared under subsection (2), at the address mentioned in that list, a penalty notice.
"(4) The DRO is not required to send a penalty notice if he or she is satisfied that the elector:
(a) is dead; or
(b) was absent from Australia on polling day; or
(c) was ineligible to vote at the election.
"(5) A penalty notice is a notice in an approved form notifying the elector that:
(a) the elector appears to have failed to vote at the election; and
(b) it is an offence to fail to vote at an election without a valid and sufficient reason for the failure; and
(c) if the elector does not wish to have the apparent failure to vote dealt with by a court, the elector may, within the prescribed time:
(i) if the elector did vote as required by this Act—give the DRO particulars of the circumstances of the elector's voting; or
(ii) if the elector failed to vote—give the DRO a valid and sufficient reason for the failure; or
(iii) pay to the DRO a penalty of $20.
"(6) If an elector does not respond to a penalty notice in the manner indicated in subparagraph (5) (c) (i), (ii) or (iii), within the prescribed time, the DRO must send by post to the elector, at the address mentioned in the list prepared under subsection (2), a second penalty notice, having, subject to subsection (7), the same form as the first such notice but bearing a notation to the effect that a previous notice in the same terms was sent to the elector but that a response in the manner indicated in subparagraph (5) (c) (i), (ii) or (iii) was not received.
"(7) The provisions of this section, other than subsection (6), apply in relation to a second penalty notice:
(a) as if it were a penalty notice issued under subsection (3); and
(b) as if, in the provisions of this section as so applied, references to paragraphs and subparagraphs of subsection (5) included references to those paragraphs and subparagraphs as applied by this section.
"(8) If, within the prescribed time:
(a) an elector responds to a penalty notice in the manner indicated in subparagraph (5) (c) (i) or (ii) and the DRO to whom the response has been given is satisfied:
(i) in the case of a response of the kind referred to in subparagraph (5) (c) (i)—that the elector did vote as required by this Act; or
(ii) in the case of a response of the kind referred to in subparagraph (5) (c) (ii)—that the reason for the failure to vote is a valid and sufficient reason; or
(b) an elector responds to a penalty notice by paying the penalty of $20;
proceedings against the elector for a contravention of paragraph (15) (a) are prohibited.
"(9) If the DRO to whom a response to a penalty notice has been given under subparagraph (5) (c) (i) or (ii) within the prescribed time is not satisfied:
(a) in the case of a response of the kind referred to in subparagraph (5) (c) (i)—that the elector voted as required by this Act; or
(b) in the case of a response of the kind referred to in subparagraph (5) (c) (ii)—that the reason for the failure to vote is a valid and sufficient reason;
the DRO must send by post to the elector, at the address mentioned in the list prepared under subsection (2), a notice in an approved form, notifying the elector that:
(c) the DRO is not so satisfied; and
(d) if the elector does not wish to have the apparent failure to vote
without a valid and sufficient reason for such failure dealt with by a court, he or she may, within the prescribed time, pay to the DRO a penalty of $20.
"(10) If, in response to a notice under subsection (9), the penalty of $20 is paid to the DRO within the prescribed time, proceedings against the elector for a contravention of paragraph (15) (a) are prohibited.
"(11) If an elector is unable, by reason of absence from his or her place of living or physical incapacity, to respond to a penalty notice or to a notice under subsection (9) within the prescribed time, any other elector who has a personal knowledge of the facts may, subject to the regulations, respond to the notice within that time, and such response is to be treated as compliance by the first-mentioned elector with the notice.
"(12) The DRO must prepare a list of all electors to whom a penalty notice has been sent and note on that list in relation to each elector:
(a) whether there has been a response to the notice; and
(b) if there has been a response:
(i) whether the DRO is satisfied that the elector did in fact vote or that there was a valid and sufficient reason for the elector's failure to vote; or
(ii) whether the penalty has been paid.
"(13) The DRO must note on the list prepared under subsection (12) in relation to each elector to whom a notice under subsection (9) has been sent:
(a) the fact that a notice has been sent under subsection (9); and
(b) whether there has been a response to the notice; and
(c) if there has been a response—whether the penalty has been paid.
"(14) Without limiting the circumstances that may constitute a valid and sufficient reason for not voting, the fact that an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for the failure of the elector to vote.
"(15) Every elector who:
(a) fails to vote at an election without a valid and sufficient reason for such failure; or
(b) makes a statement in response to a penalty notice or to a notice under subsection (9) that is, to his or her knowledge, false or misleading in a material particular;
is guilty of an offence.
Penalty: $50.
"(16) Proceedings for an offence against this section may be instituted only by the Electoral Commissioner or an officer authorised, in writing, for the purpose by the Electoral Commissioner.
"(17) In this section, 'elector' does not include:
(a) an Antarctic elector; or
(b) an eligible overseas elector; or
(c) an itinerant elector.
"(18) In this section, a reference to the prescribed time for a response to a penalty notice or a notice under subsection (9) is a reference to the time for response specified in the notice.".
Scrutiny of votes in Senate elections
22. Section 273 of the Principal Act is amended:
(a) by omitting subsection (13) and substituting the following subsections:
"(13) Where, after the counting of first preference votes or the transfer of surplus votes (if any) of elected candidates, no candidate has, or fewer than the number of candidates required to be elected have, received a number of votes equal to the quota:
(a) the candidate who stands lowest in the poll must be excluded; or
(b) if a bulk exclusion of candidates may be effected under subsection (13a), those candidates must be excluded;
and the ballot papers of the excluded candidate or candidates must be distributed in accordance with subsection (13aa).
"(13aa) Where a candidate is, or candidates are, excluded in accordance with this section, the ballot papers of the excluded candidate or candidates must be transferred as follows:
(a) the total number of ballot papers:
(i) expressing a first preference for an excluded candidate; or
(ii) received by an excluded candidate on distribution from another excluded candidate at a transfer value of 1 vote;
being ballot papers expressing the next available preference for a particular continuing candidate must be transferred at a transfer value of 1 vote to the continuing candidate and added to the number of votes of the continuing candidate;
(b) the total number (if any) of other ballot papers obtained by an excluded candidate or the excluded candidates, as the case may be, must be transferred beginning with the ballot papers received by that candidate or those
candidates at the highest transfer value and ending with the ballot papers received at the lowest transfer value, as follows:
(i) the total number of ballot papers received by the excluded candidate or candidates, as the case may be, at a particular transfer value and expressing the next available preference for a particular continuing candidate must be multiplied by that transfer value;
(ii) the number so obtained (disregarding any fraction) must be added to the number of votes of the continuing candidate;
(iii) all those ballot papers must be transferred to the continuing candidate.".
(b) by omitting from subsection (14) "(13) (a) and (b)" and substituting "(13aa) (a) and (b)";
(c) by omitting subsection (15) and substituting the following subsection:
"(15) Subject to subsection (17) where, after the transfer of all of the ballot papers of an excluded candidate or the excluded candidates, as the case may be, no continuing candidate has received a number of votes greater than the quota:
(a) the continuing candidate who stands lowest in the poll must be excluded; or
(b) if a bulk exclusion of candidates may be effected under subsection (13a), those candidates must be excluded;
and the ballot papers of the excluded candidate or candidates must be transferred in accordance with subsection (13aa).";
(d) by omitting paragraph (28) (b) and substituting the following paragraph:
"(b) a transfer under paragraph (13aa) (a) of all ballot papers of an excluded candidate or excluded candidates, received by that candidate, or one of those candidates:
(i) as the first preference vote; or
(ii) on distribution from another excluded candidate at a transfer value of 1 vote; or";
(e) by omitting from paragraph (28) (c) "(13)" and substituting "(13aa)".
Declaration of poll and return of writs for House of Representatives
23. Section 284 of the Principal Act is amended by omitting subsection (3) and substituting the following subsections:
"(3) Where, in the case of a general election, all DROs for a State or Territory have made declarations under subsection (1), other than a
DRO who has given notice to the Electoral Commissioner under subsection 274 (9c), the Electoral Commissioner must certify in writing on the writ for the election the name of each candidate elected for each Division in the State or Territory, other than a Division for which notice under subsection 274 (9c) has been given, and return the writ to the Governor-General.
"(4) Where, in the case of a House of Representatives election, the DRO for the Division in which an election was held has made a declaration under subsection (1), the Electoral Commissioner must certify in writing on the writ for the election the name of the candidate elected for the Division and return the writ to the Speaker or Governor-General, as the case requires.".
Printing and publication of electoral advertisements, notices etc.
24. Section 328 of the Principal Act is amended:
(a) by inserting after subsection (1) the following subsections:
"(1a) A person must not produce, publish or distribute or cause, permit or authorise to be produced, published or distributed an electoral video recording unless the name and address (not being a post office box) of the person who authorised the video recording appears at the end of it.
"(1ab) Subject to subsection (1ac), a person must not print, publish or distribute or cause, permit or authorise to be printed, published or distributed an electoral advertisement that takes up the whole or part of each of 2 opposing pages of a newspaper unless, in addition to fulfilling the requirement under paragraph (1) (a) that the name and address of the person who authorised the electoral advertisement appear at the end of it, such name and address also appears on the other page, or the part of the other page, taken up by the electoral advertisement.
"(1ac) Subsection (1ab) does not apply to an advertisement of the kind referred to in that subsection:
(a) that is contained within:
(i) a broken or unbroken border; or
(ii) broken or unbroken lines extending across, or partly across, the top and bottom of the advertisement; or
(iii) a broken or unbroken line extending along, or partly along, each side of the advertisement; or
(b) that is printed so that to read one or more lines of the text of the advertisement it is necessary to read across both pages.";
(b) by inserting in subsection (2) ", (1a) or (1ab)" after "(1)";
(c) by adding at the end the following subsection:
"(6) In this section, 'electoral video recording' means a video recording that contains electoral matter.".
Repeal of section and substitution of new section
25. Section 331 of the Principal Act is repealed and the following section is substituted:
Heading to electoral advertisements
"331. (1) Subject to subsection (2), where an article or a paragraph in a newspaper:
(a) contains electoral matter; and
(b) is inserted for reward or compensation of any kind or promise of such reward or compensation;
the proprietor of the newspaper must cause the word 'advertisement' to be printed as a headline in letters not smaller than 10 point to the article or paragraph:
(c) if the article or paragraph takes up one page or part of one page—on that page; or
(d) if the article or paragraph takes up the whole or part of each of 2 opposing pages—on each page.
"(2) Where an article or paragraph of the kind referred to in paragraphs (1) (a) and (b) that takes up the whole or part of each of 2 opposing pages of a newspaper:
(a) is contained within:
(i) a broken or unbroken border; or
(ii) broken or unbroken lines extending across, or partly across, the top and bottom of the article or paragraph; or
(iii) a broken or unbroken line extending along, or partly along, each side of the article or paragraph; or
(b) is printed so that to read one or more lines of the text of the article or paragraph it is necessary to read across both pages;
the proprietor of the newspaper must cause the word 'advertisement' to be printed as a headline in letters not smaller than 10 point to the article or paragraph on one of the pages.
Penalty: $500.".
Other offences relating to ballot-papers etc.
26. (1) Section 339 of the Principal Act is amended:
(a) by omitting paragraph (1) (k) and substituting the following paragraph:
"(k) make a statement:
(i) in any claim, application, return or declaration (not being a statement made by the person in the person's nomination paper); or
(ii) in an answer to a question;
under this Act (other than Part XX) or the regulations that, to his or her knowledge, is false or misleading in a material particular.";
(b) by omitting from subsection (1) the penalty and substituting the following penalty:
"Penalty: Imprisonment for 6 months.";
(c) by adding at the end the following subsections:
"(3) A person must not:
(a) make a statement in his or her nomination paper that is false or misleading in a material particular; or
(b) omit from a statement in his or her nomination paper any matter or thing without which the statement is misleading in a material particular.
Penalty: Imprisonment for 6 months.
"(4) In a prosecution of a person for an offence against subsection (3), it is a defence if the person proves that he or she:
(a) did not know; and
(b) could not reasonably be expected to have known;
that the statement to which the prosecution relates was false or misleading.
"(5) In this section, a reference to a nomination paper includes a reference to a facsimile of a nomination paper.".
(2) Where any proceeding had been started but not completed under paragraph 339 (1) (k) of the Principal Act before the commencement of this section, that proceeding continues, after that commencement, as if paragraph 339 (1) (k) of the Principal Act as amended by this Act had been in force at the time the proceeding was started and it had been started under that paragraph as so in force.
Publication of matter regarding candidates
27. Section 351 of the Principal Act is amended by adding at the end the following subsection:
"(5) The person whose name and address appears at the end of any matter as the person who authorised the matter under section 328, in the absence of evidence to the contrary, is taken to have announced or published the matter, or caused it to be announced or published, for the purpose of this section.".
Immaterial errors not to vitiate election
28. Section 365 of the Principal Act is amended by inserting "the provision of certified lists of voters to candidates," after "nominations,".
Repeal of section and substitution of new section
29. Section 369 of the Principal Act is repealed and the following section is substituted:
Copies of petition and order of Court to be sent to House affected, Governor-General and Speaker
"369. The Registrar of the High Court must, forthwith after the filing of the petition, give to the Clerk of the House of Parliament affected by the petition a copy of the petition, and, forthwith after the trial of the petition, give to:
(a) that Clerk; and
(b) in the case of a general election or a House of Representatives election the writ for which was issued by the Governor-General—the Governor-General; and
(c) in the case of a House of Representatives election the writ for which was not issued by the Governor-General—the Speaker;
a copy of the order of the Court.".
No State referendum or vote to be held on polling day
30. Section 394 of the Principal Act is amended by inserting in subsection (2) "and the Australian Capital Territory" after "Territory".
Amendments of Schedule 3
31. Schedule 3 to the Principal Act is amended:
(a) by omitting from paragraph 5 "reject for further scrutiny" and substituting "subject to the operation of paragraphs 23 and 24, exclude from further scrutiny";
(b) by inserting in paragraph 8:
(i) "or a pre-poll vote ballot-paper" after "ballot-paper" (second occurring);
(ii) "or certificate, as the case requires," after "declaration";
(iii) "or section 200g, as the case requires," after "subsection 232 (2)";
(c) by inserting in paragraph 9 "commencement of after "date of;
(d) by omitting from paragraph 15 "reject for further scrutiny" and substituting "subject to the operation of paragraphs 23 and 25, exclude from further scrutiny";
(e) by omitting from paragraph 19 "rejected for further scrutiny" and substituting "excluded from further scrutiny";
(f) by omitting from paragraph 20 "rejected" and substituting "excluded";
(g) by omitting from paragraph 21 "rejected for further scrutiny" and substituting "finally excluded from further scrutiny";
(h) by adding at the end the following paragraphs:
"23. In the course of a preliminary scrutiny of declaration votes, the DRO, as soon as practicable after the ballot-papers that are required, under that scrutiny, to be placed in a ballot-box under paragraph 18 or 19 are so placed, must:
(a) open the parcel of envelopes that contains the ballot-papers that are, under paragraph 5 and subject to the operation of this paragraph and paragraph 24, excluded from scrutiny, and deal further with those declaration votes in accordance with paragraph 24; and
(b) open the parcel of envelopes that contains the ballot-papers that are, under paragraph 15 and subject to the operation of this paragraph and paragraph 25, excluded from scrutiny, and deal further with those declaration votes in accordance with paragraph 25.
"24. For the purpose of dealing further with declaration votes referred to in subparagraph 23 (a), paragraphs 3 to 22, inclusive, reapply in relation to those votes as if:
(a) the words 'subject to the operation of paragraphs 23 and 24,' were omitted from paragraph 5; and
(b) the words 'subject to the operation of paragraphs 23 and 25,' were omitted from paragraph 15.
"25. For the purpose of dealing further with declaration votes referred to in subparagraph 23 (b), paragraphs 10 to 22, inclusive, reapply in relation to those votes as if the words 'subject to the operation of paragraphs 23 and 25,' were omitted from paragraph 15.".
Minor amendments
32. The Principal Act is further amended as set out in Schedule 1.
PART 3—AMENDMENTS OF THE REFERENDUM
(MACHINERY PROVISIONS) ACT 1984
Principal Act
33. In this Part, "Principal Act" means the Referendum (Machinery Provisions) Act 19842.
Interpretation
34. Section 3 of the Principal Act is amended by inserting in subsection (1) the following definition:
" 'video recording' includes a video recording that is recorded on means other than a videotape;".
Repeal of section and substitution of new section
35. Section 21 of the Principal Act is repealed and the following section is substituted:
Use of licensed premises as polling booth
"21. Premises licensed for the sale of intoxicating liquor may be used for the purpose of a polling booth if, and only if, the Electoral Commissioner declares, in writing, that he or she is satisfied that, during the hours of voting at a referendum:
(a) intoxicating liquor will not be available for sale or consumption on the part of the premises proposed for use for the purpose of a polling booth; and
(b) the part of the premises proposed for use for the purpose of a polling booth will be segregated from the part of the premises where intoxicating liquor will be available for sale or consumption; and
(c) access to the part of the premises proposed for use for the purpose of a polling booth will not involve passing through the part of the premises where intoxicating liquor will be available for sale or consumption.".
Compulsory voting
36. Section 45 of the Principal Act is amended by omitting subsections (2) to (13) inclusive and substituting the following subsections:
"(2) The Electoral Commissioner must, after the voting day at a referendum, being a referendum the voting day for which was not the same as that fixed for the polling at a Senate election or a general election of members of the House of Representatives, prepare for, each Division a list of the names and addresses of the electors who appear to have failed to vote at the referendum.
"(3) Subject to subsection (4), within the period of 3 months after the voting day at a referendum referred to in subsection (2), each DRO must send by post to each elector whose name appears on the list prepared under subsection (2), at the address mentioned in that list, a penalty notice..
"(4) The DRO is not required to send a penalty notice if he or she is satisfied that the elector:
(a) is dead; or
(b) was absent from Australia on the voting day for the referendum; or
(c) was ineligible to vote at the referendum.
"(5) A penalty notice is a notice in an approved form notifying the elector that:
(a) the elector appears to have failed to vote at the referendum; and
(b) it is an offence to fail to vote at a referendum without a valid and sufficient reason for the failure; and
(c) if the elector does not wish to have the apparent failure to vote dealt with by a court, the elector may, within the prescribed time:
(i) if the elector did vote as required by this Act—give the DRO particulars of the circumstances of the elector's voting; or
(ii) if the elector failed to vote—give the DRO a valid and sufficient reason for the failure; or
(iii) pay to the DRO a penalty of $20.
"(6) If an elector does not respond to a penalty notice in the manner indicated in subparagraph (5) (c) (i), (ii) or (iii), within the prescribed time, the DRO must send by post to the elector, at the address mentioned in the list prepared under subsection (2), a second penalty notice, having, subject to subsection (7), the same form as the first such notice but bearing a notation to the effect that a previous notice in the same terms was sent to the elector but that a response in the manner indicated in subparagraph (5) (c) (i), (ii) or (iii) was not received.
"(7) The provisions of this section, other than subsection (6), apply in relation to a second penalty notice:
(a) as if it were a penalty notice issued under subsection (3); and
(b) as if, in the provisions of this section as so applied, references to paragraphs and subparagraphs of subsection (5) included references to those paragraphs and subparagraphs as applied by this section.
"(8) If, within the prescribed time:
(a) an elector responds to a penalty notice in the manner indicated in subparagraph (5) (c) (i) or (ii) and the DRO to whom the response has been given is satisfied:
(i) in the case of a response of the kind referred to in subparagraph (5) (c) (i)—that the elector did vote as required by this Act; or
(ii) in the case of a response of the kind referred to in subparagraph (5) (c) (ii)—that the reason for the failure to vote is a valid and sufficient reason; or
(b) an elector responds to a penalty notice by paying the penalty of $20;
proceedings against the elector for a contravention of paragraph (14) (a) are prohibited.
"(9) If the DRO to whom a response to a penalty notice has been given under subparagraph (5) (c) (i) or (ii) within the prescribed time is not satisfied:
(a) in the case of a response of the kind referred to in subparagraph (5) (c) (i)—that the elector voted as required by this Act; or
(b) in the case of a response of the kind referred to in subparagraph (5) (c) (ii)—that the reason for the failure to vote is a valid and sufficient reason;
the DRO must send by post to the elector, at the address mentioned in the list prepared under subsection (2), a notice in an approved form, notifying the elector that:
(c) the DRO is not so satisfied; and
(d) if the elector does not wish to have the apparent failure to vote without a valid and sufficient reason for such failure dealt with by a court, he or she may, within the prescribed time, pay to the DRO a penalty of $20.
"(10) If, in response to a notice under subsection (9), the penalty of $20 is paid to the DRO within the prescribed time, proceedings against the elector for a contravention of paragraph (14) (a) are prohibited.
"(11) If an elector is unable, by reason of absence from his or her place of living or physical incapacity, to respond to a penalty notice or to a notice under subsection (9) within the prescribed time, any other elector who has a personal knowledge of the facts may, subject to the regulations, respond to the notice within that time, and such response is to be treated as compliance by the first-mentioned elector with the notice.
"(12) The DRO must prepare a list of all electors to whom a penalty notice has been sent and note on that list in relation to each elector:
(a) whether there has been a response to the notice; and
(b) if there has been a response:
(i) whether the DRO is satisfied that the elector did in fact vote or that there was a valid and sufficient reason for the elector's failure to vote; or
(ii) whether the penalty has been paid.
"(13) The DRO must note on the list prepared under subsection (12) in relation to each elector to whom a notice under subsection (9) has been sent:
(a) the fact that a notice has been sent under subsection (9); and
(b) whether there has been a response to the notice; and
(c) if there has been a response—whether the penalty has been paid.
"(14) Every elector who:
(a) fails to vote at a referendum without a valid and sufficient reason for such failure; or
(b) makes a statement in response to a penalty notice or to a notice
under subsection (9) that is, to his or her knowledge, false or misleading in a material particular;
is guilty of an offence.
Penalty: $50.
"(15) Proceedings for an offence against this section may be instituted only by the Electoral Commissioner or an officer authorised, in writing, for the purpose by the Electoral Commissioner.
"(16) In this section, 'elector' does not include:
(a) an Antarctic elector; or
(b) an eligible overseas elector; or
(c) an itinerant elector.
"(17) In this section, a reference to the prescribed time for a response to a penalty notice or a notice under subsection (9) is a reference to the time for response specified in the notice.".
Inspection of applications
37. Section 62 of the Principal Act is amended:
(a) by omitting from subsection (3) "All applications" and substituting "Subject to subsection (4), all applications";
(b) by adding at the end the following subsection:
"(4) Before a DRO makes applications for postal votes available for public inspection he or she must remove from the applications the address of any person whose address has been excluded from the Roll under section 104 of the Commonwealth Electoral Act 1918.".
Repeal of sections 64 and 73g
38. Sections 64 and 73g of the Principal Act are repealed.
Printing and publication of advertisements, notices etc.
39. Section 121 of the Principal Act is amended:
(a) by inserting after subsection (1) the following subsections:
"(1a) A person must not produce, publish or distribute or cause, permit or authorise to be produced, published or distributed a video recording relating to a referendum and intended or calculated to affect the result of the referendum unless the name and address (not being a post office box) of the person who authorised the video recording appears at the end of it.
"(1ab) Subject to subsection (1ac), a person must not print, publish or distribute or cause, permit or authorise to be printed, published or distributed an advertisement relating to a referendum and intended or calculated to affect the result of
the referendum that takes up the whole or part of each of 2 opposing pages of a newspaper unless, in addition to fulfilling the requirement under paragraph (1) (a) that the name and address of the person who authorised the advertisement appear at the end of it, such name and address also appears on the other page, or the part of the other page, taken up by the advertisement.
"(1ac) Subsection (1ab) does not apply to an advertisement of the kind referred to in that subsection:
(a) that is contained within:
(i) a broken or unbroken border; or
(ii) broken or unbroken lines extending across, or partly across, the top and bottom of the advertisement; or
(iii) a broken or unbroken line extending along, or partly along, each side of the advertisement; or
(b) that is printed so that to read one or more lines of the text of the advertisement it is necessary to read across both pages.";
(b) by inserting in subsection (2) ", (1a) or (1ab)" after "(1)".
Repeal of section and substitution of new section
40. Section 124 of the Principal Act is repealed and the following section is substituted:
Headings to advertisements
"124. (1) Subject to subsection (2), where an article or item in a newspaper:
(a) contains matter intended or calculated to affect the result of a referendum; and
(b) is inserted for reward or compensation of any kind or promise of such reward or compensation;
the proprietor of the newspaper must cause the word 'advertisement' to be printed as a headline in letters not smaller than 10 point to the article or item:
(c) if the article or item takes up one page or part of one page— on that page; or
(d) if the article or item takes up the whole or part of each of 2 opposing pages—on each page.
"(2) Where an article or item of the kind referred to in paragraphs (1) (a) and (b) that takes up the whole or part of each of 2 opposing pages of a newspaper:
(a) is contained within:
(i) a broken or unbroken border; or
(ii) broken or unbroken lines extending across, or partly across, the top and bottom of the article or item; or
(iii) a broken or unbroken line extending along, or partly along, each side of the article or item; or
(b) is printed so that to read one or more lines of the text of the article or item it is necessary to read across both pages;
the proprietor of the newspaper must cause the word 'advertisement' to be printed as a headline in letters not smaller than 10 point to the article or item on one of the pages.
Penalty: $500.".
Insertion of new section
41. After section 140 of the Principal Act the following section is inserted:
Effect of averment by prosecutor
"140a. In proceedings for an offence against section 45 of this Act, an averment by the prosecutor contained in the information or complaint is taken to be proof of the matter averred in the absence of evidence to the contrary.".
Amendments of Schedule 4
42. Schedule 4 to the Principal Act is amended:
(a) by omitting from paragraph 5 "reject for further scrutiny" and substituting "subject to the operation of paragraphs 19 and 20, exclude from further scrutiny";
(b) by inserting in paragraph 8:
(i) "or a pre-poll vote ballot-paper" after "ballot-paper" (second occurring);
(ii) "or certificate, as the case requires," after "declaration";
(iii) "or section 73f, as the case requires," after "subsection 34 (2)";
(c) by inserting in paragraph 9 "commencement of after "date of";
(d) by omitting from paragraph 14 "reject for further scrutiny" and substituting "subject to the operation of paragraphs 19 and 21, exclude from further scrutiny";
(e) by omitting from paragraph 18 "rejected for further scrutiny" and substituting "finally excluded from further scrutiny";
(f) by adding at the end the following paragraphs:
"19. In the course of a preliminary scrutiny of declaration votes, the DRO, as soon as practicable after the ballot-papers that are required, under that scrutiny, to be placed in a ballot-box under paragraph 17 are so placed, must:
(a) open the parcel of envelopes that contains the ballot-
papers that are, under paragraph 5 and subject to the operation of this paragraph and paragraph 20, excluded from scrutiny, and deal further with those declaration votes in accordance with paragraph 20; and (b) open the parcel of envelopes that contains the ballot-papers that are, under paragraph 14 and subject to the operation of this paragraph and paragraph 21, excluded from scrutiny, and deal further with those declaration votes in accordance with paragraph 21.
"20. For the purpose of dealing further with declaration votes referred to in subparagraph 19 (a), paragraphs 3 to 18, inclusive, reapply in relation to those votes as if:
(a) the words 'subject to the operation of paragraphs 19 and 20,' were omitted from paragraph 5; and
(b) the words 'subject to the operation of paragraphs 19 and 21,' were omitted from paragraph 14.
"21. For the purpose of dealing further with declaration votes referred to in subparagraph 19 (b), paragraphs 10 to 18, inclusive, reapply in relation to those votes as if the words 'subject to the operation of paragraphs 19 and 21,' were omitted from paragraph 14.".
Minor amendments
43. The Principal Act is further amended as set out in Schedule 2.
PART 4—AMENDMENTS OF THE ELECTORAL AND REFERENDUM AMENDMENT ACT 1989
Principal Act
44. In this Part, "Principal Act" means the Electoral and Referendum Amendment Act 19893.
Amendments of Schedule 2
45. Schedule 2 to the Principal Act is amended as set out in Schedule 3.
____________
SCHEDULE 1 Section 32
MINOR AMENDMENTS OF THE COMMONWEALTH
ELECTORAL ACT 1918
Subsection 4 (1) (definition of "Permanent Head"):
Omit the definition.
Subsection 30 (3):
Omit "Governor-General", substitute "Commission".
Subsection 44 (2a):
Omit "then", substitute "than".
Subsection 93 (2):
Omit ", (5) and (6)", substitute "and (5)".
Subsection 96 (10):
Omit "he shall", substitute "he or she must".
Subsection 96a (1):
Omit "A person", substitute "Subject to section 93, a person".
Subsection 104 (2):
Omit "the family", substitute "his or her family".
Subsection 118 (5):
After "a Subdivision", insert "in accordance with the requirements of subsection (3)".
Subsection 120 (2):
Omit "113", substitute "114".
Paragraph 120 (3) (c):
Omit the paragraph, substitute the following paragraph:
"(c) notifies a person under subsection 185 (6) that the person has not been registered as a general postal voter; or".
Paragraph 120 (3) (ca):
Omit "cancelled; or", substitute "cancelled.".
Paragraph 120 (3) (d):
Omit the paragraph.
Paragraph 120 (3) (g):
Omit "sub-section 185 (2)", substitute "subsection 184a (1)".
SCHEDULE 1—continued
Paragraph 120 (4) (j):
Omit the paragraph, substitute the following paragraph:
"(j) any relevant application made under section 184a, and a written statement of the reasons for not registering the person as a general postal voter;".
Subparagraph 166 (1) (b) (ii):
Omit "by" (first occurring).
Subsection 184 (3):
After "Officer", insert "or a DRO".
Paragraph 188 (1) (a):
Omit "is enrolled", substitute "declares that he or she is enrolled".
Paragraph 200f (c):
Omit "is enrolled", substitute "declares that he or she is enrolled".
Subsection 229 (5):
Omit "section 237", substitute "section 235".
Paragraph 235 (1) (b):
Add at the end "or".
Paragraph 235 (1) (c):
Omit the paragraph.
Subsection 249 (1):
Omit "be," (second occurring).
Subparagraph 274 (7) (d) (ii):
Omit "his", substitute "his or her".
Subsection 274 (9c):
Omit "Commission", substitute "Commissioner".
Section 276:
(a) Omit ", (c) or (d)".
(b) Omit "he", substitute "he or she".
Subsection 284 (2a):
Omit "Commission", substitute "Commissioner".
Section 317:
After "first-mentioned person", insert "must".
SCHEDULE 1—continued
Subsection 336 (1):
Omit "in his or her own handwriting", substitute "with his or her personal signature".
Subsection 336 (2):
Omit "that signature", substitute "his or her personal signature".
Paragraph 339 (1) (a):
(a) Omit "personate", substitute "impersonate".
(b) Omit "personator", substitute "impersonator".
Paragraph 339 (1) (b):
Omit "personate", substitute "impersonate".
Subsection 347 (3):
Omit "chairman" (wherever occurring), substitute "chairperson".
Subsection 347 (4):
Omit "chairman", substitute "chairperson".
Paragraph 2 of Schedule 2:
Omit "a polling booth", substitute "any polling booth".
____________
SCHEDULE 2 Section 43
MINOR AMENDMENTS OF THE REFERENDUM (MACHINERY PROVISIONS)
ACT 1984
Subsection 30 (5):
Omit "section 39", substitute "section 37".
Paragraph 37 (1) (b):
Add at the end "or".
Paragraph 37 (1) (c):
Omit the paragraph.
Subsection 46a (1):
Omit "67a (2) (e)", substitute "67 (2) (e)".
Subsection 46a (1a):
Omit "67a (2) (e)", substitute "67 (2) (e)".
Subsection 46a (8):
Omit "67a (2) (e)", substitute "67 (2) (e)".
Subsection 55 (3):
After "Officer", insert "or a DRO".
Paragraph 61 (1) (a):
Omit "is enrolled", substitute "declares that he or she is enrolled".
Paragraph 73e (c):
Omit "is enrolled", substitute "declares that he or she is enrolled".
Subsection 134 (3):
Omit "chairman" (wherever occurring), substitute "chairperson".
Subsection 134 (4):
Omit "chairman", substitute "chairperson".
Paragraph 2 of Schedule 3:
Omit "a polling booth", substitute "any polling booth".
____________
SCHEDULE 3 Section 45
AMENDMENTS OF SCHEDULE 2 TO THE ELECTORAL AND REFERENDUM AMENDMENT ACT 1989
Subsection 22 (2):
Omit "22 (2)" from Column 1, substitute "22 (1)".
Paragraph 227 (6) (b):
Omit "(b)" from Column 1.
Subsection 238 (1):
Omit "(c) he (third occurring)" from Column 2, substitute "(c) he (second occurring)".
_____________________________________________________________________________________
NOTES
1. No. 27, 1918. For previous amendments, see No. 31, 1919; No. 14, 1921; No. 14, 1922; No. 10, 1924; No. 20, 1925; No. 17, 1928; No. 2, 1929; No. 9, 1934; No. 19, 1940; No. 42, 1946; No. 17, 1948; Nos. 10 and 47, 1949; No. 106, 1952, No. 79, 1953; No. 26, 1961; No. 31, 1962; Nos. 48 and 70, 1965; Nos. 32 and 93, 1966; No. 7, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 38, 1974; No. 56, 1975; Nos. 14 and 116, 1977; No. 19, 1979; Nos. 102 and 155, 1980; No. 176, 1981 (as amended by No. 26, 1982); No. 80, 1982; Nos. 39, 84 and 144, 1983; Nos. 45, 46, 120 and 133, 1984; Nos. 67, 166 and 193, 1985; Nos. 35, 141 and 184, 1987; and No. 24, 1990.
2. No. 44, 1984, as amended. For previous amendments, see Nos. 120 and 133, 1984; No. 67, 1985; Nos. 77 and 81, 1988; and No. 24, 1990.
3. No. 24, 1990.
[Minister's second reading speech made in—
Senate on 12 September 1991
House of Representatives on 15 October 1991]