2002-2003-2004

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

House of Representatives

ELECTORAL AND REFERENDUM AMENDMENT (ENROLMENT INTEGRITY AND OTHER MEASURES) BILL 2004

EXPLANATORY MEMORANDUM

(Circulated with the authority of the Special Minister of State,
Senator the Hon Eric Abetz)

ELECTORAL AND REFERENDUM AMENDMENT (ENROLMENT INTEGRITY AND OTHER MEASURES) BILL 2004

OUTLINE

The Bill contains reform measures amending the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act), arising from the Government response to the Joint Standing Committee on Electoral Matters’ (JSCEM) report on the 2001 federal election.  The Government response was tabled in Parliament on 16 October 2003.

The Bill includes amendments of the Electoral Act and the Referendum Act contained in the Electoral and Referendum Amendment (Roll Integrity and Other Measures) Bill 2002 which is currently before the Parliament.  That Bill gave legislative effect to the Government response to the JSCEM’s report on the 1998 federal election.  The response to that report was tabled on 1 March 2001.

Measures that implement the Government response to recommendation 5 of the JSCEM's report on the integrity of the electoral roll: User Friendly, Not Abuser Friendly are included in this Bill.  The response was tabled on 4 October 2001.

The main amendments will:
•	allow for the making of regulations requiring proof of identity or address for applicants for enrolment, or applicants wishing to change their enrolment details;
•	allow for the making of regulations for similar proof of identity and address requirements for electors claiming a provisional vote because their names do not appear on the certified list on election day;
•	enable the Australian Electoral Commission (AEC) to obtain information from prescribed State and Territory officers in relation to the proof of identity and address arrangements;
•	allow for the close of rolls for new electors to be 6.00 pm on the day on which the writ for an election is issued, and 8.00 pm three working days after the issue of the writ for those amending their enrolment details;
•	introduce enrolment based on residence at an address in a subdivision;
•	include the sex and date of birth of electors on the certified list as a check on identity when voting; 
•	remove the right to vote from prisoners serving a sentence of full-time detention; 
•	increase a number of financial disclosure thresholds to $3,000;
•	allow registered political parties and independent members of parliament to be provided, on request, with certain information about where electors voted on election day;
•	remove the requirement for broadcasters and publishers to lodge returns with the AEC on electoral advertising during an election period; and
•	increase the penalty for multiple voting and make each additional vote a separate offence, as well as increase the penalty for false witnessing of enrolment forms.

The Bill includes a number of other amendments including restricting scrutineers’ activities in relation to assisted votes, reinstatement on the roll, and registration of party names.

FINANCIAL IMPACT STATEMENT

The early close of rolls is estimated to cost $50,000 in an election year and $250,000 in a non‑election year.  This would cover the cost of a targeted information campaign to ensure that electors are fully informed of the requirements of the new provisions.

Implementation of proof of identity and address at enrolment is estimated to cost $2.2 million in 2003-04, $3.8 million in 2004-05, $2.7 million in 2005-06, $2.3 million in 2006-07 and $2.4 million in 2007-08.  These funds will cover the cost of establishing technology links with State and Territory databases, roll management system redesign and roll out, staff training, new enrolment forms, and an information campaign to inform electors of the new enrolment requirements.

It is estimated that the cost of implementation of proof of identity and address for provisional voting will be $0.8 million in 2004-05 and $0.9 million in 2007-08.  These funds will cover the redesign of the certified lists, the redesign of the declaration certificate for provisional voting, staff training, and additional staff for polling booths.

ELECTORAL AND REFERENDUM AMENDMENT (ENROLMENT INTEGRITY AND OTHER MEASURES) BILL 2004

NOTES ON CLAUSES

Clause 1 – Short title

1.	This clause provides for the short title of the Act.

Clause 2 – Commencement 

2.	This clause sets out the commencement provisions for the Bill.  Sections 1 to 3 and item 103 of Schedule 1 will commence on the day the Bill receives Royal Assent.

3.	Items 1 to 4 of Schedule 1 commence on the later of the 28th day after the Bill receives Royal Assent or the commencement of item 3 of Schedule 1 to the Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004.

4.	The following items of Schedule 1 commence on Proclamation: 5, 9, 10, 12 to 13, 16 to 17, 19, 37, 42, 45, 62 to 63, 78, 106 to 109 and 116.  The reasons for this commencement provision are explained at the relevant items. 

5.	Items 104 and 105 of Schedule 1 are taken to have commenced immediately after the commencement of items 764 and 765 of Schedule 1 to the Public Employment (Consequential and Transitional) Amendment Act 1999.  That Act commenced on 5 December 1999.  These items are technical in nature (correct spelling errors) and it is envisaged that this retrospective commencement date will have no detrimental effect.

6.	The remaining items commence 28 days after the Bill receives Royal Assent.

Clause 3 – Schedule(s)

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

Schedule 1 – Amendments 

Schedule 1 - Items 1 to 4 – Provision of voting information 

8.	These items amend section 90B of the Electoral Act (as proposed to be amended by the Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Bill 2004) to provide for registered political parties, Senators who are not members of a registered political party and members of the House of Representatives who are not members of a registered political party to obtain information, on request, about where electors voted at an election.  The information will be provided without charge.

9.	Items 1 to 3 amend the table at new subsection 90B(1) to insert new entries which specify who is entitled to receive the voting information. 

10.	Item 4 amends new subsection 90B(10) to specify the information which is to be provided to registered political parties and independent members of parliament.  The information includes the names and addresses of electors who voted at an election, whether each elector voted at a polling place or by some other means, and if the elector voted at a polling place for the Division for which they are enrolled, the location of that polling place.  Information about itinerant, overseas and silent electors will not be provided.

11.	This amendment was foreshadowed in the additional comments contained in the Government response to the JSCEM's inquiry into the 2001 federal election and is based on section 123 of the Victorian Electoral Act 2002.

Schedule 1 - Item 5 – Access to State and Territory databases for the purposes of checking the identity and address of applicants for enrolment

12.	Subsection 92(1) of the Electoral Act contains a demand power for the AEC to obtain information from all Australian Government and certain State and Territory Government agencies for the purpose of preparing, maintaining or revising the rolls.

13.	Item 5 amends subsection 92(1) to include prescribed officers of State and Territory Governments among those from whom the AEC can obtain information.  The amendment is consequential to the proposed amendments which provide for regulations to be made to require applicants for new enrolment and those wishing to change their enrolment details (names or addresses) to provide proof of identity and address.  Those provisions are discussed in more detail at paragraphs 61 to 69 and 102 to 105 below.

14.	The Government response to recommendation 1 of the JSCEM's inquiry into the 2001 federal election indicated that the implementation of the recommendation would take place in consultation with the States and Territories.  This amendment will allow the AEC access to relevant State and Territory databases, such as driver’s licence databases, to verify the identity and address of applicants for enrolment once agreement has been reached with the States and Territories on a common proof of identity and address scheme.

15.	This amendment will commence on proclamation with other provisions relating to proof of identity and address contained in this Bill.

16.	This amendment gives effect to the Government response to recommendation 1 of the JSCEM report on the 2001 federal election.

Schedule 1 - Items 6 to 7, 18, 26, 46, 71, 95 and 126 – Removal of prisoners’ voting rights

17.	Items 6 to 7 amend section 93 and item 18 repeals section 96A of the Electoral Act to remove the right to enrol from all persons serving a term of imprisonment for an offence against the law of the Commonwealth or a State or Territory.  Under the current provisions, people serving a sentence of five years or longer are not entitled to enrol and vote.  For clarity, item 7 includes an express definition of a person ‘serving a sentence of imprisonment’ in section 93.

18.	Only people who are serving a sentence of full-time detention will no longer be eligible to enrol and vote.  People being detained on remand, those serving alternative sentences such as periodic or home detention, those serving a non-custodial sentence or people released on parole may still be eligible to enrol and vote.

19.	Item 26 is an amendment that removes from subsection 99(3) a reference to section 96A, as this section will be repealed by item 18. 

20.	Item 46 amends section 109 of the Electoral Act which requires the Controller‑General of Prisons to forward to the AEC the list of convicted prisoners imprisoned for five years or longer for any offence.  The amendment will ensure that details of all prisoners serving a sentence of full-time detention will be forwarded to the AEC. 

21.	Item 71 amends the grounds for applying for registration as a general postal voter in section 184A of the Electoral Act to clarify that prisoners within the meaning of new subsection 93(8) are not eligible to register as general postal voters.

22.	Item 95 amends clause 9 of Schedule 2 of the Electoral Act, and item 126 amends clause 9 of Schedule 3 of the Referendum Act, to provide that a person will no longer have a ground to apply for a postal or pre-poll vote where he or she is serving a sentence of imprisonment.

23.	These amendments give effect to the Government response to recommendation 24 of the JSCEM report on the 1996 federal election.

Schedule 1 - Items 8, 11, 14, 15, 20 to 25, 27 to 36, 38 to 41, 43, 47, 48 to 57, 96 to 102, 127 to 132, 133 and 135 – Enrolment in respect of an address

24.	These items amend the Electoral Act to provide that electors must be living at an address in a subdivision, and have lived at that address for at least a period of one month in order to be entitled to have their name placed on the roll.  These amendments implement the Government response to recommendation 7 of the JSCEM's report on the 1998 federal election.

Enrolment in respect of an address

25.	Items 20 to 25 and 34 to 36 amend sections 99 and 102 of the Electoral Act to provide that an elector’s entitlement for enrolment will be in respect of residence at an address within a subdivision (rather than just residence within the subdivision), and the elector’s name will be placed on the roll in respect of residence at that address.

26.	Items 8 and 11 will amend sections 94A and 95 of the Electoral Act which deals with the entitlement to enrolment for persons applying from overseas under section 94A, and the spouse or child of an eligible overseas elector applying for enrolment under section 95.  These amendments are consequential to the amendments that will provide that enrolment will be in respect of an address within a subdivision.  Electors who enrol from overseas or who enrol as a spouse or child of an eligible overseas elector are placed on the roll for a subdivision only, not for a particular address within a subdivision.  This will not change under the proposed amendments.  The amendments simply update the entitlement provision from requiring notional residence in a subdivision to requiring notional residence at an address.  Accordingly, persons applying for enrolment under sections 94A or 95 will be entitled to enrolment within a subdivision where they satisfy the criteria outlined in section 94A or 95, and are not qualified for enrolment but would be qualified if they resided at an address within a subdivision and had done so for at least a month.  These amendments have no substantive effect on how applications for enrolment from outside Australia or as a spouse or child of an eligible overseas elector are processed.

27.	Paragraph 95AA(1)(b) defines a ‘qualified Norfolk Islander’ for the purposes of enrolment.  Items 14 and 15 amend paragraph 95AA(1)(b) to refer to qualifications for enrolment on the basis of residence at an address in a subdivision, rather than residence within a subdivision alone.  Like eligible overseas electors, Norfolk Islanders are placed on the roll for a subdivision only, not for a particular address within a subdivision.  These amendments are consequential to the amendments that will provide that enrolment will be in respect of an address within a subdivision.  These amendments have no substantive effect on how applications for enrolment as a Norfolk Islander are processed.

28.	Item 27 is a consequential amendment to subsection 99(5) to provide that once a person is enrolled, the validity of their enrolment cannot be questioned on the grounds that, prior to applying for enrolment, the person had not in fact lived at the relevant address in the subdivision for a period of one month. 

Enrolment in respect of an address (provisional enrolment by applicant for citizenship and age 17 enrolment)

29.	Items 28 to 30 amend section 99A to provide that where a person is not eligible for enrolment as the person is not an Australian citizen, but has applied for citizenship (which is pending), and would otherwise be entitled for enrolment in respect of residence at an address within a subdivision, the person may make a claim for provisional enrolment. 

30.	Item 31 amends section 100 to provide that where a person is 17 years of age and would otherwise be entitled to enrolment in respect of residence at an address within a subdivision if he or she were 18 years of age, the person may make a claim to have his or her name placed on the roll. 

31.	These amendments are consequential to the proposed amendments at items 20 to 25 and 34 to 36 providing that enrolment will be in respect of an address rather than for a subdivision.

Compulsory Transfer of Enrolment

32.	Item 32 repeals and substitutes a new subsection 101(5) of the Electoral Act to provide that where an elector changes his or her place of living from one address within a subdivision to another address within the same subdivision, and has lived at the new address for a period of one month, the elector must provide to the Divisional Returning Officer written notice of the new address within 21 days (that is, within 21 days after having resided at the new address for one month).

33.	Item 33 amends subsection 101(6) to change the penalty for failing to enrol or advise a change of address within 21 days from $50 to 1 penalty unit.

34.	These amendments are consequential to the proposed amendments at items 20 to 25 and 34 to 36 providing that enrolment will be in respect of an address rather than for a subdivision.

‘Silent’ enrolment

35.	Section 104 provides for an elector to apply for his or her address not to be shown on the roll.  Item 38 amends section 104 of the Electoral Act to provide that where the address of an elector is not shown on the roll due to a request made under subsections 104(1) and (2) (also known as ‘silent’ enrolment), the person is still taken to be enrolled for the ‘silent’ address.

36.	This provision is designed to ensure that, as a result of the proposed amendments relating to enrolment in respect of an address, the objection provisions work consistently across all enrolment types.  Where it can be shown that a person with ‘silent’ enrolment no longer lives at their enrolled address (whether or not that address is actually shown on the roll), and has not lived at that address for a period of at least one month, an objection may be lodged against the person’s enrolment.

Alteration of rolls

37.	Items 39 and 40 amend subsection 105(1) to insert a new subsection that allows a Divisional Returning Officer, in response to a written notice given by an elector, to alter the original address of the elector on the same subdivision roll.  

Item 41 adds a new subsection 105(1A) which states that where an address has been altered under paragraph 105(1)(ba) or 105(1)(h) of the Electoral Act, then the Electoral Act has effect as if the elector’s name had been placed on the roll in respect of the altered address.  

38.	Item 43 adds a new subsection 105(3A) which states that despite the effect of subsection 105(3) of the Electoral Act, the address of the elector must not be altered under paragraph 105(1)(ba) unless the Divisional Returning Officer is satisfied that the elector has lived at the new address for a period of at least one month.

39.	These amendments are consequential to the proposed amendments at items 20 to 25 and 34 to 36 providing that enrolment will be in respect of an address rather than for a subdivision.

Antarctic Electors

40.	Item 47 inserts a definition of ‘Antarctic elector’ in Part IX of the Electoral Act in subsection 113(1).  The Part deals with objections to the roll.  The definition is the same as that in Part XVII.  

41.	This is consequential to the amendments at items 25 and 27 to 35 to ensure that the AEC is not required to object to the enrolment of a person registered as an Antarctic elector, as the AEC is aware that the Antarctic elector will be absent from his or her enrolled address for a period of time. 

42.	These amendments are also consequential to the proposed amendments at items 20 to 25 and 34 to 36 providing that enrolment will be in respect of an address rather than for a subdivision.

Objections to enrolment

43.	Items 48 to 57 amend sections 113, 114, 115 and 118 of the Electoral Act so that an objection to an elector’s enrolment (whether an official or private objection) can take place on the ground that the elector no longer lives at their enrolled address, and has not lived at their enrolled address for a period of at least one month.  Under current legislation, an elector’s enrolment can be objected to on the ground that the person is not entitled to be enrolled for the subdivision, that is, the elector does not live in the subdivision and has not lived in the subdivision for at least one month, or does not meet the enrolment qualifications on other grounds.  

44.	These amendments expand on these provisions, so that non-residence at the enrolled address (even where it can be shown that the elector has moved within the subdivision) is now a ground for objection, except where the elector is enrolled as an Antarctic elector.

45.	An objection must not be made to an elector’s enrolment on the ground that the elector no longer qualifies for enrolment for the subdivision (under subsection 114(1) for private objections and subsection 114(2) for official objections), if the objection could be made on the ground that the person no longer lives at their enrolled address.  That is, if the elector no longer lives at their enrolled address, as well as no longer living within their enrolled subdivision, any objection to their enrolment must be made on the ground that they no longer live at their enrolled address. 

46.	These items are related to items 8, 11, 14, 15, 20 and 21 (enrolment in respect of an address), in that it is proposed that an elector will be enrolled in a subdivision in respect of living at an address within that subdivision, and where the elector does not live at that address, an objection may be lodged against his or her enrolment. 

47.	Items 48 and 49 are consequential amendments to section 113 of the Electoral Act to include cross-references to the amended sections.

48.	Item 50 amends section 114 to provide that a person enrolled for the same subdivision may object to an elector’s enrolment (defined as a ‘private objection’) on the basis that the elector no longer lives at their enrolled address, and has not done so for the past month.  

49.	Item 51 amends section 114 to provide that the Divisional Returning Officer for the Division must object to an elector’s enrolment (defined as an ‘official objection’) where there are reasonable grounds for believing that the elector does not live at their enrolled address, and has not lived at that address for a period of one month. 

50.	Item 52 is a consequential amendment to section 115 of the Electoral Act to include cross-references to section 114 as amended.

51.	Item 53 repeals subsection 115(3) of the Electoral Act which is no longer required as it applies to objections to enrolment in a subdivision rather than for an address.

52.	Item 54 amends subsection 118(3) of the Electoral Act to limit the subsection so that it only relates to subsections 114(1), 114(1A) and 114(2).

53.	Item 55 amends section 118 to provide that where an elector’s name has been placed on the roll in respect of a particular address, an objection has been lodged, and the elector does not live at the address and has not lived at the address for at least the last month, the Divisional Returning Officer will be required to remove the elector’s name from the roll for that subdivision, providing the elector is not enrolled as an Antarctic elector.

54.	Antarctic electors have been excluded as they are able to remain on the roll at their enrolled address if they have registered with the AEC as working in Antarctica.  Therefore neither an elector, nor a Divisional Returning Officer can object to their enrolment on the basis that they are not living at their enrolled address.  Items 56 and 57 are consequential amendments.

Provisional voting in elections and referendums

55.	Items 96 to 102 and 127 to 132 amend Schedule 3 of the Electoral Act and Schedule 4 of the Referendum Act to provide that if an elector casts a provisional vote at an election because the elector’s name has been removed from the roll since the last election by objection on the ground that he or she no longer lived at their enrolled address (as outlined in items 25 and 27 to 35 – Objections to enrolment), and after making enquiries the Divisional Returning Officer is satisfied that the elector has moved within the Division for which he or she was enrolled without re-enrolling, the provisional vote for both the House of Representatives and the Senate will be admitted to scrutiny.  If the elector has moved outside the Division for which he or she was enrolled, but is still residing within the same State or Territory, the provisional vote for the Senate only will be admitted.  If the elector has moved outside the State or Territory for which he or she was enrolled, the provisional vote will not be admitted (that is, neither the House of Representatives nor Senate ballot paper will be counted).

56.	If an elector casts a provisional vote at a referendum because the elector’s name had been removed from the roll since the last election due to objection action on the ground that they no longer live at his or her enrolled address (as outlined in items 25 and 27 to 35 – Objections to enrolment), and after making enquiries the Divisional Returning Officer is satisfied that the elector has moved either within the Division or within the State or Territory for which he or she was enrolled without re-enrolling, the provisional vote will be admitted to scrutiny (that is, the referendum ballot paper will be counted). 

57.	In all cases the elector’s provisional vote will not be admitted to scrutiny if there has been a redistribution of the State or Territory that includes the Division since the last election, or an election (excluding the election to which the scrutiny relates) has been held since the removal of the elector’s name from the roll. 

Transitional provisions 

58.	Item 133 provides that where a person’s name and address were on the roll for a subdivision immediately before the commencement of this item, the Electoral Act will have effect after commencement of these provisions as if the person’s name had been placed on the roll in respect of that address.  As section 4 of the Referendum Act states that the entitlement to vote at a referendum is the same as if the referendum were an election, the Referendum Act will also have effect after commencement of these provisions as if the person’s name had been placed on the roll in respect of that address.

59.	Item 133 is inserted to avoid doubt.  This item does not freeze the electoral roll at the time of commencement.  The removal or deletion of a person’s name from the roll and alteration of the roll in accordance with the Electoral Act are not prevented by this item.

60.	Item 135 provides that any objection action under Part IX of the Electoral Act that had begun prior to the commencement of this item shall continue until finalised as if the amendments to Part IX had not been made. 

Schedule 1 - Items 9, 12, 16, 19 and 42 – Proof of identity and address at enrolment

61.	These items provide for proof of identity and address as prescribed by regulations to be required for all applicants for enrolment and all electors seeking to change their names or addresses on the roll.  Applicants for particular types of enrolment status who do not require a change to enrolled names and addresses, such as applicants for general postal voter status, will not be required to provide proof of identity and address.  Electors whose enrolments are amended administratively by the AEC will also not be required to provide proof of identity and address.

62.	In its response to the JSCEM’s report on the 2001 federal election, the Government indicated that it favoured the use of a driver’s licence number to verify an applicant’s identity and address when enrolling or changing enrolment details.  The driver’s licence number would be included on the enrolment form, with the AEC checking the details from records on State and Territory databases or from details provided by the States and Territories.

63.	Alternate forms of acceptable identification documentation could be provided by applicants who did not have a driver’s licence.  Where no identification documentation was available, only people in a prescribed class would be able to provide written references supporting an enrolment application.

64.	Regulations specifying the detail of the proof of identity arrangements will be developed in consultation with the States and Territories.  Privacy issues will be taken into account.  Complementary State and Territory legislation may also be required to ensure similar arrangements are in place for a consistent approach to the electoral process across Australia.  This would also preserve the Joint Roll Agreements with the States and Territories.

65.	As the provisions are subject to regulations being developed in consultation with the States and Territories and possible complementary State and Territory legislation, all items in this Bill relating to proof of identity and address are to commence on proclamation.  This would be expected to occur once the regulations had been made and all States and Territories were ready to proceed with similar arrangements, including complementary legislation where necessary.  

66.	Items 9 and 12 amend sections 94A and 95 of the Electoral Act to provide for regulations to specify proof of identity and address requirements for applicants for enrolment from overseas.  Item 16 amends section 96 with similar provisions for applicants for itinerant enrolment.  The proof of identity and address requirements for applicants from overseas and itinerant applicants will be tailored for their specific circumstances.

67.	Item 19 amends section 98 of the Electoral Act to provide for regulations to specify proof of identity and address for applicants for enrolment.

68.	Item 42 amends section 105 of the Electoral Act to provide for regulations to specify proof of identity and address for electors who inform a Divisional Returning Officer in writing that they have moved address within a Division.

69.	These amendments give effect to the Government response to recommendation 1 of the JSCEM report on the 2001 federal election.

Schedule 1 - Items 10, 13, 17, 37, 45, 62, 63, 106 to 109 – Early close of rolls 

70.	These items change the time when the electoral rolls close prior to an election for the addition of new enrolments and changes to existing enrolment details.  Section 155 of the Electoral Act provides for the rolls to close seven days after the writs for an election have been issued.

71.	The amendments provide for the rolls to close:
•	for new enrolments – at 6.00 pm on the day the writs are issued; and
•	for people currently, or previously, enrolled who wish to change their enrolment details – at 8.00 pm three working days after those writs have been issued.

72.	Enrolment applications will not be added to the rolls if received after these times.  Details can be added to the rolls after the election.

73.	The early close of rolls will allow the AEC sufficient time to verify applicants’ details and thereby maintain the integrity of the roll.

74.	Items 10, 13, 17 and 45 amend sections 94A, 95, 96 and 105 of the Electoral Act, respectively.  These sections deal with enrolment from overseas, enrolment of the spouse or child of an eligible overseas elector, enrolment of itinerant electors, and enrolment and changes of enrolment by electors.

75.	Item 37 repeals and substitutes a new subsection 102(4) of the Electoral Act to prevent a Divisional Returning Officer from considering a claim for ordinary enrolment when the rolls have closed.

76.	Items 62 and 63 amend section 155 of the Electoral Act and items 108 and 109 amend section 9 of the Referendum Act to provide for the close of rolls three working days after the issue of the writs.  The earlier close for new electors is specified in relevant provisions relating to enrolment or change of enrolment as set out above.

77.	Items 106 and 107 are consequential amendments to section 4 of the Referendum Act and prevent the AEC from processing a claim for enrolment during the period after the rolls have closed prior to a referendum.

78.	These items commence on proclamation.  Complementary State legislation will be required to enable proclamation and implementation of the provisions.  The writs for the State Senate elections are issued under State legislation, not the Electoral Act.  If the provisions in this Bill were to be proclaimed before complementary amendments have been made to the State Senate legislation, it is possible that there could be different close of rolls dates for the House of Representatives and Senate elections in those States.  Accordingly, these provisions will not take effect until complementary amendments have been made to the relevant State Senate legislation.  As the writs for the Territory Senate elections are issued under the Electoral Act, these elections would not be affected.

79.	These amendments give effect to the Government response to recommendation 3 of the JSCEM’s report on the 1998 federal election.

Schedule 1 - Item 44 – Reinstatement on the Roll

80.	Subsections 105(4) and 105(5) of the Electoral Act require that an elector who casts a provisional vote at an election or referendum because their name does not appear on the certified list on polling day, and who is subsequently found to be eligible to cast a vote for the subdivision in which they voted, be reinstated to the roll for an address in the subdivision for which they claimed a vote.  Electors must be reinstated on the roll regardless of whether the Divisional Returning Officer knows their current address.  This can result in electors being reinstated to addresses where they no longer live.

81.	Item 44 repeals subsection 105(4) and 105(5) of the Electoral Act and replaces these with a new subsection 105(4).  New subsection 105(4) will allow a Divisional Returning Officer to undertake a review of the elector’s enrolment to determine whether the elector is entitled to be enrolled for that subdivision.  If the Divisional Returning Officer can determine that the elector is entitled to be enrolled for the subdivision, then the Divisional Returning Officer may reinstate the elector to an address in that subdivision.

82.	This amendment gives effect to part of the Government response to recommendation 2 of the JSCEM's inquiry into the 2001 federal election.

Schedule 1 - Items 58, 59, 60, 61 and 134 – Reasonable person test for party names

83.	These items insert a new test in sections 129 and 134A of the Electoral Act to prevent the registration of political parties, and, in certain cases, continued registration of political parties when their names are similar to those of registered political parties.

84.	Section 129 of the Electoral Act contains a number of tests a party’s name must pass before the party can be registered.  Item 58 will amend section 129 to require that a party cannot be registered if its name suggests to a reasonable person a relationship or connection with a registered political party that does not exist.

85.	Section 134A of the Electoral Act contains procedures for a registered political party to object to the name of another, related and similarly named, registered political party that was registered after the objecting party when the relationship between the two parties has ceased.  Item 59 will amend paragraph 134A(1)(a) to require that, in assessing the complaint, the Electoral Commission will have to determine whether a reasonable person would decide that the name of the party being objected to suggests a connection or relationship with the objecting party that does not in fact exist.  

86.	Items 60 and 61 are consequential amendments.

87.	Item 134 is an application provision that will protect currently registered political parties from the new test.

88.	This is a Government-initiated amendment.

Schedule 1 - Items 64 to 66 and 70 – Return of nomination deposit 

89.	Items 64 to 66 and 70 amend sections 173 and 178 of the Electoral Act to provide that where the deposit paid by, or on behalf of, a candidate at a House of Representatives or Senate election is to be returned, it is returned to the person who paid it or to a person authorised in writing by the person who paid it, rather than to the candidate or a person authorised in writing by the candidate.  In the case of the death of a candidate who paid the deposit himself or herself and had not authorised the return of the deposit to another person in writing, the deposit will be returned to the personal representative of the candidate. 

90.	These amendments give effect to the Government response to recommendation 15 of the JSCEM’s report on the 1998 federal election.

Schedule 1 - Items 67 to 69 – Declaration of nominations

91.	For a House of Representatives election, the declaration of nominations must be made at the place of nominations.  These amendments to subsection 176 will allow the place of declaration of nominations for House of Representatives elections to be at a place determined by the Australian Electoral Officer.  This will be consistent with current practice in relation to the declaration of Senate nominations.  The Australian Electoral Officer will be able to determine a declaration place in relation to each Division for House of Representatives elections (which may be the same place for multiple Divisions), as well as a declaration place for the State or Territory for Senate elections. 

92.	This will enable the declaration to be held at a place other than at the offices of Divisional Returning Officers or Australian Electoral Officers, where space may be limited.

93.	These amendments give effect to the Government response to recommendation 43 of the JSCEM’s report on the 1996 federal election.

Schedule 1 - Items 72 to 74, 76 to 77, 110 to 112, and 114 to 115 – Sex and date of birth on the certified list

94.	Item 72 amends section 208 of the Electoral Act and item 110 amends section 22 of the Referendum Act, respectively, to include the sex and date of birth of each elector on the certified list for elections and referendums.  These details will allow a check on the identity of electors at the time of voting.  

95.	When a presiding officer at a polling booth is not satisfied that the elector is who he or she claims to be, these amendments will allow the presiding officer to ask the elector questions about this additional information on the certified list.  Items 73 and 111 give effect to these amendments of the Electoral Act and the Referendum Act.

96.	Items 76, 77, 114, and 115 amend section 235 of the Electoral Act and section 37 of the Referendum Act to create a new form of provisional vote for circumstances in which the presiding officer still has some doubt about the elector’s identity following his or her answers to the presiding officer’s questions or when the elector chooses not to answer the questions.  The legislation specifies the circumstances under which a provisional vote may be cast.

97.	Consequential amendments to section 230 of the Electoral Act and section 32 of the Referendum Act, respectively, at items 74 and 112, will ensure that errors or omissions on the roll relating to the sex and date of birth of the elector do not cause the elector to forfeit his or her vote.

98.	These amendments give effect to the Government response to recommendation 5 of the JSCEM’s report on the integrity of the electoral roll (User Friendly, Not Abuser Friendly).

Schedule 1 - Items 75 and 113 – Scrutineers not to actively assist electors who have requested an assisted vote

99.	It is currently the case that, under section 234 of the Electoral Act and section 36 of the Referendum Act, where an elector satisfies the presiding officer of a polling place that they suffer a disability which precludes them from personally casting a vote (for example, people who are physically impaired, visually impaired or illiterate), the elector may be assisted in the casting of their vote by a person of their choice.  

100.	These amendments to section 234 of the Electoral Act and section 36 of the Referendum Act propose to explicitly prevent scrutineers from providing assistance to voters.  Apart from scrutineers, this amendment will not limit in any other way those who can assist the elector in the casting of their vote.  Scrutineers are unable to relinquish their appointment as a scrutineer in order to assist in the casting of a vote. 

101.	These amendments give effect to the Government response to recommendation 36 of the JSCEM’s report on the 1998 federal election.

Schedule 1 - Items 78 and 116 – Proof of identity and address for provisional voting

102.	Paragraph 235(1)(a) of the Electoral Act and paragraph 37(1)(a) of the Referendum Act provide for an elector whose name cannot be found on the certified list to cast a provisional vote.

103.	These items amend section 235 of the Electoral Act and section 37 of the Referendum Act to provide for proof of identity and address, as prescribed by regulations, to be provided by electors casting a provisional vote when their name cannot be found on the certified list.

104.	Recommendation 2 of the JSCEM's inquiry into the 2001 federal election recommended that electors who cast this form of provisional vote be required to provide proof of identity and address before being issued with a vote.  The Government supported the recommendation and indicated that the proof of identity and address required should be similar to that proposed for enrolment.  As the scheme for proof of identity and address for enrolment is subject to consultation with the States and Territories (see items 9, 12, 16, 19 and 42), a similar requirement cannot be prescribed for provisional voting until this process has been completed.  Regulations for proof of identity and address for provisional voting will be made following consultation with the States and Territories.

105.	As the provisions are subject to regulations being developed in consultation with the States and Territories and possible complementary State and Territory legislation, all items in this Bill relating to proof of identity and address are to commence on proclamation.

Schedule 1 - Items 79 to 84 and 86 to 87 – Minimum disclosure provisions

106.	In relation to these items, the minimum amount donated by a donor, to a political party, candidate, member of a group, or organisation before a return is required to be lodged with the AEC is referred to as the ‘disclosure threshold’.

107.	Item 79 amends subsection 305B(1) to lift the disclosure threshold from $1,500 to $3,000 so that where a person makes donations totalling $3,000 or more in a financial year to the same political party, or to the same State branch of a political party, he or she must provide a return to the AEC.  Donations totalling less than $3,000 in a financial year to the same political party, or to the same State branch of a political party, will not have to be disclosed. 

108.	Items 80 and 81 amend subsection 305B(3A) to bring it into line with the proposed amendments to 305B(1).  That is, where the donor receives a gift valued at $3,000 which is then used to make up gifts donated to a political party totalling $3,000 or more in a financial year, this must be included in the return to the AEC. 

109.	The amendment to subsection 306(1), at item 82, would increase the disclosure threshold for a political party or a person acting on behalf of a political party for a gift received from $1,000 to $3,000. 

110.	The proposed amendments to subsections 306A(1) and 306A(2), at items 83 and 84, increase the disclosure threshold for a party, candidate, member of a group or a person acting on behalf of a political party, candidate or group for a loan that may be received from a person or organisation from $1,500 to $3,000.

111.	Item 86 amends subsection 314AC(1) to increase the disclosure threshold for donations received by a party from a person or organisation from $1,500 to $3,000.

112.	The amendment to subsection 314AE(1), at item 87, increases the disclosable sum of all outstanding debts incurred by, or on behalf of, a party to a person or organisation from $1,500 to $3,000. 

113.	These amendments give effect to the Government response to recommendation 45 of the JSCEM’s report on the 1998 federal election.

Schedule 1 - Items 85 and 118 – Publishers’ and Broadcasters’ returns on electoral expenditure

114.	Sections 310 and 311 of the Electoral Act require publishers and broadcasters to provide returns to the AEC with details about electoral advertisements broadcast or published during an election period.  Returns are to include information on who requested the advertisements, who authorised the advertisements, how often and when they were broadcast or printed and the cost of the advertisements.  Item 85 repeals section 310 and 311 to remove this requirement for broadcasters and publishers.  

115.	These provisions place an administrative burden on publishing and broadcasting businesses that is not required because expenditure on electoral advertising is already disclosed by individuals and organisations that authorise the advertisements as required under other sections of the Electoral Act.

116.	Part IX of the Referendum Act has similar provisions in relation to referendums.  For consistency, item 118 repeals Part IX of the Referendum Act.

117.	This is a Government-initiated amendment.

Schedule 1 - Items 88 to 91 and 119 to 123 – Heading to electoral advertising in journals

118.	Under the Electoral Act and the Referendum Act, any article or paragraph in a journal containing electoral matter must be labelled as an ‘advertisement’.  

119.	This is due to inaccurate amendments in the Electoral and Referendum Amendment Act 1998.  The intent of the amendments was to broaden the requirement to label advertisements so that it included printed matter other than newspapers.  However, as the legislation currently stands, any political commentary in any journal must be labelled as an advertisement.  

120.	The items will amend section 331 of the Electoral Act and section 124 of the Referendum Act so that advertisements containing electoral matter must be labelled as an ‘advertisement’, whether inserted for consideration (meaning monetary or non‑monetary payment) or not. 

121.	These amendments give effect to the Government response to recommendation 17 of the JSCEM’s report on the 1998 federal election.

Schedule 1 - Item 92 – Increased penalty for false witnessing an enrolment paper

122.	As part of recommendation 1 of the inquiry into the 2001 federal election, the JSCEM recommended that penalty levels be increased for false enrolments and false claims by witnesses, and that a new penalty should be introduced for false claims by applicants for enrolment, including that they are unable to produce primary forms of identification.

123.	False enrolment and false claims by applicants for enrolment are currently covered by the provisions of the Criminal Code, and attract sentences of 12 months imprisonment.  However, false claims by witnesses are covered by section 337 of the Electoral Act, and attract a penalty of $1,000.

124.	This item increases the penalty for false claims by witnesses in section 337 to 12 months imprisonment.

125.	This amendment gives effect to the Government response to part of recommendation 1 of the JSCEM’s report on the 2001 federal election.

Schedule 1 - Items 93, 124 and 125 – Multiple voting 

126.	Items 93 and 125 will insert new subsections to section 339 of the Electoral Act and section 130 of the Referendum Act respectively, to add a new offence of ‘intentional’ multiple voting.  Where a person is found guilty of intentionally voting more than once at the same election (or referendum), the penalty will be 60 penalty units, imprisonment for 12 months, or both.  This will have the effect of disqualifying anybody convicted and under sentence (or subject to be sentenced) under either of these sections from being capable of sitting as a Senator or Member of the House of Representatives by virtue of section 44 of the Constitution. 

127.	These offences are in addition to, and do not replace, the current offences of voting more than once at the same election or referendum, which are offences of strict liability, and which will retain a penalty of 10 penalty units.  The purpose of this is to maintain a relatively low penalty for those convicted of perhaps unintentional or accidental multiple voting, whereas those convicted of intentional multiple voting may receive the penalty of 60 penalty units, 12 months imprisonment, or both. 

128.	To reinforce the severity of multiple voting, each additional vote, apart from the one legitimate vote, will be treated as a separate offence.

129.	Item 124 corrects an existing technical error in the Referendum Act by substituting the word ‘election’ with ‘referendum’. 

130.	These amendments give effect to the Government response to recommendation 26 of the JSCEM’s report on the 2001 federal election.

Schedule 1 - Item 94 – Writs deemed to have been returned on the same day 

131.	This item amends subsection 355(e) of the Electoral Act to require that the 40 day period for filing a petition to the Court of Disputed Returns be counted from the date of return of the last writ.

132.	There can be up to 16 writs for Senate and House of Representatives elections held on the same day, and the date of return of these writs is dependent on the date of the declaration of the poll for the various elections.  Writs are regularly returned on different dates, resulting in different closing dates for petitions to the Court of Disputed Returns.

133.	This amendment will ensure a standard closing date for petitions to the Court of Disputed Returns.

134.	This is a Government-initiated amendment in response to the JSCEM’s report on the 2001 federal election.

Schedule 1 - Item 103 – Repealing provisions of the Electoral and Referendum Amendment Act (No. 1) 1999

135.	Items 10, 11 and 12 of Schedule 1 to the Electoral and Referendum Amendment Act (No. 1) 1999 amended the Electoral Act to introduce a new scheme for witnessing enrolments and verifying proof of identity for new enrolments, as set out in regulations.  

136.	These items were never proclaimed as regulations to give effect to the scheme were disallowed by the Senate in 2002.  The items have now been superseded by the proof of identity and address at enrolment proposal contained in this Bill.  Item 103 repeals items 10, 11 and 12 of Schedule 1 to the Electoral and Referendum Amendment Act (No. 1) 1999.

137.	This is a Government-initiated amendment.

Schedule 1 - Items 104 and 105 – Public Employment (Consequential and Transitional) Amendment Act 1999

138.	Items 104 and 105 make technical amendments to items 764 and 765 of Schedule 1 to the Public Employment (Consequential and Transitional) Amendment Act 1999 which came into effect on 5 December 1999.  Items 764 and 765 amended the definition of “authorized witness” in section 3 of the Referendum Act.  However, the amendments contained in the Public Employment (Consequential and Transitional) Act 1999 incorrectly spelt “authorised” with an “s” rather than as “authorized” with a “z” as it is spelt in the Referendum Act.  Therefore, the amendments were not technically correct.

139.	The amendments do not amend either the Electoral Act or the Referendum Act.  They amend the Public Employment (Consequential and Transitional) Amendment Act 1999.

140.	This is a Government-initiated amendment.

Schedule 1 - Item 117 – Removal of ‘silent’ electors’ details from public inspection of postal vote applications

141.	Item 117 amends section 62 of the Referendum Act to require Divisional Returning Officers to delete all details from a ‘silent’ elector’s postal vote application, except the person’s name, before making them available for public inspection.  This will ensure consistency between the Electoral Act and the Referendum Act in relation to the information that is to be deleted from the postal vote applications of ‘silent’ electors prior to public inspection.

142.	This is a Government-initiated amendment.

Schedule 1 - Items 136 to 138 – Transitional provisions relating to minimum disclosure provisions

143.	These items deal with the application of the proposed amendments to subsections 305B(1), 305B(3A), 314AC(1) and 314AE(1) of the Electoral Act, so that the amendments apply to the financial year in which the items commence, as well as to all subsequent financial years.  Although this application may be retrospective in some circumstances, no detrimental effect is anticipated as the amendments will simplify disclosure requirements.  If individuals and parties have been maintaining appropriate records in line with current requirements, no additional information will need to be gathered.

144.	These amendments give effect to the Government response to recommendation 45 of the JSCEM’s report on the 1998 federal election.