2002-2003-2004

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

House of Representatives

ELECTORAL AND REFERENDUM AMENDMENT (PRISONER VOTING 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 (PRISONER VOTING AND OTHER MEASURES) BILL 2004

OUTLINE

The Bill amends the Commonwealth Electoral Act 1918 (the Electoral Act), the Referendum (Machinery Provisions) Act 1984 (the Referendum Act) and the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (the Enrolment Integrity Act) to address operational problems identified with the amendments made by the Senate during debate on 25 June 2004 of the Enrolment Integrity Act.

The measures will:
•	amend the Electoral Act to prevent prisoners serving a sentence of three years or longer from enrolling to vote;
•	amend the Referendum Act to repeal early close of rolls provisions for referendums; and
•	amend the Enrolment Integrity Act to clarify the commencement of the name and address evidentiary requirements for enrolment and changes to enrolment details, including the review by the Australian Electoral Commission (AEC) of these requirements, and the cessation of the requirements.

FINANCIAL IMPACT STATEMENT

The Bill has no financial impact.

ELECTORAL AND REFERENDUM AMENDMENT (PRISONER VOTING AND OTHER MEASURES) BILL 2004

NOTES ON CLAUSES

Clause 1 – Short title

1.	This clause provides for the Act to be cited as the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004.

Clause 2 – Commencement 

2.	This clause sets out the commencement provisions for the Bill.  Sections 1 to 3 commence on Royal Assent.  The items in Schedule 1 commence on 10 August 2004, immediately after the commencement of items 6, 7, 46, 71, 95 and 126 of Schedule 1 to the Enrolment Integrity Act.  The reason for this commencement provision is explained at the relevant items below.

3.	The items in Schedule 2 are taken to have commenced immediately after the Enrolment Integrity Act received Royal Assent on 13 July 2004.  These items repeal redundant provisions and do not have any detrimental effect on people’s rights.

4.	The items in Schedule 3 commence immediately after the commencement of item 132A of the Enrolment Integrity Act which commences on 10 August 2004.  The items clarify the operation of item 132A and do not affect people’s rights.

Clause 3 – Schedule(s)

5.	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 relating to prisoner voting

6.	This Schedule amends the Electoral Act and the Referendum Act.

Items 1 to 6 – Prohibition on prisoners serving a sentence of three years or longer from enrolling to vote

7.	During debate of the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004 in the Senate on 25 June 2004, items 6 and 7 relating to prisoner voting were amended to provide that prisoners serving sentences of imprisonment that commenced on, or before, the return of the writs for an election and continued after the issue of the writs for any succeeding election are not entitled to be enrolled to vote.  These items commence on 10 August 2004.

8.	In their current form, the amendments relating to prisoner voting entitlements will not achieve the outcome of preventing certain prisoners from enrolling to vote.

9.	The only available process for removing prisoners in the above category from the roll is by objection action under Part IX of the Electoral Act.  Objection action can only take place when the relevant Divisional Returning Officer (DRO) is satisfied that a person is not entitled to be enrolled for that Division (subsection 114(2) of the Electoral Act).  As the prisoners would only be ineligible for enrolment on the issue of the writs, objection action could not commence until that time.

10.	The objection process requires the DRO to give notice of an objection to the challenged elector and provide the elector the opportunity to comment on the objection (section 116 of the Electoral Act).  Under subsection 118(1) of the Electoral Act, a DRO can then make a decision about the objection either after the person has responded to the objection or 20 days after the date of notification of the objection, whichever is the sooner.  In practice, an objection is usually determined after the 20‑day period from notification of the objection.

11.	Subsection 118(5) of the Electoral Act prevents a DRO from finalising an objection action between the close of rolls for an election and polling day.  As the rolls close seven days after the issue of the writs for an election (section 155 of the Electoral Act), there would be insufficient time to complete an objection against a prisoner within the specified category.

12.	To correct this technical problem, this Bill amends the Electoral Act to prevent a prisoner who is serving a sentence of three years or more from enrolling to vote.  This period also aligns with the electoral cycle.

13.	The amendments require the Controllers-General of Prisons in the States and Territories to provide the AEC, on a monthly basis, information on prisoners who are serving a sentence of imprisonment of three years or more.  DROs will then use the information provided by the Controllers-General of Prisons to undertake objection action to remove these prisoners from the roll.

14.	Upon completion of their sentence, prisoners will be eligible to re-enrol.  Prisoners released on parole will also be eligible to re-enrol.  The provisions will not apply to prisoners serving sentences of periodic detention or people serving a
non-custodial sentence.

15.	Item 1 repeals paragraph 93(8)(b) of the Electoral Act and replaces it with another paragraph that prohibits prisoners serving a sentence of imprisonment of three years or longer for an offence against the law of the Commonwealth or a State or Territory from enrolling to vote.  This item is similar to paragraph 93(8)(b) of the Electoral Act as it stood before amendment by the Enrolment Integrity Act, save the reduction of the time period from five to three years.

16.	Item 2 repeals and replaces subsection 93(8AA) of the Electoral Act which contained a definition of imprisonment for the purposes of paragraph 93(8)(b).  This definition is no longer required as a result of the amendment to paragraph 93(8)(b) above.  Item 2 specifies that the prohibition on enrolment for people serving a sentence of three years or more applies to people who have commenced their sentence on, or before, the commencement of Schedule 1 of this Bill.  This is consistent with the application of the provision at item 6 of the Enrolment Integrity Act where the qualification for enrolment and voting is based on a prisoner’s sentence having commenced before, or on, the return of the writs for an election and continuing at the issuing of writs for the succeeding election.

17.	Item 3 amends section 109 of the Electoral Act to ensure that the Controllers‑General of Prisons in the States and Territories provide the AEC with monthly reports containing information on those prisoners serving a sentence of imprisonment of three years or longer.  This procedure is similar to the one that was in operation under the Electoral Act prior to amendment by the Enrolment Integrity Act, apart from the period of imprisonment.

18.	Item 4 amends paragraph 184A(2)(d) of the Electoral Act, which relates to the qualifications for applying to register as a general postal voter, to maintain consistency with the amendments made to section 93 of the Electoral Act.  The amendment will provide that detention in custody constitutes a legitimate reason for an elector to apply to register as a general postal voter.  This will ensure that people serving a sentence of less than three years are eligible to apply to register as a general postal voter.  Prisoners serving a sentence of three years or more, once removed from the roll, will not be eligible to register as a general postal voter as they will not be classified as ‘electors’ within the definition at subsection 4(1) of the Electoral Act.

19.	Schedule 2 of the Electoral Act contains the grounds for a person to apply for a postal or a pre-poll vote.  Clause 9 of Schedule 2 allows an elector who is under detention but not serving a sentence of imprisonment within the meaning of subsection 93(8) to apply for either a pre-poll or a postal vote.  As a consequence of amending subsection 93(8) to remove the definition of the sentence of imprisonment, item 5 amends Clause 9 of Schedule 2 to remove the reference to that subsection of the Electoral Act and provides for detention in custody to be a ground for an elector to apply to cast a postal or a pre-poll vote.  This will ensure that people imprisoned for less than three years are able to cast a postal or a pre-poll vote.

20.	Schedule 3 of the Referendum Act contains the grounds for application for a postal or a pre-poll vote, similar in form to those in the Electoral Act.  Item 6 amends Clause 9 of Schedule 3 to be consistent with the amendment of the Electoral Act at Item 5 above.

21.	The items in Schedule 1 commence on 10 August 2004.  This will ensure that the items of the Enrolment Integrity Act, which do not have the effect as agreed by the Parliament, do not operate.

Schedule 2 – Amendments relating to close of rolls

22.	This Schedule amends the Enrolment Integrity Act.

Items 1 and 2 – Repeal of provisions relating to the early close of rolls for referendums

23.	The Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004 contained a number of amendments to the Electoral Act and the Referendum Act relating to the close of rolls for an election and a referendum.  Those amendments would have changed the close of rolls for new enrolments from seven days after the issue of the writs to 6.00pm on the day of the issue of the writs, and to 8.00pm on the third day after the issue of the writs for changes to enrolment details.

24.	During debate in the Senate on 25 June 2004, the majority of these amendments were not supported and were removed from the Bill.  However, two amendments to the Referendum Act relating to the close of rolls were not omitted (items 107 and 108) and commence on proclamation.  The items have not been proclaimed.

25.	Item 107 of the Enrolment Integrity Act amends section 4 of the Referendum Act to insert a definition of the postponement period where the AEC is unable to process enrolment applications or alter the rolls during the period after the rolls have closed and prior to a referendum.

26.	Item 108 of the Enrolment Integrity Act amends section 9 of the Referendum Act to change the day for the close of rolls from seven days to three working days after the issue of the writs.  

27.	Item 1 of Schedule 2 of this Bill amends the commencement table of the Enrolment Integrity Act to remove the reference to all of the provisions relating to the early close of rolls for referendums.  The commencement table was not amended during debate of the Enrolment Integrity Bill and the provision is redundant.

28.	Item 2 repeals items 107 and 108 of the Enrolment Integrity Act and will ensure consistency with the close of rolls provisions in the Electoral Act and the Referendum Act.

Schedule 3 – Amendments relating to proof of identity and address on enrolment

29.	This Schedule amends the Enrolment Integrity Act.

Items 1 - 5 – Clarification of evidentiary requirements for proof of name and address on enrolment

30.	The Enrolment Integrity Act contains provisions for the introduction of name and address evidentiary requirements, as prescribed by regulations, for enrolment and changes to enrolment details.  

31.	During debate of the legislation in the Senate, a number of amendments were made to these provisions.  These included: 
•	inserting a requirement that the regulations for proof of name and address for enrolment must require electors to provide on their enrolment form either their driver’s licence number or the signatures of two witnesses (item 18A); 
•	providing that where people provide their driver’s licence number, they are not required to have their enrolment form witnessed (item 19);
•	providing that the regulations must not be made until after 1 July 2005 (item 18A); 
•	inserting a requirement that the regulations cease to have effect three years after the date of proclamation of the items in the Enrolment Integrity Act relating to proof of name and address (item 132A); and
•	inserting a requirement that the AEC commence a review of the evidentiary requirements on the second anniversary of the proclamation of the items in the Enrolment Integrity Act relating to proof of name and address (item 132A).  

32.	The commencement of the review of the evidentiary requirements and the cessation of those requirements are linked to the proclamation of all of the provisions relating to proof of name and address (items 9, 12, 16, 18A, 19 and 42 of Schedule 1 of the Enrolment Integrity Act).  However, as a result of amendments made by the Senate, not all of the provisions commence on proclamation.  Item 132A also referred to a number of provisions relating to proof of name and address for applicants from overseas and itinerant applicants (items 9, 12 and 16) which were omitted from the Enrolment Integrity Bill during debate in the Senate.  Reference to these redundant items has been removed as part of the amendments of item 132A at item 3 of Schedule 3 of this Bill.

33.	In accordance with section 2 of the Enrolment Integrity Act, item 18A commenced on Royal Assent, that is, on 13 July 2004, as no commencement date was specified for the provision when it was added to the Enrolment Integrity Bill during debate.  All of the other provisions relating to proof of name and address commence on proclamation and have not yet been proclaimed.  

34.	For consistency, and in order to avoid any confusion about the commencement of the proof of name and address provisions, the amendments in this Bill provide for all of the provisions relating to proof of name and address to commence at the same time on proclamation.  As outlined in the explanatory memorandum to the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004, proclamation of these items is dependent upon consultation with the States and Territories on the form of the regulations and the need for complementary legislation where necessary.  The amendments in Schedule 3 of this Bill also clarify the commencement of the review of the proof of name and address requirements and the cessation of those requirements.

35.	Item 1 of Schedule 3 amends table item 14 of subsection 2(1) of the Enrolment Integrity Act to include item 18A.  This will ensure that items 18A and 19 of the Enrolment Integrity Act commence on proclamation.  Item 19 requires proof of name and address, as prescribed by regulations, to be provided for enrolment and change of enrolment details.

36.	Item 2 repeals item 132A of the Enrolment Integrity Act and substitutes two new items (item 132A and 132B) which clarify the operation of the provision.  Amended item 132A provides that the evidentiary requirements cease to have effect three years after the commencement of the requirement for proof of name and address at item 19 of Schedule 1 of the Enrolment Integrity Act.

37.	New item 132B provides that the AEC must commence its review of the evidentiary requirements on the first business day two years after the commencement of the requirement for proof of name and address at item 19 of Schedule 1 of the Enrolment Integrity Act.  This item has been re-drafted to include a reference to the sections of the Electoral Act that relate to the evidentiary requirements.  

38.	The provision also specifies the issues which the AEC must consider when conducting the review and clarifies that the AEC must give copies of its written report of the review to the Minister and the Joint Standing Committee on Electoral Matters at the same time.