Electoral Newsfile 117: Changes to the Commonwealth Electoral Act 1918 since the 2001 election

Updated: 7 February 2011

Summary of major amending legislation

Since the 2001 federal election, a series of amendments have been made to the Commonwealth Electoral Act 1918 (the Electoral Act). The following Acts made amendments directly concerned with enrolment and elections:

  • Commonwealth Electoral Amendment Act (No. 1) 2002
  • Commonwealth Electoral Amendment (Members of Local Government Bodies) Act 2003
  • Commonwealth Electoral Amendment (Representation in the House of Representatives) Act 2004
  • Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004
  • Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004
  • Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004

This edition of Electoral Newsfile summarises the amendments made to the Electoral Act by these Acts. While providing a summary of the major provisions of these Acts, the Newsfile is not designed as a substitute for the law. Political parties, candidates and other interested persons are advised to refer to the relevant Acts for the exact details of the amendments.

Summary of amendments

The Commonwealth Electoral Amendment Act (No. 1) 2002 was introduced to the Parliament to provide a legislative framework for election funding payments to be shared between the state organisations and the federal secretariat of the Liberal Party. Amendments were made during passage to extend the provisions to other similarly organised registered political parties. This Act came into effect on 10 October 2002.

The Commonwealth Electoral Amendment (Members of Local Government Bodies) Act 2003 was enacted to override state legislation to ensure that members of local government bodies do not suffer any penalty, such as automatic loss of that office, from nominating as a candidate for the Senate or the House of Representatives. These amendments do not affect the constitutional disqualification against holders of offices of profit under the Crown from nominating or being elected (section 44(iv) of the Constitution). [The High Court has not considered whether members of local government bodies would be caught by the constitutional disqualification.] This Act came effect on 17 December 2003.

The Commonwealth Electoral Amendment (Representation in the House of Representatives) Act 2004 was introduced to the Parliament in response to the recommendations in the 2003 report of the Joint Standing Committee on Electoral Matters (the JSCEM) into the representation of the Territories in the House of Representatives. The JSCEM's inquiry followed the 2003 determination of entitlements which reduced the Northern Territory's entitlement from two seats in the House of Representatives to one seat with effect from the 2004 election. The amendments set aside the 2003 determination in regard to the Northern Territory and continue the NT's entitlement to two seats at the 2004 election. The amendments specify in detail which published population figures are to be used in the determination. They also provide for the Electoral Commissioner to allow for the effect of the standard error advised by the Australian Statistician, in respect of the population figures for the territories, before determining a reduction in the entitlement of a territory. This Act came into effect on 27 April 2004.

The Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004 (the Access to Electoral Roll Act) and the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (the Enrolment Integrity Act) stemmed from those recommendations, of the report of the JSCEM on the conduct of the 2001 federal election, that were accepted by the Government response tabled in the Parliament on 16 October 2003. The Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (the Prisoner Voting Act) was enacted to correct an anomaly created by amendments in the Senate to the prisoner enrolment and voting provisions in the Enrolment Integrity Act.

Access to Electoral Roll Act

The amending provisions of this Act came into effect on 21 July 2004. These provisions:

  • restructure sections 90 to 91E of the Electoral Act to make roll access provisions more understandable. There were no changes to the entitlements as set out in sections 90 to 91E;
  • extend the end-use restrictions for roll information to all forms of the roll to prevent the use of the roll for purposes other than those to do with enrolment and elections;
  • remove from the Act references to the form of media on which copies of the roll are to be provided;
  • remove the roll from sale in any format;
  • require the Australian Electoral Commission (AEC) to publish a statement of reasons about party names where the AEC has decided that the party name cannot be registered;
  • allow scrutineers to be present at pre-poll voting centres, and govern the behaviour of scrutineers at pre-poll voting centres;
  • clarify procedures for nomination of candidates for election to both Houses of Parliament and permit nomination by one elector in the case of continuing independent Members and Senators;
  • prohibit broadcasting of political material that is audible within close proximity of polling places;
  • allow for the temporary suspension or adjournment of polling for physical and safety reasons;
  • extend the time in which Australians overseas can either apply for eligible overseas elector status or enrol from outside Australia for eligible overseas elector status, from two to three years;
  • remove the requirement for Australians enrolling from overseas to state the reason for leaving Australia; and
  • make a series of technical amendments to the Electoral and Referendum Acts.

Enrolment Integrity Act

The relevant amending provisions of this Act came into effect on 10 August 2004. Some other provisions relating to providing evidence of identity for enrolment will take effect in the future following negotiation with States and Territories. These provisions:

  • introduce enrolment based on residence at an address rather than simply in a subdivision. This amendment will not affect the way in which electoral enrolments are processed or objection action is Page 3 Electoral Newsfile taken where people cannot be contacted at their enrolled address;
  • include the sex and date of birth of electors on the certified list as a check on fraudulent voting;
  • amend the prohibition that prevents prisoners voting so that it affects prisoners serving a sentence of three years or more (instead of five years or more as previously);
  • amend the prohibitions to registering a political party to also prohibit a party whose name suggests a non-existent relationship with a registered political party;
  • 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;
  • allow registered political parties and independent members of parliament to be provided, on request, with certain information about where electors voted on election day;
  • increase the penalty for multiple voting and make each additional occasion a separate offence, as well as increase the penalty for false witnessing of enrolment forms; and
  • make a number of other minor amendments.

Prisoner Voting Act

The main amending provisions of this Act took came into effect on 10 August 2004. These provisions:

  • simplify Senate amendments to the Enrolment Integrity Act with the effect that prisoners serving a sentence are now prohibited from enrolment and voting if they are serving a sentence of three years or more (the amendments would have applied to prisoners serving a sentence continuously from the return of the writs for one election to the issue of the writs for the next election, but could not effectively be implemented); and
  • make a few technical amendments resulting from other shortcomings in the Enrolment Integrity Act as amended in the Parliament.

Summary of amending Acts which were not directly enrolment or election related

The following Acts made more general amendments to the Electoral Act not directly concerned with elections or enrolment:

  • Corporations (Repeals, Consequentials and Transitionals) Act 2001
  • Finance and Administration Legislation Amendment (Application of Criminal Code) Act 2001
  • Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001
  • Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002
  • Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003

The amendments made by these Acts were:

  • to amend references in the Electoral Act to corporations acts and laws;
  • to incorporate reference to the Criminal Code provisions in offence provisions in the Electoral Act;
  • to remove the prohibition on electoral officers being appointed to terms past the age of 65 years;
  • to amend references to conciliation, arbitration and workplace relations legislation; and
  • to amend the power of Courts to make rules for the implementation Part XXII of the Electoral Act (Disputed Elections and Returns). This amendment will come into effect on a date to be proclaimed.

Electronic links to major Acts

The major Acts referred to above can be accessed via the government's legislation site on Scaleplus. The particular links for those Acts are listed below.

The following amendments have now been included in the Commonwealth Electoral Act 1918.

  • Commonwealth Electoral Amendment Act (No. 1) 2002
  • Commonwealth Electoral Amendment (Members of Local Government Bodies) Act 2003
  • Commonwealth Electoral Amendment (Representation in the House of Representatives) Act 2004
  • Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004
  • Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004
  • Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004

Media Liaison

Members of the media are asked to use the Media Liaison and Head Office contact numbers listed rather than the general enquiry number 13 23 26 which appears on AEC advertising.

Media Liaison
Assistant Commissioner
Public Awareness, Media and Communication
Brien Hallett
(02) 6271 4477
Director Media and Communication
Phil Diak
(02) 6271 4415
Editor, Newsfile
Shirley Weber
(02) 6271 4720

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