Commonwealth electoral legislation - changes since the 2010 federal election

Updated: 24 July 2013

Introduction

The purpose of this document is to provide a summary of major changes to Commonwealth electoral legislation since the 21 August 2010 federal election. It is not intended to provide a comprehensive list of every change. More detailed information relating to legislation as passed by the Parliament, including relevant Explanatory Memoranda, can be accessed from the Parliament of Australia website.

This summary also includes changes that were passed before the 2010 federal election, but which came into effect after the election.

2013 legislation

Improving Electoral Procedure Bill

The Electoral and Referendum Amendment (Improving Electoral Procedure) Act 2013 (Act No. 19 of 2013) amended the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).

Following the inquiry into the conduct of the 2010 federal election, the Joint Standing Committee on Electoral Matters (JSCEM) tabled a report entitled The 2010 Federal Election: Report on the conduct of the election and related matters (JSCEM Report). This Act implemented the Government response to Recommendations 12, 31 and 32 of the JSCEM Report as well as making a number of technical and minor amendments.

The amending Act contains provisions that:

  • remove the prescription relating to how postal votes are processed and allow for technological developments over time
  • increase the sum to be deposited by or on behalf of a person nominated as a Senator from $1000 to $2000
  • increase the sum to be deposited by or on behalf of a person nominated as a Member of the House of Representatives from $500 to $1000
  • increase the number of nominators required by a candidate for the Senate or the House of Representatives who has not been nominated by a registered political party from 50 to 100 electors
  • require unendorsed candidates for the Senate who have made a request to be grouped to each be nominated by 100 unique electors and
  • make a number of minor and technical amendments

The minor and technical amendments include:

  • removing the requirement that silent electors have to submit another statutory declaration when they move address, but wish to retain their status as a "silent elector"
  • taking the word "therein" out of section 174 to clarify that the DRO doesn't have to be physically located inside the divisional boundary to accept nominations. This recognises the reality of co-locations and larger working unit (LWU) working arrangements
  • removing the 20km restriction for general postal voter status – an unintended consequence of the 2010 changes to mobile polling legislation meant that no-one within 20kms of any mobile polling team is eligible to be a general postal voter (GPV). This amendment fixes that anomaly
  • changing the provisional voting conditions to allow a provisional vote to be issued to someone whose name has been marked on an electronic certified list (ECL)
  • adding in provisions for handling discarded ballot papers that are similar to the existing provisions for handling spoilt ballot papers
  • allowing postal votes to be treated as received on time in cases where they are received in the AEC before the close of polling but the witness date is after polling day. Previously such votes, with obviously incorrect witness dates, had to be rejected
  • tidying up the Assistant Returning Officer (ARO) provisions such that OICs (who are appointed as AROs for the count) can be appointed to count votes for a polling place, pre-polling voting centre (PPVC) or mobile polling team rather than for "a portion of the division"

Improving Electoral Administration Bill

The Electoral and Referendum Amendment (Improving Electoral Administration) Act 2013(Act No. 26 of 2013) amended the Commonwealth Electoral Act 1918 (the Electoral Act), the Referendum (Machinery Provisions) Act 1984 (the Referendum Act) and the Taxation Administration Act 1953 (the Taxation Administration Act).

Following the inquiry into the conduct of the 2010 federal election, the Joint Standing Committee on Electoral Matters (JSCEM) tabled a report entitled The 2010 Federal Election: Report on the conduct of the election and related matters (JSCEM Report). This Act implemented the Government response to Recommendations 3, 9, 10, 11, 15, 23, 29 and 30 of the JSCEM Report.

The amending Act contains provisions that:

  • set out the procedures to be followed when a ballot-box is opened prematurely, that is, before the close of the poll, other than in accordance with the relevant provisions of the Electoral Act and Referendum Act
  • introduce into the Electoral Act and the Referendum Act a specific offence for an officer that unlawfully interferes with a ballot box
  • remove the requirement under the Electoral Act and Referendum Act for an applicant for a pre-poll ordinary vote to complete and sign a certificate
  • provide that pre-poll voting cannot commence earlier than 4 days after the date fixed for declaration of nominations for any type of election or by-election
  • commencing on 1 January 2014, brings forward the deadline for applications for postal votes by one day from the Thursday before polling day to the Wednesday before polling day
  • provide for further fixed periods of time to be provided to the augmented Electoral Commission (as defined in section 70 of the Electoral Act) to complete its inquiries into objections against proposed redistribution of electoral boundaries
  • amend the Taxation Administration Act to allow the Commissioner of Taxation and other taxation officers to provide some forms of taxpayer information to the Australian Electoral Commission for the purposes of administering the Electoral Act and Referendum Act
  • omit provisions from the Electoral Act requiring a minimum font size for the authorisation details on How-to-Vote Cards and
  • make a number of related minor and technical amendments

Referendum (Machinery Provisions) Amendment Bill

The Referendum (Machinery Provisions) Amendment Act 2013 (Act No. 34 of 2013) amended the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).

In December 2009 the then House of Representatives Standing Committee on Legal and Constitutional Affairs reported on the machinery of referendums in the report: A Time for Change: Yes/No? The report made seventeen recommendations. This Act addressed Recommendations 3 and 11.

Recommendation 3 reads:

"The Committee recommends that the Australian Government introduce amendments to the Referendum (Machinery Provisions) Act 1984 (Cth) to require a Yes/No pamphlet to be delivered to every household, not every elector."

Subsections 11(1), (2) and (3) of the Referendum Act provide for the printing and posting to each elector of a pamphlet which outlines arguments in favour of the proposed Constitutional change and arguments against the proposed Constitutional change. These arguments are compiled and presented in one pamphlet known as the Yes/No pamphlet.

Recommendation 11 reads:

"The Committee recommends the Australian Government introduce amendments to remove the current limitation on spending imposed by section 11(4) of the Referendum (Machinery Provisions) Act 1984 (Cth) and include provisions to ensure that spending is directed to referendum education and to equal promotion of the Yes/No arguments."

Subsection 11(4) generally limits the capacity of the Commonwealth to spend money in relation to a referendum other than on the production and delivery of the Yes/No pamphlet.

This Act implemented the Government response to Recommendations 3 and 11 by:

  • amending section 11 of the Referendum Act to substitute a requirement that the Yes/No pamphlet be sent to each address on the electoral Roll for the previous requirement that the Yes/No pamphlet is posted to every elector and
  • temporarily suspending the operation of subsection 11(4) of the Referendum Act until polling day for the 2013 federal election.

2012 legislation

Maintaining Address Bill

The Electoral and Referendum (Maintaining Address) Act 2012 (Act No. 110 of 2012) amended the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).

Following its inquiry into the conduct of the 2007 federal election, the Joint Standing Committee on Electoral Matters (JSCEM) tabled a report entitled Report on the conduct of the 2007 federal election and matters related thereto (JSCEM Report). The amendments contained in this Act implemented the Government response to Recommendation 10 of the JSCEM Report.

The amending Act contains provisions that:

  • allow the Electoral Commissioner to directly update an elector's enrolled address following the receipt and analysis of reliable and current data sources from outside the Australian Electoral Commission that indicate an elector has moved residential address
  • require the Electoral Commissioner to inform an elector that the Electoral Commissioner is proposing to update the elector's address on the electoral Roll
  • require the Electoral Commissioner to inform an elector that the Electoral Commissioner has updated the elector's enrolled address
  • enable objection action under Part IX of the Electoral Act to be discontinued and the elector's enrolled address updated so that the elector is not removed from the electoral Roll
  • make a number of consequential amendments to the Electoral Act and Referendum Act
  • standardise references to the Electoral Commissioner and
  • provide for the Electoral Commissioner to delegate the power to seek information

This amending Act did not provide the capacity to directly enrol new electors.

However, this change did occur with the second Bill outlined below.

Protecting Elector Participation Bill

The second Bill became the Electoral and Referendum (Protecting Elector Participation) Act 2012 (Act No. 111 of 2012) and amended the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act). Following the inquiry into the conduct of the 2010 federal election, the Joint Standing Committee on Electoral Matters (JSCEM) tabled a report entitled The 2010 Federal Election: Report on the conduct of the election and related matters (JSCEM Report). This Act implemented the Government response to Recommendations 1 and 24 of the JSCEM Report.

The amending Act contains provisions that:

  • allow the Electoral Commissioner to directly enrol a person if satisfied that the person is entitled to enrolment, has lived at an address for at least one month and the person is not enrolled
  • require the Electoral Commissioner to inform the person that the Electoral Commissioner is proposing to enrol the person at a particular address
  • require the Electoral Commissioner to inform the person that the Electoral Commissioner has enrolled the person at a particular address
  • allow the Electoral Commissioner to admit certain declaration votes to the scrutiny
  • allow the Electoral Commissioner to enrol certain persons who have cast declaration votes and who had been removed from the roll and
  • make a number of minor and technical amendments

2011 legislation

Provisional Voting Bill

In May 2011 the Electoral and Referendum Amendment (Provisional Voting) Act 2011 (Act No. 37 of 2011) was enacted. The Amending Act amended the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act). The amendments removed, in most instances, the requirement for people casting a provisional vote to provide evidence of identity before the votes are admitted to scrutiny.

Amendments to the Bill made by the Senate and accepted by the House affected how the AEC conducts the preliminary scrutiny of provisional vote envelopes. In situations where the DRO has reason to doubt that the signature on the envelope is that of the elector the DRO must check the signature against the most recent record of the elector's signature, if any. If after checking the signature the DRO is still not satisfied that the signature on the envelope is the signature of the elector then the DRO must make all reasonable attempts to contact an elector (within three days after the election) to require the elector to provide evidence of identity by the first Friday following polling day. If after this process is complete the DRO is still not satisfied that the signature on the envelope is that of the elector the vote must be excluded from further scrutiny.

The amendments implement the Government response to recommendation 2 of the Joint Standing Committee on Electoral Matters Report on the conduct of the 2007 federal election.

Enrolment and Prisoner Voting Bill

The primary purpose of the Electoral and Referendum Amendment (Enrolment and Prisoner Voting) Act 2011 (Act No. 29 of 2011) was to amend the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (Referendum Act) to give effect to two decisions of the High Court of Australia:

  • Rowe v Electoral Commissioner [2010] HCATrans 207 (Rowe), decided on 6 August 2010, which concerned the process following the calling of an election through the formal issue of a writ, and the period of time allowed for relevant voters to either ensure that they are on the electoral Roll, or to update their details (close of Rolls) and
  • Roach v Electoral Commissioner (2007) 233 CLR 162 (Roach), decided on 30 August 2007, with reasons published on 26 September 2007, which concerned the franchise for relevant people who may be serving a sentence of imprisonment

Schedule 1 to the Amending Act addressed the Rowe decision and contains amendments relating to the close of Rolls. Schedule 2 to the Amending Act addressed the Roach decision and contained amendments relating to prisoner voting.

In short, the Amending Act updated the text of the Electoral Act to reflect the current legal position, as declared by the High Court, to:

  • restore the close of Rolls period to 7 days after the date of the writ for a federal election and
  • reinstate the previous disqualification, for prisoners serving a sentence of imprisonment of 3 years or longer, from voting at a federal election

Consequential amendments to the Referendum Act were also made to ensure consistency between the two Acts. In this context, a referendum is the formal constitutional amendment process, set out in section 128 of the Australian Constitution. The provisions relating to prisoners apply to all prisoners whether the person's sentence of imprisonment began before, on or after the commencement of the Act.

Two other related matters are also addressed by the Amending Act.

First, on 22 June 2009, the Joint Standing Committee on Electoral Matters (JSCEM) delivered a report entitled Report on the conduct of the 2007 federal election and matters related thereto (JSCEM Report). The Amending Act implemented the Government's Response, of 18 March 2010, to Recommendation 47 of the JSCEM Report. The amendments would ensure that while prisoners serving a sentence of imprisonment of 3 years or longer will be disqualified from voting, they may remain on, or be added to, the electoral roll.

Second, the Amending Act included an interpretative provision to ensure that certain references in the Electoral Act to "an election for a Division", or similar expressions, can operate in the event of a half Senate election held independently from an election of the House of Representatives. This addresses an anomaly in the Electoral Act.

2010 legislation

The following legislative changes were passed before the 2010 federal election, but implemented following the election.

These changes were enacted by the Electoral and Referendum Amendment (How to Vote Cards and Other Measures) Act 2010 (Act No.108 of 2010); the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010 (Act No. 109 of 2010); and the Electoral and Referendum Amendment (Modernisation and Other Measures) Act 2010 (Act No. 110 of 2010). The changes, to the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act), included:

  • removing the requirement to publish enrolment and election-related forms and information in the Commonwealth of Australia Gazette and substituting the requirement for the Electoral Commissioner to publish the information, at a minimum, on the AEC's website
  • providing that a person making an application for enrolment or changing the name under which they are enrolled (which does not include amending address details) needs to include with their application either their driver's licence number, their passport number or an attestation of identity signed by an enrolled elector
  • reducing the age at which people may provisionally enrol, from 17 years to 16 years
  • allowing for electronic roll information to be provided to parliamentarians and allow for electronic certified lists
  • introducing one form of mobile polling which may visit anywhere that the Electoral Commissioner determines, to remove inconsistencies in the arrangements for visits at various places or institutions
  • enabling a person to apply for a postal vote electronically by removing the requirement for an application for a postal vote to be signed and witnessed
  • clarifying that a right to inspect the electoral roll does not include the right to electronically copy or record the roll
  • introducing specific provisions to facilitate enrolment and continued enrolment for people experiencing homelessness
  • specific and expanded authorisation requirements for how-to-vote cards*. The intention of these amendments was to make it clearer who will benefit from the preference flow suggested on the how-to-vote card. These amendments are intended to reduce the potential for voters to be misled and to give voters the means to make informed decisions by ensuring that the political source of how-to-vote material is clearly stated and
  • extending misleading and deceptive publications provisions to internet and telephone. The amendments add the terms "telephone" and "internet" to the definition of "publish" in s.329 of the Electoral Act and s.122 of the Referendum Act. The offence in s.329 of the Electoral Act and s.122 of the Referendum Act is expanded to include the internet; consequently, the Act amends the offence to have extended geographical jurisdiction

The amendments outlined above implemented the Government response to Recommendations 6, 7, 12, 18, 19, 20, 28, 29, 30, 41, 43, 50, and 53 of the Joint Standing Committee on Electoral Matters' Report on the conduct of the 2007 federal election.

* The Electoral and Referendum Amendment (Improving Electoral Administration) Act 2013 (Act No. 26 of 2013) repealed two subsections (328B(2) and 328B(3)) introduced by the Electoral and Referendum Amendment (How to Vote Cards and Other Measures) Act 2010 which required that authorisations were to conform to certain requirements in relation to the size of the characters in the authorisation. Other relevant amendments introduced remain unchanged.