Gary Gray (Brand, Australian Labor Party, Minister for the Public Service and Integrity) Share this | Hansard source

I present a supplementary explanatory memorandum to the bill and seek leave of the House to move government amendments (1) to (14), as circulated, together.

Leave granted.

I move government amendments (1) to (14):

(1) Clause 2, page 2 (table item 2), omit "25", substitute "24".

(2) Clause 2, page 2 (table item 5), omit "items 49 and 50", substitute "item 50".

(3) Schedule 1, item 24, page 6 (line 15), after "officer", insert "(the reporting officer)".

(4) Schedule 1, item 24, page 6 (lines 23 to 27), omit subsections 238B(3) and (4), substitute:

Report

(3) The reporting officer must prepare a report about the circumstances in which the ballot-box was opened before the close of the poll other than in accordance with this Act (including details of any witnesses).

Material to be given to DRO

(4) The reporting officer must give the report, parcel, ballot-box and any other thing the reporting officer considers appropriate to the DRO for the Division as soon as practicable.

Role of DRO

(5) The DRO for the Division must examine the report, parcel, ballot-box and any other thing given to the DRO under subsection (4) and then give them to the Australian Electoral Officer (the AEO) for the State or Territory concerned.

Role of AEO

(6) The AEO must:

  (a) open the parcel and examine the ballot papers not enclosed in envelopes, the envelopes, the report, the ballot-box and any other thing given to the AEO under subsection (5); and

  (b) for each ballot paper not enclosed in an envelope—decide whether the ballot paper is to be included in the scrutiny under Part XVIII (see subsections (7) and (8)); and

(c) for each envelope—decide whether the envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 3 (see subsections (9) and (10)).

(7) The AEO must decide that a ballot paper is to be included in the scrutiny under Part XVIII unless the AEO is satisfied that the ballot paper has been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention.

(8) If the AEO decides that a ballot paper is not to be included in the scrutiny under Part XVIII, the ballot paper is to be excluded from that scrutiny.

(9) The AEO must decide that an envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 3 unless the AEO is satisfied that the envelope has been fraudulently altered.

(10) If the AEO decides that an envelope is not to be included in the preliminary scrutiny conducted in accordance with Schedule 3, the envelope is to be excluded from that scrutiny.

(11) The AEO must, after examining all the ballot papers and envelopes:

  (a) place in a parcel the ballot papers that are to be included in the scrutiny under Part XVIII; and

  (b) place in another parcel the ballot papers that are to be excluded from the scrutiny under Part XVIII; and

(c) place in another parcel the envelopes that are to be included in the preliminary scrutiny conducted in accordance with Schedule 3; and

  (d) place in another parcel the envelopes that are to be excluded from the preliminary scrutiny conducted in accordance with Schedule 3; and

(e) seal each parcel; and

  (f) write on each parcel an indication of the type of ballot papers or envelopes enclosed and that the ballot-box has been prematurely opened; and

(g) sign each parcel.

(12) The AEO must give the parcels referred to in paragraphs (11)(a) and (c) to the DRO for the Division, and the ballot papers or envelopes in the parcels are to be included in the scrutiny under Part XVIII or in the preliminary scrutiny conducted in accordance with Schedule 3, as the case requires.

(13) Before the declaration of the poll in the election, the AEO must advise the Electoral Commissioner and the candidates concerned of the following:

  (a) a ballot-box was opened before the close of the poll other than in accordance with this Act;

  (b) the number of ballot papers the AEO examined;

(c) the number of ballot papers that were excluded from the scrutiny under Part XVIII because the AEO was satisfied that they had been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention;

  (d) the number of envelopes the AEO examined;

(e) the number of envelopes that were excluded from the preliminary scrutiny conducted in accordance with Schedule 3 because the AEO was satisfied that they had been fraudulently altered.

Preservation of material

(14) The AEO is responsible for the safe custody, in accordance with the directions of the Electoral Commissioner, of the parcels referred to in paragraphs (11)(b) and (d), the ballot-box and the report and any other thing given to the AEO under subsection (5) until they are destroyed.

(15) Subject to Part XXII, the Electoral Commissioner may direct that the things referred to in subsection (14) be destroyed if:

  (a) not less than 6 months have elapsed since the declaration of the poll in the election in which the things were used; and

  (b) the things are no longer required by the Electoral Commission for the performance of its functions.

(5) Schedule 1, item 25, page 6 (lines 28 and 29), omit the item.

(6) Schedule 1, item 26, page 6 (line 30) to page 7 (line 5), omit the item, substitute:

26 At the end of subsection 248(2)

  Add:

  ; and (c) for section 238A—a reference in paragraph 238A(3)(b) to the Divisional Returning Officer for the Division is taken to be a reference to the Electoral Commission.

(7) Schedule 1, page 7 (after line 7), after item 27, insert:

27A Subsections 328B(2) and (3)

  Repeal the subsections.

(8) Schedule 1, page 7, after proposed item 27A, insert:

27B Paragraph 328B(4)(d)

  Omit "subsections (1) and (2)", substitute "subsection (1)".

(9) Schedule 1, page 7, after proposed item 27B, insert:

27C After section 339

  Insert:

339A Officers not to interfere with etc. ballot -boxes or ballot papers

     An officer commits an offence if:

  (a) the officer does an act; and

  (b) the act results in the unlawful destruction of, taking of, opening of, or interference with, a ballot-box or a ballot paper.

Penalty:   Imprisonment for 6 months.

(10) Schedule 1, item 32, page 7 (line 26), after "officer", insert "(the reporting officer)".

(11) Schedule 1, item 32, page 8 (lines 5 to 8), omit subsections 41AB(3) and (4), substitute:

Report

(3) The reporting officer must prepare a report about the circumstances in which the ballot-box was opened before the close of voting other than as mentioned in subsection 29(2) (including details of any witnesses).

Material to be given to DRO

(4) The reporting officer must give the report, parcel, ballot-box and any other thing the reporting officer considers appropriate to the DRO for the Division as soon as practicable.

Role of DRO

(5) The DRO for the Division must examine the report, parcel, ballot-box and any other thing given to the DRO under subsection (4) and then give them to the Australian Electoral Officer (the AEO) for the State or Territory concerned.

Role of AEO

(6) The AEO must:

  (a) open the parcel and examine the ballot-papers not enclosed in envelopes, the envelopes, the report, the ballot-box and any other thing given to the AEO under subsection (5); and

  (b) for each ballot-paper not enclosed in an envelope—decide whether the ballot-paper is to be included in the scrutiny under Part VI (see subsections (7) and (8)); and

(c) for each envelope—decide whether the envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 4 (see subsections (9) and (10)).

(7) The AEO must decide that a ballot-paper is to be included in the scrutiny under Part VI unless the AEO is satisfied that the ballot-paper has been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention.

(8) If the AEO decides that a ballot-paper is not to be included in the scrutiny under Part VI, the ballot-paper is to be excluded from that scrutiny.

(9) The AEO must decide that an envelope is to be included in the preliminary scrutiny conducted in accordance with Schedule 4 unless the AEO is satisfied that the envelope has been fraudulently altered.

(10) If the AEO decides that an envelope is not to be included in the preliminary scrutiny conducted in accordance with Schedule 4, the envelope is to be excluded from that scrutiny.

(11) The AEO must, after examining all the ballot-papers and envelopes:

  (a) place in a parcel the ballot-papers that are to be included in the scrutiny under Part VI; and

  (b) place in another parcel the ballot-papers that are to be excluded from the scrutiny under Part VI; and

(c) place in another parcel the envelopes that are to be included in the preliminary scrutiny conducted in accordance with Schedule 4; and

  (d) place in another parcel the envelopes that are to be excluded from the preliminary scrutiny conducted in accordance with Schedule 4; and

(e) seal each parcel; and

  (f) write on each parcel an indication of the type of ballot-papers or envelopes enclosed and that the ballot-box has been prematurely opened; and

(g) sign each parcel.

(12) The AEO must give the parcels referred to in paragraphs (11)(a) and (c) to the DRO for the Division, and the ballot-papers or envelopes in the parcels are to be included in the scrutiny under Part VI or in the preliminary scrutiny conducted in accordance with Schedule 4, as the case requires.

(13) Before publication in the Gazette of the statement by the Electoral Commissioner showing the result of the referendum, the AEO must advise the Electoral Commissioner of the following:

  (a) a ballot-box was opened before the close of voting other than as mentioned in subsection 29(2);

  (b) the number of ballot-papers the AEO examined;

(c) the number of ballot-papers that were excluded from the scrutiny under Part VI because the AEO was satisfied that they had been fraudulently altered or otherwise interfered with so as not to reflect the voter's intention;

  (d) the number of envelopes the AEO examined;

(e) the number of envelopes that were excluded from the preliminary scrutiny conducted in accordance with Schedule 4 because the AEO was satisfied that they had been fraudulently altered.

Preservation of material

(14) The AEO is responsible for the safe custody, in accordance with the directions of the Electoral Commissioner, of the parcels referred to in paragraphs (11)(b) and (d), the ballot-box and the report and any other thing given to the AEO under subsection (5) until they are destroyed.

(15) Subject to Part VIII, the Electoral Commissioner may direct that the things referred to in subsection (14) be destroyed if:

  (a) not less than 6 months have elapsed since the publication in the Gazette of the statement by the Electoral Commissioner showing the result of the referendum in which the things were used; and

  (b) the things are no longer required by the Electoral Commission for the performance of its functions.

(12) Schedule 1, item 49, page 9 (lines 15 and 16), omit the item.

(13) Schedule 1, item 50, page 9 (lines 17 to 22), omit the item, substitute:

50 At the end of subsection 75(2)

  Add:

  ; and (c) for section 41AA—a reference in paragraph 41AA(3)(b) to the DRO for the Division is taken to be a reference to the Electoral Commission.

(14) Schedule 1, page 9 (after line 24), after item 51, insert:

51A After section 130

  Insert:

130A Officers not to interfere with etc. ballot -boxes or ballot -papers

     An officer commits an offence if:

  (a) the officer does an act; and

  (b) the act results in the unlawful destruction of, taking of, opening of, or interference with, a ballot-box or a ballot-paper.

Penalty:   Imprisonment for 6 months.

The Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012 implements recommendations 3, 9, 10, 11, 15, 23, 29 and 30 made by the Joint Standing Committee on Electoral Matters in its report on the 2010 federal election. One of the proposed amendments sought to change the law in situations where ballot boxes were opened other than in accordance with electoral legislation. Following the introduction of the bill on 29 November 2012 it was referred to the Joint Standing Committee on Electoral Matters. The joint standing committee considered the bill and reported on 27 February 2013.

The committee recommended an amendment to the proposed provisions that will deal with the situation where ballot boxes are opened other than in accordance with the legislation. The recommendation covers two points. In some instances ballots that are held in a box which is opened not in accordance with the legislation should be saved, and there should be a specific offence written to apply to officers who interfere with ballot boxes or ballot papers. In reviewing this matter I am persuaded by the reasoning contained in the Joint Standing Committee on Electoral Matters report that this measure should be amended. I thank the Joint Standing Committee on Electoral Matters for its work in improving this measure and I also acknowledge in particular the contributions of the chair of the joint standing committee, the member for Banks, and the shadow minister of state, the member for Mackellar.

The government has also taken this opportunity to make a small technical amendment to the rules relating to how-to-vote cards, which are set out at section 328B of the Commonwealth Electoral Act 1918. The government considers that it is unnecessary to specify the font size to be used for authorisation details, and these amendments will omit these provisions. I am moving government amendments to accept the recommendations of the Joint Standing Committee on Electoral Matters and to amend proposed section 238B to introduce a procedure for dealing with ballots contained in an unlawfully opened ballot box. This procedure may result in some ballots being included in the count. The Australian electoral officer for each state or territory will examine the ballots and ballot boxes and determine which ballots should be saved and advise the Electoral Commissioner and candidates in the election of the details relating to the ballots. A new offence is also established at section 339A, dealing with officers not interfering with ballot boxes or ballot papers.

Finally, I am moving government amendments to omit subsections 328B(2) and 328B(3) of the Commonwealth Electoral Act, which deal with how-to-vote cards.

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