Bills

Electoral (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:22): Obtained leave and introduced a bill for an act to amend the Electoral Act 1985 and to make a related amendment to the Local Government Act 1999. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:23): I move:

That this bill be now read a second time.

Today, I introduce the Electoral (Miscellaneous) Amendment Bill 2024. This bill amends the Electoral Act 1985 to implement recommendations of the Electoral Commissioner's Report into the 2022 South Australian state election and 2022 Bragg by-election.

In addition to the recommendations in the 2022 report, the bill implements an election commitment to prohibit political parties, candidates, members of parliament and third parties acting on their behalf from making unsolicited robocalls and undertaking robopolling. It further implements several other government-initiated reforms. The bill also includes amendments to the Local Government Act 1999 to further regulate the use of electoral corflutes.

The proposed amendments in the bill will improve administration, streamline and modernise processes and allow more flexibility for early voting options. The bill will enable the state to provide voting services that are more consistent with options available in other jurisdictions and to meet community expectations. As noted by the Electoral Commissioner in his 2022 report, South Australia has had no form of electoral legislative reform for several years. The changes in this bill will deliver some of the electoral modernisation and reform that South Australia requires.

The bill provides that eligible new electors will be able to enrol to vote up to and on polling day. While the Electoral Commissioner will continue to focus on improving enrolment levels among young people, citizens from culturally and linguistically diverse backgrounds, and First Nations people, allowing enrolment up to and on polling day is likely to lead to greater enfranchisement of people who inadvertently miss the deadline and turn up to polling booths to find they are not on the roll and cannot vote. This reform creates a mechanism so that all eligible electors are able to cast a vote, ensuring that nobody who is eligible is turned away from exercising a vote.

The bill includes new protections for itinerant electors. The Electoral Act already provides voting options for itinerant electors, being a class of voters who do not have a fixed address. If itinerant electors fail to vote or are outside of South Australia for more than one month, they will not lose their status. Itinerant electors will not be fined if they do not vote. This is to avoid creating hardship for people experiencing homelessness and travelling retirees.

Amendments have also been made to the date for the deadline to apply for postal votes, which maximises the opportunities for postal voters to receive their ballots in time in order that they may be returned and counted in the election.

The bill expands the options for assisted voting currently available to sight-impaired electors. Currently, under the Electoral Act, the Electoral Commissioner can offer a range of voting options. There is not currently any provision for telephone-assisted voting. Sight-impaired electors and electors who otherwise cannot vote without assistance because of a motor impairment will be able to access voting using telecommunications technology under reforms introduced in this bill.

The bill also provides that electors who attend an early voting centre will have the convenience of being able to cast an ordinary vote. Issuing ordinary votes to electors takes significantly less time than issuing declaration votes and is likely to mean reduced queues and waiting times. Further, electors voting early at early voting centres prior to polling day will no longer be required to meet eligibility requirements in order to vote prior to polling day. Early voting will now be available within the seven days before polling day, in recognition that electors increasingly want convenient options that allow them to fulfil their democratic duties and obligations under compulsory voting.

Further changes will allow electors voting at an early voting centre or on polling day outside the district for which the elector is enrolled, to cast an ordinary vote, provided the elector can be marked off the electoral roll. A process is set out in the bill to allow ordinary votes for absent voters to be placed in a separate ballot box, from where they will be transferred to the relevant district returning officer and be counted in the week after polling day along with declaration votes.

The bill also provides that the Electoral Commissioner will be able to establish a polling booth at a polling place established 'for' a district rather than 'within' a district. This will assist with polling for a by-election when a suitable polling location may exist outside of the designated district and allows the Electoral Commissioner the flexibility to provide the most accessible and convenient voting services.

The bill contains a range of amendments that provide both electors and candidates with flexible options for lodging information with the Electoral Commissioner. The Electoral Commissioner will be able to permit candidates to lodge information online rather than using paper forms for processes, including candidate nominations, voting tickets and how-to-vote cards. The use of technology-based options will enable more accurate, timely and robust mechanisms to assist and support parties and candidates with meeting legislative obligations. The bill also allows for a single authorisation of a poster that comprises multiple how-to-vote cards. This will make preparing these posters simpler for political parties and easier for voters to read.

Additional changes will remove barriers to the Electoral Commissioner receiving applications from electors for postal voting and application for the register of declaration votes electronically, which provides more flexible options for electors and will bring South Australia's processes into line with other Australian jurisdictions.

It is not intended to fully replace paper systems so as not to disenfranchise candidates or electors requiring manual or paper-based programs or assistance. Rather, these changes will be permissive of a range of options such that the processes can be determined by the Electoral Commissioner, which will allow the use of both paper and electronic systems as required.

In response to a range of emerging issues, the bill also introduces new offences. In the lead-up to the 2022 election, the Electoral Commissioner received numerous calls and emails from electors anxious about the whereabouts of their postal voting forms. This arose from the practice of political party websites purporting to invite electors to apply for a postal vote and creating confusion for electors who mistakenly believed they were interacting with the Electoral Commissioner's website. In some instances, it was too late to send a postal vote pack by the time the Electoral Commission of South Australia was contacted. For electors who were physically unable to attend a polling place, they were unable to vote at the election.

In response to this, the bill provides that it is an offence for a person, other than a person acting under the authority of the Electoral Commissioner, to distribute forms or materials containing links or codes that purport to facilitate an elector to apply for the issue of declaration voting papers. This will remove the involvement of political parties in the postal vote process, to minimise confusion experienced by electors and provide the Electoral Commissioner with the ability to take action against those responsible for any misleading websites.

The Electoral Commissioner has noted that, in recent Australian electoral events, electoral officials have been subject to harassment and threats, as well as being filmed and followed to their homes. This includes concerning behaviours during the 2023 federal referendum.

It is vital that election staff can go about their business unhindered. In response, changes have been made to the existing offences in the Electoral Act to more suitably deal with disorderly conduct connected to electoral events. This bill broadens the power for authorised officers to remove persons and captures behaviour occurring at places where polling or counting is taking place as well as in the immediate vicinity of such a place. This ensures disorderly behaviour outside of a polling booth can be appropriately managed and provides increased penalties for the offences. Of course, some of these behaviours may also constitute offences under existing criminal laws.

In response to perhaps the newest threat to elections and the broader political sphere, the bill will introduce new regulations and offences relating to the use of artificial intelligence and material intended to mislead, known as electoral deepfakes. Increasingly, the use of this technology is causing concern. Around the world, deepfakes of politicians, electoral candidates and other public political figures have been used to mislead voters into believing that the depicted person said or did something they did not.

In this context, deepfakes are usually created for the purpose of causing reputational harm to the depicted person in an effort to influence voter opinion and the potential outcome of an election. This emerging new risk warrants legislating to protect South Australians from the harmful and misleading impact deepfakes could have on our electoral processes and to maintain public trust in our democratic institutions.

Firstly, the bill prohibits the distribution of an electoral advertisement containing audiovisual, visual or audio content that was wholly generated by artificial intelligence or where it contains a depiction of a simulated person performing an act that such person did not perform. It will be a defence to prove that the distribution of the artificially generated electoral advertisement occurred with the written consent of each real person depicted or that the defendant took no part in determining the content and could not reasonably be expected to have known that the advertisement contravened the offence provision.

Secondly, the bill provides that a person must not distribute or cause or permit to be distributed an electoral advertisement containing audiovisual, visual or audio content that was wholly generated by artificial intelligence unless it contains a statement that it is an artificially generated electoral advertisement. The bill sets out the requirements of such an authorisation.

Similar to the misleading advertising provision in section 113 of the Electoral Act, the Electoral Commissioner may take action where he or she is satisfied that an artificially generated electoral advertisement contravenes these new provisions. The Electoral Commissioner may request the advertiser to withdraw the advertisement from further publication, or publish a retraction in specified terms and in a specified manner and form. The Electoral Commissioner will also have the ability to apply to the Supreme Court for an order that the advertiser take the abovementioned actions.

The purpose of these reforms is to safeguard elections by preventing voters from being unduly swayed by realistic artificially generated misleading content. In recognising this purpose, the definition of artificially generated electoral advertisement is for advertising containing audiovisual, visual or audio content that is wholly generated by artificial intelligence. This tailors the requirements to the new provisions to the threat that they seek to prevent.

A regulation-making power is included in the definition of artificially generated electoral advertisement for the purpose of audiovisual, visual or audio content that is created or altered by the use of technology of a prescribed kind, where this might become necessary in the future.

It is not intended to capture electoral advertisements where artificial intelligence is working in the background—for example, where formatting changes or grammar improvements are automatically applied to a software program—nor is it desirable that all electoral advertising be labelled as artificially generated in a precautionary manner to avoid breaching the provisions where background software function is not wholly understood.

It must be noted that these reforms are occurring ahead of other Australian jurisdictions. The use of artificial intelligence and deepfakes is an area of particular specialist knowledge and is rapidly evolving; therefore, care has been taken to ensure the South Australian provisions can be enforced by the Electoral Commissioner and is confined to the purpose of the reforms at this time. There may be cause for further review or expansion of provisions in the future as knowledge of this area of technology evolves and lessons are taken from other jurisdictions who may look to introduce similar legislation.

A further amendment in the bill will prohibit political parties, candidates, members of parliament and third parties acting on their behalf from making robocalls consisting of unsolicited automated calls containing a pre-recorded message and undertaking robopolling, where automated opinion polls are conducted using computer scripts rather than by an individual, which contain material relating to a state election. This is broader than electoral advertising and therefore captures calls made at all times.

The prohibition will apply to political parties, candidates and members of parliament from South Australia as well as other states, territories and parliaments where the material relates to a South Australian election. For example, the prohibition would apply to a member of the Victorian branch of a political party making robocalls to South Australian electors where the material relates to a South Australian election. This implements a state government election commitment to ban unsolicited robocalls to ensure lives are protected from such intrusion and disruption.

The purpose of this reform is to protect South Australians' privacy from the unwanted intrusion and disruption of automated calls containing a political matter, to minimise the potential for the improper, deceitful or fraudulent use of robocalls for political purposes and to restore public confidence in the state's democratic and political institutions.

Section 115A of the Electoral Act already regulates the content of automated political calls, requiring authorisation details to be included in an automated political call. Pursuant to section 115A, an 'automated political call' comprises a telephone call consisting of a pre-recorded electoral advertisement. Such authorisation is common for any form of electoral advertising and these new requirements will be maintained for persons not prohibited under the new provisions.

The bill makes a series of changes to provisions in the Electoral Act that require persons publishing material to include the name and street address of the person responsible for the publication. For Independent candidates without a campaign address, this may mean having to use their residential address. For some candidates this raises concerns for their personal safety. Under changes made by this bill, a candidate who is not endorsed by a registered political party may, with the approval of the Electoral Commissioner, include a post office box instead of a street address. The candidate must ensure that the published material also contains a statement of the suburb in which the candidate resides.

The bill will also amend section 62 of the Electoral Act so that the ability for Independent candidates to add additional words to ballot papers for use in an election after the word 'Independent' is removed. An amendment to the Local Government Act will permit any individual to display a corflute in a form pre-approved by the Electoral Commissioner notifying electors as to an upcoming election. This will allow generic update corflutes to be displayed to notify electors of an upcoming election. The generic corflutes will be allowed to be placed on a road without authorisation if they relate to a state election, are exhibited during an election period and are identical to a sign approved by the Electoral Commissioner. The Electoral Commissioner will publish a copy of an approved sign on the Electoral Commission of South Australia's website.

A further amendment to the Local Government Act will prohibit the exhibition of corflutes related to federal elections on road and road-related areas, including structures, fixtures and vegetation on a public road or road-related area, similar to the prohibition introduced for state election corflutes. It is proposed that a general prohibition instead be applied to the exhibition of federal corflutes other than in the circumstances currently exempted for state election corflutes under the Local Government Act.

This means that for a federal election, advertising posters may be exhibited by a person holding the electoral advertising poster where the poster is not attached to a building or structure on a road and is exhibited at or in the vicinity of a designated event and only immediately before, during and after that event for no more than six hours. A designated event includes an organised gathering, meeting or function relating to a commonwealth election and a person canvassing for votes relating to a commonwealth election.

The government considers that, similar to the prohibition that has been implemented for state election corflutes, this further prohibition will reduce physical and visual pollution caused by these posters, in addition to preserving roadside amenity, and addresses concern about electoral posters presenting a road safety risk as a distraction to drivers.

This has been a period of substantial reform to the Electoral Act and has required considerable effort made by people over many months. I would like to thank all those who have contributed, in particular Jo Kreis of legislative services. I would also like to acknowledge the tireless efforts of Mark Emery of parliamentary counsel, whose work has been integral to the development of this and other reforms. I commend these reforms to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Electoral Act 1985

3—Amendment of section 4—Interpretation

Certain definitions are inserted or amended for the purposes of the measure.

4—Amendment of section 18—Polling places

Pre-polling centres are provided for in the provision.

5—Amendment of section 31A—Itinerant persons

These amendments relate to arrangements for itinerant persons.

6—Amendment of section 32—Making of claim for enrolment or transfer of enrolment

This amendment relates to the making of claims for enrolment in connection with enrolment on polling day.

7—Amendment of section 40—Order in which applications are to be determined

This amendment is technical.

8—Amendment of section 53—Multiple nomination of candidates endorsed by political party

This clause makes amendments related to the nomination of candidates endorsed by political parties.

9—Amendment of section 53A—Nomination of candidate by a person

This clause makes amendments related to the nomination of other candidates.

10—Amendment of section 54—Declaration of nominations

The reference to 'papers' is removed.

11—Amendment of section 58—Grouping of candidates in Legislative Council election

The reference to 'signed' is replaced.

12—Amendment of section 60A—Voting tickets

This clause makes amendments related to voting tickets.

13—Amendment of section 62—Printing of descriptive information on ballot papers

This clause makes amendments to descriptive information printed on ballot papers.

14—Amendment of section 65—Properly staffed polling booths to be provided

These amendments relate to the provision of properly staffed polling booths.

15—Amendment of section 66—Preparation of certain electoral material

These amendments relate to the manner and form of material to be submitted under the provision.

16—Amendment of section 69—Entitlement to vote

This clause makes amendments related to the entitlement to vote in connection with the measure.

17—Amendment of section 71—Manner of voting

This clause makes amendments related to the manner of voting, primarily in relation to voting at pre-polling centres.

18—Amendment of section 74—Issue of declaration voting papers by post or other means

This clause makes amendments related to the issuing of declaration voting papers by post or other means.

19—Amendment of section 74A—Offence to distribute application form for issue of declaration voting papers

This clause makes amendments related to offences relating to the distribution of application forms for the issue of declaration voting papers.

20—Amendment of section 77—Times and places for polling

This clause makes amendments related to the times and places for polling.

21—Amendment of section 79—Vote to be marked in private

22—Amendment of section 80—Voter may be accompanied by an assistant in certain circumstances

23—Amendment of section 80A—Voting near polling booth in certain circumstances

These amendments are consequential on the changes relating to voting at pre-polling centres or in certain circumstances on polling day.

24—Insertion of Part 9 Division 5B

New Part 9 Division 5B is inserted:

Division 5B—Voting for eligible electors using telecommunications technology

84D—Voting for eligible electors using telecommunications technology

Section 84D provides for an eligible elector (which is defined) to vote in an election using a telecommunications technology voting method prescribed by the regulations.

25—Amendment of section 85—Compulsory voting

These amendments relate to the requirements relating to compulsory voting and itinerant electors.

26—Amendment of section 91—Preliminary scrutiny

This amendment relates to the verification of the identity of certain electors during the preliminary scrutiny.

27—Amendment of section 95—Scrutiny of votes in Legislative Council election

28—Amendment of section 96—Scrutiny of votes in House of Assembly election

These amendments are consequential on the changes relating to voting at pre-polling centres or in certain circumstances on polling day.

29—Amendment of section 112—Publication of electoral advertisements, notices etc

One amendment relates to removing the requirement for the name and address of the printer of an electoral advertisement to be included. The other is a special provision for a candidate who is not endorsed by a registered political party.

30—Amendment of section 112A—Special provision relating to how-to-vote cards

Certain amendments make special provision for a candidate who is not endorsed by a registered political party. Other amendments relate to authorising how-to-vote cards combined in a single electoral advertisement.

31—Amendment of section 115A—Automated political calls

This clause makes amendments related to automated political calls.

32—Insertion of sections 115B to 115D

New sections 115B to 115D are inserted:

115B—Certain artificially generated electoral advertisements prohibited

This section contains provisions relating to the prohibition of the distribution of certain artificially generated electoral advertisements.

115C—Prescribed artificially generated electoral advertisements to include certain statements

This section relates to the inclusion of certain statements in respect of certain artificially generated electoral advertisements.

115D—Withdrawal etc of certain advertisements

This section provides for the withdrawal or retraction of certain artificially generated electoral advertisements.

33—Amendment of section 116—Published material to identify person responsible for political content

This amendment inserts a special provision for a candidate who is not endorsed by a registered political party.

34—Amendment of section 116A—Evidence

These amendments are consequential.

35—Substitution of section 119

Section 119 is substituted:

119—Maintenance of order at and near places for voting and counting centres

New section 119 makes provision in relation to the maintenance of order around places for voting and counting centres.

36—Amendment of section 130G—Requisites for appointment

37—Amendment of section 130I—Termination of appointment of agent

These amendments are consequential on the change of references from signatures to endorsements for the purposes of electronic processes.

Schedule 1—Related amendments to Local Government Act 1999

1—Amendment of section 226—Moveable signs

One amendment relates to the approval of a sign by the Electoral Commissioner to facilitate the display of signs that are identical to the approved sign during the election period for a State election. Another amendment relates to the control of electoral advertising posters for Commonwealth elections.

2—Insertion of section 226A

New section 226A is inserted:

226A—Control of electoral advertising posters for Commonwealth elections

This provision relates to the control of electoral advertising posters for Commonwealth elections.

Debate adjourned on motion of Hon. H.M. Girolamo.