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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-06-04 Daily Xml
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ELECTORAL (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (11:03): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Electoral (Miscellaneous) Amendment Bill 2009 amends the Electoral Act 1985 and the Constitution Act 1934 to increase participation in the electoral process and improve the efficiency and operation of the State's electoral system.

Most of the amendments in the Bill were recommended for consideration by the former State Electoral Commissioner in his reports on the 1997 and 2002 State Elections. Some were contained in the former Government's Electoral Miscellaneous Amendment Bill that was passed by another place in 2001. That Bill lapsed upon the calling of the 2002 election.

The Bill also addresses other matters raised by the Electoral Commissioner since the 2002 election report was released and contains Government initiated reforms to improve participation in the electoral process.

The amendments will:

allow the Commissioner and her office to make better use of technology;

protect roll information from commercial exploitation while improving the accuracy of the roll information provided to Members of Parliament, registered political parties and nominated candidates;

introduce compulsory enrolment for State elections;

encourage participation in the electoral process, including giving homeless people the right to vote and voters with certain caring responsibilities the right to make declaration votes;

tighten the registration requirements for political parties;

guarantee a 10-day grace period for enrolments after the calling of a State election;

clarify the grounds of ineligibility for nomination as a candidate at a State election;

improve the format and display of electoral material produced by the Electoral Commission of S.A.;

enhance the transparency of electoral information provided to voters by candidates and parties;

allow scrutineers greater access to election activities;

make changes to the declaration voting regime, including imposing obligations on intermediaries who volunteer to lodge applications and votes on behalf of electors;

allow a voter who changes address within the one electoral district, and who has been removed from the roll by objection, to make a declaration vote at the next State election;

improve the efficiency of the scrutiny;

clarify the grounds on which an election can be challenged in the Court of Disputed Returns;

prohibit organisations, without a candidate's consent, claiming the candidate is associated with or supports the policies or activities of the organisation or advocating a first preference vote in the House of Assembly or a vote in the Legislative Council for the candidate;

prohibit the posting of corflutes on structures, fixtures and vegetation on beside roads;

improve the Commissioner's powers to enforce the Electoral Act, including increasing penalties for breaches of provisions of the Act;

give the Electoral Districts Boundaries Commission the authority to employ its own administrative staff and more flexibility to conduct electoral redistributions ensuring it is able to consider the most up-to-date information about the South Australian electorate.

Amendments to the Electoral Act 1985

Public access to the electoral roll

Section 26 of the Electoral Act provides that copies of the latest prints of the electoral rolls must be available for inspection without fee at the offices of the Electoral Commissioner, the electoral registrars and returning officers and such other places as the Electoral Commissioner determines. Copies may also be purchased from the Office of the Electoral Commissioner.

The Bill makes these amendments to section 26.

Firstly, the Commissioner advises that maintaining up-to-date copies of the electoral roll in printed form at the offices of all electoral registrars and returning officers is no longer cost effective. It is easier and cheaper to provide electronic versions of the roll for inspection. Secondly, returning officers do not have access to a copy of the electoral roll for inspection until some time after their appointment as it takes some time to establish their offices.

To accommodate these matters, the Bill contains two amendments to section 26(1). These amendments remove the requirement that rolls be available for inspection at the offices of returning officers and that, elsewhere, an electronic or printed copy of the roll be made available for inspection. The Commissioner advises that, for the foreseeable future, a hard copy of the roll will be made available for inspection at the Electoral Commission of SA.

Thirdly, in his report on the 2002 election, the former Commissioner recommended the Government consider an amendment to section 26 to prohibit the use of roll data for commercial purposes, including by companies to build marketing databases. The Government agrees with this. There is strong feeling about the misuse of electoral roll information. The Federal Privacy Commissioner has found that 70% of consumers do not think that the electoral roll should be available for commercial marketing purposes. As such, the Bill repeals subsection (2) of section 26 that requires that copies of the latest print of the roll must be made available for purchase.

Fourthly, to ensure that Members of Parliament and registered political parties have access to up-to-date electoral roll data, the Bill adds a new subsection to section 26 to require the Commissioner to make available on request (at no cost):

to each Member of the House of Assembly, an up-to-date electronic version of the electoral roll for that member's district;

to each Member of the Legislative Council, an up-to-date electronic version of the roll for the Legislative Council;

to the Registered Officer of a Registered Political Party, an up-to-date electronic copy of any electoral roll for any district; and

to each nominated candidate, an up-to-date electronic version of the roll for the relevant district.

A new offence will prohibit a person using information obtained under section 26 for a purpose other than a State, Federal or local government purpose.

Power of the Electoral Commissioner to obtain information

Section 27 of the Act provides that the Commissioner may require any officer of the public service to provide information in connection with the preparation, maintenance or revision of electoral rolls.

The former Commissioner advised that there would be benefit in the Electoral Commission of SA having access to information from Government agencies and instrumentalities, such as the SACE Board of South Australia and the Residential Tenancies Tribunal whose officers are not officers of the public service. He advised that being able to obtain this information would be useful in maintaining up-to-date and accurate electoral rolls. For example, being able to obtain a list of year 12 students from the SACE Board would enable students to be sent information about enrolment, and being able to obtain information from the Tribunal would assist in ensuring that voters' addresses are kept up to date.

The Bill therefore extends section 27 to apply to any agency or instrumentality of the Crown or any other prescribed authority or any public sector employee. To ensure that the Commissioner's access to information can be appropriately limited, a new subsection will enable particular officers or agencies, or particular types of information, to be exempted from section 27.

Provision of information by the Electoral Commissioner

Section 27A of the Electoral Act provides for the provision of information held by the Electoral Commissioner about an elector. Subsection (2) provides that the Commissioner may, on application, provide a person of a prescribed class with:

the elector's sex

the elector's place of birth

the age band within which the elector's age falls.

Subsection (4) authorises the Commissioner to impose conditions on and a fee for the provision of information. Breach of a condition is an offence under subsection (5).

The Government believes that the service that Members of Parliament can provide to their electors would be improved if they had access to an elector's date of birth rather than age band. For example, Members would be better placed to direct electors to age appropriate services. The Government also believes that, as Members of Parliament access roll information for legitimate public purposes, they should be exempt from the fees charged by the Commissioner.

The Bill therefore amends section 27A to—

require the disclosure of the elector's date of birth rather than age band;

delete subsection (3) that allows an elector to prevent his personal details being provided to a member of parliament;

exempt a Member of Parliament from any fee charged by the Commissioner for provision of the information.

The penalty for a breach of section 27A is increased from $1,250 to $10,000 in line with advice from the former Commissioner.

Homeless voters

Section 29 of the Electoral Act sets out the criteria for enrolment to vote. In addition to age and citizenship requirements, a person is entitled to be enrolled only if he has his principal place of residence in a subdivision and has lived at that place of residence for a continuous period of at least one month immediately preceding the date of the claim for enrolment.

This requirement precludes the homeless from enrolling and voting in State elections.

The Government accepts that many people are homeless owing to circumstances beyond their control. That they have no home, and therefore no principal place of residence, should not, of itself, preclude them from enrolling and voting.

The Commonwealth Electoral Act recognises the plight of the homeless and makes provision for the enrolment of itinerant voters.

To ensure that homeless people can also vote in State elections, the Bill inserts a new section 31A into the Electoral Act.

New section 31A provides that a person without a principal place of residence who is in South Australia and who otherwise satisfies the requirements for enrolment under section 29 may apply to the Electoral Commissioner for enrolment. The Commissioner is given authority to nominate a subdivision having regard to certain information provided by the applicant and must place a special notation on the roll to indicate the person is enrolled under the new provision. A person so enrolled remains on the roll for the specified subdivision and may vote as an elector for that subdivision. Provision is made for the removal of an elector who qualifies under section 31A where they intend leaving or leave the State for more than one month, where they secure a principal place of residence that can be used to qualify for enrolment under section 29 or where they cease to be entitled to enrolment for some other reason.

Compulsory enrolment

Section 29(1) of the Electoral Act imposes no requirement on a person eligible for enrolment to enrol. Section 29 is couched in terms of a person's entitlement to be enrolled. However, under section 32, once enrolled, an elector must maintain his enrolment.

This can be contrasted with the position under the Commonwealth Electoral Act and in the other States and Territories where enrolment to vote is compulsory.

The Government supports compulsory enrolment. It believes that engagement in the political process through casting a vote at an election is an important civic duty. A person cannot vote if he is not enrolled. Increasing the proportion of eligible young South Australians (18-19 years) enrolled to vote to better the Australian average by 2014 is a State Strategic Plan Target.

As such, clause 9 of the Bill inserts new section 32 into the Electoral Act. New section 32 provides that a person who is entitled to be enrolled under section 29 must, within 21 days from the date on which he becomes entitled to be enrolled, must make a claim for enrolment. Persons entitled to be enrolled provisionally under section 29(2) or who are entitled to be enrolled as an itinerant voter under new section 31A are excluded from this requirement.

Criteria for Registration as a political party

Currently, a party seeking registration under the Act must have either:

150 members; or

an elected member of an Australian Parliament (a 'parliamentary party').

The former Electoral Commissioner raised concerns about the registration of sham political parties qualifying under the low membership requirement and its potential effect on voting patterns, particularly in the Legislative Council. He recommended, in his report on the 2002 State Election, that the Government evaluate the criteria for party membership being adopted interstate.

The Government agrees that this is a risk and that measures ought to be taken to prevent it. Raising the minimum membership number is one way of reducing the opportunity for sham parties to obtain registration.

The question is what should the minimum number of members be?

In New South Wales the minimum number is 750. In comparing that State's population to South Australia's, the Government feels that 200 strikes an appropriate balance between the need to ensure a reasonable level of public support for registered political parties and the need to ensure that minority groups are able to form political parties and take advantage of the provision of the Act about parties.

The Government also believes that, to qualify as a 'parliamentary party' a party, should have either a member who is a member of the South Australian Parliament or one who represents South Australians in the Commonwealth Parliament.

The Bill amends section 36 of the Act so that, to qualify as an eligible political party, a party must have either 200 members or a member who is a member of the South Australian Parliament, a Senator for South Australia or a member of the House of Representatives chosen in South Australia. Consequential amendments:

prohibit two or more political parties relying upon the same member for the purpose of qualifying as a party. A person relied upon by two or more parties will have to choose which party is to rely on his membership or he cannot be relied upon by any party;

require a registered officer of a political party to provide an annual return and declaration to the Electoral Commissioner containing details of the party's membership or parliamentary representatives or both;

authorise the Electoral Commissioner to deregister a party whose membership falls below 200 or that ceases to have an elected member in the South Australian Parliament or representing South Australia in the Commonwealth Parliament;

make it an offence to provide false and misleading information to the Electoral Commissioner;

protect the confidentiality of the names and addresses of electors provided to the Electoral Commissioner for the purposes of registration under the new provisions.

To protect parties already registered under the Act, the Bill includes a transitional provision to the effect that parties already registered under the Act need not comply with the new minimum membership requirements for a period of six months from the date of commencement of the amended provision. The Bill also provides that a party seeking registration must lodge its application six months before election day if it is to be registered for the purpose of an election.

Application for registration

Section 39 of the Electoral Act provides that an application for the registration of a political party may be made to the Commissioner by the secretary of the party (or any person authorised by the secretary), and the application must set out:

the name of the party;

any abbreviation of the name;

the name and address of the person who is to be the registered officer of the party;

the name and address of the applicant;

copy of the party's constitution.

Apart from meeting the definition of 'eligible political party', providing the information under section 39 and meeting requirements about the party's name, no other registration criteria need be met.

The Commissioner advises there are just fewer than 30 parties registered under the South Australian legislation. This is higher than those States who have more stringent registration criteria aimed at stopping the registration of bogus parties.

For example, in New South Wales an application for registration must, in addition to requirements such as those specified under this State's legislation:

set out the names and addresses (as enrolled) of the 750 members the party is relying upon to meet the membership requirements;

be accompanied by declarations from those members;

be accompanied by the payment of a registration fee of $2,000.

In his report on the 2002 election, the former Commissioner recommended more stringent registration requirements be considered.

The Government believes that more stringent registration requirements, based on those in force in New South Wales, will act as disincentive to the registration of sham political parties under the South Australian legislation.

As such, the Bill contains amendments to section 39 to:

require an application for registration to be accompanied by the names and addresses of, and declarations from, the members on which the party relies to meet the minimum membership requirements; and

require parties seeking registration to pay a fee of $500.

The Bill contains one further reform. Currently, once registered, a political party can immediately contest the next State election. The former Electoral Commissioner cited this as one factor in encouraging sham parties to register.

The Bill amends section 42 so that a party is required to be registered for at least six months before it can contest a State election as a political party.

Registration

Section 42 of the Act requires the Electoral Commissioner to determine a party's application for registration. Subsection (2) provides that the Commissioner must refuse an application where the party's name infringes conditions, including that it adopts or incorporates the name of another unrelated party so as to imply falsely some connection.

Concerns have been raised about the practice of some parties of registering names that, although permissible under section 42(2) because they do not adopt enough of an existing party's name to infringe against that section, nonetheless are misleading because they incorporate words that constitute a distinctive part of another party's name.

Amendments to section 42 address these concerns by authorising the Commissioner to refuse to register the name of a party where she is of the opinion that the proposed name for the party contains words that constitute a distinctive part of another registered party or parliamentary party, unless the other party consents.

Close of the rolls

Section 48 of the Electoral Act provides, at subsection (1), that a writ must fix the date and time for the close of the rolls, and, at subsection (3), that the date fixed for the close of the rolls must be a date falling not less than 7 days nor more than 10 days after the date of the issue of the writ.

Although providing some flexibility to the Government of the day in terms of setting the critical dates for the election period, subsection (3) creates uncertainty for those people who have not yet enrolled to vote before the election is called.

The Government believes that giving people as long as possible to enrol to vote after an election is called will encourage participation in the democratic process.

The Bill therefore amends section 48(3) to fix the date for the close of the rolls at 10 days after the date of the issue of the writ.

Qualifications of candidates

Sections 17 and 31 of the Constitution Act set out the grounds on which a member of the Legislative Council or House of Assembly must vacate his seat. Relevantly, these grounds are that the Member:

is not or ceases to be an Australian citizen;

takes any oath or makes any declaration or act of acknowledgment or allegiance to any foreign prince or power;

does, concurs in, or adopts any act whereby the member may become a subject or citizen of any foreign state or power;

becomes bankrupt;

takes the benefit of any law relating to insolvent debtors;

becomes a public defaulter;

is attainted of treason;

is convicted of an indictable offence; or

becomes of insane mind,

The qualification of candidates for election is set out in section 52 of the Electoral Act. Section 52 provides that a person is not qualified to be a candidate for election as a member of the House of Assembly or Legislative Council unless the person is an elector. The criteria for being on the roll are set out in section 29. No other criteria (other than not nominating for more than one election) are specified. The disqualifying criteria prescribed in sections 17 and 31 of the Constitution Act are not replicated in section 52 meaning that, technically, a person who would be disqualified under section 17 or 31, could, nonetheless, nominate as a candidate in an election.

In his report on the 2002 State election, the former Commissioner recommended amendments to section 52 to provide that a person is not eligible to be a candidate for election if the person would be required to vacate his seat in the Legislative Council or House of Assembly under section 17 or 31 of the Constitution Act. This recommendation is taken up in the Bill.

Grouping of Candidates in Legislative Council elections

Section 58 of the Electoral Act provides for the grouping together of candidates on the ballot paper.

In general, parties put forward fewer candidates than the number of vacancies to be filled. Most major parties put forward six, seven or eight candidates for the 11 Legislative Council vacancies to be filled.

In his report on the 2002 State election, the former Commissioner raised concerns about the potential for a group or groups to put forward a higher number of candidates than the number of vacancies to be filled. This would distort the ballot paper and may make it impossible to create a ballot paper that can reasonably be used by voters. He recommended amendments to section 58 to prohibit a group putting forward more candidates than the number of vacancies to be filled. This recommendation is taken up in the Bill.

Printing of Legislative Council Ballot Papers

Section 59 of the Electoral Act prescribes how the ballot papers for the Legislative Council are to be set out. Currently, it does not deal with the situation where, because of the number of candidates, a second or subsequent row of candidates is necessary.

The Bill amends section 59 to deal with this situation by providing that the prescribed sequence (grouped candidates before individual candidates) may continue onto a second or subsequent row.

Voting Tickets

Section 63 of the Act provides for the lodgement of voting tickets. It provides that:

notice must be given to the Electoral Commissioner of an intention to lodge a ticket at or before the hour of nomination;

the ticket must be lodged within 72 hours of the close of nominations.

The ticket becomes the basis on which preferences are distributed for votes above the line. In the absence of a ticket, the Commissioner has no way of knowing how to distribute preferences to other candidates.

Ballot papers are printed over the weekend after the close of nominations. The papers contain a square for every candidate who has lodged a notice of intention.

The Commissioner is concerned about the potential for a candidate to lodge a notice of intention but not a ticket. Where this occurs, the Commissioner does not know how to distribute the candidate's preferences. Although this has not happened, a serious risk remains.

The Bill amends section 94 to provide that where a notice of intention, but no ticket, is lodged, the vote is classed informal unless it is formal below the line.

To provide protection to candidates who lodge tickets, section 59 is amended to provide that where a notice of intention to lodge a voting ticket has been lodged, the Commissioner must ensure that an additional square above the line is put on the ballot paper and section 63 is amended to provide that, where a notice of intention, but no ticket, is lodged the Commissioner must take all reasonable steps to notify the candidate, party or group, but need not take any further action about the notice.

Printing of descriptive information on ballot papers

Section 62(1)(d) of the Electoral Act enables a candidate to apply to the Electoral Commissioner to have a description consisting of the word independent followed by not more than five additional words printed adjacent to their name on the ballot paper.

The Electoral Commissioner has expressed concern that, if a political party objects to the use of its name as a description for an independent candidate, the party could seek to prevent the printing, distribution or even use of the ballot papers by way of injunction. This could cause serious disruption to the electoral process and, if the injunction were granted, the incurring of heavy costs in recalling, destroying and reprinting the ballot papers.

To address these concerns, the Bill amends section 62 to provide that a decision of the Electoral Commissioner to accept or reject an application under section 62(1)(d) is final and conclusive and not subject to review or appeal.

Consequential to the amendments to section 42 about the registration of a party's name, the Bill also amends section 62 to authorise the Commissioner to refuse to approve a description where the word or words constituting the description would infringe new section 42(2)(e).

Properly staffed polling places

Section 65(2) of the Act provides that no premises licensed to sell liquor may be used as a polling station.

Some polling booths, particularly in the country, are located in community halls and sporting clubs that have liquor licenses. This means that the Commissioner must approach the Liquor Licensing Commissioner for a temporary cancellation or suspension of the licence for the days of polling. This is resource intensive in that the relevant premises must be identified and applications made to the Commissioner about them.

The Commissioner has recommended an amendment to section 65(2) to allow licensed premises to be used as a polling location provided no alcohol is consumed or sold on the premises while the booth is open for voting or otherwise being used for the purpose of the poll.

The Bill amends section 65(2) as recommended by the Commissioner.

Display of electoral material

Section 66 of the Act sets out the material that the Electoral Commissioner must make available for display in polling booths on polling day. This includes the how-to-vote cards submitted by candidates.

The Bill repeals section 66 and replaces it with a new provision.

Consistent with the amendments to section 62 prohibiting a candidate requesting a description where the word or words constituting the description would infringe new section 42(2)(e), new section 66 provides that how-to-vote cards must not identify a candidate:

by reference to the registered name of a political party or composite name of two registered parties; or

by using words that could not be registered as the name, or part of the name, under new subsection 42(2)(e),

unless the candidate is endorsed by the relevant party or the relevant party has consented to the use of the relevant name or names or word or words.

Section 66 also sets out the requirements for material displayed in polling booths. Currently, subsection (1) provides that the Electoral Commissioner must display posters, formed from the how-to-vote cards submitted by candidates, and for the Legislative Council election, posters containing the voting tickets registered for the purpose of the election. Subsection (4) provides that the order in which the electoral material must be displayed in the posters is to be determined by lot. Subsection (6) provides that posters containing the how-to-vote cards must be displayed in each voting compartment and the poster containing the voting tickets must be displayed at the booth.

Consistent with recommendations made by the former Electoral Commissioner in his report on the 2002 State election, new section 66 incorporates these changes.

New section 66(1)(b) provides that the Electoral Commissioner may display the Legislative Council voting tickets in either posters or booklet form. Currently, these have to be displayed on posters.

New section 66(2) provides that the posters and booklets must list candidates in the same order as their names will appear on the relevant ballot paper. Currently, the order of names must be determined by lot.

New section 66(5) requires the posters and booklets be displayed in a prominent place in each polling booth. Currently the requirement is that they be displayed in each voting compartment.

Scrutineers

Section 67 of the Electoral Act provides that a candidate may, by notice in writing to a district returning officer, appoint scrutineers for polling booths in the district and to represent his interests at the scrutiny.

The Bill makes two changes to section 67, both at the recommendation of the former Electoral Commissioner. First, scrutineers are to be appointed for the purposes of the election. This will overcome any doubts as to whether a scrutineer may be present at pre-polling activities. Second, rather than requiring a candidate to provide notice in writing of an appointment to the district returning officer, a scrutineer will be required to present a signed form of appointment to the electoral officer in charge of proceedings.

The Bill also amends section 119 of the Act to authorise the removal of a disruptive candidate or scrutineer from a polling booth. This was also a recommendation of the former Electoral Commissioner.

Manner of voting

Sections 32(1) and (2) of the Electoral Act provide, respectively, that:

an elector whose principal place of residence changes from one subdivision to another must, within 21 days of becoming entitled to be enrolled for that other subdivision, notify an electoral registrar of the address of the principal place of residence;

an elector whose principal place of residence changes from one address to another within the same subdivision must, within 21 days of the change, notify an electoral registrar of the address of the elector's current principal place of residence.

Where an electoral register determines that an elector has failed to update his principal place of residence, he may be removed from the roll by way of objection under sections 33 and 35 of the Act. This disqualifies the person from voting even though he would, but for failing to notify the Commissioner of his change of address, remain enrolled in that District or subdivision.

The Government believes it is reasonable that a person be required to notify the Commissioner of his change of address. It is inappropriate that such a failing on the person's part to carry out his legal obligation should preclude him from voting where he remains in the same District or even the same subdivision.

To ensure that electors in this situation can still vote at the next State election or by-election, the Bill amends section 71 of the Electoral Act to add, as an additional category of person entitled to lodge a declaration vote, a person who been objected off the roll because he has failed to notify a change of address where his previous and new address are both in the same House of Assembly district.

Registration as a declaration voter

The Bill makes amendments to section 74 of the Act that deals with registration as a declaration voter.

Firstly, the former Electoral Commissioner advised that a number of electors who had continuing caring responsibilities were experiencing difficulties attending polling booths. The Bill adds to the list of people entitled to register for declaration voting an elector who is unable to attend a polling booth because she is responsible for caring for a person who is seriously ill, infirm or disabled.

Secondly, the criteria to be satisfied by electors who live remotely are amended. Currently, section 74(3)(b)(iii) provides that an elector is entitled to register as a declaration voter if the remoteness of his place of residence is likely to preclude him from attending at a polling place. So to ensure consistency with the Commonwealth Electoral Act this is amended so as to set a 20km limit. A transitional provision will protect those electors currently registered under the remoteness provision who would not qualify under the new 20km rule. This will streamline the Electoral Commission's administrative processes and will also be easier for electors, who will need to fill in only one form for the purpose of claiming declaration status for both State and Federal elections.

Thirdly, section 74 is amended, on the advice of the former Commissioner, to allow for declaration voting papers to be issued or dispatched by post or in a manner prescribed by regulation.

Finally, the former Commissioner reported concerns that some party officials were failing to forward declaration voting papers given to them by electors in a timely manner. The Bill adds a new subsection (7) to section 74 that requires a person who is given an application for declaration voting papers by an elector to transmit the application to an appropriate officer as soon as possible.

Assistants

Section 80(1) provides that where a voter satisfies the presiding officer that he is unable to vote without assistance, the voter may be accompanied by an assistant of his choice in the polling booth.

To address concerns raised by the former Electoral Commissioner about the potential for inappropriate pressure or influence being applied to electors, the Bill amends section 80 to make it clear that candidates and scrutineers are prohibited from offering assistance.

Forwarding of declaration votes

Consistent with new section 74(7), the Bill amends section 82 of the Act (Declaration vote, how made) to require a person given a declaration vote for lodgement by an elector to do so as soon as possible.

Security of facilities

The term 'ballot box' is used in several provisions in the Act.

The former Electoral Commissioner advised that live ballot material is actually kept in secure facilities rather than ballot boxes as using ballot boxes has become impractical owing to large volumes. It is therefore recommended that the relevant provision (sections 82, 84 and 87 of the Act) be amended to take account of the use of secured facilities.

Amendments to sections 82, 84 and 87 to add 'secured facilities' are included in the Bill.

Compulsory voting

Section 85 of the Act imposes the requirement on every elector to vote or, more particularly, comply with the formalities of voting. Where an elector fails to vote, the Electoral Commissioner may send the elector a notice calling on him to show cause why proceedings for failing to vote without a valid and sufficient reason should not be instituted against him.

Section 85(5) requires an elector to whom a notice is sent to complete the form stating the reasons (if any) why proceedings for failing to vote at the election should not be instituted against him. Section 85(5) provides, expressly, that an elector do this by completing the form at the foot of the notice. In fact, the declaration is printed on the second page of the declaration. The Bill amends section 85(5) to reflect this.

Preliminary Scrutiny

Section 91 of the Act provides for the preliminary scrutiny of declaration votes. Subsection (1) provides that the returning officer or a deputy returning officer must produce all applications for declaration voting papers, and produce unopened all envelopes containing declaration ballot papers received and, before admitting the vote into the scrutiny, satisfy himself, by scanning the booth rolls, that the voter is entitled to vote at the election and, in the case of declaration voting papers of voters whose votes were not taken before an officer:

that the signature of the declarant corresponds with the signature on the application for declaration voting papers; and

that the vote was recorded before the close of poll.

The requirement to scan the rolls before admitting declaration votes into the scrutiny is intended as a safeguard against an elector voting more than once. However, advice from the Commissioner suggests that this is not a major problem. Firstly, the numbers of electors voting twice is a small number. The Commissioner advises that, for example, at the 2002 election a total of 12 people voted more than once. Secondly, section 91(1) applies only to declaration votes. An elector could still vote more than once by attending more than one booth and providing false information to the electoral official under section 72.

The problem is that the requirement that the returning officer scan the booth rolls before the vote is admitted into the scrutiny means declaration votes cannot be included in the preliminary count.

The Commissioner no longer considers the preliminary scrutiny necessary. She advises that the requirement be dropped so that declaration votes can be included in the preliminary count.

The Bill therefore amends sections 89 and 91 to allow declaration votes to be admitted into scrutiny before the scanning of the booth rolls.

De-centralised final scrutiny of Legislative Council ballot papers

The scrutiny of Legislative Council ballot papers is governed by section 95 and 96D.

Section 95 sets out the procedure to be followed when conducting the scrutiny of Legislative Council votes. This procedure requires the final scrutiny, including above-the-line votes, to be conducted centrally by the Returning Officer for the Legislative Council.

The procedure for conducting the scrutiny was established in 1985. At that time, there were 846, 250 ballot papers, eight groups and 36 candidates seeking election.

Since 1985, Legislative Council elections have become more complicated in that more votes are cast and more groups and candidates are contesting the election. In 2002, for example, there were 983, 567 ballot papers, 48 groups and 76 candidates. Complying with the prescribed procedures for the scrutiny is causing administrative and logistical problems for the Commissioner's office.

The Commissioner has recommended amendments so that, where it is appropriate to do so, the final scrutiny of ticket ballot papers (of above-the-line votes only) and obvious informal votes can be conducted by the Deputy Returning Officers at their office. Under this new procedure:

the Deputy Returning Officer for each division will conduct the second scrutiny of the ballot papers to determine formality;

the Deputy Returning Officer will count the valid ticket (above-the-line) votes for each candidate and informal votes but parcel up all non-ticket (below-the-line) votes, which would be sent to the Returning Officer for central scrutiny as now;

the Deputy Returning Officer will transmit the results of his scrutiny (the number of valid ticket votes for each candidate and informal votes) to the Returning Officer who would ensure input into the count software;

the Returning Officer will continue to oversee the final scrutiny of non-ticket (below-the-line) votes, the data input and processing of those preferential votes, amalgamation of all count data, and the determination of the quota and transfer values.

Where the new procedure is used, and this will be up to the Commissioner, all that will change is that the scrutiny and recording of ticket votes and obviously informal ballot papers now conducted by the Returning Officer will be conducted at the relevant Deputy Returning Officer's office.

Disputed Elections and Returns

The Bill addresses two matters about petitions to the Court of Disputed Returns.

Firstly, section 105 provides that the Commissioner is the respondent to any petition to the Court of Disputed Returns. Both the Commissioner and the Crown Solicitor have recommended that the candidate whose election is being challenged should be added as a respondent under section 105.

This would avoid any argument before the Court as to the candidate's standing to appear.

This is addressed in the Bill.

Secondly, the Bill clarifies the grounds on which an election may be declared void.

Although not expressly stated in the Act, the common law of elections applies in South Australia. At common law, the grounds on which an election may be declared invalid are:

that there was no real election, that is, where it can be shown that the electors did not in fact have a free and fair opportunity of electing the candidate that the majority might prefer; or

that the election was not really conducted under the requirements of the Act—that is, the conduct of the election departed so far from the requirements of the Act that it could not be said the election was conducted under those requirements;

In South Australia the common law principles must be modified to take account of section 107.

Section 107(3) provides that an election will not be declared void on the grounds of a defect in a roll or certified list of electors, or an irregularity in, or affecting, the conduct of the election, unless the Court is satisfied, on the balance of probabilities, that the result of the election was affected by the defect or irregularity. Section 107(4) provides that an election may be declared void on the ground of defamation of a candidate but, again, only if the Court is satisfied, on the balance of probabilities, that the result of the election was affected by the defamation.

The Bill makes several amendments to section 107 to better clarify the grounds on which an election may be declared void.

Firstly, a new subsection (5) is inserted. This expressly provides that an election may be declared void on the ground of misleading advertising, but only where the Court is satisfied on the balance of probabilities that the result of the election was affected by the advertising. This clarifies an inconsistency between the Court of Disputed Returns' judgment in King and the Full Court's judgment in Featherstone about petitions founded on misleading advertising.

The Bill also adds to the grounds on which an election may be declared void, these grounds:

bribery (this is already an offence under s109 of the Act);

undue influence (this is also an offence under s110 of the Act);

interference with political liberty (an offence under s111).

Where anyone of these breaches is committed by the successful candidate or by a person acting on the candidate's behalf with that candidate's knowledge, the election may be declared void irrespective of whether the illegal conduct affected the outcome of the election.

Where someone other than the successful candidate, without the candidate's knowledge, commits the breach, the election may be declared void only if the court is satisfied, on the balance of probabilities, that the conduct affected the outcome of the election.

Printing and publication of electoral material (s112)

Section 112 prohibits a person publishing or distributing (or authorising the publication of) an electoral advertisement in printed form unless—

the name and address (not being a post office box) of the author of the advertisement or the person who authorised its publication appears at the end;

in the case of an electoral advertisement that is printed but not in a newspaper— the name and place of business of the printer appears at the end.

The Bill makes these amendments to section 112.

Firstly, section 112 refers to advertisements 'in printed form'. Political parties and candidates can, like any other person or organisation, place advertisements on the Internet.

The Bill amends section 112 so that it clearly applies to advertisements published in electronic form, including on the Internet.

Secondly, although section 112 requires that the name and address of the author of the advertisement (or the person who authorised the advertisement) appear at the end of the advertisement, there is a loophole that allows some authors to disguise their identity by using, in the case of a woman, her maiden name.

This loophole was highlighted in the matter of King v Electoral Commissioner. In that case, the petitioner alleged that some advertisements were misleading and in breach of s112, and sought to have the election of the successful candidate declared void. One of the advertisements for another candidate (a pamphlet) was authorised by the candidate's mother, using her maiden name.

The Bill amends section 112 to close this loophole by requiring, in subsection (1)(a) that the name and address cited is the name by which the person is usually known.

The Bill also increases the penalties for a breach of section 112 from $1,250 if the offender is a natural person and $5,000 if the offender is a body corporate, to $5,000 and $10,000.

Bogus how-to-vote cards

The Commissioner has raised concerns about the potential for bogus how-to-vote cards to be used at State elections.

The main type of bogus how-to-vote card that has caused problems interstate is the second-preference card, which is aimed at capturing the second preferences of persons who intend voting for one party, particularly a minor party or independent. These bogus cards, although advocating a vote for the minor party or independent, allocate preferences to one of the major parties. They are constructed to look like a minor party or independent issued them.

Although the Government believes there is nothing wrong with attempting to solicit the second-preferences of voters honestly, it does not believe the same can be said where bogus cards, purporting to be issued by an independent or minor party, dishonestly direct preferences to a major party (or any party or candidate). Bogus how-to-vote cards could, in a worst-case scenario, affect the outcome of an election decided on preferences. At the very least, they could affect voter confidence in the electoral process.

To address this problem, the Bill inserts two new sections, sections 112A and 112B, into the Act.

New section 112A requires that how-to-vote cards distributed during an election must include both the name and address of the person who authorised the card and the name of the relevant party (or independent candidate).

New section 112B prohibits a person from publishing or distributing how-to-vote cards or electoral advertisements that identify a candidate by reference to the name of a registered political party, or uses words that constitute a distinctive part of the name of another party, unless that person is an endorsed candidate of the party or the party has consented to the use of the particular words.

Publication of matter regarding candidates

The Bill inserts into the Electoral Act a new provision that replicates section 351 of the Commonwealth Electoral Act. New section 112C prohibits a person, on behalf of any association, league, organisation or other body, making an announcement or distributing material:

in which it is claimed or suggested that a candidate in an election is associated with, or supports the policy or activities of that association, league, organisation or body; or

that advocates or suggests that a voter should give his first preference vote in the House of Assembly to a candidate or allocate a valid preference to a candidate in a Legislative Council election not greater than the number to be elected,

without the consent of the candidate.

Misleading Advertising

Section 113 of the Electoral Act prohibits misleading advertising. The current penalties for a breach of section 113 are $1,250 if the offender is a natural person and $10,000 if the offender is a body corporate.

In light of advice from the former Commissioner about the adequacy of these penalties, the Bill amends section 113 to increase the penalties to $5,000 and $25,000.

Heading to electoral advertisements

Section 114 of the Electoral Act provides that where electoral matter is to be inserted in a newspaper, the proprietor of the newspaper must cause the word 'advertisement' to be printed as a headline to the electoral matter. Section 114 applies in respect of electoral matter for which payment or some other consideration is given for publication.

The Bill amends section 114 to delete the references to 'newspaper' and replaces these with 'journal', and then defines a 'journal to be a newspaper, magazine or other periodical, whether published for sale or distribution without charge.' It also extends section 114 to cover electronic publication on the internet.

Electoral Advertisements

The display of electoral advertising is regulated under section 115 of the Electoral Act.

Subject to some exceptions, section 115 prohibits the exhibition of an electoral advertisement on a vehicle, vessel, building, hoarding or other structure (e.g., a fence) that occupies an area in excess of one square metre.

The Bill amends section 115 to further restrict electoral advertising. New subsection (2a) will prohibit a person exhibiting an electoral advertisement by affixing it to a structure, fixture or vegetation that is situated on a road or road related area.

Published material

Section 116(1) provides that a person must not (during an election period) publish material consisting of, or containing, commentary on any candidate, party, issues being submitted to voters in written form, or by radio or television, unless the material is accompanied by a statement of a person who takes responsibility for the publication of the material.

Section 116(2) provides exceptions to the disclosure requirement in subsection (1). These are:

the publication in a newspaper of a leading article;

the publication of a report of certain meetings;

the publication in a newspaper of an article, letter, report or other matter if the newspaper contains a statement to the effect that a person whose name and address appears in the statement takes responsibility for the publication of all electoral matter published in the newspaper;

a news service or a current affairs programme on radio or TV.

The Bill amends section 116:

so the requirement to include a statement will also apply to material consisting of, or containing, commentary on any candidate, party, issues being submitted to voters etc., that is published or broadcast on the Internet;

to delete the third exception, the publication in a newspaper of an article, letter, report or other matter if the newspaper contains a statement to the effect that a person whose name and address appears in the statement takes responsibility for the publication of all electoral matter published in the newspaper; and

to address concerns about the application of section 116 to letters and websites that already carry the name and address of the author, to amend section 116 to add a new subsection allowing for the further exclusion of particular types of material from section 116 by regulation.

Protection of the Commissioner and her staff from liability

There is at present no provision in the Act that protects the Commissioner or her staff from liability for losses suffered as a result of the acts or omissions of her office.

Many other Acts of a similar nature provide indemnity for persons working in the administration of the relevant Act, and provide that any liability will be against the Crown.

The Bill inserts a new section 137 that provides:

immunity from liability for all persons involved in the administration of the Act for any act or omission in good faith in the exercise or purported exercise of powers or functions under the Act; and

that any such liability would lie instead against the Crown.

Proposed Amendments to the Constitution Act 1934

The Bill also amends the provisions governing electoral redistributions in the Constitution Act.

Appointments to the Electoral Districts Boundaries Commission

Section 81 of the Constitution Act provides for the appointment of a Secretary to the Commission and allows for that person to be remunerated, as determined by the Commission. However, the Commission has no authority to appoint other staff to do things to assist the Commission in discharging its legislative responsibilities.

This amends section 81 to allow the Commission to appoint support staff to assist the Commission in discharging its legislative responsibilities.

Commencement of Electoral Districts Boundaries Commission proceedings

The Electoral Commissioner advises that with the 2001 amendments to the Constitution Act introducing fixed four-year terms, the current framework for conducting an electoral redistribution, which requires the Electoral Districts Boundaries Commission to commence its proceedings within three months of the election and complete those proceedings with all due diligence has caused logistical and operational difficulties for the Commission.

The data necessary to perform the process so that the boundaries reflect the demographics of the State as accurately and as up-to-date as possible are not, generally, available until the second or third year after an election.

For example, following the last State election the Commission was required to commence its proceedings by June 2006 and complete them with all due diligence. The last population census was conducted in August of 2006. The 2006 census data was not then available. This meant the Commission had to rely upon census data from 2001, with annual updates to 2006, and then project possible population data out to the timing for the subsequent election in 2010. The demographers have raised their concerns with using this method for determining population movements and trends so far into the future.

A similar problem will arise with the redistribution required to be conducted after the 2010 State election.

The Commission would benefit greatly, in both the currency and accuracy of demographic projections, if it were able to deliberate later in the parliamentary term.

The Bill therefore amends section 82(2) so that the Commission is required to commence its deliberation within 24 months of polling day (the half-way point of the electoral term). This will still leave two years to determine and implement the new boundaries. The Commissioner advises that this would give the Commission enough time to complete the process in time for the next election.

The Commission will still be able to commence the process earlier; however, it will not be required to commence a redistribution until two years after the election.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Electoral Act 1985

4—Amendment of section 4—Interpretation

This clause inserts a definition of voting ticket square into the Act, reflecting its use in the amendments made by this measure.

5—Amendment of section 26—Inspection and purchase of rolls

This clause amends section 26(1) to make it clear that copies of the roll may be made available for inspection in electronic form and to delete the requirement that copies be available for inspection at the offices of returning officers. The clause also substitutes a new subsection (2) requiring the Electoral Commissioner to provide certain persons with an up-to-date copy of the relevant electoral roll (which may be in electronic form). Other new subsections provide for additional information to be made available to House of Assembly members and nominated candidates where there has been an electoral redistribution and set out procedural matters related to the operation of subsection (2). In addition, there is a new offence for misuse of a copy of the roll punishable by a maximum fine of $10,000.

6—Amendment of section 27—Power to require information

This clause extends the bodies or persons from whom the Electoral Commissioner can require information under section 27 to include an agency or instrumentality of the Crown or any other prescribed authority, or a public sector employee, and also provides for an exemption power under the regulations related to those bodies or persons, or certain information or material in their possession or control.

7—Amendment of section 27A—Provision of certain information

This clause amends section 27A to enable the Electoral Commissioner to give the relevant person information about an elector's date of birth. The penalty for contravention of a condition related to the giving of the information is increased to $10,000, and Members of Parliament are exempted from the need to pay a fee for the provision of the information. In addition, the current subsection (3) is deleted.

8—Substitution of Part 5 Division 3

This clause inserts new Division 2A into Part 5 of the Act, dealing with the enrolment of itinerant persons. The new section 31A sets out procedures for enrolment and disenrolment in such cases.

The existing Division 3 is replaced with a new Division providing for compulsory enrolment. Failure to make a claim for enrolment is an offence punishable by a maximum penalty of $75. The Division also includes the provisions currently in Division 3 regarding transfer of enrolment and notification of a change of address within the same subdivision.

9—Amendment of section 36—Definitions and related provisions

This clause makes amendments to section 36 to modify the definitions of eligible political party and parliamentary party. To be an eligible party for the purposes of the Part, a political party must, if it is not a parliamentary party, have at least 200 electors in its membership. A parliamentary party is now defined by the presence of at least 1 member who is a member of the South Australian Parliament, or a South Australian Senator or member of the House of Representatives.

The clause also inserts new subsections (3) and (4), setting out procedures in the case of a member that is relied on by 2 or more parties.

10—Amendment of section 39—Application for registration

This clause inserts new paragraphs (f), (g) and (h) into section 39(2) of the Act, setting out additional required contents in relation to applications for registration of an eligible political party consequential to the amendment of section 36 and providing for payment of a non-refundable application fee of $500.

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

This clause provides that if an application is received for registration of a political party within 6 months of a general election, the application must not be determined until after the general election.

12—Amendment of section 42—Registration

This clause substitutes section 42(3). Proposed new subsection (3) enables the Electoral Commissioner to refuse an application for registration of a political party if the name, or an abbreviation or acronym of the name comprises or contains a word or words that constitute a distinctive aspect or part of the name of another political party (not being a related political party) that is a parliamentary party or a registered political party, or that so closely resembles a distinctive aspect or part of the name etc of such a party that it appears that that distinctive aspect or part of that name is being adopted by the political party applying for registration. Proposed new subsection (3a) provides that this will not apply if the relevant parliamentary party or registered political party consents to the use of the word or words.

13—Insertion of section 43A

This clause inserts new section 43A into the Act. The new section requires the furnishing of annual returns by the registered officer of a registered political party. The new section sets out procedural matters related to such returns.

14—Amendment of section 45—De-registration of political party

This clause amends paragraph (b) of section 45(1) to enable the Electoral Commissioner to de-register a political party that has ceased to fulfill the membership requirements.

15—Insertion of sections 46A and 46B

This clause inserts new sections 46A and 46B into the Act.

Section 46A provides that it is an offence for a person to knowingly make a false or misleading statement when furnishing information for the purposes of this Part. The maximum penalty is a fine of $5,000.

Section 46B provides for the protection and confidentiality of the names and addresses of electors provided to the Electoral Commissioner in connection with the membership requirements for registration, or continued registration, as a political party. That information is not available for public inspection under the Part.

16—Amendment of section 48—Contents of writ

This clause substitutes a new section 48(3), providing that the date fixed for the close of the rolls must be 10 days after the issue of the writ (unless that day would be a Saturday, Sunday or public holiday, in which case the date must be the next day after that, not being a Saturday, Sunday or public holiday).

17—Amendment of section 52—Qualifications of candidate

This clause inserts new subsection (1a) into section 52, which provides that a person is not qualified to be a candidate for election as a member of either House if he or she would, if elected, be required to immediately vacate his or her seat under the specified provisions of the Constitution Act 1934.

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

This clause inserts a new subsection (4) into section 58 of the Act, requiring that the number of candidates in a group not exceed the number of candidates required to be elected at the relevant Legislative Council election.

19—Amendment of section 59—Printing of Legislative Council ballot papers

This clause amends paragraph (a) of section 59(1) of the Act, regarding the setting out of the candidates' names on the Legislative Council ballot paper where there are grouped and non-grouped candidates. The clause also substitutes a new subsection (2) providing that if a notice of intention to lodge a voting ticket has been given then an additional square must be printed on the ballot paper (currently this provision only applies where a voting ticket has actually been lodged).

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

This clause substitutes the current section 62(3), dealing with the question of when the Electoral Commissioner can reject an application to have a description consisting of the word 'Independent' followed by not more than 5 additional words. Currently the Commissioner may reject such an application if the description is obscene or frivolous but under the proposed subsection the Commissioner may also reject it if the words are caught by the operation of section 42(2)(e) or proposed section 42(3)(b) and the relevant party has not indicated that it supports the application. Such a decision of the Electoral Commissioner is not reviewable.

21—Amendment of section 63—Voting tickets

This clause amends section 63 to require the Electoral Commissioner to take reasonable steps to contact the relevant candidates where notice of intention to lodge a voting ticket has been given but no voting ticket has been lodged.

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

This clause amends section 65(2) of the Act, allowing premises the subject of a licence to sell liquor to be used as a polling booth, provided the Electoral Commissioner has taken reasonable steps to ensure that liquor will not be sold or consumed on the premises while the polling booth is being used for the purposes of the poll.

23—Substitution of section 66

This clause substitutes a new section 66 in the Act. The new provision sets out the electoral material that the Electoral Commissioner must have had prepared for use in polling booths on polling day and sets out requirements relating to the materials.

24—Amendment of section 67—Appointment of scrutineers

This clause amends section 67 of the Act, requiring notice of the appointment of a scrutineer by a candidate to be given to the presiding officer at the relevant place before the scrutineer can so act.

25—Amendment of section 71—Manner of voting

This clause inserts new subsections (3) and (4) into section 71 of the Act, setting out an additional circumstance in which a person can make a declaration vote at an election, and making a related provision.

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

This clause amends section 74 of the Act by inserting a new subsection (2a), enabling declaration voting papers to be issued or dispatched by means (other than by post) set out in the regulations, and also extends the circumstances in which a person can register as a declaration voter to include carers of seriously ill, infirm or disabled persons, and electors who live more than 20km from any polling place (including a place where a mobile polling booth is likely to be established).

The clause also provides an offence for a person who, when given an application by an elector for the issue of declaration voting papers on the basis that the person will deliver the application to the appropriate officer, fails to transmit the application to the appropriate officer as soon as possible.

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

This clause inserts a new section 80(4) into the Act, providing that a candidate, or a scrutineer appointed by a candidate, must not act as an assistant to a voter under that section. To do so is an offence punishable by a maximum penalty of $1,250.

28—Amendment of section 82—Declaration vote, how made

This clause makes consequential amendments to section 82 of the Act, and also provides a new offence in new subsection (4a) for a person who is given an envelope containing a declaration vote of an elector for transmission to a returning officer, and who fails to lodge it with, or forward it by post to, the appropriate district returning officer as soon as possible.

29—Amendment of section 84—Security of facilities

This clause amends section 84 of the Act to reflect the fact that secured facilities other than ballot boxes may be used at an election.

30—Amendment of section 85—Compulsory voting

This clause makes minor consequential amendments to section 85.

31—Amendment of section 87—Ballot boxes or other facilities to be kept secure

This clause amends section 87 of the Act to reflect the fact that secured facilities other than ballot boxes may be used at an election.

32—Amendment of section 89—Scrutiny

This section inserts new subsection (3) into section 89, allowing the returning officer or a deputy returning officer in relation to an election to undertake a preliminary scrutiny of declaration voting papers (without opening any envelope) before the close of the poll.

33—Amendment of section 91—Preliminary scrutiny

This clause substitutes a new subsection (1) into section 90, setting out the procedures relating to preliminary scrutiny at an election and reflecting the broader amendments made by this measure.

34—Amendment of section 94—Informal ballot papers

This clause amends section 94(1) to reflect the fact that secured facilities other than ballot boxes may be used at an election and inserts a new subsection (4a) into that section. The new subsection sets out the circumstances in which a ballot paper is informal in a case where a notice of intention to lodge a voting ticket for a Legislative Council election was given under section 63(2)(a), but a voting ticket was not then lodged in accordance with section 63(2)(b) and a voter uses the voting ticket square on the ballot paper.

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

This clause makes amendments to section 95 to accommodate the effects the amendments made by this measure have had on the procedures for scrutiny in a Legislative Council election.

The amended subsection (3), and the new subsection (4a), set out the amended scrutineering process for such an election.

36—Amendment of section 96D—Use of approved computer program in election

This clause makes a consequential amendment following the insertion of new section 95(4a).

37—Amendment of section 105—Respondents to petitions

This clause amends section 105 of the Act to provide that the Electoral Commissioner and the person who was the successful candidate at the relevant election are both respondents to any petition in which the validity of an election or return is disputed.

38—Amendment of section 107—Orders that the Court is empowered to make

This clause inserts new subsections (5) and (6) into section 107 of the Act. Subsection (5) provides that an election may be declared void on the ground of misleading advertising if the Court of Disputed Returns is satisfied that the result of the election was affected by that advertising.

Subsection (6) sets out circumstances in which a breach of section 109, 110 or 111 of the Act can lead to a declaration that an election is void.

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

This clause amends section 112 of the Act to include electoral advertisements published electronically on the internet in the operation of the section, increases the penalty for contravention of subsection (1) and makes a minor technical amendment.

40—Insertion of sections 112A , 112B and 112C

This clause inserts new sections 112A, 112B and 112C into the Act.

New section 112A sets out provisions regulating the distribution of how-to-vote cards during an election period.

New section 112B sets out provisions prohibiting the use of certain descriptions in electoral advertisements or how-to-vote cards. In particular, candidates must not identify themselves by reference to a registered political party, or by using words that could not be, or may not be able to be, registered because of section 42(2)(e) or (3)(b), unless he or she is endorsed by the party, or the party has consented to the use of the names or words.

New section 112C creates an offence relating to the publication or announcement of certain kinds of material relating to a candidate in an election without the authority of the candidate and is based on section 351 of the Commonwealth Electoral Act 1918.

41—Amendment of section 113—Misleading advertising

This clause increases the penalty for a contravention of section 113 of the Act to a maximum fine of $5,000 for a natural person, or $25,000 for a body corporate.

42—Substitution of section 114

This clause substitutes a new section 114 which extends the type of publication to which the section applies, and increases the penalty for a contravention of the section to a maximum fine of $1,250 for a natural person, or $5,000 for a body corporate.

43—Amendment of section 115—Limitations on display of electoral advertisements

This clause increases the penalty for a contravention of section 115(1) of the Act to a maximum fine of $5,000 and inserts a new offence (in proposed section 115(2a)) of exhibiting an electoral advertisement (regardless of the size of the advertisement) by affixing it to a structure, fixture or vegetation on a road or road related area, punishable by a fine of $5,000. The offence does not extend to material exhibited on private land but so as to be visible from a road or road related area. Proposed section 115(2b) provides that proposed section 115(2a) will expire after the 2014 State election.

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

This clause extends the material to which the section applies, but also provides for the exemption of prescribed material, and increases the penalty for a contravention of the section to a maximum fine of $1,250 for a natural person, or $5,000 for a body corporate.

45—Amendment of section 119—Offender may be removed from polling booth

This clause amends section 119 of the Act to make it clear that candidates and scrutineers may be removed from a polling booth if they engage in conduct in breach of section 119(1).

46—Insertion of section 137

This clause inserts a new section 137 into the Act, providing a standard immunity from civil liability for the Electoral Commissioner and other persons administering the Act.

Schedule 1—Related amendments and transitional provision

Part 1—Related amendment to Constitution Act 1934

1—Amendment of section 81—Staff

This clause amends section 81 of the Act to allow the Commission to appoint staff.

2—Amendment of section 82—Electoral redistributions

This clause amends section 82 of the Act to require the Commission to commence proceedings for the purpose of making an electoral redistribution within 24 months after each polling day rather than the current 3 months.

Part 2—Transitional provisions

This Part sets out transitional provisions related to the enactment of this measure.

Debate adjourned on motion of Hon. D.W. Ridgway.

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