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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-02-07 Daily Xml
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ELECTORAL (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:36): 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.

This Bill amends the Electoral Act 1985 to improve participation in elections, further regulate the use of electoral material and, importantly, enhance the integrity of the State electoral roll by ensuring that information contained on the roll is accurate and complete.

In addition to several technical amendments recommended by the South Australian Electoral Commissioner, the Bill contains a number of substantive amendments which arose from recommendations of the Select Committee on matters related to the general election of 20 March 2010 (the Select Committee).

The Bill also fulfils two commitments given by the Government to amend the Electoral Act 1985 in the context of the 2010 election. The first of these commitments is to address concerns regarding the use of certain how-to-vote cards such as those which allegedly confused voters in the 2010 election. It is important to note that this Bill does not seek to regulate what preferences parties, candidates and political groups choose to advocate, or whether they choose to advocate a first or second preference. However, it does regulate the way preferences are put forward by confining the context (including the language, colour and form of the card) in which the preference order can be represented, striking at the heart of the mischief complained of in the 2010 election.

In addition to the current requirements in the Act, proposed section 112A provides that a how-to-vote card may only be distributed during the election period if the card distributed is substantially the same as a card that has been submitted to the Electoral Commissioner for inclusion in polling booth posters, four days after the close of nominations, under section 66, or lodged with the Commissioner no later than two days before polling day. Distribution of a how-to-vote card during the election period that was not submitted or lodged with the Electoral Commissioner, or that differs substantially from the initial how-to-vote card lodged or submitted with the Commissioner, will constitute an offence.

In regulating the use of how-to-vote cards the Government has deliberately avoided being overly prescriptive to prevent any risk of infringing implied freedom of political communication. Whilst the requirement to lodge a how-to-vote card locks a party, candidate or group into a specific form and design of a how-to-vote card, it does not lock them into a preference position. Accordingly, in the unforseen events of a death of a candidate, the withdrawal of an endorsement by a political group or some other intervening matter, a how-to-vote card promoting a different preference order can be distributed, so long as it has substantially the same appearance as the initial how-to-vote card submitted or lodged with the Electoral Commissioner. Similarly, if parties or candidates submit a how-to-vote card under section 66, and wish to lodge another how-to-vote card no later than 2 days before polling day, they may do so, even if the card is intended to secure second preference votes, as long as the card has substantially the same appearance as the initial how-to-vote card previously submitted. There is an interpretive provision in the Bill relating to the term substantially the same appearance.

In addition to this measure, the Government also intends to amend the regulations to expand the authorisation requirements, increasing the size of the font in which authorisation details must be published. This measure is designed to assist voters to make informed decisions when voting.

In a similar vein, the Bill also addresses concerns raised by the South Australian Electoral Commissioner regarding the ease with which electors are able to identify the source of electoral advertisements. Currently, the Electoral Act 1985 requires disclosure of the name and address of the person authorising the material but need not state the party he or she represents. The proposed amendment to section 112 requires all authorised electoral advertisements to disclose any relevant political party affiliation (or an abbreviation if the Register of Political Parties includes an abbreviation) in addition to the name and address of the person authorising the material. Disclosure of the party affiliation will prove more open and informative to the voter, increasing the level of transparency of electoral advertising.

The second commitment made by the Government relates to the requirements to identify a person responsible for political content in published material. The Bill reverses the 2009 amendments to section 116 so the provision no longer applies to material published or broadcast on the Internet. It also repeals subsection 116(2)(c), that obliges the publisher of a journal to record the name and address of, and publish the name and postcode of, a person who takes responsibility for a letter, article or other material published in the journal, as a condition of exemption from section 116. The exemption that existed prior to the 2009 amendments (that allows the publisher or another person to take responsibility for all electoral material published during an election period) is to be reinstated into the Act.

This Bill also addresses complaints of voter confusion and lack of transparency in relation to the distribution of postal vote applications and electoral material in recognition of recommendations put forward by the Electoral Commissioner and the Select Committee.

The distribution of postal vote applications by political parties and their involvement in the collection and return to the Electoral Commissioner confuses electors and has contributed to a significant increase in the number of applications being received by the Electoral Commissioner. The bulk delivery of applications by parties contributes to a presumption of an automatic entitlement to vote by post which encourages people to apply as a convenient method of voting. It also imposes a significant cost on political parties.

Proposed section 74A amends the Electoral Act 1985 to remove the capacity for political parties to distribute postal vote applications, making the Electoral Commissioner the sole distributor of such applications. However, the Bill allows parties and candidates to request the details of applicants for postal votes under section 74(1)(b) from the Electoral Commissioner to ensure parties and candidates are able to continue to provide campaign material to those electors who have applied to the Commissioner to submit a postal vote in an election.

With a view to improving the legitimacy of election results and the democratic process, the Bill amends the Electoral Act 1985 so that a ballot paper is not informal merely because the voter has marked it in a way that might identify them. It is reasonable to assume that, if the vote is otherwise formal, it was intended to be a valid vote and the voter was most likely unaware that the presence of their name would invalidate it. This change will achieve consistency with local government elections and, importantly, reduce the number of informal votes.

One of the most significant changes contained in the Bill involves the harmonisation of the State and Commonwealth electoral rolls. At present there is a significant and increasing divergence between the two rolls. There are currently 11,350 electors enrolled on the Commonwealth electoral roll who are not enrolled on the State roll. This is due to differences in the respective enrolment processes.

In particular, the Commonwealth has modified their enrolment provisions to achieve greater flexibility in order to better maintain their electoral roll Most recently the Commonwealth has adopted an enrolment scheme that allows the Australian Electoral Commissioner to enrol a person (provided the person meets the relevant entitlement provisions) or update a person's enrolment details on his own motion, using data collected from trusted government agencies.

In order to maintain the integrity of the joint roll arrangement and ensure the accuracy and completeness of the State Roll, the Bill amends the Electoral Act 1985 so that, if a person is properly enrolled on the Commonwealth roll, and meets all other current enrolment requirements, the person is entitled to be enrolled on the State roll. In addition, proposed section 32B provides that, if a person is enrolled on the Commonwealth roll, the person is taken to have made a claim in accordance with the Act and be enrolled in a state subdivision.

Currently, under the joint roll arrangements, the Australian Electoral Commission ('AEC') maintains the Commonwealth electoral roll and the South Australian electoral roll on a single database. With the current difference in processes for enrolment, electors are being added to the enrolment database as 'Commonwealth only' electors, or enrolled at one address at a State level and a different address at a Commonwealth level. The amendments contained in this Bill will allow an elector who has enrolled as a Commonwealth elector in relation to a subdivision in this State, or updated their enrolment details online with the AEC, to be enrolled or have their address updated under the South Australian Electoral Act. It will also address the current lag in South Australian enrolments allowing these electors to receive their State entitlement based on their existing Commonwealth enrolment.

It is important to note that these amendments change the process of enrolment, they will not change the grounds on which a person becomes entitled to enrol and vote in South Australia. However, to achieve consistency with Commonwealth provisional enrolment provisions, the Bill also amends the eligibility age of provisional voters in South Australia to 16 rather than the current 17 years. It also removes the requirement for an application for enrolment of itinerant voters to be attested and allows claims for enrolment and transfer of enrolment on the State roll to be made to an electoral registrar in a manner and form approved by the Electoral Commissioner, thus providing the Commissioner with more flexible enrolment provisions for the enrolment of electors at the local level.

Finally, the Bill amends the Electoral Act 1985 to provide that the position of Deputy Commissioner be a 5 year statutory appointment rather than an appointment until the age of 65. This will bring the length of the appointment in line with other similar statutory appointments that provide for a 5 year appointment with the possibility of renewal. However, the provision will commence after the current incumbent's term in office has ceased. The Electoral Commissioner's conditions of appointment will remain unchanged.

The technical amendments adopted in the Bill include:

removing the requirement for the Electoral Commissioner to deposit the prescribed amount paid for nominations in each district with the returning officer;

inserting a requirement that the electoral registrars supply to the Electoral Commissioner, certified lists of electors enrolled for districts; and

removing the reference to 'telegram' in sections 95 and 96 of the Act regarding the manner in which voting results are to be transmitted.

These are minor amendments that will modernise the Electoral Act 1985 and ensure the legislation reflects current electoral practices.

I commend this Bill to Members.

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 amendment is consequential.

5—Amendment of section 7—Remuneration and conditions of office

This clause amends section 7 to make the term of appointment of the Deputy Electoral Commissioner 5 years instead of a term that expires at age 65, and makes some related amendments.

6—Amendment of section 21—Suppression of elector's address

7—Amendment of section 23—Rolls to be kept up to date

These amendments are consequential to the amendments to section 29 relating to persons on the Commonwealth roll.

8—Amendment of section 29—Entitlement to enrolment

This clause amends section 29 to provide that a person properly enrolled on the Commonwealth roll in respect of an address in a subdivision is entitled to enrolment on the roll kept under the Electoral Act 1985 for that subdivision. The amendments to section 29(2) relate to provisional enrolments.

9—Repeal of Part 5 Division 2

This clause repeals Part 5 Division 2.

10—Amendment of section 31A—Itinerant persons

Subclause (3) amends section 31A(2)(b) to remove the requirement that an application under section 31A be attested as required by the Electoral Commissioner, consistent with changes to claims for enrolment generally. The amendments in subclauses (1) and (2) are consequential to the amendments to section 29. The amendment in subclause (4) is consequential to the repeal of Part 5 Division 2.

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

Subclause (2) inserts proposed subsection (1a) (a provision previously in Part 5 Division 2) into section 32. Proposed subsection (1a) removes the requirement that a claim for enrolment be signed and attested as required by the Electoral Commissioner. The other amendment is consequential.

12—Amendment of section 32A—Notification of transfer within the same subdivision

This amendment is consequential.

13—Insertion of section 32B

This clause inserts section 32B, effectively relocating existing section 31. However, in addition to the provisions of existing section 31, proposed section 32B provides that if a person is enrolled on the Commonwealth roll and the person's address recorded on that roll is an address in a subdivision, the person is 'deemed' to be enrolled, or provisionally enrolled (as the case may be) on the roll kept under the Electoral Act 1985 for that subdivision.

14—Amendment of section 53—Multiple nominations of candidates endorsed by political party

This clause amends section 53(4) to remove the requirement relating to depositing the prescribed amount.

15—Substitution of section 68

This clause makes a technical amendment to section 68.

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

This clause makes 2 amendments relating to electors who have applied for the issue of declaration voting papers under subsection (1)(b). One amendment requires the inclusion of any postal address provided by such applicants for declaration voting papers on the register of declaration voters kept under the section. The other amendment requires the Electoral Commissioner to provide (on request) a copy of the information contained in the register in relation to such electors to the registered officer of a registered political party and a nominated candidate (and in the latter case, the information to be provided is limited to only that which relates to the candidate's district).

17—Insertion of section 74A

New section 74A creates an offence relating to the distribution of application forms for the issue of declaration voting papers.

18—Amendment of section 94—Informal ballot papers

This clause amends section 94 so that a ballot paper is no longer informal if it has on it any mark or writing by which the voter can be identified.

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

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

These amendments delete references to telegrams.

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

This clause amends section 112 to provide that if an electoral advertisement is authorised for a registered political party or a candidate endorsed by a registered political party, the party's name or, if the Register of Political Parties includes an abbreviation of the party's name, that abbreviation must appear at the end.

22—Substitution of section 112A

This clause substitutes section 112A to expand on the offence provisions relating to how-to-vote cards. In addition to the existing requirements relating to the distribution of how-to-vote cards during an election period, proposed subsection (1) provides that a person must not distribute a card unless the card has substantially the same appearance as a how-to-vote card submitted for inclusion in posters under section 66 or lodged with the Electoral Commissioner no later than 2 days before polling day.

The regulations may prescribe requirements relating to cards that are to be lodged.

Proposed subsection (3) prohibits, in relation to a how-to-vote card submitted for inclusion in posters under section 66 for a candidate (an initial submitted how-to-vote card), the subsequent lodgement or distribution of a how-to-vote card authorised by or for the candidate or a registered political party of which the candidate is a member unless the card has substantially the same appearance as the initial submitted how-to-vote card.

Proposed subsection (5) is an interpretive provision relating to the phrase substantially the same appearance. Proposed subsection (6) sets out inclusive definitions of distribute and how-to-vote card for the purposes of the section.

23—Amendment of section 112B—Certain descriptions not to be used

This clause, consistent with inserted section 74A and substituted section 112A, makes an amendment to clarify that distribute includes distribute in electronic form.

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

This clause limits the type of publication to which section 116(1) applies by removing journals published in electronic form on the Internet and Internet broadcasts from the scope of the provision. The clause makes amendments to section 116(2) which are consequential to the amendments to section 116(1). The clause also amends section 116(2)(c) to restore the provision to its form prior to its amendment by the Electoral (Miscellaneous) Amendment Bill 2009, except that the term journal replaces the former term 'newspaper'.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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