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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-12-06 Daily Xml
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Electoral (Miscellaneous) Amendment Bill

Second Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (18:02): I move:

That this bill be now read a second time.

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

Leave granted.

The Electoral (Miscellaneous) Amendment Bill 2016 ('Bill') proposes various amendments to the Electoral Act 1985 ('Electoral Act').

The Bill comprises amendments to the Electoral Act that:

respond to recommendations made by the former Electoral Commissioner in her report on the 2014 State election; and

seek to curb the increase in pre-poll voting.

In addition, there are a number of other miscellaneous amendments to the Electoral Act. Each of these categories of amendments are discussed in turn.

Amendments that respond to recommendations made by the former Electoral Commissioner

There are a number of measures contained in this Bill that respond to recommendations made by the former Electoral Commissioner in her report on the 2014 State election.

The Bill make amendments to section 12 of the Electoral Act, and the definition of 'officer' in section 4 of the Electoral Act, to clarify that:

the Electoral Commissioner can employ staff to assist her with her responsibilities under various pieces of legislation, and not just under the Electoral Act;

temporary staff can be employed in relation to the administration of the Electoral Act and any other Act.

This acknowledges the fact that the Electoral Commissioner has responsibilities not just under the Electoral Act, but also under a range of other legislation including, for example, the Local Government (Elections) Act 1999.

Section 11 of the Electoral Act is repealed. It is not required as matters of staffing are adequately dealt with in section 12 of the Electoral Act.

The Bill amends section 26 of the Electoral Act to place some conditions on the inspection of the electoral roll. A person seeking to inspect the electoral roll will be required to provide his or her name to the Electoral Commissioner and provide suitable identification on request. There is also scope for the further conditions to be applied by way of regulation. These amendments strike a balance between maintaining an open and transparent electoral roll, and providing a level of protection to the voters whose names appear on that roll.

The Bill amends sections 43A and 45 of the Electoral Act to clarify that deregistration of a registered political party by the Electoral Commissioner under section 43A(5) as a result of failure to comply with the annual return requirements can only occur after written notice has been provided by the Electoral Commissioner to the registered political party.

The Bill amends the Electoral Act to make clear that nominations of candidates endorsed by a political party under section 53 of the Electoral Act can include the nomination of a single candidate. This could be expected to occur, for example, in the context of a by-election. Section 53 is currently headed 'Multiple nominations of candidates endorsed by political party'. This heading is changed to 'Nominations of candidates endorsed by political party'.

The Bill make amendments to the Electoral Act so that the prescribed amounts that must accompany a nomination can be paid in a manner prescribed by regulation. Currently, those amounts must be paid by cash or banker's cheque. Given that the amounts are quite high ($3000 per candidate), the former Electoral Commissioner was concerned that payment by cash is no longer appropriate.

The Bill amends section 54 of the Electoral Act to remove the requirement for the address of a candidate to be read out at the declaration of nominations where the candidate's place of residence is suppressed from publication on the electoral roll under section 21 of the Electoral Act. Section 21 allows for an elector's name to be suppressed from the roll where to do otherwise would place at risk the personal safety of the elector, a member of the elector's family or any other person.

The Electoral Act has provisions which apply specifically to 'declared institutions', which can include hospitals, nursing homes, aged care homes, as well as prisons. The Bill removes references in sections 71 and 83 of the Electoral Act to 'inmates' of declared institutions, and instead refers to 'residents' of declared institution.

The Bill makes a number of amendments that are intended to make it easier for people with a disability to cast a vote.

There are several amendments that will ensure that people who are unable to sign are still able to cast a declaration vote where they are eligible to do so. The Bill makes amendments to sections 74 and 82 to allow a person who applies for registration as a declaration voter, or applies for the issue of declaration voting papers, to provide with their application a medical certificate which indicates that they are unable to sign. They would then be exempt from the requirement to sign the declaration on the ballot paper envelope.

Section 80 of the Electoral Act provides for a voter who requires assistance to be accompanied by an assistant while in the polling booth. Section 80 currently allows the assistant to assist the voter to mark the ballot paper, or to mark it for them at the voter's direction. The Bill makes amendments so that, where the voter is making a declaration vote and is required to sign the declaration certificate, the assistant can sign the declaration on their behalf.

Section 80A of the Electoral Act allows a voter to vote near a polling booth in certain circumstances. These might include where, because of physical disability or illness, the voter is not able to go inside a polling booth. The Bill proposes amendments to section 80A to cater for the scenario where a person voting near a polling booth is doing so by way of declaration vote.

The Bill reworks section 81 of the Electoral Act. Current sub-section 81(1) requires a person voting at a polling booth who has previously been sent declaration papers to either present those declaration papers to the presiding officer or sign a declaration that the papers were not received. That sub-section is being deleted. There is no need to require a voter to bring their declaration voting papers to the polling booth, or otherwise to sign a declaration. Where a voter to whom declaration voting papers have been sent votes on polling day, the polling day vote will count. Any completed declaration voting papers received from the voter would be held out of the count.

The Bill amends section 84 of the Electoral Act to clarify that the secure facilities containing declaration ballot papers must be opened and forwarded as soon as practicable (rather than at the close of poll) to the appropriate returning officers or deputy returning officers.

The Bill inserts new Part 9 Division 5A into the Electoral Act. This new Division allows for regulations to be made that will provide for electronically assisted voting for sight-impaired electors to be implemented in South Australia. Part 9 Division 5A is modelled on similar provisions in the Commonwealth Electoral Act 1918 (Cth). By inserting these new provisions, the Bill removes the current legislative roadblock that exists to the implementation of electronically assisted voting for people with vision impairment. It will enable regulations to be made which provide for a method of electronically assisted voting for use by sight-impaired voters.

The Bill amends section 91 of the Electoral Act, which deals with preliminary scrutiny. These amendments will enable the scrutiny process to be carried out in a manner which reflects the fact that the declaration certificate is now on a 'tear off extension' to the declaration envelope and can be separated from the declaration envelope. Currently, the process is that, once a deputy returning officer has checked the declaration certificate and is satisfied that the declaration vote should be admitted for further scrutiny, they take the ballot paper from the envelope and place it in a ballot box without inspecting or unfolding it. The new process will ensure voter secrecy by requiring the deputy returning officer to:

remove the declaration certificate from the declaration envelope;

rearrange the envelopes that no longer bear their tear off extensions so that the anonymity of the vote is maintained; and

withdraw the ballot paper from its envelope and place it into the ballot box or facility.

Amendments directed toward pre-poll voting

There are a number of amendments contained in the Bill that are directed toward curbing the increase in pre-poll voting. The total number of votes issued at pre-poll centres in 2010 was 37,464. In 2014, it was 82,020. This represented at 118.9% increase. It is considered likely that this reflects a tendency of people to vote prior to polling day for reasons of convenience, which is not one of the permitted grounds of pre-poll voting under the Electoral Act.

This Bill proposes to put in place measures which encourage voters to vote on polling day, and discourage pre-poll voting for convenience.

The primary rationale for adopting this approach is that the outcome of an election is supposed to reflect the views of an electorate on polling day.

Further, facilitating the casting of votes prior to polling day does not sit well with the new funding, expenditure and disclosure scheme. That scheme requires candidates, political parties and others to report their political expenditure and donations and requires more intensive reporting in the election period. The scheme provides for improved transparency and scrutiny of political parties and candidates. Given that steps have been taken to provide the public with increased access to information about the donations and political expenditure of political parties and candidates prior to polling day, it makes sense that voting should, where possible, occur on polling day. This allows voters to cast their vote with all of the information that we are now making available to them.

The funding, expenditure and disclosure scheme also provides for public funding to be payable to political parties and candidates, which essentially goes part of the way to reimbursing political parties and candidates for the cost of their election campaigns. It is inconsistent to allow tax payer money to be used to fund campaigns, and at the same time to facilitate large numbers of voters casting their votes before the end of the campaign.

The Bill makes changes to section 8 of the Act, which sets out the powers and functions of the Electoral Commissioner. The Bill inserts new section 8(1a), which provides that the Electoral Commissioner must, where relevant in the carrying out of the Electoral Commissioner's functions under the Electoral Act, promote and encourage the casting of votes at a polling booth on polling day. This makes clear that, in South Australia, the focus of elections should be polling day and that, where possible, people should vote on polling day. Declaration voting should be the exception rather than the rule.

The Bill makes amendments to section 73 of the Electoral Act to provide that pre-poll voting centres in South Australia will only be allowed to open in the 5 days leading up to polling day.

The Bill also prohibits exhibiting a sign or notice relating to the election within 100 metres of a pre-poll centre in South Australia. It is considered likely that, in some instances, the large amount of political party material and signage around pre-poll centres attracts attention to them, and may contribute to the increase in pre-poll voters for reasons of convenience.

Finally, the Bill introduces a prohibition on publicly advocating that an elector may exercise their vote in a manner inconsistent with the provisions of the Act. This is intended to ensure that parties and candidates do not encourage voters to cast pre-poll votes where the voters are not eligible to do so.

Other amendments

The Bill makes a number of other miscellaneous amendments to the Electoral Act, including:

The Bill proposes to amend section 62 of the Electoral Act to remove the scope for Independent candidates to print descriptive information on their ballot papers. The Electoral (Legislative Council Voting) Amendment Act 2013 changed the amount of descriptive information permitted next to the word 'Independent' from five words to three. This Bill proposes to remove the scope for descriptive information entirely. The Bill makes amendments to section 74A of the Electoral Act to make it an offence for anyone other than the Electoral Commissioner to distribute an application form for the issue of declaration voting papers.

The Bill makes amendments to section 92 of the Electoral Act to reflect the fact that there are no longer voting ticket squares for candidates. Limiting eligibility for voting ticket squares to political parties and group is a change that was made by way of the Electoral (Legislative Council Voting) Amendment Act 2013, but the consequential amendments to section 92 were not made at that time.

The Bill increases the penalty provisions in section 113 of the Electoral Act to $50,000. This increase is intended to act as a deterrent to those involved in political processes who may authorise, cause or permit the publication of an electoral advertisement contrary to section 113.

I commend the 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

Subclause (1) inserts a definition of medical practitioner for the purposes of the amendment in clause 17 of the measure. Subclause (2) amends the definition of officer to include a person appointed to assist the Electoral Commissioner in the administration of other Acts.

5—Amendment of section 8—Powers and functions of the Electoral Commissioner

The clause amends section 8 to insert a new subsection (1a) which provides that the Electoral Commissioner must, where relevant in the carrying out of the Electoral Commissioner's functions under the Act, promote and encourage the casting of votes at a polling booth on polling day.

6—Repeal of section 11

This clause repeals an obsolete section.

7—Amendment of section 12—Staff

This clause amends section 12(1)(b) to provide that persons may be employed by the Electoral Commissioner as required for the administration of the Act or any other Act.

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

This clause inserts a new subsection (1a) which provides that a person may only inspect a copy of the electoral roll if the person:

provides the person's name and address to the Electoral Commissioner; and

if requested to do so by the Electoral Commissioner, produces evidence of the correctness of the name or address as provided in a form determined by the Commissioner; and

complies with conditions (if any) prescribed by the regulations.

9—Amendment of section 43A—Annual returns and other inquiries

This amendment is consequential on the amendment in clause 10.

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

This amendment provides that the Electoral Commissioner may de-register a party if the registered officer of a registered political party fails to comply with a requirement under section 43A. This provision was formerly located in section 43A(5) and is to be relocated to section 45, in order for section 45(2) to apply to such a deregistration.

11—Amendment of section 53—Nominations of candidates endorsed by political party

The amendment in subclause (1) provides that a single candidate, or multiple candidates can be nominated on a nomination paper for election as a member of the House of Assembly or the Legislative Council.

The amendment in subclause (2) deletes the reference for a payment to be in cash or a bankers cheque and inserts a requirement for payments to be paid in the manner prescribed by the regulations.

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

This amendment deletes the reference for a payment to be in cash or a bankers cheque and inserts a requirement for payments to be paid in the manner prescribed by the regulations.

13—Amendment of section 54—Declaration of nominations

This clause amends section 54(1) to provide that the address of a nominated candidate must not be declared at nomination if a candidate's address is suppressed from the roll under section 21. Instead, the returning officer must declare, in the case of a candidate nominated for election to the House of Assembly, the House of Assembly district in which the candidate resides, and in the case of a candidate nominated for election to the Legislative Council, must not declare the address of that candidate.

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

This clause makes amendments to remove the possibility of an application to have a description consisting of the word 'Independent' followed by not more than 3 additional words printed adjacent to the candidate's name on ballot papers to be used in the election.

15—Amendment of section 71—Manner of voting

This amendment deletes reference to an inmate of a declared institution and substitutes a reference to a resident of a declared institution.

16—Amendment of section 73—Issue of voting papers

The clause substitutes section 73(2). In addition to the existing provisions in relation to the issue of declaration voting papers to an elector (now provided for in proposed section 73(2)(a)), proposed 73(2)(b) provides that declaration voting papers must only be issued to an elector who appears personally before an officer in South Australia other than at a polling booth on polling day at times determined by the Electoral Commissioner that fall within the 5 days before polling day.

Proposed section 73(2)(c) provides that the additional provisions in proposed 73(2)(b) do not apply to an elector who is a resident of a declared institution.

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

This clause inserts a new subsection (3a) to provide that an application under section 74 for the issue of declaration voting papers to an elector, or for registration of an elector as a declaration voter, may be made by a person other than the elector if the application is accompanied by a certificate from a medical practitioner, in a form approved by the Electoral Commissioner, certifying that the elector is, because of physical disability, unable to sign the elector's own name.

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

This clause deletes certain requirements from the offence of distributing a declaration voting application form.

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

The clause inserts section 80(3)(e) to allow for a person to assist a declaration voter in the following ways:

by assisting the voter to complete the appropriate declaration on the envelope;

if the voter is unable to do so, by completing and signing the declaration on the voter's behalf in the presence of an officer (who must sign the envelope as witness);

by folding and placing the ballot paper in the appropriate envelope and sealing the envelope.

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

The clause amends the section to provide for the procedure for a voter casting a declaration vote if the voter is unable to enter a polling booth.

21—Substitution of section 81

This clause deletes and substitutes section 81 as follows:

81—Voting by elector to whom declaration voting papers have been issued

The proposed section provides that an elector to whom declaration voting papers have been issued (otherwise than at a polling booth) is entitled to an ordinary vote at a polling booth, but a declaration ballot paper purporting to be a ballot paper of that elector must not be admitted to the scrutiny.

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

The amendment in subclause (1) is consequential on the amendments in clauses 17, 20 and 25.

The amendment in subclause (2) permits a person to assist a voter to complete and sign a declaration on the voter's behalf if the voter is unable to do so.

23—Amendment of section 83—Taking of declaration votes by electoral visitors

These amendments delete references to an inmate of a declared institution and substitute references to a resident of a declared institution.

24—Amendment of section 84—Security of facilities

The amendment in this clause widens the security protections in the existing section to include all ballot boxes whether opened at the close of poll or at some other time.

25—Insertion of Part 9 Division 5A

This clause inserts a new Division as follows:

Division 5A—Electronically assisted voting for sight-impaired electors

84A—Electronically assisted voting for sight-impaired electors

The proposed section allows the regulations to make provision in relation to voting in an election by sight-impaired electors by means of an electronically assisted voting method. A sight-impaired elector is defined as an elector whose sight is impaired such that the elector is unable to vote without assistance.

84B—Applying provisions of Act to elector using electronic assisted voting

The proposed section provides for certain provisions and prohibitions in the Act to apply to a voter using the electronically assisted voting method.

84C—Electoral Commissioner may determine that electronically assisted voting is not to be used

The proposed section allows the Electoral Commissioner, by notice in the Gazette, to determine that the electronically assisted voting method is not to be used either generally or at 1 or more specified places, in respect of an election.

26—Amendment of section 91—Preliminary scrutiny

The clause amends the scrutiny process of declaration votes by inserting references to the tear-off extensions on declaration voting envelopes, and makes amendments consequential on the amendments in clause 17.

27—Amendment of section 92—Interpretation of ballot papers in Legislative Council elections

This clause makes a technical amendment.

28—Amendment of section 113—Misleading advertising

This amendment increases the maximum penalty for the offence of misleading advertising to $50,000.

29—Amendment of section 125—Prohibition of canvassing near polling booths

The clause inserts proposed subsection (4) which provides that if a place is open for the issue of voting papers in an election other than on polling day, a person must not exhibit a notice or sign (other than an official notice) relating to the election at an entrance of, or within, that place, or in any public or private place within 100 metres, or such lesser distance as may by fixed in a particular case by the presiding officer, of an entrance to that place, with a maximum penalty of $750.

Proposed subsection (5) provides that an officer may, if directed by the presiding officer or Electoral Commissioner, remove a notice that the Electoral Commissioner or presiding officer believes on reasonable grounds to be exhibited in contravention of section 125. Proposed section (6) makes it an offence with a penalty of $2,500 or imprisonment for 6 months for a person to obstruct an officer in the exercise or attempted exercise of a function under proposed subsection (5).

30—Amendment of section 126—Prohibition of advocacy of forms of voting inconsistent with Act

Subclause (1) makes a technical amendment to include a reference to a how-to-vote card permitted to be distributed under section 112A. Subclause (2) inserts new subsections (3) and (4). Proposed subsection (3) provides for an offence if a person advocates that an elector may exercise their vote in a manner inconsistent with the provisions of the Act relating to the manner in which an elector may exercise a vote, with a maximum penalty of $2,500. Proposed subsection (4) provides that it is a defence to a charge of an offence against proposed subsection (3) to prove that acts alleged to constitute the offence arose from an honest and reasonable misunderstanding or mistake on the part of the defendant.

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

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