EXPLANATORY STATEMENT
AUSTRALIAN CAPITAL TERRITORY (ELECTORAL) ACT 1988
AUSTRALIAN CAPITAL TERRITORY (ELECTORAL) REGULATIONS
(AMENDMENT)
1989 No. 186
Section 28(1) of the Australian Capital Territory (Electoral) Act 1988 (the Act) provides that the Governor-General may make Regulations, not inconsistent with the Act prescribing all matters:
(i) required or permitted by the Act to be prescribed; or
(ii) necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 28(2) of the Act provides that the power to make Regulations extends to making Regulations under which a person who fails to vote at an ACT election may, instead of being prosecuted for the offence, dispose of the matter by paying a penalty of $20.
Subsection 28(3) of the Act provides that where Regulations are made pursuant to subsection 28(2), the Regulations may apply to offences committed at a general election held before the commencement of the Regulations.
The Australian Capital Territory (Electoral) Regulations (Amendment) provide that an elector who has failed to vote at an ACT election may dispose of the matter by paying a sum of $20. This process permits an person who has failed to vote the opportunity of avoiding prosecution by electing to pay the sum of $20.
The details of the Regulations are as follows:
Regulation 1 provides that the “Principal Regulations” in the Regulations are the Australian Capital Territory (Electoral) Regulations.
Regulation 2(1) provides for the insertion of a new Regulation 21A into the Principal Regulations.
Subregulation 21A(1) provides that the Divisional Returning Officer shall send a notice in accordance with Form 3 to each elector who has failed to vote at an ACT election and who has not given a sufficient reason for the failure. The form invites the non-voter to pay the sum of $20 to the Electoral Commissioner within 28 days of the date of the notice as an alternative to having the matter proceed by way of prosecution before the Magistrates Court.
Subregulation 21A(2) provides that where a person pays the sum of $20 in accordance with Form 3, the liability for the offence is deemed to have been discharged and no further proceedings will be taken in relation to the offence. In paying the sum of $20, the elector will be taken to have not been convicted of the offence.
Regulation 3 provides for the insertion of Form 3 at the end of the Principal Regulations.
Regulation 4 provides that this process shall be applied in relation to elections for the ACT Legislative Assembly before and after the commencement of these Regulations.
ISSUED BY THE AUTHORITY OF
THE MINISTER FOR THE ARTS,
TOURISM AND TERRITORIES
Overview
The Australian Capital Territory (Electoral) Regulations (Amendment) 1989 No. 186 amends the Australian Capital Territory (Electoral) Regulations under the Australian Capital Territory (Electoral) Act 1988. This amendment was introduced to address the problem of non-voting at ACT elections by providing an alternative to prosecution for those who fail to vote. The amendment allows electors who have not voted to avoid prosecution by paying a penalty of $20 instead, thereby encouraging participation in the electoral process without the severe consequence of prosecution. The policy objective, as outlined in the explanatory statement, is to provide a streamlined process for addressing non-voting that is both convenient and effective, thereby promoting electoral participation.
The Australian Capital Territory (Electoral) Regulations (Amendment) was enacted by the Parliament of the Australian Capital Territory under the authority of the Minister for the Arts, Tourism and Territories. The regulations were designed to provide a practical and less punitive measure for non-voters, aligning with the broader objective of enhancing civic engagement and electoral participation in the ACT. By introducing a financial penalty as an alternative to prosecution, the amendment aims to encourage compliance with electoral laws in a manner that is seen as fair and accessible.
Scope and Application
The Australian Capital Territory (Electoral) Regulations (Amendment) 1989 No. 186 amends the Australian Capital Territory (Electoral) Regulations to introduce an alternative penalty for electors who fail to vote at an ACT election. This amendment applies to individuals who have not voted at an ACT election and have not provided a sufficient reason for their non-participation. The regulation allows these individuals to avoid prosecution by paying a penalty of $20 to the Electoral Commissioner within 28 days of receiving a notice from the Divisional Returning Officer. This notice must be sent in accordance with Form 3, which is inserted into the Principal Regulations by the amendment. Once the penalty is paid, the liability for the offence is discharged, and no further proceedings will be taken, with the individual not being considered convicted of the offence. This amendment applies to all elections for the ACT Legislative Assembly held before and after the commencement of the Regulations, thereby providing a streamlined process for handling non-voting offences in the Australian Capital Territory.
Key Provisions
The Australian Capital Territory (Electoral) Regulations (Amendment) 1989 No. 186 introduces significant changes to the electoral processes by allowing electors who have failed to vote in an ACT election to avoid prosecution by paying a penalty. Under Regulation 2, a new Regulation 21A is inserted into the Australian Capital Territory (Electoral) Regulations. This new regulation, specifically Regulation 21A(1), mandates that the Divisional Returning Officer must send a notice, in accordance with Form 3, to each elector who has not voted and has not provided a sufficient reason for their non-attendance at the election. This notice invites the non-voter to pay the sum of $20 to the Electoral Commissioner within 28 days as an alternative to prosecution. Regulation 21A(2) then clarifies that if an elector pays this $20 fee, their liability for the offence is considered discharged, and no further legal proceedings will be taken against them. Importantly, this payment results in the individual not being convicted of the offence.
The Act imposes specific obligations on the parties involved. The Divisional Returning Officer is tasked with sending notices to non-voting electors in accordance with the prescribed Form 3. This ensures that all eligible non-voters are given the opportunity to rectify their situation by paying the penalty. The Electoral Commissioner, on the other hand, is responsible for receiving the $20 payment from those who opt to settle their liability this way. By adhering to these processes, both officers play a crucial role in implementing the legislative changes efficiently and fairly.
Failure to comply with the provisions of these Regulations can result in serious consequences. While the primary focus of the Act is to provide an alternative to prosecution for non-voters, there are still legal ramifications for those who do not follow the stipulated procedures. The Act does not explicitly outline the penalties for non-compliance, but it is implied that failure to adhere to the regulations could result in legal proceedings against the non-voter, thereby negating the benefits of the penalty payment option. Furthermore, if the Divisional Returning Officer fails to send the required notices or if the Electoral Commissioner does not process the payments correctly, this could lead to administrative penalties or legal challenges regarding the validity of the electoral process.