EXPLANATORY STATEMENT
Commonwealth Electoral Act 1918
Proclamation
Subsection 285(1) of the Commonwealth Electoral Act 1918 (the Act) provides that any delay, error, or omission in the printing, preparation, issue, transmission, or return of any roll, writ, ballot papers, certified list of voters or approved list of voters may be remedied, removed, rectified, and supplied by proclamation specifying the matter dealt with, and providing for the course to be followed, and such course shall be valid and sufficient.
The purpose of the Proclamation is to rectify errors or omissions in the certified list of voters that were prepared for the 2010 election using data extracted on 28 July 2010.
The Administrator in Council issued the writs for the general election on 19 July 2010. Under what was considered to be the law at the time, an eligible person who was not on the electoral Roll had until 8 pm that night to submit an enrolment application to the Australian Electoral Commission (AEC) for that person to be eligible to cast a vote in the 2010 election. A person who was enrolled but needed to update his or her details had until 8 pm on 22 July 2010 to submit a transfer of enrolment to the AEC.
Under section 208 of the Act, the Electoral Commissioner must arrange for the preparation of a list of voters for each Division and must certify the list. The Electoral Commissioner must arrange for the delivery of copies of the certified list of voters to each polling place before the start of voting.
In order to have the certified list of voters printed and distributed in time for the commencement of pre-poll voting, an administrative ‘cut-off’ date is imposed where the data from the electronic Roll is extracted to print the lists. This ‘cut-off’ is necessary to give effect to the obligations imposed under section 208 of the Act to have the list printed published and distributed to the more than 7,500 polling places throughout Australia ‘before the start of voting’ which, in the 2010 election timetable commenced on 2 August 2010. Accordingly, the ‘cut-off’ date for extraction of the certified list of voters was 28 July 2010.
Past practice of the AEC is that any late additional enrolments or changes received during the close of Rolls period but not processed by the ‘cut-off’ date are managed by what is known as a notebook Roll. In previous elections, the number of these late updates has been relatively small. The notebook Roll is merely the electronic version of the Roll as it stands at the time of the commencement of the scrutiny for declaration votes. A person whose name cannot be located on the certified list of voters remains able to cast a provisional vote (see section 235 of the Act), which is a type of declaration vote, and this will then be compared with the notebook Roll.
The High Court decision of Rowe and Another v Electoral Commissioner and Another on 6 August 2010 was a different matter. The High Court declared the close of Rolls provisions enacted in 2006 were invalid, leading to some 100,000 individuals who missed the close of Rolls deadlines being now entitled to have their claims considered by the AEC if they had been received prior to 8 pm on 26 July 2010. The AEC estimates that of the 100,000 applications affected by the Rowe decision, 70,000 are new enrolees and 30,000 are updates of addresses or other details.
A further issue has arisen due to the recent passage through the Parliament of the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010 and the commencement of Schedule 2 to that Act on 19 July 2010. These new measures coincided with the issue of writs for the federal election, resulting in the AEC not being able to process all change of address enrolment claims received without a physical signature (as provided for by new section 382 of the Electoral Act) together with the more than 500,000 other enrolment transaction in time for the printing of the certified list of voters. Consequently an estimated 39,000 amendments to the electoral Roll were omitted from the certified list of voters.
Consistent with previous elections, the AEC had implemented plans to ensure that the electors noted in the paragraph immediately above would not be denied the ability to cast a vote, even though this could not be a usual ordinary vote but a provisional vote. However, the high number of new enrolees and the further number of electoral updates would place additional stress upon the polling arrangements implemented by the AEC to ensure that these electors could cast a vote. Accordingly, issuing a Proclamation to rectify the errors or omissions in the certified list of voters that are currently in place at polling places and pre-poll voting centres allows the majority of the affected electors to cast an ordinary vote with no further imposition such as providing evidence of identity if casting a provisional vote.
The Proclamation authorises the Electoral Commissioner to issue a supplementary certified list of voters. This Proclamation assists in enhancing the franchise by enabling this large group of electors to cast ordinary votes and to lessen any queues and voter confusion that would otherwise result in polling places due to increased numbers of provisional votes being cast. The previous practice of relying upon notebook Rolls was not appropriate given the large numbers of electors who have been affected by both the Rowe decision and the recent amendments to the Electoral Act.
Consultation was unnecessary for this legislative instrument as this instrument is of a machinery nature only.
Overview
The Commonwealth Electoral Act 1918, enacted by the Parliament of Australia, aims to regulate and administer the electoral processes within the country. One significant issue addressed by the Act is the potential for errors or omissions in the certified list of voters, which could disenfranchise eligible voters. The 2010 Proclamation under Subsection 285(1) of the Act was introduced to rectify such errors, particularly in light of the 2010 federal election. This Proclamation was necessitated by the High Court decision in Rowe and Another v Electoral Commissioner and Another, which declared the close of Rolls provisions enacted in 2006 invalid, affecting around 100,000 individuals. Additionally, new amendments to the Electoral Act coincided with the election, resulting in an estimated 39,000 enrolment amendments being omitted from the certified list of voters. The Proclamation authorised the Electoral Commissioner to issue a supplementary certified list of voters to ensure that these affected electors could cast ordinary votes, thereby enhancing the franchise and reducing voter confusion and queues at polling places.
Scope and Application
The Commonwealth Electoral Act 1918, as amended and supplemented by the Proclamation issued under subsection 285(1), applies to the process of rectifying errors and omissions in the certified list of voters for the 2010 federal election. This Proclamation specifically addresses the issues that arose due to the High Court's decision in Rowe v Electoral Commissioner, which invalidated the close of Rolls provisions enacted in 2006, and the subsequent changes introduced by the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010. The Proclamation aims to ensure that approximately 100,000 individuals, who missed the deadlines for enrolment and updates but submitted their applications before the specified time, are included in the electoral process. The Proclamation allows the Electoral Commissioner to issue a supplementary certified list of voters, thereby enabling these individuals to cast ordinary votes rather than provisional votes, which would have required additional identification and potentially caused confusion and longer queues at polling places. This measure is intended to streamline the voting process and enhance the electoral franchise by reducing the administrative burden on the Australian Electoral Commission during the election.
Key Provisions
The Commonwealth Electoral Act 1918 (the Act) includes provisions that allow for the rectification of errors or omissions in electoral documentation through a proclamation. Subsection 285(1) (paragraph 1) is particularly relevant as it empowers the government to issue a proclamation to remedy any delays, errors, or omissions in the preparation and distribution of electoral materials such as rolls, writs, and ballot papers. In this case, the proclamation was issued to address issues with the certified list of voters prepared for the 2010 election. The certified list of voters is a crucial document, certified by the Electoral Commissioner, that must be delivered to each polling place before voting begins. The need for a proclamation arose because of the administrative cut-off date for extracting data from the electoral roll, which was 28 July 2010. This date was essential to meet the statutory requirement under section 208 of the Act to have the list prepared and distributed before voting started on 7 August 2010.
The Act imposes certain obligations on the Electoral Commissioner and the Australian Electoral Commission (AEC). Under section 208, the Electoral Commissioner must arrange for the preparation and certification of the list of voters for each electoral division and ensure its timely delivery to polling places. This obligation is stringent, given the logistical challenge of managing over 7,500 polling places across Australia. Furthermore, the Act mandates that the AEC process enrolment applications and updates to the electoral roll within specific deadlines to ensure that all eligible voters are included in the certified list. These deadlines were invalidated by the High Court in the case of Rowe v Electoral Commissioner, leading to a significant number of additional enrolments and updates being processed post-cut-off. Additionally, new legislative amendments introduced further complications, resulting in some enrolment updates not being processed in time for the certified list of voters.
Failure to comply with the requirements of the Act can lead to various legal consequences. While specific offences and penalties are not detailed in this proclamation, general provisions of the Act could apply to any failures in the electoral process. For instance, section 276 of the Act outlines penalties for offences related to the electoral process, which can include fines and imprisonment. The severity of penalties may depend on the nature and impact of the non-compliance. Given the importance of ensuring accurate and complete electoral documentation, any breach could potentially undermine the integrity of the electoral process. The proclamation itself serves as a corrective measure, ensuring that the affected electors can still participate in the election without undue hardship.
In summary, the proclamation under subsection 285(1) of the Commonwealth Electoral Act 1918 rectifies errors and omissions in the certified list of voters for the 2010 election. It addresses issues arising from administrative cut-off dates, the High Court’s decision invalidating certain close of Rolls provisions, and new legislative amendments. The Electoral Commissioner and the AEC have specific obligations to ensure the accurate preparation and distribution of electoral materials. While the proclamation does not specify penalties for non-compliance, the Act provides for penalties under its general provisions for offences related to the electoral process. This legislative instrument ensures that the electoral process remains as fair and inclusive as possible despite the challenges faced.