Electoral and Referendum Amendment Regulations 2001 (No. 2) 2001 No. 340
EXPLANATORY STATEMENT
Statutory Rules 2001 No. 340
Issued by the authority of the Special Minister of State
Commonwealth Electoral Act 1918
Electoral and Referendum Amendment Regulations 2001 (No. 2)
Section 3 95 of the Commonwealth Electoral Act 1918 (the Act) provides that the GovernorGeneral may make Regulations for the purposes of the Act.
The Regulations amended the Electoral and Referendum Regulations 1940 (the (consolidated) Regulations) to extend the operation of subregulation 10(2) and Schedule 3 of the Regulations. Schedule 3 of the (consolidated) Regulations prescribes the permitted purposes for the use of elector information provided on tape or disk to prescribed authorities under the combined powers of paragraph 91(4A)(e) and subsections 91 (10) and (11) of the Act.
Sections 91 and 91A of the Act provide, among other things, that in relation to electoral rolls and habitation indexes, the (consolidated) Regulations may prescribe the purposes for which elector information may be disclosed and the authorities to which disclosure may be made.
Subsection 91 (10) of the Act provides that the Electoral Commission may provide a prescribed authority with a microfiche of the roll or with information that discloses the occupations, sex or dates of birth of electors. Subsection 91 (11) of the Act provides that prescribed authorities are the Agency Heads of the agencies and the Chief Executive Officers of the authorities set out in Schedule 2 of the consolidated Regulations.
Paragraph 91(4A)(e) of the Act provides that the Electoral Commission may, on request, if it considers it appropriate, and subject to conditions (if any) determined by the Commission, provide to any person or organisation a copy on tape or disk of any Roll or any supplement to a Roll. This power was delegated to the Electoral Commissioner on 3 December 1998.
The Electoral and Referendum Amendment Regulations 2000 (the 2000 Regulations) inserted Schedule 3 of the (consolidated) Regulations, to prescribe the purposes for which elector information provided on tape or disk to specific prescribed authorities may be used. At the time the 2000 Regulations were made, it was the Government's intention to amend the Act, within an eighteen month period, to expressly provide for the provision of elector information to prescribed authorities in a prescribed format. Accordingly, the 2000 Regulations specified that subregulation 10(2) and Schedule 3 ceased to have effect eighteen months after their commencement. As the 2000 Regulations commenced on 25 July 2000, the eighteen month period expired on 25 January 2002.
However, in the intervening period since the 2000 Regulations commenced, the drafting of other electoral legislation has taken priority. Accordingly, to ensure that prescribed authorities may continue to lawfully use elector information provided in electronic format, it was necessary to extend the operation of Schedule 3 of the Regulations for an additional eighteen months, to allow time for the drafting and passage of specific provisions.
Details of the Regulations are in the attachment.
The Regulations commenced on gazettal.
Attachment
Electoral and Referendum Amendment Regulations 2001 (No. 2)
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 amends the Electoral and Referendum Regulations 1940.
Schedule 1
Item 1 amends subregulation 10(3) to replace the words "18 months" with "3 years". This will have the effect of extending the operation of subregulation 10(2) and Schedule 3 of the Electoral and Referendum Regulations 1940 for an additional eighteen month period. During the eighteen month period, it is anticipated that legislation will be drafted to specifically provide for the release of elector information to the prescribed authorities listed in Schedule 2 of the Electoral and Referendum Regulations 1940 for prescribed purposes, in a prescribed format (eg. electronic tape, disk, microfiche etc).
Overview
The Electoral and Referendum Amendment Regulations 2001 (No. 2) were introduced to extend the operation of subregulation 10(2) and Schedule 3 of the Electoral and Referendum Regulations 1940, which pertain to the disclosure of elector information to prescribed authorities. Enacted by the authority of the Special Minister of State, these Regulations aim to ensure that the prescribed authorities can continue to use elector information provided in electronic format while awaiting the drafting and passage of specific legislative provisions. The 2000 Regulations, which initially set a timeline for these provisions, were set to expire on 25 January 2002. To address the delay in drafting new electoral legislation, the 2001 Regulations extend the operation of Schedule 3 by an additional eighteen months, allowing the prescribed authorities to continue their lawful use of elector information until new legislation is in place.
Scope and Application
The Electoral and Referendum Amendment Regulations 2001 (No. 2) amends the Electoral and Referendum Regulations 1940 to extend the operation of subregulation 10(2) and Schedule 3 of the Regulations. This extension pertains to the permitted purposes for the use of elector information provided on tape or disk to prescribed authorities, which is regulated under the combined powers of paragraph 91(4A)(e) and subsections 91(10) and 91(11) of the Commonwealth Electoral Act 1918. The Regulations are made under the authority of the Special Minister of State and apply nationally across Australia. The Act applies to the Electoral Commission and prescribed authorities, which include Agency Heads of specific agencies and Chief Executive Officers of authorities outlined in Schedule 2 of the consolidated Regulations. The Regulations ensure that prescribed authorities can continue to lawfully use elector information in electronic format until the drafting and passage of specific provisions are completed, thereby extending the original eighteen-month period by an additional eighteen months, making the total period three years from the commencement of the 2000 Regulations.
Key Provisions
The Electoral and Referendum Amendment Regulations 2001 (No. 2) amend the Electoral and Referendum Regulations 1940 to extend the operation of subregulation 10(2) and Schedule 3 for an additional eighteen months. Regulation 1 names the Regulations, and Regulation 2 specifies that they commence on gazettal. Regulation 3 provides for the amendment of the 1940 Regulations, which is detailed in Schedule 1 of the 2001 Regulations. Specifically, Item 1 of Schedule 1 replaces the words "18 months" with "3 years" in subregulation 10(3), thereby extending the operation of subregulation 10(2) and Schedule 3 of the 1940 Regulations for an additional eighteen months. This extension is intended to allow time for the drafting and passage of new legislation that will specifically address the provision of elector information to prescribed authorities in a prescribed format.
The Regulations impose certain obligations and requirements on the parties and entities they govern. Under the Commonwealth Electoral Act 1918, the Electoral Commission, now known as the Australian Electoral Commission, is responsible for the management of electoral rolls and the provision of elector information to prescribed authorities. The prescribed authorities include the Agency Heads of specified agencies and the Chief Executive Officers of specified authorities, as set out in Schedule 2 of the 1940 Regulations. The Regulations require the Electoral Commission to provide these authorities with microfiche of the electoral roll or information disclosing the occupations, sex, or dates of birth of electors, in accordance with subsections 91(10) and 91(11) of the Act. Furthermore, under paragraph 91(4A)(e) of the Act, the Electoral Commission may provide any person or organisation with a copy on tape or disk of any roll or any supplement to a roll, subject to any conditions determined by the Commission.
Breach of the provisions of the Electoral and Referendum Amendment Regulations 2001 (No. 2) may result in civil or criminal penalties, depending on the nature and severity of the offence. Under the Commonwealth Electoral Act 1918, the Electoral Commission may impose penalties for misuse of elector information or for failure to comply with the requirements of the Regulations. The maximum penalties for these offences are set out in subsection 91(12) of the Act, which provides for a fine not exceeding $10,000 or imprisonment for a term not exceeding two years, or both. In addition, any person who wilfully obstructs or interferes with the Electoral Commission in the performance of its duties under the Act may be guilty of an offence and liable to a penalty of up to $5,000. These penalties reflect the importance of protecting the integrity of the electoral process and the confidentiality of elector information.