Electoral and Referendum Amendment Regulations 2004 (No. 1) 2004 No. 299
EXPLANATORY STATEMENT
STATUTORY RULES 2004 No. 299
Issued by the authority of the Special Minister of State
Subject - Commonwealth Electoral Act 1918
Electoral and Referendum Amendment Regulations 2004 (No. 1)
Section 395 of the Commonwealth Electoral Act 1918 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to the Act. Section 90B of the Act defines the entities that can be provided information on the electoral roll. Section 91A of the Act specifies the permitted purposes for which electoral roll information maybe used. Section 91B of the Act prohibits the inappropriate use of electoral roll information.
Subsection 91A(2A) of the Act specifies the permitted purposes for use of electoral roll information by persons and organisations other than Senators and Members of the House of Representatives, political parties or prescribed authorities. These include any purpose in connection with an election or referendum, monitoring the accuracy of information contained in a roll, and for a prescribed purpose.
The Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004 (the Access Act) amended the Electoral Act to remove the electoral roll from sale in any format, clarify access provisions to the roll and extend end-use restrictions to all forms of the roll. In addition, prohibition of the commercial use of the roll was extended to all forms of the roll. The Access Act came into effect on 21 July 2004. Before the Access Act amended the Act, organisations were able to purchase the roll and use the information on the electoral roll to satisfy the identity verification requirements under the Financial Transaction Reports Act 1988 (Financial Transaction Reports Act).
The purpose of the Regulations is to amend the Electoral and Referendum Regulations 1940 to prescribe permitted purposes for organisations under the Financial Transaction Reports Act to use the information on the electoral roll for identity verification under the Financial Transaction Reports Act.
The Financial Transaction Reports Act requires cash dealers, including financial institutions, to verify the identity of signatories to accounts and thereby minimise the risk of accounts being used for criminal purposes. The standard verification procedure, known as the '100 point test', provides that signatories to accounts may have their identity verified using a range of identifying documentation such as an Australian passport or a driver's licence, each of which is assigned a value. One of the sources for identity verification is the electoral roll (worth 25 points). Given that the Access Act removed the electoral roll from sale, this has the potential to create difficulties for financial institutions to satisfy their obligations under the Financial Transaction Reports Act.
The Regulations provide that the use of the roll by persons or organisations for identity verification purposes under the Financial Transaction Reports Act is a permitted purpose for the use of roll information under the Act. Access to the roll will be at the discretion of the Electoral Commission under subsection 90B(4) of the Act. Subsection 90B(4) of the Act grants the Electoral Commission the discretion to provide certain persons and organisations with information in relation to the electoral roll.
The Regulations commenced on the date of their notification in the Gazette.
Details of the Regulations are set out as follows:
Regulation 1
This is a formal provision specifying the name of the Regulations.
Regulation 2
Regulation 2 provides that the Regulations commence on the date of their notification in the Gazette.
Regulation 3
Regulation 3 provides that Schedule 1 amends the Electoral and Referendum Regulations 1940.
Schedule 1 - Amendment
Item 1 inserts a new regulation 11 which provides that, for paragraph 91A(2A)(c) of the Commonwealth Electoral Act 1918, identity verification for the Financial Transaction Reports Act 1988 is a permitted purpose for the use of electoral roll information by persons or organisations.
Overview
The Electoral and Referendum Amendment Regulations 2004 (No. 1) were issued under the authority of the Special Minister of State to amend the Electoral and Referendum Regulations 1940, in line with the Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004. This legislation was enacted to address the problem of the commercial sale of electoral roll information and to clarify the purposes for which such information could be used, particularly in the context of identity verification for financial transactions. The Act, which came into effect on 21 July 2004, removed the electoral roll from sale and extended restrictions on its use, including prohibiting its commercial use. However, this created a challenge for financial institutions under the Financial Transaction Reports Act 1988, which required the use of the electoral roll for identity verification to prevent criminal activities. The Regulations aim to resolve this issue by allowing the use of electoral roll information for identity verification under the Financial Transaction Reports Act, subject to the discretion of the Electoral Commission.
Scope and Application
The Electoral and Referendum Amendment Regulations 2004 (No. 1) apply to all entities and individuals who are subject to the Commonwealth Electoral Act 1918, including those who manage and maintain the electoral roll. The Regulations primarily focus on extending the permitted purposes for the use of electoral roll information, specifically to address the requirements of the Financial Transaction Reports Act 1988. This means that financial institutions and other cash dealers, which include banks and other financial service providers, can use the electoral roll for identity verification purposes, a process necessary to comply with anti-money laundering and counter-terrorism financing laws. The Regulations were made under the authority of Section 395 of the Commonwealth Electoral Act, and they modify the Electoral and Referendum Regulations 1940 to incorporate these new permitted purposes. The Regulations commenced on the date they were notified in the Gazette, and their scope is limited to the Commonwealth jurisdiction. There are no specific exclusions or exemptions mentioned in the explanatory statement, but access to the electoral roll for these purposes remains at the discretion of the Electoral Commission, as outlined in subsection 90B(4) of the Act.
Key Provisions
The main operative sections of the Electoral and Referendum Amendment Regulations 2004 (No. 1) (the Regulations) are found in Schedule 1, specifically Item 1, which inserts a new regulation 11. This new regulation (paragraph 91A(2A)(c) of the Commonwealth Electoral Act 1918) allows the use of electoral roll information for identity verification under the Financial Transaction Reports Act 1988. This amendment responds to the Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004 (the Access Act), which had previously removed the electoral roll from sale and prohibited its commercial use, potentially impacting financial institutions’ ability to verify identities under the Financial Transaction Reports Act.
The Regulations impose specific obligations and requirements on entities governed by the Electoral Act. Under these Regulations, the Electoral Commission has the discretion to provide information from the electoral roll to certain persons and organisations, specifically for the purpose of identity verification under the Financial Transaction Reports Act. This discretion is outlined in subsection 90B(4) of the Electoral Act, which grants the Electoral Commission the authority to decide who can access the electoral roll information. The Regulations ensure that financial institutions and other entities can still fulfil their obligations to verify identities of account signatories, thereby helping to prevent the misuse of financial accounts for criminal activities.
There are no explicit offences, penalties, or civil/criminal consequences detailed in the Regulations themselves. However, the underlying legislation, the Electoral Act, does provide for penalties in the event of misuse of electoral roll information. For instance, unauthorised use of electoral roll information can result in substantial fines or imprisonment under the Act. The specific penalties for such offences are detailed in the Electoral Act, and may include fines of up to $10,000 for individuals and up to $100,000 for bodies corporate, alongside potential imprisonment terms. These provisions underscore the importance of adhering to the permitted purposes outlined in the Regulations and the Act, to avoid facing the severe consequences of misuse.