EXPLANATORY STATEMENT
Select Legislative Instrument No. 218
Commonwealth Electoral Act 1918
Referendum (Machinery Provisions) Act 1984
Electoral and Referendum Amendment Regulations 2011 (No. 2)
Section 395 of the Commonwealth Electoral Act 1918 (the Electoral Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Electoral Act, prescribing all matters which are required or permitted to be prescribed, or necessary or convenient to be prescribed for giving effect to the Electoral Act.
Section 144 of the Referendum (Machinery Provisions) Act 1984 (the Referendum Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Referendum Act, prescribing matters required or permitted by the Referendum Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.
The provision and use of electoral Roll information is governed by the Electoral Act. Item 16 of the table in subsection 90B(1) of the Electoral Act permits the Australian Electoral Commission (AEC) to give electoral Roll information to an electoral authority of a State or Territory.
Subsection 91A(2B) specifies the permitted uses that can be made of the electoral Roll information by the relevant electoral authority in receipt of electoral Roll information. The permitted uses are:
(a) Any purpose in connection with an election or referendum;
(b) Monitoring the accuracy of information contained in a Roll; and
(c) Any other purposed that is prescribed by regulations.
The Northern Territory will be holding a constitutional convention in 2012 and 2013. Delegates to the constitutional convention will assist in the drafting of a constitution to be put to the people of the Northern Territory to determine if the people support the Northern Territory becoming a state.
The Electoral and Referendum Amendment Regulations 2011 (No. 2) (the Amending Regulations) prescribe that the Northern Territory Electoral Commission can use electoral roll information for the purpose of the conduct of an election of delegates to the constitutional convention of 2012 and 2013.
Details of the Amending Regulations are set out in the Attachment.
The Amending Regulations commence on the day after registration on the Federal Register of Legislative Instruments.
The Northern Territory Electoral Commission and the Parliament of the Northern Territory was consulted in the preparation of the Amending Regulations.
Attachment
Details of the Electoral and Referendum Amendment Regulations 2011 (No. 2)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Amending Regulations is the Electoral and Referendum Amendment Regulations 2011 (No. 2).
Regulation 2 – Commencement
This regulation provides that the Amending Regulations commence on the day after registration.
Regulation 3 – Amendment of Electoral and Referendum Regulations 1940
This regulation provides that the Electoral and Referendum Regulations 1940 (Principal Regulations) are amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1] – Regulation 9
Item 1 renumbers current regulation 9 of the Principal Regulations as new subregulation 9(1).
Item [2] – Regulations 9
Item 2 inserts a new subregulation 9(2).
Subregulation 9(2) prescribes that a permitted use of electoral roll information is conduct of the election of delegates to the Northern Territory Constitutional Convention of 2012 and 2013.
Overview
The Electoral and Referendum Amendment Regulations 2011 (No. 2) were introduced to address a specific need arising from the constitutional convention scheduled for 2012 and 2013 in the Northern Territory. This legislative instrument was enacted to provide a legal framework allowing the Northern Territory Electoral Commission to use electoral roll information for the purpose of conducting elections for delegates to the convention. This convention was intended to draft a constitution for the Northern Territory to be subsequently put to a vote to determine whether the Northern Territory should become a state. The regulations were authorised under Section 395 of the Commonwealth Electoral Act 1918 and Section 144 of the Referendum (Machinery Provisions) Act 1984, ensuring that the use of electoral roll information for this purpose was not inconsistent with the primary Acts. The policy objective was to facilitate the smooth conduct of the constitutional convention by enabling the relevant electoral authority to access necessary electoral information. The regulations were developed in consultation with the Northern Territory Electoral Commission and the Parliament of the Northern Territory to ensure alignment with their needs and the broader legislative framework.
Scope and Application
The Electoral and Referendum Amendment Regulations 2011 (No. 2) amends the Electoral and Referendum Regulations 1940 to extend the permitted uses of electoral roll information for the purposes of the Northern Territory Constitutional Convention elections in 2012 and 2013. This legislation applies to the Northern Territory Electoral Commission and the electoral roll information they manage. These regulations enable the use of electoral roll information to facilitate the election of delegates to the constitutional convention, thereby assisting in the drafting of a potential new constitution for the Northern Territory. The amendments are confined to the Northern Territory and do not impact other states or territories. The regulations are subject to the overarching provisions of the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984, ensuring they are not inconsistent with these primary Acts. The Northern Territory Electoral Commission and the Parliament of the Northern Territory were consulted during the preparation of these regulations, reflecting a collaborative approach to electoral governance in the region.
Key Provisions
The Electoral and Referendum Amendment Regulations 2011 (No. 2) amends the Electoral and Referendum Regulations 1940, which are subordinate legislation made under the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984, respectively. The main provision introduced by the Amending Regulations is the addition of a new permitted use of electoral roll information (regulation 9(2)) as set out in Schedule 1. This new permitted use is specifically for the conduct of the election of delegates to the Northern Territory Constitutional Convention of 2012 and 2013.
The Amending Regulations impose an obligation on the Northern Territory Electoral Commission to ensure that electoral roll information is used solely for the specified purpose of conducting the election of delegates to the Northern Territory Constitutional Convention of 2012 and 2013. This is in addition to the existing permitted uses of electoral roll information as outlined in the Electoral Act, which include any purpose in connection with an election or referendum, monitoring the accuracy of information contained in the electoral roll, and any other purpose prescribed by regulations. The Northern Territory Electoral Commission must comply with these requirements to ensure the proper conduct of the election.
Any breach of the provisions of the Electoral Act or the Referendum Act, including the misuse of electoral roll information, may result in civil or criminal consequences. For example, under section 239 of the Electoral Act, a person who contravenes any provision of the Act may be liable to a penalty not exceeding $5,000. In the case of a body corporate, the penalty may be up to 50 times the penalty for an individual. Additionally, under section 14 of the Referendum Act, a person who is convicted of an offence against the Act is liable to a fine not exceeding $5,000. If the misuse of electoral roll information results in a criminal offence, such as fraud or identity theft, the penalties may be more severe and include imprisonment. It is essential for the Northern Territory Electoral Commission to ensure that electoral roll information is used appropriately and in compliance with the law to avoid any potential legal consequences.