Electoral and Referendum Regulations (Amendment) 1992 No. 422
EXPLANATORY STATEMENT
Statutory Rules 1992 No. 422
Issued by the authority of the Minister for Administrative Services
Commonwealth Electoral Act 1918
Referendum (Machinery Provisions) Act 1984
Electoral and Referendum Regulations (Amendment)
Section 395 of the Commonwealth Electoral Act 1918 (the Act) and section 144 of' the Referendum (Machinery Provisions) Act 1984 provide that the Governor-General may make regulations for the purposes of these Acts.
The Electoral and Referendum Regulations make provision for Commonwealth electoral and referendum administration.
The Electoral and Referendum Amendment Act 1991 has amended the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984, to provide inter alia for an infringement notice system for failure to vote. The introduction of an infringement notice system has made redundant several provisions dealing with enforcement of the law relating to compulsory voting currently dealt with in the Electoral and Referendum Regulations. In addition, some consequential amendments to the regulations are required to take account of changes to the parent Acts. The amending regulations:
• omit subregulation 5(2), regulations 76-80, subregulation 81(3) and (4), regulation 82 and the Forms in Schedule 1; and
• amend subregulations 81(1) and 81(3) to alter references to paragraphs in the parent Acts that have been amended by the Electoral and Referendum Amendment Act 1991; and
• amend subregulation 81(3) to alter references to Forms in Schedule 1 to references to approved forms.
The only regulations relating to enforcement of compulsory voting that will remain in force after the amending regulations are made will be regulations 81 and 83. Regulation 81 requires a Court of summary jurisdiction to take account of an elector's reply to a non-voters notice (if any), as if it were given in evidence before the Court. Regulation 83 provides that a prosecuting officer may lodge with the Court a statutory declaration and certified extract of the list of names of electors who did not vote in the approved form, in which case it shall not be necessary for the prosecuting officer to attend the hearing. Regulation 83 further provides that where a statutory declaration and certified extract has been lodged, and the prosecuting officer is not present, the Court shall proceed with the hearing and shall consider the statutory declaration and certified extract as if the matter therein were set out in evidence before it.
In addition, the amending regulations alter the form of the House of Representatives ballot paper in two respects. First, the amending regulations omit a reference to the possibility of including a composite name of registered political parties next to a candidate's name. This option is redundant, as the Act does not allow for the printing of more than one party affiliation next to the name of a House of Representatives candidate.
Second, the amending regulations provide that the reminder notice which appears at the foot of the House of Representatives ballot paper is not to be printed in the case of "open" ballot papers. This is intended to solve an existing problem that may lead to voters unintentionally casting votes that are not fully effective. The "open" ballot paper provided for by subsection 209(7) of the Act allows an issuing officer to write candidate details on a blank ballot paper, which in practice is pre-printed with ten boxes. "Open" ballot papers are used when fully printed ballot papers are not available. As "open" ballot papers are pre-printed with 10 boxes, in cases where there are less than ten candidates standing for election, the instruction "Remember ... number every box to make your vote count" has caused confusion, since in such cases only as many boxes as there are candidates should be numbered.
The amending regulations also replace the reference in Schedule 2 to the Corporate Affairs Commission with a reference to the Australian Securities Commission. Agencies listed in Schedule 2 are entitled to receive non-public personal electoral roll information in accordance with subsections 91(10) and (11) of the Act. The Corporate Affairs Commission no longer exists. Some functions that were undertaken by the Corporate Affairs Commission that required access to confidential personal enrolment information are now being undertaken by the Australian Securities Commission. The Australian Securities Commission has notified the Australian Electoral Commission that information supplied will be used in accordance with the Information Privacy Principles of the Privacy Act 1988.
The regulations commence on gazettal.
Overview
The Electoral and Referendum Regulations (Amendment) 1992 No. 422, issued under the authority of the Minister for Administrative Services, amends the Electoral and Referendum Regulations to bring them into alignment with the changes introduced by the Electoral and Referendum Amendment Act 1991. This Act was enacted to modernise and streamline the electoral process, including the introduction of an infringement notice system for failure to vote, which replaced the previous enforcement mechanisms for compulsory voting. The policy objective of these amendments is to ensure the regulations accurately reflect the current legislative framework and address any issues that arose from the introduction of the new infringement notice system. The amendments also address specific issues with the ballot paper instructions and update references to reflect changes in relevant agencies.
Scope and Application
The Electoral and Referendum Regulations (Amendment) 1992 No. 422 amends the Electoral and Referendum Regulations under the authority of the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984. These amendments respond to changes introduced by the Electoral and Referendum Amendment Act 1991, including the introduction of an infringement notice system for non-voting, which has rendered certain enforcement provisions redundant. The amendment streamlines the regulations by omitting specific sections and forms related to the enforcement of compulsory voting, while updating references to reflect changes in the parent Acts. Regulation 81 continues to require courts to consider an elector's response to a non-voters notice, and Regulation 83 allows for the use of statutory declarations and certified extracts in court proceedings. Additionally, the amendments modify the ballot paper to prevent confusion with "open" ballot papers and update the agency references in Schedule 2 from the Corporate Affairs Commission to the Australian Securities Commission. These changes ensure the regulations align with the current legislative framework and administrative practices.
Key Provisions
The main provisions of the Electoral and Referendum Regulations (Amendment) 1992 (No. 422) involve the removal of several sections and subregulations that have become redundant due to the introduction of an infringement notice system for non-voting, as well as the amendment of other sections to reflect changes made by the Electoral and Referendum Amendment Act 1991. Specifically, subregulation 5(2), regulations 76-80, subregulation 81(3) and (4), regulation 82 and the Forms in Schedule 1 are omitted (section 3). Subregulations 81(1) and 81(3) are amended to correct references to amended sections in the parent Acts (section 3). Subregulation 81(3) is also amended to change references to Forms in Schedule 1 to references to approved forms (section 3). Furthermore, the amendment to regulation 83 allows a prosecuting officer to submit a statutory declaration and a certified extract of the list of non-voters, eliminating the need for their presence at the hearing (section 3). In addition, the amendment to regulation 81 requires the Court to consider an elector's reply to a non-voters notice as if it were given in evidence before the Court (section 3). The form of the House of Representatives ballot paper is also amended in two ways: the reference to including a composite name of registered political parties next to a candidate's name is removed, and the reminder notice at the foot of the ballot paper will not be printed on "open" ballot papers (section 3). Finally, the reference to the Corporate Affairs Commission in Schedule 2 is replaced with a reference to the Australian Securities Commission (section 3).
The obligations and requirements imposed by these regulations include the need for Courts of summary jurisdiction to consider an elector's reply to a non-voters notice as if it were evidence (regulation 81), and the allowance for a prosecuting officer to submit a statutory declaration and certified extract of the list of non-voters in place of their attendance at the hearing (regulation 83). Furthermore, the amendment to regulation 81(3) requires alterations to references in the parent Acts and Schedule 1 to be updated in the regulations. The regulations also mandate the removal of certain sections and subregulations that are no longer applicable due to the introduction of the infringement notice system. Finally, the change in Schedule 2 from the Corporate Affairs Commission to the Australian Securities Commission reflects the transfer of certain functions related to confidential personal enrolment information.
The Electoral and Referendum Regulations (Amendment) 1992 (No. 422) does not explicitly state any offences, penalties, or civil/criminal consequences for breach. However, it is likely that failure to comply with the requirements outlined in the amended regulations could result in legal consequences under the parent Acts, the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984. These consequences may include fines, imprisonment, or other penalties as prescribed by the respective Acts. The maximum penalties for offences under these Acts are not specified within the amending regulations themselves but would need to be referred to in the parent Acts for accurate information.