Electoral Legislation Amendment (COVID Enfranchisement) Act 2022

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Electoral Legislation Amendment (COVID Enfranchisement) Act 2022

 

No. 5, 2022

 

 

 

 

 

An Act to amend the law relating to elections in respect of the enfranchisement of persons in self‑isolation or quarantine due to COVID‑19, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments

Commonwealth Electoral Act 1918

 

 

 

Electoral Legislation Amendment (COVID Enfranchisement) Act 2022

No. 5, 2022

 

 

 

An Act to amend the law relating to elections in respect of the enfranchisement of persons in self‑isolation or quarantine due to COVID‑19, and for related purposes

[Assented to 17 February 2022]

The Parliament of Australia enacts:

1  Short title

  This Act is the Electoral Legislation Amendment (COVID Enfranchisement) Act 2022.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

18 February 2022

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

 

Commonwealth Electoral Act 1918

1  Section 202AA

Insert:

electronically assisted voting method includes a method prescribed for the purposes of subsection 202AB(1B).

2  After subsection 202AB(1A)

Insert:

 (1B) The regulations may provide for a telephone voting method, to be used by coronavirus affected individuals covered by a determination under subsection 202AFA(1), to vote at general elections, Senate elections and by‑elections.

3  After subsection 202AB(2)

Insert:

 (2A) Without limiting subsection (1B), subsection (2) applies to regulations made for the purposes of subsection (1B) in the same way as it applies to regulations made for the purposes of subsection (1) or (1A).

4  At the end of section 202AB

Add:

 (7) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, regulations made for the purposes of this Part may also make different provision in relation to coronavirus affected individuals, sight‑impaired persons and Antarctic electors.

 (8) Section 202AE does not apply to a vote cast using a method prescribed for the purposes of subsection 202AB(1B). The regulations may make provision for, or in relation to, how this Act applies in relation to such votes.

5  At the end of Part XVB

Add:

202AFA  Electoral Commissioner may determine that coronavirus affected individuals may use a secure telephone voting method

 (1) If the Electoral Commissioner is satisfied on reasonable grounds that it is necessary or conducive to ensure the due conduct of a general election, Senate election or by‑election, the Electoral Commissioner may, by legislative instrument, determine that a secure telephone voting method prescribed for the purposes of subsection 202AB(1B) may be used by individuals in Australia:

 (a) who have not previously voted in the election; and

 (b) who are coronavirus affected individuals during all or part of the period:

 (i) starting at 6.01 pm on the Wednesday that is 3 days before the polling day in the election; and

 (ii) ending on the close of the poll for the election.

Note: Nothing in this section or in regulations made for the purposes of subsection 202AB(1B) authorises any person to vote more than once at an election, see subsection 202AB(5).

 (2) An individual residing in a State or Territory is a coronavirus affected individual during a period if a public health order of that State or Territory prevents the individual from attending a polling place in that State or Territory during that period because:

 (a) the individual has tested positive for the coronavirus known as COVID‑19 on a test approved by the Therapeutic Goods Administration for that purpose; or

 (b) the individual is a close contact, household contact or household‑like contact of an individual referred to in paragraph (a); or

 (c) the individual is otherwise directed to self‑isolate or quarantine under the public health order due to the risk of transmission of the coronavirus known as COVID‑19.

Electoral Commissioner must notify the Prime Minister and Leader of the Opposition

 (3) Before making an instrument under subsection (1), the Electoral Commissioner must notify the Prime Minister and the Leader of the Opposition in the House of Representatives, in writing:

 (a) that the Electoral Commissioner is considering making the instrument; and

 (b) why the Electoral Commissioner considers it necessary to make the instrument; and

 (c) what measures are proposed to ensure the integrity of the use of the proposed secure telephone voting method (which may be new measures or measures based on existing measures in the regulations).

Instrument must be published on the Electoral Commission’s website

 (4) If the Electoral Commissioner makes a legislative instrument under subsection (1), the Electoral Commissioner:

 (a) must publish the legislative instrument on the Electoral Commission’s website; and

 (b) may publish the legislative instrument in any other way the Electoral Commissioner considers appropriate.

Electoral Commissioner’s powers may not be delegated

 (5) Despite section 28, the Electoral Commissioner may not delegate a power or function under this section.

Secure telephone voting for coronavirus affected individuals only available until 31 December 2022

 (6) The following are repealed at the end of 31 December 2022:

 (a) this section;

 (b) the definition of electronically assisted voting method in section 202AA;

 (c) subsections 202AB(1B), (2A), (7) and (8).

 

[Minister’s second reading speech made in—

Senate on 9 February 2022

House of Representatives on 15 February 2022]

(17/22)

 

Overview

The Electoral Legislation Amendment (COVID Enfranchisement) Act 2022 was enacted by the Parliament of Australia to address the unique challenges faced by individuals who were required to self-isolate or quarantine due to COVID-19 during an election period. This legislation aimed to ensure that such individuals could still participate in the democratic process by allowing them to vote using a secure telephone method. The Act was introduced to maintain the integrity and accessibility of elections during the pandemic, ensuring that no eligible voter was disenfranchised due to public health measures. The Act amended the Commonwealth Electoral Act 1918 to include provisions for a telephone voting method specifically for coronavirus-affected individuals, as determined by the Electoral Commissioner. This was intended to facilitate voting for those unable to attend a polling place due to isolation or quarantine requirements. The policy objective of the Act was to support the due conduct of elections while accommodating the exigencies of the COVID-19 pandemic. The amendments were set to expire at the end of 2022, reflecting the temporary nature of the legislative response to the pandemic.

Scope and Application

The Electoral Legislation Amendment (COVID Enfranchisement) Act 2022 amends the Commonwealth Electoral Act 1918 to facilitate voting for individuals in self-isolation or quarantine due to COVID-19 during elections. This Act applies to the Commonwealth Electoral Act 1918, allowing for the introduction of a secure telephone voting method for coronavirus-affected individuals, defined as those who test positive for COVID-19, are close contacts, or are otherwise directed to self-isolate or quarantine by a public health order. The Electoral Commissioner has the authority to determine the use of this method, subject to specific conditions, and must notify the Prime Minister and the Leader of the Opposition before doing so. The secure telephone voting method is only available until the end of 31 December 2022. The Act's amendments and repeals will take effect on the day after receiving Royal Assent, which is 18 February 2022. The scope of the Act extends to all Commonwealth elections, including general elections, Senate elections, and by-elections. The provisions of the Act may be further detailed or extended through subordinate legislation, such as regulations, which can provide additional specifications and measures to ensure the integrity of the voting process for affected individuals.

Key Provisions

The main provisions of the Electoral Legislation Amendment (COVID Enfranchisement) Act 2022 (Cth) (Act) introduce special voting arrangements for individuals who are in self-isolation or quarantine due to COVID-19. This is primarily achieved by amending the Commonwealth Electoral Act 1918 (Cth) (Electoral Act) to include a telephone voting method for eligible individuals (sections 202AA and 202AB(1B)). The Act allows the Electoral Commissioner to determine that a secure telephone voting method may be used by coronavirus affected individuals who are unable to attend a polling place (section 202AFA). These provisions were introduced to ensure the due conduct of elections during the COVID-19 pandemic. The Act imposes several obligations and requirements on the Electoral Commissioner. Firstly, the Electoral Commissioner must notify the Prime Minister and the Leader of the Opposition before determining the use of a secure telephone voting method (section 202AFA(3)). Secondly, if the Electoral Commissioner makes such a determination, they must publish the legislative instrument on the Electoral Commission’s website (section 202AFA(4)). Importantly, the Electoral Commissioner is not permitted to delegate any power or function under this section (section 202AFA(5)). These provisions ensure that the Electoral Commissioner follows due process and maintains transparency in the determination and implementation of special voting arrangements. Breaches of the provisions in the Act could result in various consequences. Although the Act does not explicitly state penalties for non-compliance, failure to adhere to the requirements could lead to legal challenges regarding the validity of the election process. For instance, if the Electoral Commissioner does not follow the notification requirements or fails to publish the legislative instrument, this could be grounds for a legal challenge to the election results. Additionally, any misuse of the secure telephone voting method, such as voting more than once, is already prohibited under the Electoral Act (subsection 202AB(5)). The Electoral Act provides for penalties for such offences, which could include fines and imprisonment. The Act also includes a sunset clause, stipulating that the provisions related to the secure telephone voting method will be repealed at the end of 31 December 2022 (section 202AFA(6)). This means that after this date, the special voting arrangements for coronavirus affected individuals will no longer be in effect unless further legislation is enacted. This time-limited nature of the Act ensures that the special measures are only in place for as long as necessary, preventing any potential long-term disruption to the electoral process.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.