Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004 No. 78, 2004 An Act to amend the law relating to elections and referendums, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendments Part 1—Main amendments Commonwealth Electoral Act 1918 Referendum (Machinery Provisions) Act 1984 Part 2—Technical amendments Commonwealth Electoral Act 1918 Referendum (Machinery Provisions) Act 1984 Part 3—Application, saving and transitional provisions Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004 No. 78, 2004 An Act to amend the law relating to elections and referendums, and for related purposes [Assented to 23 June 2004] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004. 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 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 23 June 2004 2. Schedule 1 The 28th day after the day on which this Act receives the Royal Assent. 21 July 2004 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 Part 1—Main amendments Commonwealth Electoral Act 1918 1 Subsection 4(1) Insert: pre‑poll voting office for an election means a place declared by the Electoral Commission under subsection 200D(2) to be a pre‑poll voting office for the election. 2 Subsection 4(1) Insert: prescribed authority means: (a) the Agency Head of an Agency (within the meaning of the Public Service Act 1999) that is specified in regulations made for the purposes of this definition; or (b) the chief executive officer of an authority of the Commonwealth that is specified in regulations made for the purposes of this definition. 3 Sections 90 to 91AB Repeal the sections, substitute: 90 Commission to determine manner and form of access to Rolls etc. (1) The Electoral Commission may determine the manner and form in which information is to be provided under this Part. (2) Without limiting subsection (1), the Electoral Commission may determine that the information is to be provided electronically or in electronic form. (3) If the Electoral Commission: (a) makes a copy of a Roll available for public inspection in a particular form; or (b) gives a copy of a Roll to a person or organisation in a particular form; the copy is to be a copy of the most up‑to‑date version of the Roll that is available in that form. (4) A reference in this section to information being provided includes a reference to: (a) a copy of a Roll being made available for public inspection; and (b) a copy of a Roll or certified list of voters being given to a person or organisation. 90A Inspection etc. of Rolls Access at office of Divisional Returning Officer etc. (1) A copy of the Roll for a Division is to be available, at any time during ordinary office hours, for public inspection without fee at: (a) the office of each Divisional Returning Officer; and (b) the office of each Assistant Divisional Returning Officer; and (c) such other places (if any) as the Electoral Commission determines. Access at capital city office of the Electoral Commission (2) A copy of the following are to be available, at any time during ordinary business hours, for public inspection without fee at each capital city office of the Electoral Commission: (a) the Roll for each State and Territory; (b) any other Roll specified in a direction given by the Electoral Commissioner for the purpose of this paragraph. (3) The capital city offices of the Electoral Commission are: (a) the principal office of the Commission in Canberra; and (b) such other places (if any) in Canberra as the Electoral Commission determines; and (c) the principal office of the Commission in the capital city of each State; and (d) the principal office of the Commission in Darwin. Other access (4) The Electoral Commission may make a copy of a Roll available for public inspection without fee in any other way that the Electoral Commission considers appropriate. 90B Information on Rolls and certified lists of voters to be provided to particular people and organisations (1) The following table sets out the persons and organisations to whom the Electoral Commission must give information in relation to the Rolls and certified lists of voters and specifies the information to be given and the circumstances in which it is to be given: Provision of information on Rolls and certified lists of voters Item Person or organisation Information to be given Circumstances in which information is to be given 1 a candidate in a House of Representatives election a copy of the certified list of voters for the Division for which the candidate is seeking election (a) as soon as practicable after the close of the Rolls; and (b) without charge. 2 a registered political party (a) a copy of the latest print of the Roll for each State and Territory; and (a) as soon as practicable after a general election; and (b) a copy of the Roll for each State and Territory (b) without charge; and (c) subject to subsection (3). 3 a registered political party a copy of the habitation index for each Division (a) as soon as practicable after a general election; and (b) without charge; and (c) subject to subsection (3). 4 a registered political party a copy of a habitation index (a) on request by the party; and (b) without charge; and (c) subject to subsection (3). 5 a registered political party with a member who is a Senator or a member of the House of Representatives a copy of a Roll (a) on request by the party; and See also subsection (2). (b) without charge; and (c) subject to subsection (3). 6 any other registered political party a copy of a Roll (a) on request by the party; and See also subsection (2). (b) on payment of the fee (if any) payable under subsection (9); and (c) subject to subsection (3). 7 a Senator for a State or Territory 3 copies of the certified list of voters for each Division in the State or Territory used in a Senate election (a) as soon as practicable after the result of the Senate election is declared under section 283; and (b) without charge. 8 a Senator for a State or Territory (a) 3 copies of the latest print of the Roll for the State or Territory; and (a) as soon as practicable after a general election; and (b) a copy of the Roll for the State or Territory (b) without charge. 9 a Senator for a State or Territory 3 copies of the certified list of voters for an election of a member of the House of Representatives for a Division in the State or Territory (a) as soon as practicable after the member of the House of Representatives is declared elected for the Division under section 284; and (b) without charge; and (c) the Senator is not entitled to a copy of the same list under item 7. 10 a Senator for a State or Territory a copy of the Roll for any Division in that State or Territory (a) on request by the Senator; and See also subsection (2). (b) without charge. 11 a member of the House of Representatives 3 copies of the certified list of voters for the Division for which the member is elected (a) as soon as practicable after the member is declared elected under section 284; and (b) without charge. 12 a member of the House of Representatives (a) 3 copies of the latest print of the Roll for the Division for which the member was elected; and (a) as soon as practicable after a general election; and (b) a copy of the Roll for the Division for which the member is elected (b) without charge. 13 a member of the House of Representatives 3 copies of the certified list of voters for the Division for which the member is elected that is provided for the purposes of paragraph 203(1)(b) for a Senate election (a) as soon as practicable after the result of the Senate election is declared under section 283; and (b) without charge; and (c) the Senator is not entitled to a copy of the same list under item 11. 14 a member of the House of Representatives a copy of the Roll for the Division for which the member is elected (a) on request by the member; and See also subsection (2). (b) without charge. 15 a member of the House of Representatives elected for a Division that is affected by a redistribution a copy of the Roll for any Division that, after the redistribution, includes the Division, or a part of the Division, for which the member is elected (a) on request by the member; and See also subsection (2). (b) without charge. 16 an electoral authority of a State or Territory (a) any information on a Roll; and (a) an arrangement under section 84 allows or requires the information to be provided to the authority; and (b) any other information that an arrangement under section 84 allows or requires the Electoral Commission to provide to the authority (b) on payment of the fee (if any) payable under subsection (9). Electoral Commission may provide additional information in some circumstances (2) If the Electoral Commission provides a copy of a Roll to a person or organisation under item 5, 6, 10, 14 or 15, the Electoral Commission may also provide any additional information held by the Electoral Commission about a person whose name is included on the Roll. The additional information is to be provided without charge. Note: For additional information, see subsection (10). Registered political parties for a State or Territory only if the party has branch or division for that State or Territory (3) In spite of subsection (1), the Electoral Commission need not give a registered political party information in relation to persons enrolled in a State or Territory unless a branch or division of the party is organised on the basis of that State or Territory. Information on Rolls may be provided to particular people and organisations (4) The following table sets out the persons and organisations to whom the Electoral Commission may give information in relation to the Rolls and specifies the information that may be given and the circumstances in which it may be given: Provision of information on Rolls Item Person or organisation Information that may be given Circumstances in which information may be given 1 the persons or organisations (if any) that the Electoral Commission determines are appropriate a copy of a Roll (a) as soon as practicable after a general election; and (b) without charge. 2 any person or organisation that conducts medical research or provides a health screening program (a) a copy of a Roll (or an extract of a Roll); and (a) on request by the person or organisation; and (b) if the Electoral Commission wishes—information about: (b) on payment of the fee (if any) payable under subsection (9). (i) the sex of; or (ii) the age range that covers; a person included on the Roll See also subsection (5). 3 any other person or organisation a copy of a Roll (or an extract of a Roll) (a) on request by the person or organisation; and (b) on payment of the fee (if any) payable under subsection (9). 4 a prescribed authority (a) any information on a Roll; and (a) the provision of the information is authorised by the regulations; and (b) if the Electoral Commission wishes—information about: (b) on payment of the fee (if any) payable under subsection (9). (i) the sex of; or (ii) the date of birth of; or (iii) the occupation of; a person whose name is included on the Roll Item 2 age ranges (5) The Electoral Commission may determine the age ranges to be used for the purposes of item 2 in the table in subsection (4) in a particular case. However, each age range must cover at least 2 years. Information about person whose address is not included on Roll (6) The Electoral Commission must not include in information given under subsection (1) or (4) information about a person whose address has been excluded or deleted from a Roll under section 104. Restriction on disclosure of information about occupation, sex or date of birth (7) Except as otherwise provided by this Act, the Electoral Commission must not give a person information which discloses particulars of the occupation, sex or date of birth of an elector. (8) If an arrangement under section 84 allows information to be given to an electoral authority of a State or Territory, the Electoral Commission may also give that electoral authority information that discloses particulars of the sex or date of birth of an elector who is enrolled in another State or Territory. Fee (9) The Electoral Commission may charge a fee that covers the cost to the Commission of providing information under: (a) item 6 or 16 in the table in subsection (1); or (b) item 2, 3 or 4 in the table in subsection (4). Definitions (10) In this section: additional information about a person included on a Roll means the following: (a) the person's postal address; (b) the person's sex; (c) the person's date of birth; (d) the person's salutation; (e) the census district in which the person lives; (f) the most recent enrolment date and enrolment transaction number for the person; (g) whether the person is: (i) not entitled to be enrolled as an elector of the Commonwealth; or (ii) not also enrolled as a State elector, Australian Capital Territory elector or Northern Territory elector; or (iii) less than 18 years old; (h) whether the person is a general postal voter; (i) whether the person has only recently been enrolled; (j) whether the person has re‑enrolled and, if so: (i) the Division and State or Territory in which they were previously enrolled; and (ii) the enrolment transaction number for the person's previous enrolment; (k) the electoral district for the purposes of State or Territory elections in which the person lives; (l) the local government area in which the person lives; (m) the Australia Post delivery point identifier for each address of the person. habitation index, in relation to a Division, means a list of electors for the Division arranged, in a manner determined by the Electoral Commission, by reference to the respective places of living of the electors whose names are on the Roll for the Division. 4 Subsections 91A(1) and (1AA) Repeal the subsections, substitute: (1) If information is given to a person or organisation under section 90B, a person must not use the information except for a purpose that is a permitted purpose in relation to the person or organisation the information is given to. Penalty: 100 penalty units. 5 After subsection 91A(2) Insert: (2AA) The permitted purposes in relation to a prescribed authority are: (a) monitoring the accuracy of information contained on a Roll; and (b) any other purpose that is prescribed for the prescribed authority. 6 Subsection 91A(2A) Omit "or political party", substitute ", political party or prescribed authority". 7 Subsection 91A(2B) Omit "subsection 91(9B)", substitute "item 16 of the table in subsection 90B(1)". 8 Subsection 91B(1) Repeal the subsection, substitute: (1) For the purposes of this section, information is protected information in relation to a person if the person knows, or has reasonable grounds for believing, that the information has been obtained under section 90B. 9 Sections 91C to 91E Repeal the sections. 10 Subsection 94(1B) Omit "2", substitute "3". 11 Paragraph 94A(1)(a) Repeal the paragraph, substitute: (a) the person has ceased to reside in Australia; and 12 Paragraph 94A(2)(d) Omit "2", substitute "3". 13 Subsection 111(3) Repeal the subsection. 14 After section 132 Insert: 132A Commission to give reasons for decisions under this Part (1) The Commission must: (a) give the parties to an application under section 126 written notice of the reasons for its decision in relation to the application if it decides not to register the party concerned; and (b) take such steps as the Commission considers appropriate to publicise those reasons. (2) For the purposes of subsection (1), the parties to the application are: (a) the applicant; and (b) any person who submits particulars in relation to the application under subsection 132(2). 15 At the end of section 134 Add: (8) The Commission must: (a) give an applicant who makes an application under subsection (1) to change the Register in the way referred to in paragraph (1)(c), (d) or (e) written notice of the reasons for its decision in relation to the application if it refuses to grant the application; and (b) take such steps as the Commission considers appropriate to publicise those reasons. 16 After subsection 134A(2) Insert: (2A) The Commission must: (a) give the parties to an objection under this section written notice of the reasons for its decision in relation to the objection if it upholds the objection; and (b) take such steps as the Commission considers appropriate to publicise those reasons. (2B) For the purposes of subsection (2A), the parties to the objection are: (a) the registered officer of the parent party; and (b) the registered officer of the second party. 17 Subsection 166(1) Omit "and (1B)", substitute ", (1B) and (1C)". 18 After subsection 166(1B) Insert: (1C) A nomination form need only be signed by at least one other person entitled to vote at the election (the new election) for which the candidate is, or the candidates are, nominated if the candidate or each candidate: (a) is a sitting independent in relation to the new election; and (b) is not endorsed by a registered political party in the new election at the close of nominations. (1D) For the purposes of subsection (1C), a candidate for election to the Senate for a State or Territory is a sitting independent for the new election if: (a) the candidate was elected as a Senator for that State or Territory in an election (the previous election); and (b) the candidate was not endorsed by a registered political party in the previous election; and (c) the candidate continues to be a Senator for that State or Territory as a result of the previous election until: (i) the writ for the new election is issued; or (ii) if the writ for the new election is issued in relation to a dissolution of the Senate—that dissolution of the Senate. (1E) For the purposes of subsection (1C), a candidate for election to the House of Representatives for a Division (the seat being contested) is a sitting independent for the new election if: (a) the candidate was elected as a member of the House of Representatives in an election (the previous election) for a particular Division (the existing seat); and (b) the candidate was not endorsed by a registered political party in the previous election; and (c) the candidate continues to be a member of the House of Representatives for the existing seat as a result of the previous election until: (i) the writ for the new election is issued; or (ii) if the writ for the new election is issued in relation to a dissolution of the House of Representatives—that dissolution of the House of Representatives; and (d) the existing seat is either the same as, or has territory in common with, the seat being contested. 19 Section 177 Repeal the section, substitute: 177 Withdrawal of consent to a nomination Withdrawal by candidate in Senate election (1) A candidate for a Senate election for a State or Territory may withdraw his or her consent to a nomination by lodging a notice of withdrawal with the Australian Electoral Officer for the State or Territory. The withdrawal must be made before the hour of nomination. Withdrawal by candidate in House of Representatives election (general rule) (2) Subject to subsection (3), a candidate for a House of Representatives election for a Division may withdraw his or her consent to a nomination by lodging a notice of withdrawal with the Divisional Returning Officer for the Division. The withdrawal must be made before the hour of nomination. Withdrawal by candidate in House of Representatives election (bulk nomination) (3) If a candidate for a House of Representatives election for a Division is nominated by the registered officer of a party under subsection 167(3) together with a number of other candidates (the other bulk nomination candidates), the candidate may withdraw his or her consent to a nomination by lodging a notice of withdrawal with the Australian Electoral Officer for the State or Territory in which the Division is located. The withdrawal must be made before the hour of nomination. (4) If a candidate withdraws his or her consent to a nomination under subsection (3): (a) the Australian Electoral Officer must deliver a fax of the withdrawal notice to the Divisional Returning Officer for the Division for which a candidate has been nominated, as soon as practicable before the hour of nomination; and (b) the withdrawal does not affect the nomination of the other bulk nomination candidates; and (c) the registered officer may amend the nomination, at any time before the hour of nomination, to substitute another candidate for that Division. (5) An amendment under paragraph (4)(c) must: (a) be made by notice in writing to the Australian Electoral Officer; and (b) be in the approved form and signed by the registered officer. Return of deposit (6) If a candidate withdraws his or her consent to a nomination under subsection (1), (2) or (3), the deposit lodged in relation to the nomination must be returned to: (a) the person who paid it; or (b) a person authorised in writing by the person who paid it. Effect of withdrawal of consent on nomination (7) If a candidate withdraws his or her consent to a nomination under this section, the nomination ceases to have effect. 20 After section 200D Insert: 200DA Scrutineers at the pre‑poll voting office (1) Scrutineers may be appointed by candidates to represent them at pre‑poll voting offices during the polling, but so that not more than one scrutineer is to be allowed to each candidate at each pre‑poll voting office. (2) Appointments of scrutineers are to be made by notice in writing addressed to the Returning Officer or a pre‑poll voting officer. (3) The notice must: (a) be signed by the candidate; and (b) give the scrutineer's name and address. 200DB Provisions relating to scrutineers at pre‑poll voting office (1) A person is guilty of an offence if the person: (a) is a scrutineer; and (b) interferes with or attempts to influence any elector within the pre‑poll voting office. Penalty: Imprisonment for 6 months. (2) A person is guilty of an offence if: (a) the person is a scrutineer; and (b) the person communicates with someone else in the pre‑poll voting office; and (c) the communication is not reasonably necessary for the discharge of the person's functions as a scrutineer. Penalty: Imprisonment for 6 months. (3) Subject to subsection (4), a scrutineer must not be prevented from entering or leaving a pre‑poll voting office on a day, and during the hours, fixed under paragraph 200D(2)(b). (4) Only one scrutineer for each candidate is entitled to be present in the pre‑poll voting office at any one time. A relieving scrutineer may, however, act during the absence of the scrutineer. (5) A person who is in a pre‑poll voting office in the capacity of a scrutineer must wear a badge, supplied by the Electoral Commission, that identifies the person as a scrutineer. (6) A scrutineer who: (a) commits any breach of this section; or (b) is guilty of misconduct; or (c) fails to obey the lawful directions of a pre‑poll voting officer; may be removed from the pre‑poll voting office by a member of the Australian Federal Police or of the police force of a State or Territory. 21 Subsection 228(5A) Repeal the subsection, substitute: (5A) An envelope referred to in paragraph (5)(c) is received by a DRO within sufficient time to be taken into account in the scrutiny if it is received by the DRO within 13 days after the close of the poll (whether directly from the voter or from another DRO or a person referred to in subsection (7) or (9)). 22 After section 240 Insert: 240A Temporary suspension of polling The presiding officer may temporarily suspend the polling for a period if the presiding officer is satisfied that the suspension of polling during that period is justified because of: (a) riot or open violence; or (b) the threat of riot or open violence; or (c) storm, tempest, flood or an occurrence of a similar kind; or (d) a health hazard; or (e) a fire or the activation of fire safety equipment (such as sprinklers or alarms); or (f) any other reason related to: (i) the safety of voters; or (ii) difficulties in the physical conduct of the voting. 23 Paragraphs 241(a) and (b) Repeal the paragraphs, substitute: (a) riot or open violence; or (b) the threat of riot or open violence; or (c) storm, tempest, flood or an occurrence of a similar kind; or (d) a health hazard; or (e) a fire or the activation of fire safety equipment (such as sprinklers or alarms); or (f) anything else related to: (i) the safety of voters; or (ii) difficulties in the physical conduct of the voting. 24 Paragraph 283(1)(b) Repeal the paragraph, substitute: (b) certify in writing the names of the candidates elected and attach the certificate to the writ; and (c) return the writ and the certificate to: (i) the Governor of the State in respect of which it was issued; or (ii) the Governor‑General if it was not issued in respect of a State. 25 Subsections 284(3) and (4) Repeal the subsections, substitute: (3) If, in the case of a general election, all DROs for a State or Territory have made declarations under subsection (1) (other than a DRO who has given notice to the Electoral Commissioner under subsection 274(9C)), the Electoral Commissioner must: (a) certify in writing the name of each candidate elected for each Division in the State or Territory (other than a Division for which notice under subsection 274(9C) has been given) and attach the certificate to the writ for the election; and (b) return the writ and the certificate to the Governor‑General. (4) If, in the case of a House of Representatives election, the DRO for the Division in which an election was held has made a declaration under subsection (1), the Electoral Commissioner must: (a) certify in writing the name of the candidate elected for the Division and attach the certificate to the writ for the election; and (b) return the writ and the certificate to the Speaker or Governor‑General, as the case requires. 26 At the end of section 285 Add: (2) For the purposes of subsection (1), a certificate attached to a writ under section 283 or 284 is taken to form part of the writ. 27 After subsection 340(1) Insert: (1A) A person commits an offence against this subsection if: (a) on polling day, or on a day to which the polling is adjourned, the person engages in any of the following activities: (i) canvassing for votes; (ii) soliciting the vote of an elector; (iii) inducing an elector not to vote for a particular candidate; (iv) inducing an elector not to vote at the election; and (b) the person engages in that activity 6 metres or more from an entrance of a polling booth; and (c) the person uses any of the following to engage in that activity: (i) a loud speaker; (ii) a public address system; (iii) an amplifier (whether fixed or mobile); (iv) a broadcasting van; (v) a sound system; (vi) radio equipment; (vii) any other equipment or device for broadcasting; and (d) that activity is audible: (i) within the polling booth; or (ii) at an entrance of the polling booth; or (iii) within 6 metres of an entrance of the polling booth. Penalty: 5 penalty units. (1B) Subsection (1A) applies whether the person engages in the activity in a public place or a private place. 28 Paragraph 340(2)(b) Omit "subsection (1)", substitute "this section". 29 Subsection 340(2) Omit "that subsection", substitute "this section". 30 Subsection 383(9) Repeal the subsection. 31 Schedule 1 (Form A) Omit "to indorse on this our writ the names of the Senators elected and to return it so indorsed", substitute "to certify the names of the Senators elected and to return this our writ with the certificate attached". 32 Schedule 1 (Form AA) Omit "to indorse on this our writ the names of the Senators elected and to return it so indorsed", substitute "to certify the names of the Senators elected and to return this our writ with the certificate attached". Referendum (Machinery Provisions) Act 1984 33 Subsection 3(1) Insert: pre‑poll voting office for a referendum means a place declared by the Electoral Commission under subsection 73B(2) to be a pre‑poll voting office for the referendum. 34 After section 41 Insert: 41A Temporary suspension of polling (1) The presiding officer may temporarily suspend the voting at a referendum for a period if the presiding officer is satisfied that the suspension of voting during that period is justified because of: (a) riot or open violence; or (b) the threat of riot or open violence; or (c) storm, tempest, flood or an occurrence of a similar kind; or (d) a health hazard; or (e) a fire or the activation of fire safety equipment (such as sprinklers or alarms); or (f) any other reason related to: (i) the safety of voters; or (ii) difficulties in the physical conduct of the voting. (2) If: (a) the voting day for a referendum is the same as that fixed for the polling at an election; and (b) the presiding officer at a polling booth temporarily suspends the polling at the polling booth for a period under section 240A of the Commonwealth Electoral Act 1918; the presiding officer must temporarily suspend the voting at the referendum at the polling booth for the same period. 35 Paragraphs 42(a) and (b) Repeal the paragraphs, substitute: (a) riot or open violence; or (b) the threat of riot or open violence; or (c) storm, tempest, flood or an occurrence of a similar kind; or (d) a health hazard; or (e) a fire or the activation of fire safety equipment (such as sprinklers or alarms); or (f) anything else related to: (i) the safety of voters; or (ii) difficulties in the physical conduct of the voting. 36 Subsection 46A(5A) Repeal the subsection, substitute: (5A) An envelope referred to in paragraph (5)(c) is received by a DRO within sufficient time to be taken into account in the scrutiny if it is received by the DRO within 13 days after the close of the poll (whether directly from the voter or from another DRO or a person referred to in subsection (7) or (9)). 37 After section 73C Insert: 73CA Appointment of scrutineers (1) The Governor‑General, or a person authorised by him or her to act under this subsection, may appoint one person to act as a scrutineer during voting at a referendum at each pre‑poll voting office for the referendum. (2) The Governor of a State, or a person authorised by him or her to act under this subsection, may appoint one person to act as a scrutineer during the voting at a referendum at each pre‑poll voting office for the referendum in that State. (3) The Chief Minister for the Australian Capital Territory, or a person authorised by him or her to act under this subsection, may appoint one person to act as a scrutineer during the voting at a referendum at each pre‑poll voting office for the referendum in the Australian Capital Territory. (4) The Administrator of the Northern Territory, or a person authorised by him or her to act under this subsection, may appoint one person to act as a scrutineer during the voting at a referendum at each pre‑poll voting office for the referendum in the Northern Territory. (5) The registered officer of a registered political party may appoint persons to act as scrutineers during voting at a referendum at pre‑poll voting offices for the referendum, but not more than one scrutineer for each party is allowed at each pre‑poll voting office at any one time. (6) In this section: registered officer, in relation to a registered political party, has the same meaning as in Part XIV of the Commonwealth Electoral Act 1918. registered political party has the same meaning as in the Commonwealth Electoral Act 1918. 73CB Provisions relating to scrutineers (1) A person is guilty of an offence if the person: (a) is a scrutineer appointed under section 73CA; and (b) interferes with or attempts to influence any elector within a pre‑poll voting office. Penalty: Imprisonment for 6 months. (2) A person is guilty of an offence if: (a) the person is a scrutineer appointed under section 73CA; and (b) the person communicates with someone else in a pre‑poll voting office; and (c) the communication is not reasonably necessary for the discharge of the person's functions as a scrutineer. Penalty: Imprisonment for 6 months. (3) A scrutineer appointed under section 73CA must not be prevented from entering or leaving a pre‑poll voting office on a day, and during the hours, fixed under paragraph 73B(2)(b). (4) A person who is in a pre‑poll voting office in the capacity of a scrutineer must wear a badge, supplied by the Electoral Commission, that identifies the person as a scrutineer. (5) A scrutineer appointed under section 73CA who: (a) commits any breach of this section; or (b) is guilty of misconduct at a pre‑poll voting office; or (c) fails at a pre‑poll voting office to obey the lawful directions of a pre‑poll voting officer; may be removed from the polling booth by a constable. 38 Section 98 Repeal the section, substitute: 98 Return of the writ (1) The Electoral Commissioner must, immediately after receiving the statements sent under section 97: (a) certify, in relation to each State, in relation to the Australian Capital Territory, in relation to the Northern Territory and in relation to the whole Commonwealth: (i) the number of votes given in favour of the proposed law; and (ii) the number of votes given not in favour of the proposed law; and (iii) the number of ballot‑papers rejected as informal; and attach the certificate to the original writ; and (b) return the writ and the certificate to the Governor‑General. (2) The Electoral Commissioner must publish a copy of the certificate referred to in paragraph (1)(a) in the Gazette, and a copy of such a certificate so published is, subject to Part VIII, conclusive evidence of the result of the referendum to which it relates. 39 Section 99 Omit "the statement indorsed on the writ", substitute "the certificate attached to the writ". 40 After subsection 131(1) Insert: (1A) A person commits an offence against this subsection if: (a) on the voting day for a referendum, or on a day to which the taking of votes of the electors at a referendum has been adjourned under section 42 or 43, the person engages in any of the following activities: (i) inducing an elector to vote in a particular way at the referendum; (ii) inducing an elector not to vote at the referendum; and (b) the person engages in that activity 6 metres or more from an entrance of a polling booth; and (c) the person uses any of the following to engage in that activity: (i) a loud speaker; (ii) a public address system; (iii) an amplifier (whether fixed or mobile); (iv) a broadcasting van; (v) a sound system; (vi) radio equipment; (vii) any other equipment or device for broadcasting; and (d) that activity is audible: (i) within the polling booth; or (ii) at an entrance of the polling booth; or (iii) within 6 metres of an entrance of the polling booth. Penalty: 5 penalty units. (1B) Subsection (1A) applies whether the person engages in the activity in a public place or a private place. 41 Subsection 131(2) Omit "subsection (1)" (wherever occurring), substitute "this section". 42 Subsection 139(9) Repeal the subsection. Part 2—Technical amendments Commonwealth Electoral Act 1918 43 Subsection 4(1) Insert: child of a person includes: (a) an ex‑nuptial child of the person; and (b) a child adopted by the person. 44 Subsection 4(1) Insert: spouse, in relation to a person (the relevant person), includes a person who, although not legally married to the relevant person, lives with the relevant person as the spouse of the relevant person on a permanent and bona fide domestic basis. 45 Paragraph 80(3)(b) Repeal the paragraph, substitute: (b) setting out all places that were polling places for that Division at the later of: (i) the time of the last election for which a poll was taken in that Division; and (ii) the time of the last referendum (within the meaning of the Referendum (Machinery Provisions) Act 1984); but that have been abolished since that time. 46 Subsection 92(1) After "State", insert "or Territory". 47 Subsection 95(16) Repeal the subsection. 48 Subsection 95(17) (definition of child) Repeal the definition. 49 Subsection 95(17) (definition of spouse) Repeal the definition. 50 After paragraph 120(3)(ba) Insert: (bb) notifies a person of a decision made by the Divisional Returning Officer under section 105 to alter any entry in relation to the person on a Roll kept by the officer (including a decision to add or remove a person's name from the Roll); or 51 After paragraph 120(3)(fa) Insert: (fb) the decision made by the Divisional Returning Officer under section 105 to alter the entry on the Roll; or 52 After paragraph 120(4)(da) Insert: (db) a written statement of the reasons for the decision under section 105 to alter the entry on the Roll; and 53 At the end of subsection 121(1) Add: ; or (d) a decision made by a Divisional Returning Officer under section 105 to alter a Roll kept by the officer (including a decision to add or remove a person's name from the Roll). 54 Subsection 186(2) (definition of postal voting papers) Repeal the definition, substitute: postal voting papers means: (a) a postal vote certificate printed on an envelope; and (b) one postal ballot‑paper for a Senate election or one postal ballot‑paper for a House of Representatives election, or both, as the case requires; and (c) if the envelope on which the postal vote certificate is printed is not itself addressed to the DRO for the Division for which the general postal voter is registered—an envelope addressed to that DRO. 55 Paragraphs 188(1)(a) to (c) Repeal the paragraphs, substitute: (a) a postal vote certificate printed on an envelope; and (b) one postal ballot‑paper for a Senate election or one postal ballot‑paper for a House of Representatives election, or both, as the case requires; and (c) if the envelope on which the postal vote certificate is printed is not itself addressed to: (i) if the application is provided to an Assistant Returning Officer outside Australia—the Assistant Returning Officer or to the DRO for the Division for which the applicant declares that he or she is enrolled; or (ii) otherwise—the DRO for the Division for which the applicant declares that he or she is enrolled; an envelope addressed to that Assistant Returning officer or DRO. 56 Paragraph 193(2)(c) After "public service of a", insert "State or". 57 Paragraph 194(1)(d) Omit "the envelope addressed to the appropriate DRO", substitute "the envelope on which the postal vote certificate is printed". 58 Subsection 209(5) Omit "addressed to the Divisional Returning Officer", substitute "on which the postal vote certificate is printed". 59 Subsection 217(2) Omit "or by telegram". 60 Subsection 217(2) Omit "or telegram". 61 At the end of subsection 226A(1) Add "who are entitled to vote in an election". 62 At the end of subsection 226A(1) Add: Note: Subsections 93(8) and (9) deal with who is entitled to vote in an election. 63 Subsection 226A(3) Repeal the subsection, substitute: (3) If arrangements in force under subsection (1) are applicable to a prison, an electoral visitor must visit the prison for the purpose of taking the votes of persons who: (a) are confined in the prison; and (b) are entitled to vote in an election; and (c) are: (i) in the case of a by‑election—entitled to vote in that election; or (ii) in any other case—electors for the State or Territory in which the prison is situated. 64 Subsection 245(6) Repeal the subsection, substitute: (6) If an elector does not respond to a penalty notice in the manner indicated in subparagraph (5)(c)(i), (ii) or (iii), within the prescribed time, the DRO must: (a) send a second penalty notice by post; or (b) arrange for a second penalty notice to be delivered by other means; to the elector, at his or her latest known address. (6A) The second penalty notice must, subject to subsection (7), have the same form as the first penalty notice but bear a notation to the effect that a previous notice in the same terms was sent to the elector but that a response in the manner indicated in subparagraph (5)(c)(i), (ii) or (iii) was not received. 65 Paragraph 264(3)(a) Omit ", or by telegram signed by the candidate before it is tendered for transmission,", substitute "and". 66 Paragraph 273(2)(f) Omit "by telegram or in some other expeditious manner", substitute "in an expeditious manner". 67 Paragraphs 273(5)(d) and (f) Omit "by telegram or in some other expeditious manner" (wherever occurring), substitute "in an expeditious manner". 68 Paragraph 274(2)(f) Omit "by telegram or in some other expeditious manner", substitute "in an expeditious manner". 69 Subsection 328(4) Repeal the subsection, substitute: (4) Nothing in paragraph (3)(a), (b) or (c) is taken, by implication, to limit the generality of regulations that may be made by virtue of paragraph (3)(d). 70 Section 387A Omit "the address of the person recorded on the Roll", substitute "the person's latest known address". 71 Schedule 1 Omit "19" (wherever occurring), substitute "20". 72 Schedule 1 Omit "One thousand nine hundred" (wherever occurring), substitute "Two thousand". Referendum (Machinery Provisions) Act 1984 73 Subsection 3(1) (subparagraph (b)(iii) of the definition of authorized witness) Repeal the subparagraph, substitute: (iii) a member of the civil or public service of a State or Territory or of a Commonwealth country; 74 Subsection 3(1) (subparagraph (b)(iv) of the definition of authorized witness) Repeal the subparagraph, substitute: (iv) a justice of the peace for, or a minister of religion or medical practitioner resident in, a State or Territory or a Commonwealth country; or 75 Subsection 3(1) (definition of Australian Electoral Officer) Repeal the definition, substitute: Australian Electoral Officer means: (a) an Australian Electoral Officer for a State; or (b) the Australian Electoral Officer for the Australian Capital Territory; or (c) the Australian Electoral Officer for the Northern Territory. 76 Subsection 3(1) Insert: Australian Electoral Officer for the Australian Capital Territory means the Australian Electoral Officer for the Australian Capital Territory appointed under: (a) section 5 of this Act; or (b) if the voting day for a referendum is the same as that fixed for the polling at an election—section 30 of the Commonwealth Electoral Act 1918. 77 Subsection 3(1) Insert: Australian Electoral Officer for the Northern Territory means an Australian Electoral Officer for the Northern Territory referred to in section 20 of the Commonwealth Electoral Act 1918. 78 Section 5 Repeal the section, substitute: 5 Australian Electoral Officer for the Australian Capital Territory (1) The Electoral Commission must, for the purposes of each referendum, appoint an Australian Electoral Officer for the Australian Capital Territory and such an appointment terminates upon the completion of the referendum. (2) The Electoral Commission may appoint a person to act as Australian Electoral Officer for the Australian Capital Territory during any period, or during all periods, when the Australian Electoral Officer for the Australian Capital Territory is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office. (3) The appointment of a person to act as Australian Electoral Officer for the Australian Capital Territory ceases to have effect if the person delivers to the Electoral Commission a signed notice of resignation. (4) A person acting as Australian Electoral Officer for the Australian Capital Territory has, and may exercise, all the powers, and is to perform all the functions, of the Australian Electoral Officer for the Australian Capital Territory. (5) The validity of anything done by or in relation to a person purporting to act under subsection (1) must not be called in question merely because: (a) the occasion for the appointment had not arisen; or (b) there is a defect or irregularity in or in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion for the person to act had not arisen or had passed. 79 After subsection 8(1) Insert: (1A) The date fixed for the return of the writ must not be more than 100 days after the issue of the writ. 80 Paragraph 12(a) After "States", insert ", to the Chief Minister for the Australian Capital Territory". 81 Paragraph 14(1)(b) Repeal the paragraph, substitute: (b) cause a notice setting out: (i) the particulars of the writ; and (ii) a copy of the proposed law or of the statement (if any) attached to the writ; and (iii) the places at which copies of the statement referred to in paragraph (a) are available; to be inserted in: (iv) not less than 2 newspapers circulating generally in the State or Territory; or (v) if there is only one newspaper circulating generally in the State or Territory—that newspaper; and 82 Subsection 17(6) Repeal the subsection. 83 Subsection 25(4) Omit "addressed to the Divisional Returning Officer", substitute "on which the postal vote certificate is printed". 84 After subsection 27(2) Insert: (2A) The Chief Minister for the Australian Capital Territory, or a person authorised by him or her to act under this subsection, may appoint one person to act as a scrutineer during the voting at a referendum at each place in the Territory where voting is being conducted. 85 Paragraph 36A(2)(b) Repeal the paragraph, substitute: (b) allow scrutineers to be present when the voter votes. 86 After subsection 45(13) Insert: (13A) Without limiting the circumstances that may constitute a valid and sufficient reason for not voting, the fact that an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for the failure of the elector to vote. 87 At the end of subsection 49A(1) Add "who are entitled to vote in a referendum". 88 Subsection 49A(3) Repeal the subsection, substitute: (3) If arrangements in force under subsection (1) are applicable to a prison, an electoral visitor must visit the prison for the purpose of taking the votes of persons who: (a) are confined in the prison; and (b) are entitled to vote in the referendum; and (c) are electors for the State or Territory in which the prison is situated. 89 Subsection 50(2A) Repeal the subsection, substitute: (2A) A presiding officer or electoral visitor who visits a patient under section 48 or 49 may, at the request of the patient, give the patient literature relating to the referendum. 90 Subsection 58(2) (definition of postal voting papers) Repeal the definition, substitute: postal voting papers means: (a) a postal vote certificate printed on an envelope; and (b) a postal ballot‑paper; and (c) if the envelope on which the postal vote certificate is printed is not itself addressed to the DRO for the Division for which the general postal voter is registered—an envelope addressed to that DRO. 91 Paragraph 61(1)(a) Repeal the paragraph, substitute: (a) a postal vote certificate printed on an envelope addressed: (i) if the application is provided to an Assistant Returning Officer outside Australia—to the Assistant Returning Officer or to the DRO for the Division for which the applicant declares that he or she is enrolled; or (ii) otherwise—to the DRO for the Division for which the applicant declares that he or she is enrolled; and 92 Paragraph 65(1)(d) Omit "the envelope addressed to the appropriate DRO", substitute "the envelope on which the postal vote certificate is printed". 93 After subsection 89(3) Insert: (3A) The Chief Minister for the Australian Capital Territory, or a person authorised by him or her to act under this subsection, may appoint one person to act as a scrutineer during the scrutiny at each counting centre in the Territory. 94 At the end of subsection 91(1) Add: ; (g) the Divisional Returning Officer: (i) shall open the sealed parcels of ballot‑papers received from the Assistant Returning Officers in or for the Division; and (ii) shall make a fresh scrutiny of the ballot‑papers contained in the parcels, and, for the purpose of that scrutiny, shall have the same powers as if it were the original scrutiny, and may reverse any decision given by an Assistant Returning Officer in relation to the original scrutiny. 95 Subsection 95(2) After "State", insert ", the Chief Minister for the Australian Capital Territory". 96 Section 99 After "States", insert ", to the Chief Minister for the Australian Capital Territory". 97 Section 100 After "State", insert ", by the Australian Capital Territory". 98 Paragraph 101(1)(c) After "the State", insert ", the Attorney‑General of the Australian Capital Territory for and on behalf of the Territory". 99 Subsection 105(1) After "States,", insert "the Attorney‑General of the Australian Capital Territory,". 100 Subsection 105(2) After "States,", insert "the Attorney‑General of the Australian Capital Territory,". 101 After subsection 105(2) Insert: (2A) Where a petition of the kind referred to in section 100 is filed by the Australian Capital Territory, the Attorney‑General of the Territory must notify the Attorney‑General of the Commonwealth, the Attorneys‑General of the several States, the Attorney‑General of the Northern Territory and the Electoral Commission of the filing of the petition. 102 Subsection 105(3) After "States", insert ", the Attorney‑General of the Australian Capital Territory". 103 Subsection 105(4) After "States", insert ", the Attorney‑General of the Australian Capital Territory". 104 Section 106 After "State,", insert "of the Australian Capital Territory,". 105 Subsection 122(3) Repeal the subsection. 106 Subsection 122(4) Omit "or (3)". 107 After section 140A Insert: 140AA Evidence of authorship or authorisation of material In proceedings for an offence against this Act: (a) an advertisement, handbill, pamphlet, notice or video recording that: (i) relates to a referendum and is intended or calculated to affect the result of the referendum; and (ii) includes a statement that it was authorised by a specified person; is admissible as evidence of that fact; and (b) a printed advertisement, handbill, pamphlet or notice that: (i) relates to a referendum and is intended or calculated to affect the result of the referendum; and (ii) includes a statement that a specified person or firm was the printer; is admissible as evidence of that fact; and (c) a newspaper, circular, pamphlet or "dodger" that contains an article, or part of an article, that: (i) relates to a referendum and is intended or calculated to affect the result of the referendum; and (ii) includes a name purporting to be the author's name; is admissible as evidence that the person named is the author of the article. 108 Schedule 1 Omit "19" (wherever occurring), substitute "20". 109 Subparagraph 6(b) of Schedule 4 Omit "73G", substitute "73D". Part 3—Application, saving and transitional provisions 110 Saving regulations specifying prescribed authorities Regulations that: (a) were made for the purposes of the definition of prescribed authority in subsection 91(11) of the Commonwealth Electoral Act 1918; and (b) were in force immediately before the commencement of item 3 of this Schedule; continue to have effect after that item commences as if they had been made for the purposes of the definition of prescribed authority in subsection 4(1) of that Act. 111 Saving regulations specifying permitted purposes for prescribed authorities Regulations that: (a) prescribed a permitted purpose for a prescribed authority for the purposes of subsection 91A(2A) of the Commonwealth Electoral Act 1918; and (b) were in force immediately before the commencement of item 6 of this Schedule; continue to have effect after that item commences as if they had been made for the purposes of subsection 91A(2AA) of that Act. 112 Transitional—provision of Rolls and habitation indexes to political parties etc. (1) This item applies to: (a) requests made under section 90B of the Commonwealth Electoral Act 1918 after the commencement of this item; and (b) requests made under section 91 of the Commonwealth Electoral Act 1918 before the commencement of this item that have not been dealt with before the commencement of this item. (2) The requests have effect, after the commencement of this item, as if the requests had been made under section 90B of the Commonwealth Electoral Act 1918 as amended by this Act. 113 Application of item 4 amendment Subsection 91A(1) of the Commonwealth Electoral Act 1918: (a) applies to information whether given before or after the commencement of item 4 of this Schedule; and (b) applies to information that was given under section 91AA or 91AB of the Commonwealth Electoral Act 1918 before the commencement of that item as if the reference in subsection 91A(1) of that Act to section 90B included a reference to sections 91AA and 91AB as in force before the commencement of that item. 114 Application of item 7 amendment Subsection 91A(2B) of the Commonwealth Electoral Act 1918 applies to information that was given under subsection 91(9B) of the Commonwealth Electoral Act 1918 before the commencement of item 7 of this Schedule as if the reference in subsection 91A(2B) of that Act to item 16 of the table in subsection 90B(1) included a reference to subsection 91(9B) as in force before the commencement of that item. 115 Application of item 8 amendment (1) Section 91B of the Commonwealth Electoral Act 1918 applies to information whether given before or after the commencement of item 8 of this Schedule. (2) Subsection 91B(1) of the Commonwealth Electoral Act 1918 applies to information that was given under section 91AA or 91AB of the Commonwealth Electoral Act 1918 before the commencement of item 8 of this Schedule as if the reference in subsection 91B(1) of that Act to section 90B included a reference to sections 91AA and 91AB as in force before the commencement of that item. 116 Application of amended subsection 94(1B) and paragraph 94A(2)(d) Subsection 94(1B) and paragraph 94A(2)(d) of the Commonwealth Electoral Act 1918 apply to a person who ceased to reside in Australia before the commencement of this item (including a person who ceased to reside in Australia more than 2 years before the commencement of this item). 117 Application of item 11 amendment The amendment made by item 11 of Schedule 1 to this Act applies to applications: (a) made after the commencement of that item; and (b) made, but not determined, before the commencement of that item. 118 Application of item 53 amendment The amendment made by item 53 of Schedule 1 to this Act applies to decisions whether made before or after the commencement of that item. 119 Application of item 64 amendment The amendment made by item 64 of Schedule 1 to this Act applies to a penalty notice sent or delivered before the commencement of that item. 120 Application of item 70 amendment The amendment made by item 70 of Schedule 1 to this Act applies in relation to offences committed after the commencement of that item. 121 Application—section 140AA of the Referendum (Machinery Provisions) Act 1984 Section 140AA of the Referendum (Machinery Provisions) Act 1984 applies in relation to offences committed after the commencement of this item. [Minister's second reading speech made in— House of Representatives on 1 April 2004 Senate on 15 June 2004] (56/04)