Shortly after the end of the 2009–10 financial year, three significant events occurred:
- three Bills to amend the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act), having passed through parliament in June 2010, received Royal Assent and were enacted
- the date of the 2010 federal election was announced, and the writs were issued to trigger the conduct of the election
- the High Court declared that certain provisions of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (the Integrity Act), which had inserted provisions in to the Electoral Act effecting certain cut-off dates for applications for enrolment or transfer of enrolment, were invalid.
These developments will affect the AEC's operations in 2010–11 and may affect the AEC's operations in future financial years.
On 14 July 2010, three pieces of legislation were enacted to amend the Electoral Act and the Referendum Act. The AEC had anticipated this outcome, as described in the discussions of electoral reform in several sections of this annual report (particularly in the 'Management and accountability' chapter).
The Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010 implements the government response to a number of recommendations made in the Joint Standing Committee on Electoral Matters (JSCEM) report entitled Report on the conduct of the 2007 federal election and matters related thereto, and a further amendment that limits the number of candidates that can be endorsed by a political party in each division. The Act contains provisions that:
- enable pre-poll votes cast in an elector's 'home' division to be cast and counted as ordinary votes, wherever practicable
- allow the AEC to manage its workload more efficiently by enabling enrolment transactions to be processed in any AEC office
- modernise enrolment processes to enable electors to update their address details electronically
- restrict the number of candidates that can be endorsed by a political party in each division
- provide a framework for voters who are blind or have low vision to cast an independent and secret vote by electronically assisted means.
The Electoral and Referendum Amendment (Modernisation and Other Measures) Act 2010 implements the government response to the majority of the recommendations of the JSCEM report as well as a number of minor amendments that are consistent with, or incidental to, the amendments made in response to the report. The Act contains provisions that:
- remove the requirement to publish enrolment and election-related forms and information in the Commonwealth of Australia Gazette and substitute the requirement for the Electoral Commissioner to publish the information, at a minimum, on the AEC's website
- provide that a person making an application for enrolment or changing the name under which they are enrolled (which does not include amending address details) needs to include with their application either their driver's licence number, their passport number or an attestation of identity signed by an enrolled elector
- reduce the age at which people may provisionally enrol, from 17 years to 16 years
- allow for electronic roll information to be provided to parliamentarians and allow for electronic certified lists
- introduce flexibility to print ballot papers at the local level by removing the technical requirement for ballot papers to be 'overprinted'
- introduce one form of mobile polling which may visit anywhere that the Electoral Commissioner determines, removing inconsistencies in the arrangements for visits at various places or institutions
- enable a person to apply for a postal vote electronically by removing the requirement for an application for a postal vote to be signed and witnessed
- clarify that a right to inspect the electoral roll does not include the right to electronically copy or record the roll
- allow the AEC to provide the postal addresses of general postal voters to state and territory electoral commissions
- introduce specific provisions to facilitate enrolment and continued enrolment for people experiencing homelessness
- expand the grounds upon which a person may apply for a pre-poll or postal vote
- make a number of minor technical amendments.
The Electoral and Referendum Amendment (How-to-Vote Cards and Other Measures) Act 2010 makes amendments related to how-to-vote cards and misleading or deceptive publications. The Act contains provisions that:
- introduce specific and expanded authorisation requirements for how-to-vote cards. The intention of these amendments is to make it clearer who will benefit from the preference flow suggested on the how-to-vote card. It is intended that these amendments will reduce the potential for voters to be misled and to give voters the means to make informed decisions by ensuring that the political source of how-to-vote material is clearly stated.
- amend s.329 of the Electoral Act and s.122 of the Referendum Act, which generally prohibit a person from printing, publishing or distributing, or causing to be printed, published or distributed, anything that may mislead or deceive an elector in how to cast a vote. Subsection 329(6) defines the term 'publish' to include 'publish by radio or television'. The amendments add the terms 'telephone' and 'internet' to the definition of 'publish' in s.329 of the Electoral Act and s.122 of the Referendum Act. The offence in s.329 of the Electoral Act and s.122 of the Referendum Act is expanded to include the internet; consequently, the Act amends the offence to have extended geographical jurisdiction.
As a result of preparations made by the AEC in anticipation of the legislative changes, some of the new provisions will be implemented in time for the 2010 federal election. Others will be implemented progressively as the AEC adapts and develops the necessary systems and procedures. Progress on implementing the changes will be described in the annual report for 2010–11.
Announcement of the 2010 federal election
On 17 July 2010, the Australian Government announced that a federal election would take place on 21 August 2010. The Governor-General issued the writs setting out the timetable for the election on 19 July 2010.
The AEC immediately began to deploy the systems, procedures and resources it had prepared for such an event, many of which are discussed in this annual report (particularly in the report on performance for Program 2.1).
The AEC's performance in conducting the 2010 federal election will be discussed in detail in the annual report for 2010–11.
High Court decision on cut-off dates for enrolment
In the case of Rowe and Another v. Electoral Commissioner and Another, which commenced on 26 July 2010, the High Court considered the validity of certain provisions of the Electoral Act effecting cut-off dates for the consideration of applications for enrolment and transfers of enrolment as an elector.
The plaintiff had challenged provisions that were introduced to the Electoral Act by the Integrity Act, namely:
- s.102(4), which prevents the Electoral Commissioner from considering claims for enrolment lodged after 8pm on the date of the issue of writs for an election for the House of Representatives or the Senate until after the close of polling
- s.102(4AA), which prevents consideration of claims for transfer of enrolment from one divisional roll to another from 8pm on the date of the close of the rolls for an election until after the close of polling
- s.155, which provides that the rolls close on the third working day after the date of the writs.
In its decision, announced on 6 August 2010, the High Court declared that the provisions of the Integrity Act which introduced the challenged provisions into the Electoral Act were invalid. The declaration also covered certain consequential amendments made by the Integrity Act, including other provisions effecting cut-off dates relating to the enrolment of persons living outside Australia (s.94A(4)(a)) and itinerant electors (s.96(4)), and the eligibility of spouses, de facto partners or children of eligible overseas electors for enrolment (s.95(4)).
As well as altering the parameters for the processing of enrolment applications in the longer term, the High Court's decision had immediate implications for the processing of applications lodged before the 2010 federal election, effectively extending the cut-off date for lodgement of applications by seven days. The AEC's response to the effects of the decision will be discussed in the annual report for 2010–11.