The AEC’s Legal and Compliance Branch provides a full range of legal services. The AEC referred several alleged breaches of electoral laws to the Australian Federal Police during 2012–13.
Legal Services handled 61 allegations of breaches of Part XXI of the Electoral Act. Most complaints related to an alleged failure to include the authorisation details on electoral advertisements in newspapers or on the internet. Of the complaints, Legal Services found four were non-compliant with undertakings sought to correct the mistake and to ensure that systems were in place to prevent any recurrence. They referred two matters to the Australian Federal Police for investigation.
The Commercial Law and Procurement section advised staff on procurement exercises and contracts, particularly for procurements relating to the forthcoming federal election.
Administrative-related services include:
- advising of the AEC’s administrative and other responsibilities under the Electoral Act, the Public Service Act 1999, the Financial Management and Accountability Act 1997, the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009
- advising on a wide range of other legal matters that impacted AEC operations
- advice and training to help staff meet AEC obligations under the Privacy Act 1988, the Freedom of Information Act 1982, the Ombudsman Act 1976 and the Archives Act 1983.
Services to external organisations
Work with other government agencies and legal services, included:
- instructing the Office of Parliamentary Counsel and preparing supporting material for electoral and referendum legislation
- instructing the Office of Legislation Drafting and Publication in the preparation of regulations to amend the Electoral and Referendum Regulations 1940.
External requests included:
- access to the Commonwealth electoral roll from a range of persons and organisations
- response to subpoenas, notices to produce, and other requirements for the release of information and documents
- instructing external solicitors and counsel to a range of matters involving electoral laws and industrial elections.
Legal Services provided input to Cabinet submissions, particularly on electoral and referendum matters.
Legal Services responded to requests and prepared submissions to the Joint Standing Committee on Electoral Matters (JSCEM), including on inquiries into the legislation before parliament in 2012–13.
The AEC was involved with a large legislation program that responds to matters raised by JSCEM and aims to address other government initiatives. These were opportunities to seek support for the AEC’s modernisation theme.
Improving electoral procedure
The Electoral and Referendum Amendment (Improving Electoral Procedure) Act 2013 (Act No. 19 of 2013) amended the Electoral Act and the Referendum Act. This Act implemented the government response to Recommendations 12, 31 and 32 of the 'The 2010 Federal Election: Report on the conduct of the election and related matters' (JSCEM Report) as well as a number of technical and minor amendments.
The Act contains provisions that:
- Removes the prescription relating to how postal votes are processed. The amendments will allow for technological developments over time.
- Increases the sum to be deposited by or on behalf of a person nominated as a Senator from $1 000 to $2 000.
- Increases the sum to be deposited by or on behalf of a person nominated as a Member of the House of Representatives from $500 to $1 000.
- Increases the number of nominators required by a candidate for the Senate or the House of Representatives who is not a registered political party nominee from 50 to 100 electors.
- Requires unendorsed candidates for the Senate who have made a request for grouping, to each have 100 unique electors as nominators.
- Makes a number of minor and technical amendments.
The minor and technical amendments include:
- removing the requirement that silent electors have to submit another statutory declaration when they move address, but wish to retain their status as a ‘silent elector’
- taking the word ‘therein’ out of section 174 clarifies that the Divisional Returning Officer (DRO) does not have to be physically located inside the divisional boundary to accept nominations—this recognises co-locations and larger working unit working arrangements
- removing the 20 km restriction for general postal voter status, which was an unintended consequence of the 2010 changes to mobile polling legislation meant that no-one within 20 kms of any mobile polling team is eligible to be a general postal voter—this amendment fixes that anomaly
- changing the provisional voting conditions to allow a provisional vote to be issued to someone whose name has been marked on an electronic certified list
- adding in provisions for handling discarded ballot papers that are similar to the existing provisions for handling spoilt ballot papers
- allowing postal votes to be treated as received on time in cases where they are received in the AEC before the close of polling but the witness date is after polling day—currently such votes, with obviously incorrect witness dates, have to be rejected
- tidying up the Assistant Returning Officer (ARO) provisions such that officers in charge (OICs), who are appointed as AROs for the count, can count votes for a polling place, pre-polling voting centre or mobile polling team rather than for ‘a portion of the division’.
Improving electoral administration
The Electoral and Referendum Amendment (Improving Electoral Administration) Act 2013 (Act No. 26 of 2013) (the Improving Electoral Administration Act) amended the Electoral Act, the Referendum Act and the Taxation Administration Act 1953 (the Taxation Administration Act). The Improving Electoral Administration Act implemented the government response to Recommendations 3, 9, 10, 11, 15, 23, 29 and 30 of the JSCEM Report.
The Improving Electoral Administration Act contains provisions that:
- set out the procedures to be followed when a ballot box is opened prematurely, that is, before the close of the poll, other than in accordance with the relevant provisions of the Electoral Act and Referendum Act
- introduce into the Electoral Act and the Referendum Act a specific offence for an officer that unlawfully interferes with a ballot box
- remove the requirement under the Electoral Act and Referendum Act for an applicant for a pre-poll ordinary vote to complete and sign a certificate
- provide that pre-poll voting cannot commence earlier than 4 days after the date fixed for declaration of nominations for any type of election or by-election
- bring forward the deadline for applications for postal votes by one day from the Thursday before polling day to the Wednesday before polling day, for elections after 1 January 2014
- provide for further fixed periods of time to be provided to the augmented Electoral Commission (as defined in section 70 of the Electoral Act) to complete its inquiries into objections against proposed redistribution of electoral boundaries
- amend the Taxation Administration Act to allow the Commissioner of Taxation and other taxation officers to provide some forms of taxpayer information to the AEC for the purposes of administering the Electoral Act and Referendum Act
- omit provisions from the Electoral Act requiring a minimum font size for the authorisation details on how-to-vote cards
- make a number of related minor and technical amendments.
Referendum Act amendments
The Referendum (Machinery Provisions) Amendment Act 2013 (Act No. 34 of 2013) amended the Referendum Act. In December 2009, the then House of Representatives Standing Committee on Legal and Constitutional Affairs reported on the machinery of referendums in the report 'A Time for Change: Yes/No?'. The report made 17 recommendations. This Act addressed Recommendations 3 and 11.
Recommendation 3 stated that:
“The Committee recommends that the Australian Government introduce amendments to the Referendum (Machinery Provisions) Act 1984 (Cth) to require a Yes/No pamphlet to be delivered to every household, not every elector.”
Subsections 11(1), (2) and (3) of the Referendum Act provide for the printing and posting to each voter a pamphlet, which outlines arguments in favour of the proposed constitutional change and arguments against the proposed constitutional change. The Yes/No pamphlet is a compilation of these arguments.
Recommendation 11 stated that:
“The Committee recommends the Australian Government introduce amendments to remove the current limitation on spending imposed by section 11(4) of the Referendum (Machinery Provisions) Act 1984 (Cth) and include provisions to ensure that spending is directed to referendum education and to equal promotion of the Yes/No arguments”.
Subsection 11(4) generally limits the capacity of the Commonwealth to spend money in relation to a referendum other than on the production and delivery of the Yes/No pamphlet.
This Act implemented the government response to Recommendations 3 and 11 by:
- amending section 11 of the Referendum Act to substitute a requirement that the Yes/No pamphlet be sent to each address on the electoral roll for the current requirement that the Yes/No pamphlet is sent to every elector
- temporarily suspending the operation of subsection 11(4) of the Referendum Act until polling day for the 2013 election.
External legal services
The AEC spent $447 499 on external legal services in 2012–13. This included fees to firms on the panel of legal service providers, counsels’ fees, court costs and miscellaneous charges. This was an increase of more than 22 per cent from $362 825 in 2011–12. The increase was mainly due to the number of matters involving disputes over the eligibility of candidates to nominate for positions in registered industrial organisations under the Fair Work (Registered Organisations) Act 2009 (Registered Organisations Act). Under section 182 of the Registered Organisations Act, AEC officers usually conduct such elections for positions in these organisations unless the Fair Work Commission has granted an exemption.