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Proposed Electoral Act changes for the 2022 Federal Election

Assistant Minister for Electoral Matters, Ben Morton, introduced four bills today to amend the Commonwealth Electoral Act ahead of next year’s Federal election.

It’s important to say first that the bills do not include controversial proposals to introduce voter ID and optional preferential voting. Those were put forward by LNP Senator James McGrath in the Joint Standing Committee on Electoral Matters’ (JSCEM’s) review of the 2019 election.

The bills also do not include any of JSCEM’s recent proposals to change the Electoral Act to deal with holding elections in a period when Covid is widespread or lockdowns are in place. Presumably any changes related to Covid will be introduced closer to the election.

These bills introduce a number of changes to counting procedures, party registration, non-party campaign expenditure, multiple voters and other campaigning offences. Some of the changes are more controversial than others, so the changes have been split into four bills.

The most controversial changes concern party registration, and splitting the changes avoids the problem where important changes in an omnibus amendment bill are delayed by more controversial parts of the bill.

Below is my summary of the proposed changes with links to the source documents on the bills.

ELECTORAL LEGISLATION AMENDMENT ( COUNTING, SCRUTINY AND OPERATIONAL EFFCIENCIES) BILL 2021

Full details of bill at this link

This Bill makes a number of technical amendments to the Electoral Act relating to postal voting, pre-polling, scrutiny, and authorisations. The major changes are –

changed provisions to streamline the processing of postal vote applications, a sensible change given the shift to voters applying for postal votes using the AEC’s on-line application form.
shorten the period allowed for pre-poll voting so that it cannot commence until 12 days before polling day. Most pre-poll votes are taken in the two weeks before polling day, so shortening the time allowed for pre-poll voting from three weeks is not a drastic change.
allows for the early opening and sorting of pre-poll ballot papers, and the early extraction of declaration votes.

In the past I have been concerned that cutting the period of early voting would just cause political parties to encourage more people to apply for an early postal vote. The shift to on-line postal vote applications may diminish this, but it is still likely that a shorter pre-poll period will see an increase in postal voting. The processing of postal votes is more complex and expensive than pre-poll votes so there are trade-offs in shortening the period for pre-poll voting.

Allowing the opening of pre-poll ballot boxes two hours before the close of polls makes sense. I have previously written on the problems of counting pre-polls and proposed that counting start early. This bill does not go that far, but allows pre-poll ballot boxes in secure locations to be opened early for unfolding and sorting with counting to begin after 6pm. Given the volume of pre-poll votes at recent elections, there is a substantial delay in starting the count caused by the physical problem of unfolding and sorting thousands of ballot papers. The use of secure locations and the lock-in of scrutineers means information on the count should not leak before 6pm.

The pre-processing of postal votes envelopes would make them available for counting. The AEC has previously counted (though not reported) postal votes on the night at by-elections, but does not count postals at general elections. The AEC’s current computer system does not allow postal vote tallies to be entered on election night. The early opening of postal votes may make more votes available for counting on the Sunday after polling day.

In 2019 the AEC warned that it could not guarantee that all pre-poll votes would be counted on election night. In the end the AEC did count all pre-polls, but the same counting problem will arise in 2022 given the expected further increase in the number of pre-poll votes. The early opening of pre-poll ballot boxes will help the completion of pre-poll vote counting. In my view it makes sense for the AEC to concentrate on finishing the count of pre-poll votes on election night and leave leave postal vote counting for close seats until the next day.

ELECTORAL LEGISLATION AMENDMENT (PARTY REGISTRATION INTEGRITY) BILL 2021

Full details of the bill can be found at this link

This bill increases the number of members required to register a political party from 500 to 1,500. This was recommended after the 2013 election as part of proposed Senate reforms, but the need for crossbench support to pass the Turnbull government’s Senate reforms saw the proposed party membership increase abandoned.

Currently the Electoral Act includes two ways to register a party. Parties can be registered by a Senator or member of the House without the need for the party to have members. Otherwise, registration applications must supply a list of members. The AEC contacts a sample of the supplied members to verify the party has the required number of members. That number will increase from 500 to 1,500 under the proposed change.

The 500 member test for federal registration is currently much weaker than similar tests for state registration. NSW requires 750 members, Victoria, Queensland and WA 500. Most states apply tougher tests for proof of registration, many states requiring a form to be completed and signed by each member to prove party membership. This is a much tougher test than is required by the AEC.

Non-parliamentary parties will have three months after the bill passes to get the extra 1,000 members required to meet the new registration rules.

For those who think the numbers are too high, it is worth considering that one of our much smaller neighbours, Timor Leste, requires parties to have 20,000 members for registration, and the party must have at least 1,000 members from each of the country’s 13 regions.

The other change in this bill concerns tightening rules on allowed party names. The new rules make it much clearer that parties cannot be registered if they have a name that is similar to that of another party. Words like “Alliance” , “Democratic”, “Australia” and “Party” are excluded in deciding whether names are similar.

I think there is one loophole on my reading in that “Coalition” is not currently the name of a registered party and so could be used in a new party name, even though it is a term in common use to describe the Liberal-National Party Coalition.

Clearly, this amendment is designed to stop incidents such as occurred at March’s Western Australian election when the Flux Party re-named itself “Liberals for Climate”. The Liberal Party have complained in the past about the registration of “liberals for Forests”, the “Liberal Democrats”, and most recently the “New Liberals”.

The bill includes a provision that once the new rules are in place, precedence in the use of a name is given to the first party registered. So the Liberal Party would be able to apply to have the Liberal Democrats and New Liberals de-registered unless they changed their name.

This bill is clearly more controversial than the others. The Greens opposed a previous attempt to lift membership from 500 to 1,500. The new rules around names look like a blunt instrument that allows the Liberal Party to stamp out imitators. The question is whether Labor, who have objected to “Democratic Labor Party” and “Labour DLP” in the past, as well as the Greens, may find the amendment useful to protect their party name from imitators.

The act allow a second party to use a first party’s name where the first party agrees, which will allow the Liberal National Party and Country Labor to retain registration. The LNP is registered as the Queensland branch of the Liberal Party.

One thing not dealt with in the bill is party registration reliant on members of parliament. This form of registration has been abolished in most states and the inquiry into the 2016 Federal election recommended it be removed from the Commonwealth Electoral Act.

Several Senators have used this provision to register parties over the years. The most controversial use of the provision was to register Fraser Anning’s Conservative National Party in 2019. Anning had been a One Nation candidate in 2016, and was elected by re-count when Malcolm Roberts was disqualified. Anning chose not to sit with One Nation and later joined Katter’s Australian Party before being expelled. He used the central nomination advantage provided by party registration to nominate candidates in enough seats to meet the ABC’s requirements for free air time.

Update – the Parliament’s rules on registering parties were challenged in 2004 by the DLP. (You can find the judgment here). The case upheld the 500 members rule and the no membership overlap rule.

Chief Justice Gleeson gave a good summary of the reason why the rules are were valid in paragraph 22.

Plainly, the reason for the 500 rule, in the wider context of a system of registered political parties for various purposes relating to the Act (a system which itself is not challenged by the appellant), is the view, taken by the Joint Select Committee, and then by Parliament, that to qualify as a registered political party a group must have a certain minimum level of public support, and that an appropriate minimum level is established by a membership of 500. As to the first part of that, it is reasonably open to Parliament to consider that, bearing in mind the practical significance of political parties in the operation of the democratic process, it would deprive the concept of “party” of any real meaning if any two or more people, who happened to agree on even one issue, could demand recognition as a “party”. It may be added, as was pointed out in argument, that in Australia there is a long history of electoral systems which discourage multiplicity of candidates by requiring candidates to deposit a sum of money which will be forfeited if they do not achieve a minimum number of votes. Similarly, there are long-standing requirements for nominations of candidates to be supported by a minimum number of people. Those are well-known forms of regulating candidature at elections which have never been regarded as infringing the electors’ right of choice, or as involving unreasonable discrimination. A requirement that, to be eligible to be treated as a political party for the purposes of the Act, a group must have some minimum level of public support, is not materially different. As to the figure of 500, it is, no doubt, to an extent arbitrary, and there is no logical process by which it can be demonstrated that it should be more than, say 100, or less than (as is the case in New South Wales) 750. Even so, the number 500 is not so large as to be outside the range of choice reasonably available to Parliament if a number is to be chosen at all.

So any High Court challenge would have to convince the Court that 1,500 was somehow unacceptable, which seems unlikely. Whether the rules on change of party names somehow conflict with implied rights of poliutical free speech I’ll leave to lawyers to argue.

ELECTORAL LEGISLATION AMENDMENT (POLITICAL CAMPAIGNERS) BILL 2021

Full details of the bill can be found at this link

The Bill reduces the thresholds for electoral expenditure that can be incurred by an individual or organisation before they are required to register as a political campaigner.

The explanatory notes to the bill state it is intended to “enhance public confidence in Australia’s political processes by aligning transparency requirements for political actors who seek to influence the outcome of an election to more closely resemble those for political parties, candidates, and members of Australian Parliament.”

Funding and disclosure law is not my area of speciality so I can offer little comment on this bill.

ELECTORAL LEGISLATION AMENDMENT (Electoral Offences and Preventing Multiple Voting) BILL 2021

Full details of the bill can be found at this link

To quote the explanatory notes with the bill –

“New Part XVC is inserted to specify the circumstances where the Electoral Commissioner can declare an elector to be a designated elector, requiring the elector to vote by declaration vote. It also provides for the review of a declaration of designated elector to be conducted by the Electoral Commissioner, a delegate of the Electoral Commissioner, or the AAT.”

This change is similar to a provision of the NSW Electoral Act in dealing with suspected multiple voters. Multiple voting is almost impossible to prosecute unless the alleged multiple voter makes an admission. The new provision gives the Electoral Commissioner a mechanism to deal with electors who are reasonably suspected of having voted multiple times in the same election to safeguard against multiple voting in future elections. A voter declared a ‘designated voter’ would still be permitted to vote, but they would have to cast a declaration vote, that is their ballot paper is placed in a declaration envelope to be processed and admitted to the count in the post-election period. Only the first declaration vote would be admitted to the count.

Schedule 2 amends the penalty for the offence of interference with political liberty in section 327. The note in the bill refers to “Violence, obscene or discriminatory abuse, property damage and harassment or stalking are examples of conduct that may be an offence under this subsection.” It provides for a penalty of three years or 100 penalty units. It is a response to threatening behaviour that some candidates have faced at elections, but given the penalty imposed by the provision, would have to be applied to significant events and require strong evidence for conviction. No doubt more detail of past incidents will come to light during the debate.

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