Electoral Bill 2017: NSW Government Modernises the Electoral System
Thursday 23 November 2017 @ 12.04 p.m. | Legal Research
Yesterday, Wednesday 22 November 2017, the Legislative Council of New South Wales passed the Electoral Bill 2017 (the “Bill”). This Bill repeals and replaces the Parliamentary Electorates and Elections Act 1912 with the aim of making provision for the conduct of State Parliamentary elections. As stated in by the Honourable Ben Franklin in his second reading speech to the Legislative Council:
“This bill honours the Government's longstanding commitment to undertake that significant task in respect of the Parliamentary Electorates and Elections Act. The bill updates that Act, which was passed more than 100 years ago, to reflect contemporary electoral practices. It will simplify, modernise and improve the conduct of elections in this State. The revision of the current Act has involved a meticulous rewrite and implements many recommendations made by the committee following its inquiries into the State's electoral legislation and the administration of the 2011 and 2015 elections. The bill also contains a number of reforms requested by the Electoral Commissioner of New South Wales, which align with the overarching goal of this update to refresh and modernise the legislation.”
Background
The Bill is the result of reforms encompassed by the 2013 report by the Joint Standing Committee on Electoral Matters (JSCEM) as well as JSCEM’s report into the Administration of the 2015 State Election and Related Matters. This report concluded that the electoral legislative framework prior to these reforms required modernisation in order to ensure that principles essential to the State’s representative democracy remain valid.
As such, the Bill's introduction was preceded by an extensive consultation period. n the second reading speech, Mr Franklin explained:
“The bill before the House today benefits from the input of the many organisations and individuals who made submissions on an exposure draft that was released for public consultation in August. Each one of those submissions has been considered closely in preparing the bill for Parliament. [ …]
This bill will refresh the legislative framework for elections in New South Wales, modernising and streamlining the existing legislation for the benefit of all participants in the electoral process. The content of this bill was developed in close consultation with the Electoral Commissioner and members of staff of the NSW Electoral Commission.”
Provisions of the Bill
Overall the Electoral Bill creates a legislative framework for the running and conduct of elections in NSW. It does so by providing, in Part 2 of the Bill, for electoral administration in the form of the NSW Electoral Commission (Division 1 of Part 2); the Electoral Commissioner (Division 2 of Part 2); and Staff of Electoral Commission and delegations (Division 3 of Part 2).
The NSW Electoral Commission is a statutory body representing the Crown [s 8(2)], consisting of [s 9(1)]: (a) a former Judge, (b) the Electoral Commissioner, and (c) a “person appointed by the Governor who has financial or audit skills and qualifications relevant to the functions of the Commission”. The Commission’s functions involve [s 10(2)]: (a) providing assistance for the conduct of elections; (b) instituting proceedings for electoral offences; (c) applying to the Supreme Court for orders with relation to certain Acts relating to elections; (d) conducting and promoting research into electoral matters; and (e) promoting public awareness of electoral matters in the general public interest.
Part 3 of the Bill deals with the redistribution of electoral districts in NSW, by creating an Electoral Districts Redistribution Panel (Division 1 of Part 3). In redistributing the electoral districts, the Redistribution Panel, under section 21 of the Bill, is:
- to have regard to demographic trends within New South Wales and, as far as practicable, endeavour to ensure on the basis of those trends that, at the relevant future time, the number of electors enrolled in each electoral district will be equal (within a margin of allowance of 10 per cent more or less of the average enrolment in electoral districts at that future time), and
- subject to paragraph (a), to give due consideration, in relation to each electoral district, to:
- community of interests within the electoral district, including economic, social and regional interests, and
- means of communication and travel within the electoral district, and
- the physical features and area of the electoral district, and
- mountain and other natural boundaries, and
- the boundaries of the existing electoral districts.
Part 4 of the Bill deals with entitlement to enrol and vote for the general public; while Part 5 deals with enrolment procedures and information. Part 6 entails registration of political parties, including application (s 59), registration (s 61) and cancellation of registration (s 68).
Part 7 of the Bill concerns conduct of parliamentary elections, as administered by the NSW Electoral Commission. This Part is divided into Writs for elections (Division 1); election administration (Division 2); nominations (Division 3); child protection declarations by candidates (Division 4); voting centres (Division 6); scrutineers (Division 7); ordinary voting at district voting centres (Division 8); declaration voting at voting centres (Division 9); postal voting (Division 10); technology assisted voting (Division 11); determination of election results (Division 12); adjournment of voting (Division 13); provisions relating to activities during regulated periods (Division 14); offences (Division 15) and miscellaneous provisions relating to elections (Division 16).
In the continuation of the second reading speech in the Legislative Council, the Honourable Ben Franklin discussed some of the considerations of Part 7 of the Bill:
“The bill would also clarify and improve the provisions that provide for alternative means of casting a vote. The Government has reviewed the categories of voters who are eligible to vote by way of technology assisted voting—including the iVote system—to ensure that the policy grounds for providing access to technology assisted voting are clear and consistent, and that it is available to those who face barriers to voting in person. To this end, the bill enables technology assisted voting to be used by additional classes of persons, including silent electors and registered early voters.
It also enables technology assisted voting to be used at by-elections by electors who will not, throughout the hours of voting on the election day, be within the electoral district concerned. In addition, the bill would streamline the multiple criteria for early voting and postal voting so that they are clear and concise. The bill also provides new powers for the Electoral Commissioner, with the approval of the Secretary of the Department of Premier and Cabinet, to requisition the use of rooms and halls in certain premises as voting centres in specified circumstances—for example, to enable wheelchair accessibility. Put simply, these reforms strengthen the electoral system by making it easier for people to vote.
As for how these votes are counted, I note that the bill adopts a centralised model for the counting of postal votes and declaration votes. This is intended to achieve greater efficiencies and cost savings and higher quality scrutiny, and expedite the counting and declaration of the result. A key reform in part 7 of the bill responds to a 2013 committee recommendation that the Government undertake a comprehensive review of the penalties that currently apply for breaches of the Parliamentary Electorates and Elections Act to ensure that they deter non‑compliance and are consistent with the penalties in the Election Funding, Expenditure and Disclosures Act 1981. The bill maintains or increases the penalties for offences under the current Act, repeals redundant offences and consolidates a large number of existing offences into fewer, more general offences.
It also provides that penalty notices can be issued for offences prescribed by the regulations. In updating the penalties that currently apply, there has been concern to ensure that the level of the penalty is commensurate with the prohibited conduct. In particular, the increases reflect the importance of protecting the secrecy of the vote, the integrity of the vote and the privacy of New South Wales citizens in participating in the electoral process. I note that public consultation on the draft bill has helped to determine the penalties that should apply to offences against the proposed Act. The bill maintains the significant penalties that apply to some of the more serious offences, including the offence of electoral bribery.”
The remainder of the Bill deals with the Court of Disputed Returns (Part 8) and Enforcement of electoral offences (Part 9).
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Sources:
Electoral Bill 2017: Bill, second reading speeches, explanatory note and Bills Digest, as published on Timebase LawOne.
