DISCUSSION PAPER No 1 — December 1999

Modernising Tasmania’s Electoral Act

Following a request by the Electoral Commissioner, Cabinet has approved the drafting of a new Electoral Act to replace the Electoral Act 1985, with a particular view to—

  • utilising contemporary legislative drafting;
  • the adoption of modern electoral practice; and
  • removing detailed procedures and forms, to be approved or prescribed as appropriate

The review will carefully preserve the fundamental principles inherent in Tasmania’s unique electoral systems, as used for the House of Assembly and the Legislative Council. It would, however, seek to present those principles in a simple, clear, precise and accessible way.

No doubt substantive matters of a non-administrative nature will arise during the review. Possible changes that may be generated in this way would be submitted to Cabinet for consideration prior to drafting.

Cabinet also approved the preparation and public circulation of this discussion paper on proposed changes.

This paper sets out some examples of problems with the existing Act and the general approach to be taken to overcome these problems in the new Act. Some issues are raised for comment, without indicating a preferred approach. The paper does not set out to be exhaustive—rather to provide a context for the review and to stimulate thought and input. The current Electoral Act is long and complex, and much of the review and drafting—following the principles outlined in this paper—is expected to be relatively routine in nature.

Public comment is welcome—both on the general approach to be taken and specific issues (whether raised in this paper or not) before formal drafting commences.

Comments should be received by 18 February 2000; addressed to—

The Electoral Commissioner, GPO Box 300 HOBART 7001
Phone 1 800 801 701 or 03 6233 2000 Fax 03 6224 0217
Email ballot.box@electoral.tas.gov.au

More information can be obtained from the Electoral Commissioner, David Farrell.

Simplification & clarification

The Act currently contains detailed machinery provisions for conducting elections, many of which are outdated and do not facilitate the use of current or future technology. Some of this detail is duplicated within the Act itself and in associated schedules, regulations and forms.

Users of the current Act, including members, parties, candidates and the media, have experienced difficulty in interpreting and complying with detailed and sometimes anachronistic requirements. The Tasmanian Electoral Commission has also had difficulties in administering some areas of the Act and providing information on compliance in a clear and concise manner.

Perhaps most important, is that the introduction of modern electoral practice has the potential to make voting a less-onerous civic duty for many Tasmanian electors.

Simplification and clarification will facilitate compliance with, and understanding and administration of the Act.

Following are a few specific examples—

Party registration & nomination of candidates

The provisions relating to registered parties are relatively complex and have drawn criticism from time to time. The requirement to complete 4 separate forms to nominate a party candidate for an election is particularly confusing.

In other jurisdictions, party candidates are commonly nominated using a single form at a central point. This might allow endorsed candidates for each division from a registered political party to be nominated on the one form, which would be signed by the endorsement representative of that party and lodged with either the relevant Returning Officer or the Electoral Commissioner.

Streamlining the declaration voting system

The requirements for postal, pre-poll, institution, absent or other forms of declaration voting are also onerous and confusing. Each requires a different envelope with lengthy, complex and old-fashioned text. These processes are inefficient and do not allow the easy use of technology. Time and cost could be saved in the process of issuing and verifying these votes. The system is not user-friendly to voters or polling officials.

One proposal is for electors wanting to cast a pre-poll or institution vote to make a verbal or written declaration that they are entitled to vote in this way. Their names would then be marked off a certified list of voters for their division and their ballot papers deposited directly into a ballot box without need for a declaration envelope. These votes could then be included with all ballot papers cast on polling day.

Streamlining the declaration voting system may also facilitate earlier election results.

Recent amendments to the Commonwealth Electoral Act 1918 provide for the preliminary verification of declaration vote envelopes to commence on the Monday prior to polling day. Adopting an approach along these lines in Tasmania would reduce processing time after close of poll, thus speeding up release of first preference votes on polling night. It would also reduce the amount of work to be completed between polling day and commencement of the distribution of preferences.

Enforcement of compulsory voting

The sections relating to enforcement of compulsory voting are unduly complex and time-consuming, requiring at least two notices for simple offences. In some cases it is impossible to prosecute within the time limit imposed by the Justices Act 1959.

It is proposed that a process similar to that in the Commonwealth Electoral Act be adopted. This could be along the lines of an on-the-spot traffic infringement system. Apparent offenders would get a single penalty notice allowing either an immediate fine payment or the provision of a reason for not voting. If the reason was not acceptable a further penalty notice would be issued. Telephone payment of fines by credit card would be accepted.

Supplementary electoral rolls

The Act still refers to supplementary electoral rolls, which were used to show changes to the most recent print of an electoral roll just prior to the close of roll. With electoral rolls now computerised, a full roll print occurs immediately following the close of roll and these unnecessary references would be removed.

Modernisation

More modern electoral legislation in Australia—such as in the Australian Capital Territory and Queensland—is now considerably shorter in length; being about half the size of the Tasmanian Act, while still containing all the essential elements.

In line with these jurisdictions and with contemporary legislative drafting practice, Tasmania’s new Act will retain all essential electoral requirements, with more detailed administrative procedures being approved by the Electoral Commissioner or prescribed as appropriate. This will allow the Electoral Commissioner to take advantage of new techniques and technology.

Similarly, modern legislation more often provides for most forms to be approved, rather than prescribed in regulations and schedules. As long as the relevant section in the Act clearly sets out the purpose of the form, it is more practical to empower the Electoral Commissioner to approve it. This will allow flexibility to adapt a form to a particular situation, for example as an envelope, carbonised insert or even for use on the Internet. It will also allow flexibility in the use of language and in particular the adoption of ‘plain English’ wherever possible.

Non-administrative issues

While the purpose of the proposed review would not be to alter the current intent of the Act, a number of issues which might be seen as more than administrative have arisen, or may arise during consideration of the new Act.

Issues noted so far include—

Obtaining an earlier result without affecting the integrity of the election

The time taken after polling day to obtain the final result of an election comprises—

  • the period prior to commencing the distribution of preferences, to allow reasonable opportunity for overseas and interstate postal votes to be returned and for the returning officer to perform necessary checks, rechecks and amalgamation of ballot papers; and
  • the time that the distribution of preferences (the cut-up) itself takes.

Both these factors are important to the integrity of the election and are considered separately below.

At Legislative Council elections a provisional distribution of preferences can be undertaken prior to receiving all eligible votes. If legislation permitted, the poll could be declared when the result was beyond doubt—that is, when the number of outstanding postal and other votes could not change the outcome.

Post-election period for receiving postal votes

The Act currently requires postal ballot papers to reach the relevant returning officer by 10 days after polling day, to be included in the scrutiny. Hence, by statute, the distribution cannot commence until after midnight on the second Tuesday after polling day.

This period was introduced in 1989, prior to which postal ballot papers had to be received by polling day. This amendment brought Tasmania into line with the Commonwealth legislation at that time. The Commonwealth period has since been extended to 13 days after polling day.

Prior to 1989, House of Assembly elections were usually finalised, with polls declared 9 to 10 days after polling day. The recent House of Assembly elections were finalised on the 13th and 14th days after polling, with polls declared on the 16th day.

The number of electors voting by post is increasing. For example, at the 1998 House of Assembly Election 16 276 postal votes were accepted, with over 3 000 of these being received after polling day, and about 150 on the final two days. In 1996 only 9 943 postal votes were accepted. With this significant trend now evident at both state and federal elections, a significant reduction in the period for return of postal votes could risk a greater number of potential voters being disenfranchised.

While the period allowed after polling day for return of postal votes is important, it must be viewed in the context of the total period provided for postal voting. That is, the time from close of nominations (and availability of ballot papers) to polling day, combined with the time allowed for return after polling day.

In Tasmania, the minimum 2-week period between close of nominations and polling day has been used for at least the last 3 House of Assembly elections. When combined with the set 10-day period after polling day, this gives a total of 25 days for the issue and return of postal ballot papers.

In comparison, Australian Capital Territory legislation fixes 3 weeks between close of nominations and polling day, with just 6 days after polling for receipt of postal votes. Thus, the Australian Capital Territory allows a total of 28 days.

Time needed to perform tasks required before the cut-up can start

After polling day a number of critical tasks must be completed before the distribution of preferences can commence.

All ordinary votes from polling places are checked, rechecked and amalgamated with other polling place and declaration votes.

The validity of all pre-poll votes, institution votes, postal votes and other declaration votes is checked prior to admission.

Absent votes from all polling places in the state have to be delivered to the relevant returning officer and verified and accounted for.

Many of these tasks are time-consuming but, as mentioned earlier, some could be streamlined.

Reducing the time before the distribution of preferences commences

While this office believes that a statutory post-election window for postal votes should be provided, the exact length of that cut-off period is open to debate.

The TEC believes that consideration could reasonably be given to changing the cut-off for receipt of postal votes from the end of the 10th day (a Tuesday) to 10 am on that day or the previous day. The first option would effectively not change the cut-off, as mail is not normally delivered to post boxes after 10 am. The second option would effectively reduce the period by 1 day.

Any further reduction in the period might be of little benefit, as returning officers may not have completed all the tasks listed above, which are necessary before commencing the cut-up.

Increasing the period between close of nominations and polling day could allow the period after polling day for postal votes to be decreased without reducing the overall period for voters wishing to vote by post.

Reducing the time the distribution of preferences (cut-up) takes

The 1996 introduction of a computerised scrutiny sheet, developed in Tasmania, has already provided a small reduction in the scrutiny time. Further computerisation of the scrutiny process would require the data entry of all ballot papers. This is an expensive and time-consuming process in itself and is unlikely to greatly reduce the overall period for obtaining a result after polling day. With improved intelligent character recognition scanning this may become feasible in the future. The situation is being monitored by electoral agencies across Australia.

However, if the process of amalgamating transfer values was introduced to our Hare-Clark scrutiny system, it would provide a significant reduction in the time taken to complete scrutinies, particularly when a large numbers of candidates is contesting an election.

This process was adopted when the Hare-Clark system was introduced to the Australian Capital Territory some years ago and has recently been successfully introduced for local government elections in Tasmania.

The process results in only very minor changes to the count and is arguably no more or less fair than the current system.

Authorisation of printed & broadcast electoral matter

A review of the requirements for authorisation of electoral advertising is proposed.

These have caused considerable confusion and complaints, sometimes resulting in court challenges.

The authorisation requirements for various types of electoral comment and candidate advertising could be simplified along the lines recently adopted in the Local Government Act 1993. That is, the name and address of the responsible person is to appear at the end of an electoral item.

The Electoral Act currently requires the name and residential address of the person who instructed the printing and the printer. It is now common for material to be printed in-house on word processors and photocopiers, hence the requirement for printer details is less relevant. We see the main purpose of authorisation being to clearly identify the person responsible for the electoral material.

In the interests of personal privacy it may also be desirable to allow an address other than a residential address to be used—provided it enables that person to be clearly identified and located.

Currently, the Act contains different broadcast electoral matter requirements to the Commonwealth Broadcasting Services Act 1992, which also applies to state elections. While the intent of both Acts is similar, the requirements should be aligned for ease of compliance.

Extending pre-poll & postal voting facilities

Provision could be made for the Electoral Commissioner to approve appropriate additional facilities and procedures for pre-poll and postal voting for electors both inside and outside Tasmania. Current legislation limits such facilities to the offices of returning officers only. Establishment of these new facilities would be in line with procedures common elsewhere in Australia. Significant convenience for electors would be achieved while cost increases, if any, would be negligible.

Registered postal voters

It would be desirable for Tasmania to adopt the Commonwealth register of general postal voters. This would allow electors who are prevented from attending polling booths for ongoing reasons—distance, disability, age, health, religion or personal safety—to be automatically sent postal ballot material when nominations for an election close. This would obviate the need for postal vote applications for these electors and avoid confusing those automatically receiving postal votes for federal and local government elections but not state elections.

Offences

relating to acts on polling day. Under the current Act it is an offence to publish in a newspaper on polling day a matter or comment relating to a question arising from or an issue of the election campaign. This restriction does not apply to other forms of media such as television or radio, nor does it apply in other states. However, it could be seen as in keeping with restrictions on the distribution of electoral material on polling day.

Simpler enrolment

Why should there be unnecessary differences in enrolment eligibility for federal, state and local government elections?

It may be appropriate to adopt the principles in Queensland and Australian Capital Territory legislation—that is, if you are enrolled to vote in federal elections you are automatically enrolled on the Tasmanian state roll and eligible to vote in state and local government elections.

In broad terms this would involve removing all detailed enrolment requirements from our Electoral Act and amending the Tasmanian Constitution Act 1934 (ss.28&29) by deleting the requirement—unique to Tasmania—for 6 months continuous residency at any one time.

Initial steps in this direction were taken in the early 90s when single card enrolment was introduced for federal, state and local government elections.

Tasmanian legislation could still provide for exceptions to any specific Commonwealth enrolment requirement that may be unacceptable. Such exception legislation would be simpler and easier to interpret, particularly in the context of joint state/federal roll management.

General comments

Readers may note that a number of changes are being suggested that would align Tasmanian and Commonwealth electoral legislation.

Tasmania has historically shared a close relationship with federal divisional returning officers, who have jointly maintained the Commonwealth and House of Assembly electoral roll since 12 February 1912, when King O’Malley signed the first formal federal/state arrangement making provision for joint electoral administration in Tasmania.

More recently, the separate Legislative Council roll was discontinued and a single state roll established—from which House of Assembly, Legislative Council and local government rolls are extracted.

At a national level the joint federal/state roll is managed through the Electoral Council of Australia, a body which comprises all state and territory electoral authorities, and the Australian Electoral Commission.

In Tasmania, the Tasmanian Electoral Commission sub-contracts the Australian Electoral Commission to provide returning officers in Hobart, Launceston and Burnie who conduct the operational side of state and local government elections. The Tasmanian Electoral Commission retains overall control and responsibility for election management and tasks such as election preparation, writs, procedures, ballot papers, forms, equipment, advertising, media liaison and the tally room.

This long-standing cooperation between the Australian Electoral Commission and the Tasmanian Electoral Commission results in considerable cost savings and efficiencies and easier public access.

David Farrell

Electoral Commissioner

18 December 1999

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