DISCUSSION PAPER No 2 — December 2000
Modernising Tasmania’s Electoral Act
Responding to the Electoral Commissioner’s 1999 request, Cabinet approved drafting of a new electoral act to replace the Electoral Act 1985, with a particular view to—
The new Act 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.
Detailed drafting instructions for the new act are now well advanced, and this second discussion paper seeks additional feedback from the general public.
An initial discussion paper was circulated for public comment in December 1999. Twelve submissions were received, generally supporting a modernised electoral act.
Initial comments were received on a variety of electoral issues, only some of which had been raised in the original discussion paper.
In addition, significant issues have arisen during preparation for the new act that could involve more than administrative change to the legislation.
Further public comment is now invited before the formal drafting process commences. This paper should be read in conjunction with the first discussion paper which is also available from our website.
These issues are addressed under the appropriate headings below.
Comments should be received by 16 February 2001; addressed to—
More information can be obtained from the Electoral Commissioner, David Farrell.
An independent Tasmanian Electoral Commission
Separate to the drafting of a new electoral act Cabinet has approval the creation of an independent Tasmanian Electoral Commission.
Thus the new electoral act will also establish the electoral commission to be responsible for the administration of Parliamentary elections in Tasmania.
This paper has been written on the basis that the new electoral commission is established as it will have an important role in approving most of the detailed forms and procedures required by the new electoral act.
Simplification & clarification
In line with the first discussion paper considerable progress has been made on reducing duplication and removing unnecessary machinery provisions.
Most forms will not be specified in the Act, schedules or regulations, but approved by the new electoral commission.
Issues on which comment is invited
The following are proposals in relation to issues, most of which were raised in the first discussion paper—
Registration of political parties
The current process to register a party in Tasmania requires the completion of an application form including the names and addresses of 100 people who are to be the registered members of the party. Each person must sign a statutory declaration, to accompany the application, that he or she is a member of the party. The list of registered members is published twice in each daily newspaper and the gazette prior to registration.
Largely due to a recent proliferation of political parties, registration requirements are being reviewed in most other states. For example the 1999 New South Wales Legislative Council ballot paper contained 97 registered parties, making voting very difficult and confusing.
The basic party registration requirements in Tasmania, as set out above, are such that a similar situation is unlikely to arise here. Thus no change is proposed to these basic requirements, though there is need for the party registration and review process to be more simply and clearly defined.
Currently, any objection to the registration of a party, including a challenge by the Electoral Commissioner, is to be referred directly to the Supreme Court.
It is proposed that the commission will have responsibility for accepting or rejecting an application to register a party, having considered whether the application complies with the Act and any objections to the registration. Subsequent appeals would be still made to the Supreme Court.
The nomination of candidates
Each candidate must currently be nominated by 2 electors. It is proposed this requirement be increased to 10 nominators. This may help deter the frivolous, without being too onerous on prospective candidates with strong community links. Other jurisdictions require 0, 2, 6, 15 or 50 nominators.
The restriction on electors nominating more than one candidate is impractical to enforce and will be removed.
The $200 required as a nomination deposit was set in 1985. It is proposed that this be increased to $350 in line with inflation. The House of Representatives nomination deposit is also $350.
The complex and confusing requirements for nominating party candidates will be replaced with a simple system that allows the registered officer to nominate the party candidates for any division. This is considered sufficient, as a registered party must have at least 100 registered members.
A person who is bankrupt may stand and be elected to Parliament. However, under the Constitution Act 1934, if a member of Parliament becomes bankrupt their seat becomes vacant. The current Electoral Act 1985 does not address this issue.
Under the Local Government Act 1993 a person who is bankrupt is not eligible to nominate for election. A recent amendment to this Act also provides that if a councillor becomes bankrupt his or her position becomes vacant.
It is inappropriate for the electoral office to express an opinion on this matter.
Comment is invite.
Grouping candidates on House of Assembly ballot papers
At present, any 2 candidates may group together at a House of Assembly election in order to appear in a separate column on the ballot paper. The column is headed Group A (or B, or C etc.) with no other party or group name being shown.
Tasmania has had this provision for many years. This differs from other jurisdictions, where only registered parties are permitted to have separate columns.
The recent proliferation of parties in other parts of Australia gives rise to concerns that our almost complete lack of restriction on unnamed group columns could lead to the ballot paper becoming unwieldy and confusing for voters.
It could also be argued that political parties have to go through a more rigorous registration process for the sole purpose of having a separate column on the ballot paper—albeit with the party name as a heading.
Comment is invited.
Extending pre-poll, mobile & postal voting facilities
The new electoral commission will be able to approve ordinary, pre-poll or mobile polling places outside the division for which the election is being held. The commission may also approve procedures for the electronic receipt and verification of postal vote applications.
Registered general postal voters
Electors who for ongoing reasons cannot vote at polling booths, will be able to register as general postal voters once only for state and federal elections. This will allow postal ballot papers to automatically be sent to them when nominations close—without completing an additional postal vote application.
Streamlined postal, pre-poll, mobile, absent & provisional voting
Procedures and forms for declaration voting will be greatly simplified in the new act, with unnecessary variations between postal, pre-poll, mobile (institution), provisional and absent voting being removed.
It is proposed that pre-poll and mobile voting ballot papers will be placed directly into a ballot box without the need to enclose them in declaration envelopes.
Quicker election results
Few comments were received on the need to speed up the availability of results. However at election time there is always pressure to determine the outcome of an election as soon as possible. It is therefore proposed to implement only the following procedures which do not threaten the integrity of the election.
A slightly earlier closing time for the receipt of postal votes
It is proposed to change the closing time for receipt of postal votes from midnight on the 10th day after polling day (a Tuesday) to 10am on the same day. This will save almost a full day in the election timetable, without disadvantaging postal voters, as mail is normally delivered to post office boxes by 10am.
With improved procedures, it is expected that returning officers will have completed the necessary rechecks to enable the distribution of preferences to commence at the earlier close-off time.
Earlier poll declaration, where practicable, at Legislative Council elections
In order to determine the successful candidate at a Legislative Council election, if practicable, a provisional distribution of preferences can be undertaken before all eligible votes are received.
The new legislation will permit the poll to be declared when the result is beyond doubt—that is, when outstanding postal and other votes cannot change the outcome.
Reducing the time the distribution of preferences takes
It is proposed to incorporate the process of amalgamating transfer values into the Hare-Clark scrutiny system used for the House of Assembly.
This will significantly reduce the time taken to complete House of Assembly scrutinies, particularly when large numbers of candidates are contesting the election.
The Australian Capital Territory incorporated this modification some years ago when it adopted the Hare-Clark system. It has also been used successfully for Tasmania’s local government elections in 1999 and 2000.
The process involves 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
The proposals contained in the first discussion paper were supported in submissions and it is proposed to change authorisation requirements as follows.
Only the name and address of the responsible person will need to appear on electoral matter. Details of the publisher and printer will no longer be required.
The new act will allow non-residential addresses to be used— provided the person is clearly identified and the address enables them to be readily located.
Election comment in newspapers on polling day
Under section 246 of 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 other legislative restrictions on the distribution of electoral material on polling day.
This issue was raised in the first discussion paper. Contrary submissions were received, suggesting either the restriction be removed or the restriction be retained.
Due to the possible political impact of any decision, this is not a matter on which the Tasmanian Electoral Commission should properly express an opinion.
Further comment is invited.
Simpler enrolment procedures
The current intention in drafting the new Act is to adopt the principle that 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.
The new legislation could still incorporate specific provisions relating only to Tasmania, if required now or at any time in the future.
As set out in the first discussion paper this will generally involve removing most of the enrolment machinery provisions from the electoral act and amending the Tasmanian Constitution Act 1934 (ss.28&29) by deleting the requirement—unique to Tasmania—for 6 months continuous residence at any one time.
Current legislative moves to modify commonwealth enrolment procedures for witnessing enrolment forms and proof of identity of first time enrolments are being monitored and will be taken into account in the light of our new electoral act.
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