Nick Xenophon (SA, Independent) Share this | Hansard source

by leave—I move amendments (1) and (2), standing in my name, on sheet 7071:

(1)   Schedule 1, item 2, page 3 (line 18), at the end of paragraph 3A, add "If, after so checking the signature, the DRO is not satisfied that the signature on the envelope is the signature of the elector, the DRO must make all reasonable attempts to contact the elector within 3 days after the election, to require the elector to provide evidence of his or her identity by the first Friday following the polling day for that election.".

(2)   Schedule 1, item 5, page 4 (line 9), at the end of paragraph 3A, add "If, after so checking the signature, the DRO is not satisfied that the signature on the envelope is the signature of the elector, the DRO must make all reasonable attempts to contact the elector within 3 days after the referendum, to require the elector to provide evidence of his or her identity by the first Friday following the voting day for that referendum.".

These amendments are in respect of provisional votes. In my second reading debate contribution I outlined the nature of the problem. Under the government's bill, signatures of provisional votes will be verified against the electoral database and where the divisional returning officer is satisfied that the signature is accurate that vote is counted. But there may still be some which are not able to be verified for whatever reason. These amendments address those cases, requiring that for those signatures which were not able to be verified the divisional returning officer must make all reasonable attempts to contact the elector within three days of polling day to require them to provide evidence of their identity by the first Friday following the election. The amendments aim to ensure that as many votes as can be counted are counted. It is a halfway house between the government's position and the opposition's position. I think that it is fair, though, in the circumstances to deal with the nub of the problem. I am grateful for the discussions I have had with the Special Minister of State and the shadow special minister of state in relation to this and I look forward to the support of both sides for these amendments.

Question agreed to.

by leave—I move the amendments, standing in my name, on sheet 7072:

(1)   Title, page 1 (line 2), omit "related", substitute "other".

[consequential – misleading or deceptive conduct]

(2)   Clause 1, page 1 (line 7), after "Voting", insert "and Other Measures".

[consequential – misleading or deceptive conduct]

(3)   Page 5 (after line 5), at the end of the bill, add:

Schedule 2—Amendments relating to misleading or deceptive conduct

Commonwealth Electoral Act 1918

1 After section 329

Insert:

329A Misleading or deceptive conduct

(1)    A person commits an offence if:

  (a)   the person either:

     (i)   engages in conduct; or

     (ii)   authorises another person to engage in conduct; and

  (b)   that conduct occurs during the relevant period in relation to an election under this Act; and

  (c)   that conduct is likely to mislead or deceive an elector in relation to the casting of a vote.

Penalty:

  (a)   if the offender is a natural person—$1,000 or 6 months' imprisonment; or

  (b)   if the offender is a body corporate—$5,000.

(2)    In a prosecution of a person under subsection (1), it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the conduct was likely to mislead or deceive an elector in relation to the casting of a vote.

Note:   A defendant bears a legal burden in relation to the defence in subsection (2) (see section 13.4 of the Criminal Code).

(3)    If the Electoral Commissioner is satisfied that, during the relevant period in relation to an election under this Act, a person is engaging in, or has engaged in, conduct that is likely to mis­lead or deceive an elector in relation to the casting of a vote, the Electoral Commissioner may request the person to desist from that conduct.

(4) In proceedings for an offence under this section, the court may take into account a person's response to a request under subsection (3) in assessing any penalty to which the person may be liable.

(5)    If the court is satisfied, in proceedings for an offence under this section, that a person has engaged in conduct that is likely to mislead or deceive an elector in relation to the casting of a vote, the court may order the person to desist from that conduct.

Referendum (Machinery Provisions) Act 1984

2 After section 122

Insert:

122A Misleading or deceptive conduct

(1)    A person commits an offence if:

  (a)   the person either:

     (i)   engages in conduct; or

     (ii)   authorises another person to engage in conduct; and

  (b)   that conduct occurs during the referendum period in relation to a referendum under this Act; and

  (c)   that conduct is likely to mislead or deceive an elector in relation to the casting of a vote at the referendum.

Penalty:   (a)   if the offender is a natural person—$1,000 or 6 months' imprisonment; or

  (b)   if the offender is a body corporate—$5,000.

(2) In a prosecution of a person under subsection (1), it is a defence if the person proves that he or she did not know, and could not reason­ably be expected to have known, that the conduct was likely to mislead or deceive an elector in relation to the casting of a vote at the referendum.

Note:   A defendant bears a legal burden in relation to the defence in subsection (2) (see section 13.4 of the Criminal Code).

(3)    If the Electoral Commissioner is satisfied that, during the referendum period in relation to a referendum under this Act, a person is engaging in, or has engaged in, conduct that is likely to mislead or deceive an elector in relation to the casting of a vote at the referendum, the Electoral Commissioner may request the person to desist from that conduct.

(4) In proceedings for an offence under this section, the court may take into account a person's response to a request under subsection (3) in assessing any penalty to which the person may be liable.

(5)    If the court is satisfied, in proceedings for an offence under this section, that a person has engaged in conduct that is likely to mislead or deceive an elector in relation to the casting of a vote at the referendum, the court may order the person to desist from that conduct. [misleading or deceptive conduct]

[Application of amendments]

(1)   The amendment made by item 1 of this Schedule applies in relation to elections the writs for which are issued on or after the commence­ment of this Schedule.

(2)   The amendment made by item 2 of this Schedule applies in relation to referendums the writs for which are issued on or after the commencement of this Schedule.

[misleading or deceptive conduct]

Can I say in relation to my previous amendments that that was quite painless: nothing from the opposition, nothing from the government, just demurring and support. I wish all my amendments were dealt with so simply.