Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006

The Act primarily affected:

• Prisoners: The substituted section 93(8AA) purported to remove the voting rights of approximately 20,000 prisoners, some 35 per cent of whom were serving sentences of two years or less (as noted in Roach [46]). Indigenous Australians made up 24 per cent of the prison population nationally, with higher proportions in some States. Following Roach, the three-year threshold (from the 2004 Act) was restored as the operative provision.
• Citizenship applicants: The provisional enrolment provisions of section 99B enabled citizenship applicants to enrol before their citizenship was finalised.
• Political parties, candidates, and associated entities: The political expenditure return and internet advertising provisions created new compliance obligations.
• Electoral officials: The Divisional Returning Officer restructuring and changed roll close procedures affected the administration of elections.

Roll close (section 155 as substituted by item 52): The date fixed for the close of rolls is the third working day after the date of the writ. "Working day" means any day except Saturday, Sunday, or a public holiday in any State or Territory. Names are generally not added to or removed from the rolls after the date of the writ. This provision was later held invalid in Rowe.

Political expenditure returns (sections 314AEB and 314AEC as inserted): Persons who incur political expenditure above prescribed thresholds must lodge annual returns disclosing the political expenditure incurred and gifts received for that purpose.

Internet advertising (section 328A as inserted): Electoral advertisements published on the internet must be authorised and identify the person responsible, consistent with the general disclosure framework in Part XXI of the Electoral Act.

Citizenship enrolment (section 99B as inserted): An applicant for Australian citizenship who is qualified in all respects other than citizenship may provisionally enrol. Provisional enrolment becomes full enrolment upon grant of citizenship.

As an amending Act, this instrument does not itself create ongoing powers or discretions. The powers it creates operate through the amended provisions of the Electoral Act:

• The Electoral Commissioner and divisional returning officers exercise the amended procedural framework.
• The Australian Electoral Commission administers the new disclosure regimes.
• The Secretary may take action in relation to provisional enrolment under section 99B.

The original prisoner disenfranchisement power (section 93(8AA)) was held constitutionally invalid.

As an amending Act, this instrument's penalties are found in the amended Electoral Act provisions. The political expenditure disclosure provisions carry penalties for non-compliance in the Electoral Act. Internet advertising provisions carry the standard advertising disclosure penalties.

The prisoner disenfranchisement provision (section 93(8AA)) was not a penalty provision but an eligibility rule: it prohibited a prisoner from exercising the right to vote, rather than imposing a fine or imprisonment for voting.

Commencement:

• Schedule 1, items 1 to 16: 22 June 2006 (Royal Assent).
• Schedule 1, items 17 to 19: 21 November 2006 (by proclamation, F2006L03740).
• Schedule 1, item 20 and remaining items: Royal Assent.

Roll close: Under the substituted section 155, the close of rolls was fixed at the third working day after the date of the writ. The previous rule had been the close of the day of the writ or later, which allowed late enrolments. The more restrictive roll close date was challenged and ultimately struck down in Rowe (see below).

Application of prisoner voting amendments: Item 16 of Schedule 1 provided that the amendments made by items 14 and 15 apply to sentences beginning before, on or after the commencement. This retrospective application to pre-existing sentences was part of the breadth challenged in Roach.

Commonwealth Electoral Act 1918 (Cth): The primary Act amended. The provisions inserted by this Act (particularly sections 93(8AA), 99B, 155, 314AEB, 314AEC, and 328A) either survive (if valid) or are displaced by the High Court's constitutional invalidity decisions.

Referendum (Machinery Provisions) Act 1984 (Cth): Sections of the Referendum Act were also amended by this Act, including section 121A (internet advertising) and section 321A (indexation of amounts).

Commonwealth Constitution, sections 7 and 24: These provisions require the Senate and the House to be "directly chosen by the people." The High Court held that these provisions impose constitutional limits on Parliament's power to restrict the franchise, including limits on prisoner disenfranchisement and roll close dates. The Act's amendments were tested against these constitutional requirements.

Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth): The 2004 Act first introduced a specific threshold-based prisoner disenfranchisement (three years). The 2006 Act removed the threshold. After Roach declared the 2006 Act's amendment invalid, the 2004 Act's three-year provisions were confirmed as in force and valid.

Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Cth): An earlier 2004 amending Act that also amended enrolment provisions. The interaction between these multiple amending Acts was central to the questions posed to the High Court in Roach.

The core amendment is constitutionally invalid: Section 93(8AA) as inserted by item 15 of this Act - the provision disenfranchising all prisoners - was declared invalid by the High Court in Roach [2007] HCA 43 at paragraph 109. The effect is that the three-year threshold from the 2004 Act remains the operative rule. Any analysis of the prisoner voting provisions of the Electoral Act must account for this invalidity.

Roll close provisions also struck down: The amended section 155 (third working day close of rolls) was subsequently challenged in Rowe v Electoral Commissioner [2010] HCA 46. The High Court again found a constitutional violation, with the majority holding that the truncated roll close period unjustifiably burdened the right to vote. An earlier close of rolls than that which prevailed before the Act was invalid.

Murphy v Electoral Commissioner [2016] HCA 36 further refinement: The HCA revisited the constitutional framework in Murphy. The court clarified the proportionality or "appropriate and adapted" test for electoral franchise restrictions, providing a more detailed framework for assessing future amendments.

Indirect application: The Act is an amending Act. Practitioners who need to understand the current operative prisoner disenfranchisement provisions must trace back through the 2004 Acts to the provisions that survived invalidity of the 2006 Act amendments. The text of the current Electoral Act reflects the amendments as modified by judicial invalidity declarations.

Three-year threshold survives: Item 15 of this Act repealed the three-year threshold and inserted the all-prisoners provision. After Roach held the all-prisoners provision invalid, the repeal of the threshold was also ineffective. The three-year threshold provisions of the 2004 Act are "in force and valid" (Roach [110]).

Example 1 - Prisoner serving two years asks to vote in a federal election: Under the 2006 Act as enacted, this prisoner would have been disenfranchised by the substituted section 93(8AA). After Roach, the 2006 Act amendment is invalid. The three-year threshold from the 2004 Act applies. A prisoner serving only two years is entitled to vote under the restored three-year threshold.

Example 2 - Late enrolment after close of rolls: Before this Act, the close of rolls was later and allowed more time for late enrolment. After this Act's section 155 substitution, the close was brought to the third working day after the writ. After Rowe struck down that provision, the earlier (more generous) roll close date was restored. A person who failed to enrol within the shortened window affected by the 2006 Act during its operative period may have been unlawfully prevented from enrolling.

Example 3 - Political expenditure return: A company incurs above-threshold political expenditure in a financial year. Under sections 314AEB and 314AEC inserted by this Act, the company must lodge an annual return with the AEC disclosing the expenditure and any gifts received for that purpose. Failure to lodge is a breach of the Electoral Act.

Example 4 - Constitutional test case: An indigenous prisoner serving a sentence of 18 months challenges the all-prisoner disenfranchisement provision. This is precisely the type of challenge brought by Ms Roach in [2007] HCA 43. The High Court held by majority (Gleeson CJ, Gummow, Kirby, and Crennan JJ; Hayne and Heydon JJ dissenting) that the extension of disenfranchisement to all prisoners was not compatible with sections 7 and 24 of the Constitution [109].