Division 1Electronically assisted voting

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## Part 1—Preliminary #### 1 Name This is the Electoral and Referendum Regulation 2016. #### 3 Authority This instrument is made under the following: (a) the Commonwealth Electoral Act 1918; (b) the Referendum (Machinery Provisions) Act 1984. #### 5 Definitions > Note: A number of expressions used in this instrument are defined in the Act or the Referendum (Machinery Provisions) Act, including the following: (a) approved list; (b) certified list of voters; (c) Electoral Commissioner; (d) Roll. In this instrument: > Act means the Commonwealth Electoral Act 1918. > Australia’s Foreign Investment Framework means any of the following Acts and any instruments made under any of those Acts: (a) the Foreign Acquisitions and Takeovers Act 1975; (b) the Foreign Acquisitions and Takeovers Fees Imposition Act 2015. > authorised call centre means a call centre established in accordance with arrangements made by the Electoral Commissioner under subsection 15(1). > call centre operator means a person who: (a) works in an authorised call centre; and (b) is a pre‑poll voting officer under subsection 4(1) of the Act or section 73 of the Referendum (Machinery Provisions) Act. > electronically assisted vote means a vote cast using the electronically assisted voting method. > electronically assisted voting means voting by an electronically assisted vote. > electronically assisted voting method means the procedures determined under subsection 19(1) for enabling a registered electronically assisted voter to vote by an electronically assisted vote. > medicare card has the same meaning as in Part VII of the National Health Act 1953. > medicare number has the same meaning as in Part VII of the National Health Act 1953. > reference Roll means a Roll that may be consulted by an officer if a voter wishes to vote by an electronically assisted vote. > referendum has the same meaning as in the Referendum (Machinery Provisions) Act. > Referendum (Machinery Provisions) Act means the Referendum (Machinery Provisions) Act 1984. > registered electronically assisted voter means: (a) a sight‑impaired person; or (b) an Antarctic elector; who is registered with the Electoral Commissioner for the purpose of voting by an electronically assisted vote. > sight‑impaired person has the meaning given by section 202AA of the Act. ## Part 2—Electoral roll matters #### 6 Prescribed authorities For the definition of prescribed authority in subsection 4(1) of the Act, the Agencies and authorities of the Commonwealth mentioned in the column headed “Agency or authority” of the table in clause 1 of Schedule 1 to this instrument are specified. > Note: The table also prescribes permitted purposes for which a prescribed authority may use certain information (see section 9). #### 7 Arrangements with States—form of Roll For paragraph 84(2)(a) of the Act, the manner in which a Roll may indicate that a person is not enrolled as a Commonwealth elector is to put a circle (o) before the person’s name on the Roll. #### 8 Provision of information on Rolls to particular people and organisations (1) The persons and organisations specified in the following table are prescribed for the provisions of subsection 90B(4) of the Act specified in the following table: ```html <table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><thead><tr><td colspan="3" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Prescribed persons and organisations who may be provided certain information on Rolls</td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Item</td><td style="width:25.46%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">For this provision …</td><td style="width:65.96%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">these persons and organisations are prescribed …</td></tr></thead><tbody><tr><td style="width:8.58%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">1</td><td style="width:25.46%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">item 5 of the table in subsection 90B(4)</td><td style="width:65.96%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">ACXIOM Australia Pty LimitedBetfair Pty LimitedPerceptive Communication Pty LtdThe Global Data Company Pty. Ltd.Veda Advantage Information Services and Solutions Limited</td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">2</td><td style="width:25.46%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">item 6 of the table in subsection 90B(4)</td><td style="width:65.96%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Betfair Pty Limited</td></tr><tr><td style="width:8.58%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">3</td><td style="width:25.46%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">item 7 of the table in subsection 90B(4)</td><td style="width:65.96%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">ACXIOM Australia Pty LimitedExperian Asia Pacific Pty. Ltd.Perceptive Communication Pty LtdThe Global Data Company Pty. Ltd.Veda Advantage Information Services and Solutions Limited</td></tr></tbody></table> ``` (2) For item 4 of the table in subsection 90B(4) of the Act, the provision to a prescribed authority of the information mentioned in that item is authorised. #### 9 Permitted purposes for use of information—prescribed authorities For paragraph 91A(2AA)(b) of the Act, the purposes mentioned in an item of the table in clause 1 of Schedule 1 to this instrument are permitted purposes for the prescribed authority mentioned in the item. > Note: See also section 6 (prescribed authorities). #### 10 Permitted purposes for use of information—Australian Red Cross Blood Service For paragraph 91A(2A)(c) of the Act, the following purposes are prescribed for the Australian Red Cross Blood Service: (a) contacting any blood donor who has tested positive for a blood‑borne infection; (b) contacting any person who has received a transfusion of blood donated by a person mentioned in paragraph (a) of this section; (c) contacting any donor whose blood was transfused to a person who has since tested positive for a blood‑borne infection; (d) contacting any donor whose blood was transfused to a person who has had a suspected adverse reaction to the blood. #### 10A Permitted purpose for use of information—Australian Consortium for Social and Political Research Incorporated (1) For the purposes of paragraph 91A(2A)(c) of the Act, the purpose of inviting persons to participate in the Australian Survey of Social Attitudes is prescribed for the Australian Consortium for Social and Political Research Incorporated. (2) This section is repealed at the end of 31 December 2026. #### 11 Permitted purposes for use of information—other persons or organisations For paragraph 91A(2A)(c) of the Act, the following purposes are prescribed for a person or organisation that conducts medical research or provides a health screening program: (a) the conduct of medical research in accordance with the Guidelines under Section 95 of the Privacy Act 1988 issued by the National Health and Medical Research Council on 1 November 2014; (b) the provision of a public health screening program: (i) approved by the Secretary of the Department administered by the Minister administering the National Health Act 1953; and (ii) conducted in accordance with the Guidelines for the Conduct of Public Health Screening Programs with particular reference to Privacy and the Management of Personal Information published in the Gazette on 1 December 1993. ## Part 3—Enrolment matters #### 11A Additional evidence of identity requirements For the purposes of paragraph 98AA(2)(d) of the Act, the following kinds of evidence of a person’s identity are prescribed: (a) the evidence number included in a notice given to the person under section 37 of the Australian Citizenship Act 2007; (b) if the person is covered by a medicare card—the person’s medicare number. #### 12 Provisional enrolment by applicant for citizenship—prescribed electors For subparagraph 99B(4)(b)(i) of the Act and subparagraph 38(4)(b)(i) of the Referendum (Machinery Provisions) Act, the classes of electors mentioned in the table in clause 1 of Schedule 2 to this instrument are prescribed. #### 13 Enrolment‑related claims or notices do not have to be signed in certain circumstances For the purposes of subsection 382(7) of the Act, the requirement is that the person include on the claim or notice: (a) the person’s date of birth; and (b) one of the following: (i) if the person holds a driver’s licence issued under the law of a State or Territory, or a law in force in Norfolk Island—the number of that driver’s licence; (ii) if the person holds an Australian passport—the number of that Australian passport; (iii) the evidence number included in a notice given to the person under section 37 of the Australian Citizenship Act 2007; (iv) if the person is covered by a medicare card—the person’s medicare number. ## Part 4—Voting matters ### Division 1—Electronically assisted voting #### 14 Purpose of Division This Division is made for the purposes of: (a) Part XVB of the Act; and (b) Part IVB of the Referendum (Machinery Provisions) Act. #### 15 Authorised call centres (1) The Electoral Commissioner must make arrangements for the establishment of one or more call centres to receive telephone calls from sight‑impaired persons or Antarctic electors who wish to: (a) register for the purpose of being eligible to vote by an electronically assisted vote; or (b) vote by an electronically assisted vote. (2) The Electoral Commissioner may approve forms and other documents to be used by call centre operators and other officers for the purposes of: (a) registering a sight‑impaired person or Antarctic elector for the purpose of being eligible to vote by an electronically assisted vote; and (b) assisting a registered electronically assisted voter to vote by an electronically assisted vote. > Note: Example: Statements and responses that allow call centre operators to explain to a sight‑impaired person or Antarctic elector how to register or vote. #### 16 Registration (1) The Electoral Commissioner must determine, in writing: (a) the days on which and times when a person may apply to be registered by the Electoral Commissioner as a registered electronically assisted voter; and (b) procedures for assessing whether a person may be registered by the Electoral Commissioner as a registered electronically assisted voter. > Note: The procedures may include requirements for the person to: (a) be on an approved list of voters, a certified list of voters or a reference Roll; and (b) affirm that he or she is sight‑impaired or an Antarctic elector. (2) A person who wishes to apply to be registered by the Electoral Commissioner as a registered electronically assisted voter must: (a) contact an authorised call centre on a day and time determined under paragraph (1)(a); and (b) comply with the procedures determined under paragraph (1)(b). (3) The Electoral Commissioner must: (a) register a person who complies with subsection (2) as a registered electronically assisted voter; and (b) make and keep a register for that purpose. > Note: The person will have a personal identification number and a registration number for requesting an electronically assisted vote. (4) A registered electronically assisted voter may vote by an electronically assisted vote at: (a) a general election; and (b) a Senate election; and (c) a by‑election (within the meaning of section 202AA of the Act); and (d) a referendum. #### 17 Who is entitled to vote by an electronically assisted vote (1) The Electoral Commissioner: (a) must determine, in writing, the days on which and times when electronically assisted voting is to be available; and (b) must determine, in writing, procedures for assessing whether a person is a registered electronically assisted voter; and (c) may give directions to officers in relation to requests for voting by an electronically assisted vote. > Note: Example: For paragraph (b), if a call centre operator is not satisfied that a person is the registered electronically assisted voter whose name the person has used, the procedures may include a requirement for the operator to ask the person one or more questions about information provided on an approved list of voters, a certified list of voters or a reference Roll about the voter whose name the person has used. (2) Subject to subsection (3), a person is entitled to vote by an electronically assisted vote if: (a) the person calls an authorised call centre on a day on which and at a time when electronically assisted voting is available; and (b) the person informs a call centre operator that the person wishes to vote by an electronically assisted vote; and (c) a call centre operator is satisfied that the person is a registered electronically assisted voter; and (d) the person’s name is on an approved list of voters, a certified list of voters or a reference Roll. (3) A person is not entitled to vote by an electronically assisted vote if: (a) the person does not call an authorised call centre on a day on which and at a time when electronically assisted voting is available; or (b) a call centre operator is not satisfied that the person is a registered electronically assisted voter after complying with the procedures for assessing whether the person is a registered electronically assisted voter; or (c) the person’s name is not on an approved list of voters, a certified list of voters or a reference Roll; or (d) the person refuses to answer a question asked in accordance with subsection 18(2); or (e) the person answers a question asked in accordance with subsection 18(2) in the affirmative; or (f) the person has already voted; or (g) the person is provisionally enrolled; or (h) on the basis of any of the person’s answers to questions mentioned in section 18, a call centre operator is not satisfied that the person is the voter whose name the person has used; or (i) the person does not otherwise comply with the procedures for: (i) assessing whether the person is a registered electronically assisted voter; or (ii) voting by an electronically assisted vote. > Note: The person may be eligible to vote by an assisted provisional vote on polling day or an assisted pre‑poll vote. #### 18 Electronically assisted voting—questions to be put to person (1) If a person requests an electronically assisted vote, a call centre operator must be satisfied that the person is a registered electronically assisted voter in accordance with the procedures determined under paragraph 17(1)(b). > Note: The person will have a personal identification number and a registration number for requesting an electronically assisted vote. (2) If the person is a registered electronically assisted voter, a call centre operator must then ask the person the appropriate question from the following questions: (a) Have you voted before in this election? (b) Have you voted before in these elections? (c) Have you voted before in this by‑election? (d) Have you voted before in this referendum? #### 19 Enabling registered electronically assisted voter to vote (1) The Electoral Commissioner must determine, in writing, procedures for enabling a registered electronically assisted voter to vote by an electronically assisted vote. > Note: Example 1: The procedures may require a call centre operator to ensure that the voter: (a) receives the same information (in the same order), and has the same voting options, as would appear in the ballot paper for the election that the voter would be given if the voter were voting under Part XVI of the Act; and (b) is able to indicate the voter’s vote in a way that, if the voter were marking a ballot paper, would satisfy the requirements of section 239 or 240 of the Act. > Note: Example 2: The procedures may permit the voter’s ballot papers to be checked to ensure that they have been marked in accordance with the voter’s instructions (if any). (2) A call centre operator who is satisfied that a registered electronically assisted voter is entitled to vote by an electronically assisted vote must assist the voter in accordance with the procedures determined under subsection (1). (3) The voter may tell the call centre operator how the voter wants the ballot papers to be marked. (4) If the voter tells the call centre operator how the voter wants the ballot papers to be marked, the call centre operator must: (a) initial the voter’s ballot papers on the top front of each ballot paper; and (b) mark the voter’s ballot papers in accordance with the voter’s instructions; and (c) read the voter’s voting preferences back to the voter; and (d) put the voter’s ballot papers in an envelope marked with the name of the voter’s Division; and (e) place the envelope in a ballot‑box used at the authorised call centre for electronically assisted voting. #### 20 Requirements relating to ballot‑boxes (1) For an election for which electronically assisted voting is available, the requirements in relation to ballot‑boxes in Subdivision C of Division 3 of Part XVA of the Act, other than section 200DR, are taken to apply to ballot‑boxes used at an authorised call centre for electronically assisted voting as if the electronically assisted voting were pre‑poll ordinary voting. (2) For a referendum for which electronically assisted voting is available, the requirements in relation to ballot‑boxes in Subdivision C of Division 3 of Part IVA of the Referendum (Machinery Provisions) Act, other than section 73CR, are taken to apply to ballot‑boxes used at an authorised call centre for electronically assisted voting as if the electronically assisted voting were pre‑poll ordinary voting. #### 21 Role of scrutineers—authorised call centre (1) A candidate in an election for which electronically assisted voting is available may appoint one scrutineer to attend at each authorised call centre for the purpose of monitoring the duties of call centre operators. (2) For a referendum for which electronically assisted voting is available, a person (the appointer) who may appoint persons to act as scrutineers under section 27 of the Referendum (Machinery Provisions) Act may appoint one scrutineer to attend at each authorised call centre for the purpose of monitoring the duties of call centre operators. (3) The appointment of a scrutineer must be made by notice, in writing: (a) addressed to the Returning Officer; and (b) signed by the candidate or the appointer (as the case requires); and (c) stating the scrutineer’s name and address. (4) A scrutineer appointed under subsection (1) who has not complied with subsection 202A(3) of the Act must not attend an authorised call centre to discharge a scrutineer’s functions. (5) A scrutineer appointed under subsection (2) who has not complied with subsection 16A(3) of the Referendum (Machinery Provisions) Act must not attend an authorised call centre to discharge a scrutineer’s functions. (6) A scrutineer commits an offence if: (a) the scrutineer attends an authorised call centre; and (b) the scrutineer attempts to interfere with the duties of a call centre operator or an Assistant Returning Officer. Penalty: 5 penalty units. (7) A scrutineer commits an offence if: (a) the scrutineer attends an authorised call centre; and (b) the scrutineer communicates with a person in the authorised call centre; and (c) the communication is not reasonably necessary for the discharge of the scrutineer’s functions. Penalty: 5 penalty units. #### 22 Record of electronically assisted votes (1) The Electoral Commissioner must make a record of an electronically assisted vote. (2) The record of an electronically assisted vote must be: (a) a mark on an approved list of voters or a certified list of voters beside the voter’s name; or (b) a record on a document other than an approved list of voters or a certified list of voters which states: (i) the voter’s name (whether or not it also states the voter’s address or date of birth); and (ii) the Division in which the voter is enrolled to vote. (3) If the record is in the form mentioned in paragraph (2)(b): (a) it must be forwarded to a Divisional Returning Officer for the Division in which the voter is enrolled to vote; and (b) the Divisional Returning Officer must place a mark beside the voter’s name on an approved list of voters or a certified list of voters. #### 23 What must be done with the voter’s ballot papers (1) As soon as the close of the poll for all Divisions, an Assistant Returning Officer must: (a) open each ballot‑box mentioned in paragraph 19(4)(e); and (b) sort the envelopes, unopened, into bundles corresponding to Divisions. (2) An Assistant Returning Officer must forward each bundle to a Divisional Returning Officer for the appropriate Division for the conduct of a scrutiny. (3) A person commits an offence of strict liability if the person: (a) is not an Assistant Returning Officer, or a person performing tasks under the direction of an Assistant Returning Officer; and (b) does something mentioned in subsection (1) or (2). Penalty: 5 penalty units. #### 24 Scrutiny of ballot papers (1) The Divisional Returning Officer must conduct the scrutiny of the ballot papers forwarded by the Assistant Returning Officer under subsection 23(2). (2) For a general election, Senate election or by‑election, the procedures in Part XVIII of the Act apply to the scrutiny with the modifications necessary to ensure that: (a) no preliminary scrutiny mentioned in section 266 of the Act is to be conducted; and (b) the electronically assisted vote is taken to be a pre‑poll ordinary vote; and (c) it is irrelevant that the voter did not complete the ballot paper personally; and (d) it is irrelevant that the vote can be identified as being cast by a sight‑impaired person or Antarctic elector. (3) For a referendum, the procedures in Part VI of the Referendum (Machinery Provisions) Act apply to the scrutiny with the modifications necessary to ensure that: (a) no preliminary scrutiny mentioned in section 89A of that Act is to be conducted; and (b) the electronically assisted vote is taken to be a pre‑poll ordinary vote; and (c) it is irrelevant that the voter did not complete the ballot paper personally; and (d) it is irrelevant that the vote can be identified as being cast by a sight‑impaired person or Antarctic elector. (4) A person commits an offence of strict liability if the person: (a) is not the Divisional Returning Officer, or a person performing tasks under the direction of the Divisional Returning Officer; and (b) conducts the scrutiny. Penalty: 5 penalty units. #### 25 Offences related to electronically assisted voting (1) A person commits an offence if the person: (a) interferes with a voter while the voter votes by an electronically assisted vote; or (b) communicates with a voter who votes by an electronically assisted vote about the voter’s vote; or (c) does anything to find out how a voter who votes by an electronically assisted vote voted. Penalty: 5 penalty units. (2) Subsection (1) does not apply if the person is a call centre operator who is assisting the voter to vote. > Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code. #### 26 Protection of electronic voting hardware or software (1) A person commits an offence if: (a) he or she destroys or interferes with: (i) a computer program; or (ii) a data file; or (iii) an electronic device; and (b) the program, file or device is used, or intended to be used, for or in connection with electronically assisted voting. Penalty: 5 penalty units. (2) Subsection (1) does not apply if the person is an officer acting in the course of his or her duties. > Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code. ### Division 2—Enforcement of law in relation to compulsory voting #### 27 Proceedings in court on failure of elector to vote (1) This section applies in relation to proceedings that are instituted in a court of summary jurisdiction against an elector for a contravention of: (a) subsection 245(15) of the Act; or (b) subsection 45(14) of the Referendum (Machinery Provisions) Act. (2) The Divisional Returning Officer must send to the court the elector’s response (if any) under subparagraph 245(5)(c)(i) or (ii) of the Act or subparagraph 45(5)(c)(i) or (ii) of the Referendum (Machinery Provisions) Act (as applicable). (3) The court must, whether the defendant is present or not, consider the contents of the response as if it were given in evidence before the court. #### 28 Evidence in court of summary jurisdiction (1) This section applies in relation to a prosecution in a court of summary jurisdiction against an elector for a contravention of: (a) subsection 245(15) or (15C) of the Act; or (b) subsection 45(14) or (14C) of the Referendum (Machinery Provisions) Act. (2) If the prosecuting officer lodges with the court a statutory declaration and a certified extract in the approved form, the officer is not required to attend the hearing. (3) If a statutory declaration and certified extract have been lodged as provided by subsection (2), and the prosecuting officer is not present at the hearing, the court must: (a) proceed with the hearing and determination of the case in the prosecuting officer’s absence; and (b) consider the statutory declaration and certified extract as if the matters set out in those documents had been given in evidence before the court; and (c) notwithstanding the absence of the prosecuting officer, permit evidence for the prosecution to be given by any witness who is summoned by, or attends on behalf of, the prosecuting officer. (4) For the purposes of this section, any document purporting to be a statutory declaration must be accepted as such by the court without proof of: (a) the signatures on the declaration; or (b) the authority of the person before whom the declaration purports to have been made to take statutory declarations. ## Part 5—Application and transitional matters ### Division 1—Application of the Electoral and Referendum Amendment (Eligibility) Regulations 2018 #### 29 Application of the Electoral and Referendum Amendment (Eligibility) Regulations 2018 The amendments made by the Electoral and Referendum Amendment (Eligibility) Regulations 2018 to this instrument apply in relation to any elections, the writs for which are issued on or after the commencement of that instrument.