Division 7Enforcement of law in relation to compulsory voting

## Part I—Preliminary #### 1 Name of Regulations These Regulations are the Electoral and Referendum Regulations 1940. #### 3 Repeal The Electoral and Referendum Regulations (being Statutory Rules 1928, No. 80, as amended by Statutory Rules 1928, Nos. 107 and 117, and 1934, No. 100) are repealed. #### 5 Interpretation (1) In these Regulations, unless the contrary intention appears: > 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; (c) the Register of Foreign Ownership of Agricultural Land Act 2015. > referendum has the same meaning as in the Referendum (Machinery Provisions) Act. > Referendum (Machinery Provisions) Act means the Referendum (Machinery Provisions) Act 1984. > The Act means the Commonwealth Electoral Act 1918. (3) A reference in these Regulations to an elector or a person qualified to be an elector of the Commonwealth shall be read as a reference to a person whose name appears on a Roll of electors under the Act or a person entitled to be enrolled on such a roll. #### 5A Prescribed authorities For the definition of prescribed authority in subsection 4 (1) of the Act, the Agencies and authorities of the Commonwealth mentioned in Schedule 1 are specified. ## Part II—Electoral ### Division 1—Enrolment #### 6 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. #### 7 Information on Rolls and certified lists of voters to be provided to particular people and organisations (1) The organisations and persons specified in the following table are prescribed for the provisions of subsection 90B (4) of the Act specified in the following table: | Item | For this provision … | these organisations and persons are prescribed … | | ---- | ----------------------------------------- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | | 1 | item 4 of the table in subsection 90B (4) | a prescribed authority | | 2 | item 5 of the table in subsection 90B (4) | ACXIOM Australia Pty LimitedBetfair Pty LimitedPerceptive Communication Pty LtdThe Global Data Company Pty. Ltd.Veda Advantage Information Services and Solutions Limited | | 3 | item 6 of the table in subsection 90B (4) | Betfair Pty Limited | | 4 | item 7 of the table in subsection 90B (4) | ACXIOM Australia Pty LimitedExperian Asia Pacific Pty. Ltd.Perceptive Communication Pty LtdThe Global Data Company Pty. Ltd.Veda Advantage Information Services and Solutions Limited | (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. #### 8 Permitted purposes for use of information: prescribed authorities For paragraph 91A (2AA) (b) of the Act, the purposes mentioned in an item of Schedule 1 are permitted purposes for the prescribed authority mentioned in the item. #### 8A 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); (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. #### 9 Permitted purposes for use of information: other persons or organisations (1) 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 for the Protection of Privacy in the Conduct of Medical Research: (i) issued by the National Health and Medical Research Council under subsection 95 (1) of the Privacy Act 1988; and (ii) published in the Gazette on 22 March 2000; (b) the provision of a public health screening program: (i) approved by the Secretary of the Department of Health and Aged Care; 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: (A) issued by the Department of Human Services and Health; and (B) published in the Gazette on 1 December 1993. (2) For paragraph 91A (2B) (c) of the Act, the conduct of the election of delegates to the 2012 and 2013 Northern Territory Constitutional Convention is a permitted purpose. #### 13 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 Schedule 2 are prescribed. #### 13A Enrolment‑related claims or notices do not have to be signed in certain circumstances (1) For subsection 382 (7) of the Act, the requirements that must be satisfied are: (a) that the person include his or her date of birth on the claim or notice; and (b) that the person include his or her driver’s licence number on the claim or notice. (2) In this regulation: > claim or notice means a claim, application, notice, objection, request or other communication that is required or permitted to be sent to the Electoral Commissioner under any of the following provisions: (a) Part VII of the Act; (b) Part VIII of the Act, other than: (i) subsection 98 (3); and (ii) subsection 99A (5); and (iii) subsection 99B (3); and (iv) subsection 104 (3); (c) section 184A of the Act; (d) section 249 of the Act. ## Part III—Electoral and Referendum ### Division 1—Conduct of Elections and Referendums #### 40 State referendum or vote (Act, s 394) (1) This regulation applies if: (a) the Governor‑General has authorised a State vote to be held or taken on the day appointed as polling day for a Commonwealth vote; and (b) there is an arrangement between the Electoral Commission and the electoral authority of the State for the Electoral Commission to conduct the State vote. (2) An officer who performs functions in relation to the Commonwealth vote may perform functions in relation to the State vote. (3) Polling booths, ballot boxes and other facilities provided, and machinery or arrangements established, for the Commonwealth vote may be used for the State vote. (4) Ballot papers for declaration votes in the State vote may be put in the envelopes used for ballot papers for declaration votes in the Commonwealth vote. (5) Ballot papers used for the State vote may be placed in the ballot boxes used for the Commonwealth vote. (6) In this regulation: > Commonwealth vote means: (a) an election of the Senate; or (b) a general election of the House of Representatives; or (c) a by‑election to elect a member of the House of Representatives; or (d) a referendum held under the Referendum (Machinery Provisions) Act 1984. > State has the meaning given by section 394 of the Act. > State vote means an election, referendum or vote of the electors of a State or part of a State to be held or taken under a law of the State. ### Division 2—Electronically assisted voting for sight‑impaired people #### 41 Definitions for Division 2 In this Division: > authorised call centre means a call centre established in accordance with arrangements made by the Electoral Commissioner under subregulation 42 (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. > 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 subregulation 46 (1) for enabling a registered sight‑impaired voter to vote by an electronically assisted vote. > officer means an officer mentioned in subsection 202A (2) of the Act. > reference Roll means a Roll that may be consulted by an officer if a voter wishes to vote by an electronically assisted vote. > registered sight‑impaired voter means a sight‑impaired person 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. > Note: certified list of voters is defined in subsection 4 (1) of the Act. #### 42 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 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 purpose of: (a) registering a sight‑impaired person for the purpose of being eligible to vote by an electronically assisted vote; and (b) assisting a registered sight‑impaired voter to vote by an electronically assisted vote. > Note: Example > Note: Statements and responses that allow call centre operators to explain to a sight‑impaired person how to register or vote. #### 43 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 sight‑impaired voter; and (b) procedures for assessing whether a person may be registered by the Electoral Commissioner as a registered sight‑impaired 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. (2) A determination under subregulation (1) is not a legislative instrument. (3) A person who wishes to apply to be registered by the Electoral Commissioner as a registered sight‑impaired 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). (4) The Electoral Commissioner must: (a) register a person who complies with subregulation (3) as a registered sight‑impaired 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. (5) A registered sight‑impaired voter may vote by an electronically assisted vote at: (a) a general election; and (b) a Senate election; and (c) a by‑election; and (d) a referendum. #### 44 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 sight‑impaired voter; and (c) may give directions to officers in relation to requests for voting by an electronically assisted vote. > Note: Example for paragraph (b) > Note: If a call centre operator is not satisfied that a person is the registered sight‑impaired 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) A determination under subregulation (1) is not a legislative instrument. (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 sight‑impaired voter; and (d) the person’s name is on an approved list of voters, a certified list of voters or a reference Roll. (4) 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 sight‑impaired voter after complying with the procedures for assessing whether the person is a registered sight‑impaired 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 subregulation 45 (2); or (e) the person answers Question 3 in subregulation 45 (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 regulation 45, 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 sight‑impaired 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. #### 45 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 sight‑impaired voter in accordance with the procedures determined under paragraph 44 (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 sight‑impaired voter, a call centre operator must then ask the person the appropriate question from the following questions: (1) Have you voted before in this election? (2) Have you voted before in these elections? (3) Have you voted before in this by‑election? (4) Have you voted before in this referendum? #### 46 Enabling registered sight‑impaired voter to vote (1) The Electoral Commissioner must determine, in writing, procedures for enabling a registered sight‑impaired voter to vote by an electronically assisted vote. > Note: Examples 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: 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 determination under subregulation (1) is not a legislative instrument. (3) A call centre operator who is satisfied that a registered sight‑impaired voter is entitled to vote by an electronically assisted vote must assist the voter in accordance with the procedures determined under subregulation (1). (4) The voter may tell the call centre operator how the voter wants the ballot papers to be marked. (5) 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. #### 47 Requirements relating to ballot boxes 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 ordinary pre‑poll voting. #### 48 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 an authorised call centre for the purpose of monitoring the duties of call centre operators. (2) The appointment of a scrutineer must be made by notice, in writing: (a) addressed to the Returning Officer; and (b) signed by the candidate; and (c) stating the scrutineer’s name and address. (3) A scrutineer who has not complied with subsection 202A (3) of the Act must not attend an authorised call centre to discharge a scrutineer’s functions. (4) 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. (5) 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. #### 49 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. #### 50 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 46 (5) (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 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) performs a duty mentioned in subregulation (1) or (2). Penalty: 5 penalty units. (4) An offence under subregulation (3) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. #### 51 Scrutiny of ballot papers (1) For the purpose of conducting a scrutiny of the ballot papers forwarded by the Assistant Returning Officer under subregulation 50 (2), the Divisional Returning Officer must conduct the scrutiny. (2) 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. (3) A person commits an offence 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. (4) An offence under subregulation (3) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. #### 52 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) For subregulation (1), it is a defence if the person is a call centre operator who is assisting the voter to vote. #### 53 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) For subregulation (1), it is a defence if the person is an officer acting in the course of his or her duties. ### Division 7—Enforcement of law in relation to compulsory voting #### 81 Proceedings in Court on failure of elector to vote (1) In proceedings which are instituted in a Court of summary jurisdiction against an elector for a contravention of subsection 245 (15) of the Act or subsection 45 (14) of the Referendum (Machinery Provisions) Act, the Divisional Returning Officer must send to the Court the elector’s reply (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. (2) The Court shall, whether the defendant is present or not, consider the contents of the reply as if it were given in evidence before the Court. #### 83 Evidence in Court of summary jurisdiction (1) If, in a prosecution in a Court of summary jurisdiction against an elector for a contravention of subsection 245 (15) or (15C) of the Act or subsection 45 (14) or (14C) of the Referendum (Machinery Provisions) Act, 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. (2) Where a statutory declaration and certified extract have been lodged as provided by this regulation, and the prosecuting officer is not present at the hearing, the Court shall proceed with the hearing and determination of the case in his absence, and shall consider the statutory declaration and certified extract as if the matter set out therein had been given in evidence before it, and shall, notwithstanding the absence of the prosecuting officer, permit evidence to be given for the prosecution of any witness who is summoned by, or attends on behalf of, the prosecuting officer. (3) For the purposes of this regulation, any document purporting to be a statutory declaration shall be accepted as such by the Court without proof of the signatures thereon or proof of the authority of the person before whom it purports to have been made to take statutory declarations. ## Part IV—Application and transitional provisions #### 84 Application—use of information by the ATO and Treasury The amendments of the table in Schedule 1 to these Regulations by the Foreign Acquisitions and Takeovers Legislation Amendment Regulation 2015 apply in relation to the use of information by a person or organisation after those amendments commence, whether the information is given to the person or organisation before or after that time.