Electoral (Administration) Amendment Act 2010

1: Title
This Act is the Electoral (Administration) Amendment Act 2010.
2: Commencement
1: The following provisions come into force on 1 October 2010:
a: the provisions in subpart 2
b: the provisions in subpart 2
2: The rest of this Act comes into force on the day after the date on which it receives the Royal assent.
3: Principal Act amended
This Act amends the Electoral Act 1993 2010-05-22 Electoral Act 1993 2010-10-01 Electoral Act 1993
1: Amendments to principal Act
1: Amendments coming into force on day after Royal assent
4: New sections 4B to 4J inserted
The following sections are inserted after section 4A
4B: Electoral Commission
1: This section establishes the Electoral Commission.
2: The Electoral Commission is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.
3: The Crown Entities Act 2004 applies to the Electoral Commission except to the extent that this Act expressly provides otherwise.
4: The Electoral Commission established by subsection (1)
4C: Objective
The objective of the Electoral Commission established by section 4B
a: facilitates participation in parliamentary democracy; and
b: promotes understanding of the electoral system and associated matters; and
c: maintains confidence in the administration of the electoral system.
4D: Membership of Electoral Commission
1: The Governor-General, on the recommendation of the House of Representatives, must appoint 3 members of the Electoral Commission established by section 4B
a: 1 member as the Chief Electoral Officer; and
b: 1 member as the chairperson; and
c: 1 member as the deputy chairperson.
2: The member appointed as the Chief Electoral Officer under subsection (1)(a)
3: The members of the Electoral Commission are the board for the purposes of the Crown Entities Act 2004.
4: Subsection (1)
a: section 28(1)(b) of the Crown Entities Act 2004; and
b: clause 1(2) of Schedule 5 of the Crown Entities Act 2004.
4E: Appointment of Judge as member not to affect tenure, etc
The appointment of a Judge as a member of the board of the Electoral Commission established by section 4B
4F: Resignation of member
1: A member of the Electoral Commission established by section 4B
2: The resignation is effective when the Governor-General receives the notice or at any later time specified in the notice.
3: This section applies despite section 44 of the Crown Entities Act 2004. 1988 No 2 s 5C
4G: Power to remove or suspend members
1: Section 42 of the Crown Entities Act 2004 applies to any member of the Electoral Commission established by section 4B
2: Section 39(1) of the Crown Entities Act 2004 does not apply to any member.
3: Instead, any member who is not a Judge may be removed for just cause by the Governor-General acting upon an address from the House of Representatives.
4: Just cause 1988 No 2 s 6
4H: Filling of vacancy
1: If a vacancy occurs in the membership of the Electoral Commission established by section 4B
2: Despite subsection (1)
3: An appointment made under subsection (2) 1988 No 2 s 7
4I: Deputy Electoral Commissioners
1: The Electoral Commission established by section 4B
2: The persons described in section 30(2) of the Crown Entities Act 2004 are disqualified from being appointed as Deputy Electoral Commissioners.
3: The notice of appointment must—
a: state the date on which the appointment takes effect, which must not be earlier than the date on which the notice is received; and
b: state the term of the appointment; and
c: be published by the Electoral Commission in the Gazette
4: If an Electoral Commissioner becomes incapable of performing his or her functions or duties or exercising his or her powers by reason of illness, absence, or other sufficient cause, the functions, duties, and powers of that Electoral Commissioner may be performed and exercised by his or her deputy.
5: Despite subsection (4)
a: must not act as chairperson or deputy chairperson of the board of the Electoral Commission; and
b: is not eligible to be appointed by the board of the Electoral Commission as a temporary deputy chairperson under clause 5 of Schedule 5 of the Crown Entities Act 2004.
6: The Electoral Commission may, at any time, revoke the appointment of any deputy.
7: A Deputy Electoral Commissioner is a public servant for the purposes of sections 28(2)(f) and 80(3)(a)(i).
8: In subsection (1) electoral official section 4B
4J: Proceedings of Electoral Commission
The provisions of Schedule 1 apply to the Electoral Commission established by section 4B
2: Amendments coming into force on 1 October 2010
5: Interpretation
1: Section 3(1) Electoral Commission Electoral Commission section 4B .
2: Section 3(1) Electoral Commissioner Commissioner Electoral Commissioner Commissioner .
3: Section 3(1) electoral official electoral official .
4: Paragraph (b)(iii) of the definition of public servant section 3(1) ; but ; and
5: The definition of public servant section 3(1)
ba: includes an electoral official; but
bb: does not include an electoral official who has been appointed as a Deputy Electoral Commissioner or Returning Officer; and .
6: Sections 4 and 4A repealed
Sections 4 4A
7: New sections 5 to 9 substituted
Sections 5 to 9
5: Functions
The functions of the Electoral Commission are to—
a: carry the provisions of this Act (except those of Part 5) into effect:
b: carry out duties in relation to parliamentary election programmes that are prescribed by Part 6 of the Broadcasting Act 1989:
c: promote public awareness of electoral matters by means of the conduct of education and information programmes or by other means:
d: consider and report to the Minister or to the House of Representatives on electoral matters referred to the Electoral Commission by the Minister or the House of Representatives:
e: make available information to assist parties, candidates, and others to meet their statutory obligations in respect of electoral matters administered by the Electoral Commission:
f: carry out any other functions or duties conferred on the Electoral Commission by or under any other enactment.
6: Powers of Electoral Commission
1: The Electoral Commission may, if it considers that it is necessary for the proper discharge of its functions,—
a: initiate, sponsor, and carry out any studies or research:
b: make any inquiries:
c: consult with any persons or classes of persons:
d: publicise, in any manner that it thinks fit, any parts of its work:
e: provide information and advice on any matter—
i: to the Minister for the Minister's consideration:
ii: to the Minister for tabling in the House of Representatives:
f: request advice, assistance, and information from any government department or any State enterprise as defined in section 2 of the State-Owned Enterprises Act 1986.
2: Subsection (1)
3: If the Electoral Commission provides any information or advice to the Minister under subsection (1)(e)(ii)
7: Independence
The Electoral Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers, under—
a: this Act; and
b: any other enactment that expressly provides for the functions, duties, or powers of the Electoral Commission (other than the Crown Entities Act 2004).
8: Electoral Commission must report on general election
1: The Electoral Commission must, within 6 months of the return of the writ after a general election, report in writing to the Minister on the administration of that election, including—
a: the services provided to electors to facilitate voting; and
b: enrolment and voting statistics; and
c: any substantive issue arising during the course of the election; and
d: any changes that are necessary or desirable in respect of—
i: administration processes or practices; or
ii: this Act or any other law; and
e: any matter that the Minister of Justice asks the Electoral Commission to address; and
f: any other matter that the Electoral Commission considers relevant.
2: The Minister must present any report received under subsection (1)
3: The Electoral Commission must publish any report made under subsection (1)
9: Electoral Commission may delegate functions, duties, or powers to non-employees
In addition to the persons listed in section 73(1) of the Crown Entities Act 2004, the Electoral Commission may delegate any of its functions, duties, or powers, either generally or specifically, to any electoral official who is engaged by (rather than employed by) the Electoral Commission.
8: Sections 11A, 11B, 14, and 18 to 20 repealed
Sections 11A 11B 14 18 to 20
9: New sections 20C to 20CC substituted
Section 20C
20C: Returning Officers may delegate functions, duties, or powers
A Returning Officer may delegate any of his or her functions, duties, or powers, except this power of delegation, to another electoral official.
20CA: Powers of delegate
1: An electoral official to whom any functions, duties, or powers of a Returning Officer are delegated may, unless the delegation provides otherwise, perform the function or duty or exercise the power in the same manner, subject to the same restrictions, and with the same effect as if the electoral official were the Returning Officer.
2: An electoral official who purports to perform a function or duty or exercise a power under a delegation from a Returning Officer is, in the absence of proof to the contrary, presumed to do so in accordance with the terms of that delegation. 2004 No 115 s 74
20CB: Effect of delegation on Returning Officer
No delegation under section 20C
a: affects or prevents the performance of any function or duty or the exercise of any power by the Returning Officer; or
b: affects the responsibility of the Returning Officer for the actions of any electoral official acting under the delegation; or
c: is affected by any change in the person appointed as Returning Officer. 2004 No 115 s 75
20CC: Revocation of delegations
A delegation under section 20C
a: the Returning Officer by written notice to the electoral official; or
b: any other method provided for in the delegation. 2004 No 115 s 76 .
10: Section 24 repealed
Section 24
11: New section 47A inserted
The following section is inserted after section 47
47A: Certain persons disqualified from candidacy
The following persons are not qualified to be a candidate or to be elected as a member of Parliament:
a: an Electoral Commissioner:
b: a Deputy Electoral Commissioner:
c: a Returning Officer.
12: Offence for public servant to sit
1: The heading to section 48 or Returning Officer public servant
2: Section 48 or having been appointed as a Returning Officer having become a public servant
13: How vacancies created
Section 55(1)
ea: if he or she is appointed as a Returning Officer; or .
14: Other amendments to principal Act
The principal Act is amended in the manner set out in Schedule 1
2: Consequential amendments and transitional provisions
15: Interpretation
In this Part, unless the context requires otherwise,— existing Chief Electoral Officer section 18 existing Electoral Commission section 4 new Electoral Commission section 4B section 4 previous employer transferred employee
a: immediately before 1 October 2010, was employed by the Ministry of Justice or the existing Electoral Commission; and
b: is transferred to the new Electoral Commission under section 20 23
1: Provisions coming into force on day after Royal assent
16: New Electoral Commission may perform certain functions before 1 October 2010
Until the close of 30 September 2010, the new Electoral Commission may perform only those functions that are necessary or desirable to bring, or in connection with bringing, the principal Act
17: Statement of intent
The existing Electoral Commission is not required to produce a statement of intent for the financial year commencing 1 July 2010.
18: References to Electoral Commission
1: Until the close of 30 September 2010, any reference to the Electoral Commission—
a: in sections 4B to 4J section 4B
b: in the following enactments must be read as a reference to both the Electoral Commission established by section 4 section 4B
i: Schedule 1
ii: Part 2
iii: Schedule 4
c: in any other enactment must be read as a reference to the Electoral Commission established by section 4
2: On and from 1 October 2010, any reference to the Electoral Commission in any enactment must be read as a reference to the Electoral Commission established by section 4B
19: Assets and liabilities of existing Electoral Commission
On 1 October 2010, all assets, records, liabilities, and debts of the existing Electoral Commission vest in the new Electoral Commission.
20: Employees of existing Electoral Commission
1: On 1 October 2010, all employees of the existing Electoral Commission are transferred to the new Electoral Commission.
2: Subsection (1) does not apply to any employee who does not consent to being transferred.
21: References to Chief Electoral Officer
1: Until the close of 30 September 2010, any reference to the Chief Electoral Officer, other than a reference in section 4D section 18
2: On and from 1 October 2010,—
a: the references to the Chief Electoral Officer in sections 28(2)(c) 33(4) section 4D(1)(a)
b: any other reference to the Chief Electoral Officer in any enactment must be read as a reference to the Electoral Commission established by section 4B
22: Assets and liabilities of Chief Electoral Office
1: The Secretary for Justice must identify all assets, records, liabilities, and debts of the Ministry of Justice that, immediately before 1 October 2010, are assets, records, liabilities, and debts used or incurred by the Chief Electoral Office of the Ministry of Justice.
2: On 1 October 2010, the assets, records, liabilities, and debts identified by the Secretary for Justice under subsection (1) vest in the new Electoral Commission.
23: Employees of Ministry of Justice
1: The Secretary for Justice must identify all permanent employees of the Ministry of Justice who, immediately before 1 October 2010, are appointed to positions within the Chief Electoral Office of the Ministry of Justice.
2: On 1 October 2010, the employees identified by the Secretary for Justice under subsection (1) are transferred to the new Electoral Commission.
3: Subsection (2) does not apply to—
a: the existing Chief Electoral Officer; or
b: any person appointed as Deputy Chief Electoral Officer under section 19
c: any employee who does not consent to being transferred.
24: Terms and conditions of transferred employees
1: The employment of a transferred employee must be on terms and conditions no less favourable to the transferred employee than those applying to the employee immediately before 1 October 2010.
2: Subsection (1)—
a: continues to apply to the terms and conditions of employment of a transferred employee until those terms and conditions are varied by agreement between the transferred employee and the new Electoral Commission; but
b: does not apply to a transferred employee who receives any subsequent appointment with the new Electoral Commission.
25: Continuity of employment
1: Every transferred employee becomes an employee of the new Electoral Commission on 1 October 2010.
2: However, for the purposes of this Act and every enactment, law, determination, contract, and agreement relating to the employment of the transferred employee,—
a: the contract of employment of that employee is deemed to have been unbroken; and
b: that employee's period of service with his or her previous employer, and every other period of service of that employee that is recognised as continuous service by his or her previous employer, is deemed to have been a period of service with the new Electoral Commission.
26: Restriction of compensation for technical redundancy
1: An employee of the existing Electoral Commission or the Ministry of Justice is not entitled to receive any payment or other benefit from the existing Electoral Commission or the Ministry of Justice on the ground that his or her position with that employer has ceased to exist if—
a: the position ceases to exist as a result of amendments made by this Act; and
b: in connection with the transfer of employees under this Act,—
i: the transfer of the employee would result in substantially equivalent employment in the new Electoral Commission (whether or not the employee consents to the transfer); or
ii: the employee consents to a transfer that will result in other employment in the new Electoral Commission.
2: Substantially equivalent employment
a: in substantially the same position; and
b: on terms and conditions of employment that are no less favourable than those that apply to the employee immediately before the offer of equivalent employment (including any service-related, redundancy, and superannuation conditions); and
c: on terms that treat the period of service with the previous employer (and any other service recognised by the previous employer as continuous service) as if it were continuous service with the new Electoral Commission.
27: Consequential amendments
The principal Act is amended in the manner set out in Part 1
2: Provisions coming into force on 1 October 2010
28: Existing Electoral Commission disestablished
1: The existing Electoral Commission is disestablished.
2: Any member of the existing Electoral Commission holding office under section 8(1)(a) or (b) section 7
3: Any appointment of a member of the existing Electoral Commission made under section 8(1)(c) or (d) section 7
4: Any appointment of a deputy of a member of the existing Electoral Commission made under section 11A(2) section 8
29: Appointment of existing Chief Electoral Officer revoked
The appointment of the existing Chief Electoral Officer is revoked.
30: Enforcement of existing rights
1: This section applies to—
a: any matter or thing commenced under any enactment by the existing Electoral Commission or the existing Chief Electoral Officer and not completed by 1 October 2010; and
b: any proceedings commenced by or against the existing Electoral Commission, or by or against the Crown in respect of any act or omission of the existing Chief Electoral Officer, relating to an existing right, interest, title, immunity, or duty and not completed by 1 October 2010.
2: Any matter, thing, or proceedings to which this section applies may be continued, completed, or enforced by or against the new Electoral Commission.
31: Responsibility for reports and accounts of existing Electoral Commission from 1 July 2010
1: The new Electoral Commission must include in its annual report for the year ending 30 June 2011 the information in respect of the existing Electoral Commission for the period commencing 1 July 2010 and ending on 30 September 2010 that the existing Electoral Commission would have had to include in its annual report under section 151
2: To avoid doubt, the new Electoral Commission may, if it so decides, present the information referred to in subsection (1) in a combined form for the whole of the financial year ended 30 June 2011.
3: For the purposes of subsection (1), section 45J(1)
32: Consequential amendments
1: The provisions specified in the following Parts of the schedules of this Act are amended by omitting Chief Electoral Officer Electoral Commission
a: in respect of the principal Act, Part 2
b: in respect of other Acts, Part 1
c: in respect of regulations, Part 1
2: The provisions specified in the following Parts of the schedules of this Act are amended in the manner set out in those Parts:
a: in respect of the principal Act, Part 3
b: in respect of other Acts, Part 2
c: in respect of regulations, Part 2 2010-10-01 Citizens Initiated Referenda Act 1993 Parliamentary Service Act 2000 Broadcasting Act 1989 Local Restoration Polls Act 1990 Referenda (Postal Voting) Act 2000 Citizens Initiated Referenda Regulations 1995 Court of Appeal (List Election Petitions) Rules 1998 Electoral Regulations 1996 Constituency Election Petition Rules 2008 Court of Appeal (List Election Petitions) Rules 1998