Electoral Act 2004 (Tas)

Electoral Act 2004 An Act to provide for the holding of elections to elect persons as members of the Tasmanian Parliament, to regulate the conduct of those elections, to provide for the enrolment of electors for the purposes of those elections, to repeal the Electoral Act 1985 , to amend the Constitution Act 1934 and to provide for related matters [Royal Assent 17 December 2004] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Electoral Act 2004 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – approved means approved by the Commission; Assembly means the House of Assembly of the Parliament of Tasmania; Assembly by-election means an election to elect a Member in respect of an Assembly division pursuant to a writ issued under section 64 ; Assembly division means a division, determined in accordance with the Constitution Act 1934 , for the return of Members to represent the electors of that division in the Assembly; Assembly election means an election to elect Members in respect of an Assembly division and includes an Assembly by-election; Assembly general election means the elections held or to be held contemporaneously to elect Members in respect of all Assembly divisions pursuant to writs issued under section 63 ; ballot material means ballot papers, postal vote applications, declaration vote envelopes and postal vote declaration envelopes; ballot paper means a ballot paper prepared under section 96 or 101 ; ballot paper name means – (a) in respect of a registered party, the name appearing in the party register in accordance with section 52(2)(b) ; and (b) in respect of a candidate, the name referred to in section 80 ; candidate means a person who has been publicly announced as a candidate under section 87 ; candidate roll means the candidate roll prepared under section 39 ; carriage service provider has the same meaning as in the Telecommunications Act 1997 of the Commonwealth; close of poll means 6 p.m. on polling day; close of roll in relation to an election, means 6 p.m. on the day of issue of the writ for the holding of that election; Commission means the Tasmanian Electoral Commission established under section 6 ; Commissioner means the Electoral Commissioner appointed under section 14 ; Commonwealth Act means the Commonwealth Electoral Act 1918 of the Commonwealth; Commonwealth roll means the roll of the electors for the State of Tasmania required by section 81 of the Commonwealth Act; communicate, in relation to electoral matter, means print, publish, display, distribute, produce, or broadcast, the electoral matter, by any means, including electronically, by social media or by the internet, by electronic phone or by a communication sent to an electronic address at which the communication may be available to a person; constitutional documents, in relation to a party, means the written set of principles and rules (however described) under which the party is governed; corrupt practice means an offence that is a crime by virtue of this Act; Council means the Legislative Council of the Parliament of Tasmania; Council by-election means an election to elect a Member in respect of a Council division pursuant to a writ issued under section 66 ; Council division means a division, determined in accordance with the Constitution Act 1934 , for the return of a member to represent the electors of that division in the Council; Council election means an election to elect a Member in respect of a Council division and includes a Council by-election; Council periodic election means an election held or to be held to elect a Member in respect of a Council division pursuant to a writ issued under section 65 ; declaration vote means a vote marked on a ballot paper issued under section 118 ; declaration vote envelope means a declaration vote envelope referred to in section 118 ; deputy registered officer means a person whose name appears in the party register as the deputy registered officer of a party; disclosure entity, in relation to electoral matter, means a person, or entity, who or that – (a) is a candidate in relation to an election to which the electoral matter relates; or (b) is a registered party; or (c) is a Member; or (d) is a significant political donor, within the meaning of the Electoral Disclosure and Funding Act 2023 , in relation to an election to which the electoral matter relates; or (e) is an associated entity, within the meaning of the Electoral Disclosure and Funding Act 2023 ; or (f) is a third-party campaigner, within the meaning of the Electoral Disclosure and Funding Act 2023 , in relation to an election to which the electoral matter relates; or (g) was a candidate in – (i) an Assembly election in the previous 5 years; or (ii) a Council election in the previous 7 years; division means an Assembly division or a Council division; division roll means a division roll prepared and kept under section 37 ; election means an Assembly election or a Council election; election agent means a person appointed under section 158 ; election expenditure has the meaning given by section 5 ; election official means a person appointed under section 26 ; election roll means the election roll prepared under section 39 ; elector means a person whose name appears on a roll; electoral matter – see section 4 ; entity means – (a) an incorporated or unincorporated body; or (b) the trustee of a trust; existing party means a registered party or a registered political party, within the meaning of the Commonwealth Act; expenditure limit means the expenditure limit referred to in section 160 ; expenditure period means – (a) in the case of a Council periodic election, the period beginning on 1 January in the year in which the election is to be held and ending at the close of poll; or (b) in the case of a Council by-election, the period beginning on the day on which the seat of a Member of the Council becomes vacant and ending at the close of poll; first preference, in relation to a vote recorded for a candidate at an election, means the recording of the number "1" in the box next to the candidate's name on a ballot paper used at the election; functions includes duties; how to vote card means a card, handbill or pamphlet (or an electronic document or electronic representation of a card, handbill or pamphlet) – (a) that – (i) is, or includes, a representation of a ballot paper, or part of a ballot paper, for an election or is apparently intended to represent a ballot paper, or part of a ballot paper, for an election; and (ii) is apparently intended to affect, or is likely to affect, how votes are cast for any or all of the candidates in the election; or (b) that lists the names of 2 or more of the candidates or registered parties in an election, with a number indicating the order of voting preference in conjunction with the names of 2 or more of the candidates or parties; or (c) that otherwise directs or encourages the casting of votes in an election in a particular way, other than a card, handbill or pamphlet that only relates to first preference votes or that only relates to last preference votes; illegal practice means an offence under this Act that is not a corrupt practice or an offence under section 181 , and includes aiding, abetting or instigating the commission of, and attempting or conspiring to commit, such an offence; informal ballot paper means a ballot paper which is informal as specified in section 103 ; inspector means a person who is, under section 200D , an inspector; intending candidate means a person who has publicly declared his or her intention to seek election as a Member; listed carriage service has the same meaning as in section 16 of the Telecommunications Act 1997 of the Commonwealth; Member means a Member of the Council or the Assembly; mobile polling place means a place referred to in section 92(3) ; nomination day, in relation to an election, means the day fixed under section 67(1) or section 73(1)(a) on or before which candidates for election are to be nominated; nomination form means a form referred to in section 77 ; ordinary polling place means a place referred to in section 92(1) ; party means a group of persons, whether incorporated or not, that exists for political purposes and includes any branch in Tasmania of such a group that is established outside Tasmania; party name means the name appearing in the party register in accordance with section 52(2)(a) ; party register means the register maintained by the Commission pursuant to section 52 ; party secretary means the secretary or, if there is no position of secretary, the chief administrative officer (however described) of a party; polling day, in relation to an election, means the day fixed or specified under section 67(1)(b) on which polling for that election is to be held in the event of the election being contested; polling place means a place referred to in section 91 ; postal vote means a vote marked on a ballot paper issued under section 128 ; postal vote declaration envelope means a postal vote declaration envelope referred to in section 128 ; pre-poll polling place means a place referred to in section 92(2) ; prisoner means a person who is serving a sentence of imprisonment for an offence against a law of the State, another State, a Territory or the Commonwealth; public body name means the name, or an abbreviation or acronym of the name, of a prominent corporation or organisation; publish means publish by any means including by publication on the internet; registered member means a person whose name appears in the party register as a registered member of a party; registered officer means a person whose name appears in the party register as the registered officer of a party; registered party means a party, the name of which appears in the party register as a registered party; returning officer means a person appointed under section 24 or 25 ; roll means the State roll, a division roll or an election roll; scrutineer means a person appointed under section 104 ; social media means internet-based, or mobile broadcasting-based, technology or applications, if – (a) the sole or primary purpose of the technology or application is to enable social interaction between 2 or more end-users; and (b) the technology or application allows end-users to link to, or interact with, some or all of the other end-users; and (c) the technology or application is a means by which a person may create and share content generated by the person – and includes technology or applications known as internet forums, blogs, wikis, text messaging and online or mobile broadcasting social networks; State roll means the State roll prepared and kept under section 30 ; voting screen means a compartment in which a person may mark a ballot paper without any other person seeing how the ballot paper is marked. 4. Electoral matter (1) In this section – group means a group of candidates, each of whom has, under section 77(4) , nominated to appear on an Assembly ballot paper in a group that is not under a heading of the ballot paper name of a registered party; official of a registered industrial organisation means – (a) a person who holds a relevant office in a Tasmanian industrial organisation; and (b) a person who holds an office, within the meaning of the Fair Work Act 2009 of the Commonwealth, in an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; political entity means – (a) a party or a registered party; and (b) a candidate, intending candidate or member of a group; public official means – (a) the Governor; and (b) a Minister or a parliamentary secretary; and (c) a Member; and (d) a State Service officer or State Service employee; and (e) a police officer; and (f) a natural person (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the State; and (g) a judge, justice or magistrate; and (h) a registrar, or other officer, of a court; relevant office, in relation to a Tasmanian industrial organisation, means – (a) the office of president, vice president, secretary or assistant secretary of the organisation; and (b) the office of a voting member of a collective body of the organisation, being a collective body that has power in relation to any of the following functions: (i) the management of the affairs of the organisation; (ii) the determination of policy for the organisation; (iii) the making, alteration or rescission of rules of the organisation; (iv) the enforcement of rules of the organisation or the performance of functions in relation to the enforcement of such rules; and (c) an office, the holder of which is, under the rules of the organisation, entitled to participate directly in any of the functions referred to in paragraph (b)(i) and (iv) , other than an office, the holder of which participates in any of those functions only in accordance with directions given by a collective body, or another person, for the purpose of implementing existing policy of the organisation or decisions concerning the organisation; and (d) an office, the holder of which is, under the rules of the organisation, entitled to participate directly in any of the functions referred to in paragraph (b)(ii) or (iii) ; and (e) the office of a person holding, whether as trustee or otherwise, property of the organisation or property in which the organisation has a beneficial interest; Tasmanian industrial organisation means an organisation registered under Part V of the Industrial Relations Act 1984 . (2) For the purposes of this Act – electoral matter means matter communicated, or intended to be communicated, for the dominant purpose of influencing the way electors vote in an election, including by promoting or opposing a political entity or a Member. (3) For the avoidance of doubt, a matter may only have one dominant purpose for the purposes of the definition of electoral matter in subsection (2) . (4) For the purposes of the definition of electoral matter in subsection (2) , each creation, re-creation, communication or re-communication of matter is to be treated separately for the purposes of determining whether matter is electoral matter. (5) Without limiting subsection (2) , communication, or intended communication, for the purpose of educating an audience on, or encouraging debate on, an issue of public policy – (a) is, unless the contrary is proved, presumed to be the dominant purpose, of the communication or intended communication, for the purposes of the definition of electoral matter in subsection (2) ; and (b) is not, unless the contrary is proved, taken to be for the purpose of influencing the way electors vote in an election as specified in the definition of electoral matter in subsection (2) . (6) Without limiting subsection (2) , the dominant purpose of a communication, or intended communication, of matter that expressly promotes or opposes a political entity or a Member is presumed to be the purpose referred to in the definition of electoral matter in subsection (2) , unless the contrary is proved. (7) Without limiting subsection (2) , the following matters must be taken into account in determining the dominant purpose of the communication, or intended communication, of matter: (a) whether the communication, or intended communication, is or would be to the public or a section of the public; (b) whether the communication, or intended communication, is or would be by, or on behalf of, a disclosure entity; (c) whether the communication, or intended communication, contains an express or implied comment on a political entity or a Member; (d) whether the communication, or intended communication, is or would be received by electors near a polling place; (e) how soon an election is to be held after the creation or communication of the matter; (f) whether the communication, or intended communication, is or would be unsolicited. (8) Despite subsections (2) and (6) , matter is not electoral matter if the communication, or intended communication – (a) is the reporting of news, the presenting of current affairs or any genuine editorial content in news media; or (b) is, or would be, by a person for a dominant purpose that is satirical, academic or artistic, taking into account any relevant consideration including the dominant purpose of any other communication of matter by the person; or (c) is, or would be, a private communication by a person to another person who is known to the first person; or (d) is, or would be, by or to a person who is a public official, in that person's capacity as such an official; or (e) is, or would be, a private communication, to a political entity that is not a public official, in relation to public policy or public administration; or (f) occurs, or would occur, in the Assembly or Council or is or would be to a parliamentary committee. 5. Election expenditure (1) For the purposes of this Act – election expenditure, in relation to a candidate at a Council election means, subject to subsection (2) , expenditure that – (a) relates to promoting or procuring the election of the candidate; and (b) is incurred by or with the authority of the candidate – (i) within the expenditure period; or (ii) before the expenditure period in respect of goods, or goods and services, which are or are to be supplied or provided to, or made use of by or with the authority of, the candidate during the expenditure period. (2) Election expenditure does not include expenditure which relates to – (a) the personal and reasonable living and travelling expenses of the candidate and of an election agent appointed by him or her; or (b) the purchase of any roll; or (c) the renting or hiring of premises for the purposes of that campaign; or (d) the appointment of scrutineers; or (e) the conveying of electors to and from polling places for the purpose of voting. PART 2 - Administration Division 1 - Tasmanian Electoral Commission 6. Establishment The Tasmanian Electoral Commission is established. 7. Constitution The Tasmanian Electoral Commission consists of – (a) the Commissioner; and (b) two other members. 8. Members (1) The members of the Commission referred to in section 7(b) are appointed by the Governor. (2) Before a person is appointed as a member of the Commission, the Minister is to consult – (a) the Parliamentary leader of each party represented in the Assembly; and (b) the President of the Council. (3) A person is not eligible to be appointed as a member of the Commission referred to in section 7(b) if that person is, or has been in the period of 5 years immediately preceding the date on which it is proposed to appoint that person – (a) a Member of a House of Parliament of the Commonwealth or a State or Territory; or (b) a member of a party that is registered under this Act or under an Act of the Commonwealth or another State or a Territory as a political party or a member of a similar organisation. (4) The Governor may appoint a member of the Commission, other than the Commissioner, to be chairperson of the Commission. (5) Schedule 1 has effect with respect to membership of the Commission. (6) Schedule 2 has effect with respect to meetings of the Commission. 9. Functions and powers of Commission (1) In addition to the functions conferred on it by any other provisions of this Act or any other Act, the Commission has the following functions: (a) to advise the Minister on matters relating to elections; (b) to consider and report to the Minister on matters referred to it by the Minister; (c) to promote public awareness of electoral and parliamentary topics by means of educational and information programs and by other means; (d) to provide information and advice on electoral issues to the Parliament, the Government, Government departments and State authorities, within the meaning of the State Service Act 2000 ; (e) to publish material on matters relating to its functions; (f) to investigate and prosecute illegal practices under this Act. (2) The Commission may do all things necessary or convenient to be done, including employing persons, for or in connection with or incidental to the performance of its functions. (3) Without limiting subsection (2) and in addition to any power conferred on the Commission by any other provision of this Act or any other Act, the Commission, in addition to conducting Assembly elections or Council elections, may conduct ballots or elections for a person or organisation and may charge fees for that service. 10. Commission not subject to direction or control The Commission is not subject to the direction or control of the Minister in respect of the performance or exercise of its functions or powers. 11. Delegation The Commission may, by resolution, delegate to a member of the Commission, a returning officer, an election official, a member of the staff of the Commission or any other person all or any of its functions or powers under this Act or any other Act, other than this power of delegation. 12. Proceedings by or against Commission The Commission may institute or be a party to proceedings under this or any other Act. 13. Annual and other reports The Commission, as soon as practicable after 30 June in each year, is to lay before each House of Parliament a report on the performance of its functions and the exercise of its powers during the period of 12 months ending on that date and may, at any time, lay before each House of Parliament a report on any matter arising in connection with the performance of its functions or exercise of its powers. Division 2 - Electoral Commissioner 14. Appointment of Commissioner (1) The Governor may appoint a person to be Electoral Commissioner. (2) Before a person is appointed as Electoral Commissioner, the Minister is to consult – (a) the Parliamentary leader of each party represented in the Assembly; and (b) the President of the Council. (3) A person is not eligible to be appointed as Electoral Commissioner if the person is, or has been in the period of 5 years immediately preceding the date on which it is proposed to appoint that person – (a) a Member of a House of Parliament of the Commonwealth or a State or Territory; or (b) a member of a party that is registered under this Act or under an Act of the Commonwealth or another State or a Territory as a political party or a member of a similar organisation. 15. Functions and powers (1) The Commissioner is to be the chief executive officer of the Commission. (2) In addition to the functions and powers imposed or conferred under this Act, the Commissioner has such other functions and powers as are imposed or conferred on the Commissioner by or under any other Act. (3) The Commissioner may give written direction to election officials and members of the staff of the Commission with respect to the performance of their functions and the exercise of their powers under this Act. 16. Delegation The Commissioner may, in writing, delegate to a returning officer, an election official or member of the staff of the Commission all or any of the Commissioner's functions or powers under this Act or any other Act, other than this power of delegation. 17. Tenure and conditions (1) The Commissioner holds office for the period (not exceeding 7 years) specified in his or her instrument of appointment. (2) The Commissioner holds office on such terms and conditions in relation to matters not provided for by this Act as are specified in his or her instrument of appointment. (3) The Commissioner is eligible for reappointment. (4) The Commissioner may hold any other office that is compatible with the performance of his or her functions as Commissioner. 18. Remuneration (1) The Commissioner is to be paid such remuneration and allowances as are specified in the instrument of appointment. (2) Remuneration payable under this section is to be paid from the Public Account without further appropriation than this section. 19. Leave of absence The Governor may grant the Commissioner leave of absence on such terms and conditions as the Governor determines. 20. Resignation The Commissioner may resign office by written notice given to the Governor. 21. Suspension or removal of Commissioner (1) The Commissioner may, at any time, be removed from office by the Governor on addresses from both Houses of Parliament. (2) The Governor may suspend the Commissioner from office if the Governor is satisfied that the Commissioner – (a) is incapable of properly performing the functions of Commissioner; or (b) has shown himself or herself incompetent to properly perform those functions or has neglected to properly perform those functions; or (c) has been absent without leave granted under section 19 from 3 consecutive meetings of the Commission; or (d) is or has become bankrupt or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, has compounded with his or her creditors or made an assignment of his or her remuneration or estate for their benefit; or (e) has been convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for a term exceeding 12 months; or (f) has contravened clause 8 of Schedule 2 ; or (g) has been guilty of misconduct. (3) If the Commissioner has been suspended from office under subsection (2) , the Commissioner is to be restored to office unless – (a) a statement of the grounds of the Commissioner's suspension is laid before each House of Parliament during the first 7 sitting-days of the House following the suspension; and (b) each House of Parliament, during the session of the House in which the statement is so laid, and within 30 sitting-days of the statement being so laid, passes an address requesting the removal of the Commissioner from office. 22. Supplementary provisions relating to Commissioner (1) The Commissioner is an employee for the purposes of the Public Sector Superannuation Reform Act 2016 and the Long Service Leave (State Employees) Act 1994 . (2) If an employee, within the meaning of the State Service Act 2000 , is appointed to the office of Commissioner, that employee is entitled to retain all the employee's existing and accruing rights as if the employee's service in that office were a continuation of his or her service as an employee within the meaning of that Act. (3) Where a person ceases to hold the office of Commissioner and becomes a State Service officer or State Service employee, that person's service in that office is to be regarded as service in the State Service for the purpose of determining his or her rights as an employee, within the meaning of that Act. 23. Deputy Commissioner (1) The Governor may appoint a person employed under the State Service Act 2000 to be Deputy Electoral Commissioner. (2) If the Commissioner is unable, for any period, to perform or exercise the functions or powers of the Commissioner, the Deputy Electoral Commissioner may perform those functions or exercise those powers during that period. (3) All acts and things done or omitted to be done by the Deputy Electoral Commissioner pursuant to subsection (2) are as valid, and have the same consequences, as if they had been done or omitted to be done by the Commissioner. Division 3 - Returning officers and election officials 24. Returning officers (1) The Commission is to appoint a returning officer for each division. (2) Subject to and in accordance with any directions given by the Commission, the returning officer is responsible for conducting every election in the division for which he or she is appointed. (3) The functions and powers of a returning officer appointed under subsection (1) are – (a) the functions and powers specified by or under this Act in respect of a returning officer or an election official; and (b) any other functions and powers not inconsistent with this Act as may be specified by the Commission. (4) The Commission may require any person appointed under this section to sign an approved declaration with respect to the performance or exercise of his or her functions or powers. (5) A person holding office as a returning officer is not subject to the State Service Act 2000 . (6) A State Service officer or State Service employee may hold office as a returning officer in conjunction with his or her employment in the State Service. 25. Acting returning officer (1) If a returning officer is unable, for any period, to perform or exercise the functions or powers of that office, the Commission may appoint a person to act as returning officer for that period. (2) A person appointed under subsection (1) , while acting as returning officer, is to perform or exercise the functions or powers of that office. (3) A person holding office as an acting returning officer is not subject to the State Service Act 2000 . (4) A State Service officer or State Service employee may hold office as an acting returning officer in conjunction with his or her employment in the State Service. 25A. Delegation by returning officer A returning officer may, by instrument in writing, delegate to any election official any of the returning officer's functions or powers that are – (a) specified in Division 11 or 12 of Part 5; or (b) set out in procedures approved by the Commission under Division 10 of Part 5 . 26. Election officials (1) The Commission or a returning officer may appoint appropriate persons to be election officials for Assembly or Council elections or any other ballots o