Commonwealth Electoral Legislation Amendment Act 1983 No. 144 of 1983 - SECT 4
Commonwealth Electoral Legislation Amendment Act 1983 No. 144 of 1983 - SECT 4
4. Sections 6 and 7 of the Principal Act are repealed and the following headings and sections are substituted: ''Division 1-Preliminary Interpretation ''6. In this Part- 'acting Commissioner' includes a person acting as the Electoral Commissioner; 'appointed Commissioner' means the Chairman or the non-judicial appointee; 'Chairman' means the Chairman of the Commission; 'Chief Judge' means the Chief Judge of the Federal Court of Australia; 'Commission' means the Commission established by section 7; 'Commissioner' means a member of the Commission, and includes the Chairman; 'electoral matters' means matters relating to Parliamentary elections, elections and ballots under the Conciliation and Arbitration Act 1904 and referendums; 'electoral officer' means the Electoral Commissioner, the Deputy Electoral Commissioner or an Australian Electoral Officer for a State; 'eligible Judge' means a person who is a Judge and has been a Judge for not less than 3 years; 'Judge' means a Judge (other than the Chief Judge) of the Federal Court of Australia; 'non-judicial appointee' means the Commissioner referred to in paragraph 7 (2) (c); 'Parliamentary matters' includes matters relating to the role and functions of the Parliament. ''Division 2-The Australian Electoral Commission Establishment of Commission ''7. (1) There is established by this section a Commission by the name of the Australian Electoral Commission. ''(2) The Commission shall consist of- (a) a Chairman; (b) the Electoral Commissioner; and (c) one other member. ''(3) The Chairman and the non-judicial appointee shall be appointed by the Governor-General and shall hold office on a part-time basis. ''(4) The person appointed as Chairman shall be a person whose name is included in a list of the names of 3 eligible Judges submitted to the Governor-General for the purposes of this section by the Chief Judge. ''(5) A person shall not be appointed as the non-judicial appointee unless- (a) he is the holder of an office referred to in paragraph (a) of the definition of 'office of Permanent Head' in sub-section 7 (1) of the Public Service Act 1922; or (b) he is the holder of an office established by or under an Act, being an office that, in the opinion of the Governor-General, is an office having a status equivalent to an office referred to in paragraph (a). ''(6) The performance of the functions or the exercise of the powers of the Commission is not affected by reason only of there being one vacancy in the membership of the Commission. Functions and powers of Commission ''7A. (1) The functions of the Commission are- (a) to perform functions that are permitted or required to be performed by or under this Act, not being functions that- (i) a specified person or body, or the holder of a specified office, is expressly permitted or required to perform; or (ii) consist of the appointment of a person to an office; (b) to consider, and report to the Minister on, electoral matters referred to it by the Minister and such other electoral matters as it thinks fit; (c) to promote public awareness of electoral and Parliamentary matters by means of the conduct of education and information programs and by other means; (d) to provide information and advice on electoral matters to the Parliament, the Government, Departments and authorities of the Commonwealth; (e) to conduct and promote research into electoral matters and other matters that relate to its functions; (f) to publish material on matters that relate to its functions; and (g) to perform such other functions as are conferred on it by or under any law of the Commonwealth or of a Territory. ''(2) The Commission may perform any of the functions referred to in paragraphs (1) (b) to (f) (inclusive) in conjunction with the electoral authorities of a State or of the Northern Territory. ''(3) The Commission may do all things necessary or convenient to be done for or in connection with the performance of its functions. Tenure and terms of office ''7B. (1) Subject to this Division, an appointed Commissioner holds office for such period, not exceeding 7 years, as is specified in the instrument of his appointment, but is eligible for re-appointment. ''(2) The Chairman shall cease to be a Commissioner if he ceases to be a Judge. ''(3) Where- (a) at any time, a person who is the non-judicial appointee holds an office of a kind referred to in paragraph 7 (5) (a); (b) the person ceases to be the holder of that office; and (c) the person does not, immediately upon ceasing to hold that office, commence to hold another such office, the person shall cease to be a Commissioner. ''(4) Where- (a) a person who was appointed as the non-judicial appointee by virtue of holding an office referred to in paragraph 7 (5) (b) ceases to hold that office; and (b) the person does not, immediately upon ceasing to hold that office, commence to hold an office of a kind referred to in paragraph 7 (5) (a), the person shall cease to be a Commissioner. ''(5) An appointed Commissioner holds office on such terms and conditions not provided for by this Act as are determined by the Governor-General. Leave of absence ''7C. The Commission may grant the non-judicial appointee leave of absence from a meeting of the Commission. Resignation ''7D. An appointed Commissioner may resign his office by writing signed by him and delivered to the Governor-General. Disclosure of interests ''7E. (1) A Commissioner or an acting Commissioner who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Commission shall, as soon as possible after the relevant facts have come to his knowledge, disclose the nature of his interest at a meeting of the Commission. ''(2) A disclosure under sub-section (1) shall be recorded in the minutes of the meeting of the Commission and the Commissioner or acting Commissioner shall not, unless the Minister otherwise determines- (a) be present during any deliberation of the Commission with respect to that matter; or (b) take part in any decision of the Commission with respect to that matter. Termination of appointment ''7F. If the non-judicial appointee- (a) is absent, except on leave granted by the Commission in accordance with section 7C, from 3 consecutive meetings of the Commission; or (b) fails, without reasonable excuse, to comply with his obligations under section 7E, the Governor-General shall terminate the appointment of the non-judicial appointee. Acting Chairman ''7G. (1) The Governor-General may appoint a person to act as Chairman- (a) during a vacancy in the office of Chairman, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Chairman is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office, but a person appointed to act during a vacancy shall not continue so to act for more than 12 months. ''(2) The Governor-General may at any time terminate an appointment made under sub-section (1). ''(3) Where a person is acting as Chairman in accordance with paragraph (1) (b) and the office of Chairman becomes vacant while that person is so acting, that person may continue so to act until the Governor-General otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires,whichever first happens. ''(4) The appointment of a person to act as Chairman ceases to have effect if he resigns the appointment by writing signed by him and delivered to the Governor-General. ''(5) While a person is acting as Chairman, he has, and may exercise, all the powers and shall perform all the functions of the Chairman. ''(6) The validity of anything done by or in relation to a person purporting to act under sub-section (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had passed. Acting non-judicial appointee ''7H. (1) The Governor-General may appoint a person to act as the non-judicial appointee- (a) during a vacancy in the office of the non-judicial appointee, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the non-judicial appointee is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office, but a person appointed to act during a vacancy shall not continue so to act for more than 12 months. ''(2) The Governor-General may at any time terminate an appointment made under sub-section (1). ''(3) Where a person is acting as the non-judicial appointee in accordance with paragraph (1) (b) and the office of the non-judicial appointee becomes vacant while that person is so acting, that person may continue so to act until the Governor-General otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens. ''(4) The appointment of a person to act as the non-judicial appointee ceases to have effect if he resigns the appointment by writing signed by him and delivered to the Governor-General. ''(5) While a person is acting as the non-judicial appointee, he has, and may exercise, all the powers and shall perform all the functions of the non-judicial appointee. ''(6) The validity of anything done by or in relation to a person purporting to act under sub-section (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had passed. Meetings of Commission ''7J. (1) The Chairman may, at any time, convene a meeting of the Commission. ''(2) The Chairman shall convene such meetings of the Commission as, in his opinion, are necessary for the efficient performance of its functions. ''(3) At a meeting of the Commission, 2 Commissioners constitute a quorum. ''(4) The Chairman shall preside at all meetings of the Commission at which he is present. ''(5) If the Chairman is not present at a meeting of the Commission, the Commissioners present shall elect one of their number to preside at that meeting. ''(6) Questions arising at a meeting of the Commission shall be determined by a majority of the votes of the Commissioners present and voting. ''(7) The person presiding at a meeting of the Commission has a deliberative vote, and, in the event of an equality of votes, also has a casting vote. ''(8) If, at any meeting of the Commission at which 2 Commissioners only are present, not being a meeting from which a Commissioner is absent by reason of section 7E, the Commissioners differ in opinion on any matter, the determination of that matter shall be postponed to a full meeting of the Commission. ''(9) The Commission may regulate the conduct of proceedings at its meetings as it thinks fit. ''(10) In this section- (a) a reference to the Chairman shall, if a person is acting as Chairman, be construed as a reference to the person so acting; and (b) a reference to a Commissioner shall, if a person is acting as the Chairman, the non-judicial appointee or the Electoral Commissioner, be construed as including a reference to the person so acting. Delegation ''7K. (1) The Commission may, by resolution, either generally or as otherwise provided by the resolution, delegate to an appointed Commissioner, an electoral officer or a member of the staff of the Commission all or any of its powers under this Act, other than- (a) this power of delegation; and (b) its powers under Part IIIA. ''(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Commission. ''(3) A delegation of a power under this section- (a) may be revoked by resolution of the Commission (whether or not constituted by the persons constituting the Commission at the time when the power was delegated); (b) does not prevent the exercise of the power by the Commission; and (c) continues in force notwithstanding a change in the membership of the Commission. ''(4) Section 34A of the Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the Commission were a person. ''(5) A certificate signed by the Chairman stating any matter with respect to a delegation of a power under this section is prima facie evidence of that matter. ''(6) A document purporting to be a certificate mentioned in sub-section (5) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given. Reports by Commission ''7L. (1) The Commission shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report of the operations of the Commission during the year that ended on that 30 June. ''(2) The Commission shall, as soon as practicable after the polling day in- (a) a general election and any Senate election that had the same polling day as that general election; or (b) a Senate election (other than a Senate election referred to in paragraph (a)), prepare and furnish to the Minister a report of the operation of Part XVI in relation to that election or those elections. ''(3) Section 34C of the Acts Interpretation Act 1901 does not apply in relation to a report under sub-section (2). ''(4) The Minister shall cause a copy of a report furnished to him under sub-section (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he receives the report. ''Division 3-Electoral Commissioner, Deputy Electoral Commissioner and Australian Electoral Officers for States Electoral Commissioner ''7M. (1) There shall be an Electoral Commissioner. ''(2) The Electoral Commissioner shall be the chief executive officer of the Commission and shall have such other functions, and such powers, as are conferred upon him by or under any law of the Commonwealth or of a Territory. Deputy Electoral Commissioner ''7N. (1) There shall be a Deputy Electoral Commissioner. ''(2) The Deputy Electoral Commissioner shall assist the Electoral Commissioner as directed by him. ''(3) Subject to sub-section (4), the Deputy Electoral Commissioner shall act as the Electoral Commissioner- (a) during a vacancy in the office of the Electoral Commissioner, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Electoral Commissioner is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office. ''(4) The Deputy Electoral Commissioner shall not act as the Electoral Commissioner during a vacancy in the office of Electoral Commissioner while a person appointed under section 7U is acting in that office. ''(5) While a person is acting as the Electoral Commissioner, he has, and may exercise, all the powers and shall perform all the functions of the Electoral Commissioner. Australian Electoral Officers for States ''7O. (1) There shall be an Australian Electoral Officer for each State who shall, subject to the directions of the Electoral Commission, be the principal electoral officer in the State. ''(2) An Australian Electoral Officer for a State shall have such other functions, and such powers, as are conferred on him by any law of the Commonwealth or of a Territory. Terms and conditions of appointment, &c. ''7P. (1) An electoral officer shall be appointed by the Governor-General. ''(2) Subject to this Act, an electoral officer holds office for such period, not exceeding 7 years, as is specified in the instrument of his appointment, but is eligible for re-appointment. ''(3) A person who has attained the age of 65 years shall not be appointed as an electoral officer and a person shall not be appointed as an electoral officer for a period that extends beyond the day on which he will attain the age of 65 years. ''(4) An electoral officer holds office on such terms and conditions not provided for by this Act as are determined by the Governor-General. Remuneration ''7Q. (1) An electoral officer shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed. ''(2) An electoral officer shall be paid such allowances (if any) as are prescribed. ''(3) This section has effect subject to the Remuneration Tribunals Act 1973. Leave of absence ''7R. The Commission may grant leave of absence to an electoral officer on such terms and conditions as to remuneration or otherwise as the Commission determines. Resignation ''7S. An electoral officer may resign his office by writing signed by him and delivered to the Governor-General. Termination of appointment ''7T. (1) The Governor-General may terminate the appointment of an electoral officer by reason of misbehaviour or physical or mental incapacity. ''(2) If an electoral officer- (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; (b) is absent, except on leave granted by the Commission, for 14 consecutive days or for 28 days in any 12 months; or (c) engages in paid employment outside the duties of his office without the approval of the Commission, the Governor-General shall terminate the appointment of the electoral officer. ''(3) If the Electoral Commissioner, or the Deputy Electoral Commissioner while acting as the Electoral Commissioner, fails, without reasonable excuse, to comply with his obligations under section 7E, the Governor-General shall terminate his appointment as Electoral Commissioner or Deputy Electoral Commissioner, as the case may be. Acting Electoral Commissioner ''7U. (1) The Governor-General may appoint a person to act as the Electoral Commissioner- (a) during a vacancy in the office of the Electoral Commissioner, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when- (i) the Electoral Commissioner is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office; and (ii) no person is acting as the Electoral Commissioner by virtue of holding the office of, or acting as, the Deputy Electoral Commissioner, but a person appointed to act during a vacancy shall not continue so to act for more than 12 months. ''(2) The Governor-General may- (a) determine the terms and conditions of appointment, including remuneration and allowances, of a person acting under sub-section (1); and (b) at any time terminate an appointment made under sub-section (1). ''(3) Where a person is acting as the Electoral Commissioner in accordance with paragraph (1) (b) and the office of the Electoral Commissioner becomes vacant while that person is so acting, that person may continue so to act until the Governor-General otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens. ''(4) The appointment of a person to act as the Electoral Commissioner ceases to have effect if he resigns the appointment by writing signed by him and delivered to the Governor-General. ''(5) While a person is acting as the Electoral Commissioner, he has, and may exercise, all the powers and shall perform all the functions of the Electoral Commissioner. ''(6) The validity of anything done by or in relation to a person purporting to act under sub-section (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had passed. Acting Deputy Electoral Commissioner ''7V. (1) The Governor-General may appoint a person to act as the Deputy Electoral Commissioner- (a) during a vacancy in the office of the Deputy Electoral Commissioner, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Deputy Electoral Commissioner is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office, but a person appointed to act during a vacancy shall not continue so to act for more than 12 months. ''(2) The Governor-General may- (a) determine the terms and conditions of appointment, including remuneration and allowances, of a person acting under sub-section (1); and (b) at any time terminate an appointment made under sub-section (1). ''(3) Where a person is acting as the Deputy Electoral Commissioner in accordance with paragraph (1) (b) and the office of the Deputy Electoral Commissioner becomes vacant while that person is so acting, that person may continue so to act until the Governor-General otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens. ''(4) The appointment of a person to act as the Deputy Electoral Commissioner ceases to have effect if he resigns the appointment by writing signed by him and delivered to the Governor-General. ''(5) While a person is acting as the Deputy Electoral Commissioner, he has, and may exercise, all the powers and shall perform all the functions of the Deputy Electoral Commissioner. ''(6) The validity of anything done by or in relation to a person purporting to act under sub-section (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had passed. Delegation by Electoral Commissioner ''7W. (1) The Electoral Commissioner may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to the Deputy Electoral Commissioner or an Australian Electoral Officer for a State or Territory all or any of his powers under this Act other than- (a) this power of delegation; and (b) his powers under Parts III and IIIA. ''(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Electoral Commissioner. ''(3) A delegation under this section does not prevent the exercise of a power by the Electoral Commissioner. ''Division 4-Staff of the Commission Staff ''7X. (1) Subject to sub-section (2), the staff of the Commission shall consist of- (a) persons appointed or employed under the Public Service Act 1922 for the purposes of the Commission (including such persons holding offices established by this Division); and (b) persons employed or engaged by the Commission under this Division. ''(2) The Electoral Commissioner has all the powers of, or exercisable by, a Permanent Head under the Public Service Act 1922 so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in paragraph (1) (a) as if that branch were a separate Department of the Australian Public Service. Australian Electoral Officer for a Territory ''7Y. (1) The Commission shall, for the purposes of each election, appoint an Australian Electoral Officer for each Territory and such an appointment shall terminate upon the completion of the election. ''(2) The Commission may appoint a person to act as Australian Electoral Officer for a Territory during any period, or during all periods, when the Australian Electoral Officer for the Territory is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office. ''(3) The appointment of a person to act as Australian Electoral Officer for a Territory ceases to have effect if he resigns the appointment by writing signed by him and delivered to the Commission. ''(4) While a person is acting as Australian Electoral Officer for a Territory, he has, and may exercise, all the powers and shall perform all the functions of the Australian Electoral Officer for the Territory. ''(5) The validity of anything done by or in relation to a person purporting to act under sub-section (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had passed. Assistant Australian Electoral Officers for States ''7Z. (1) The Commission shall appoint an Assistant Australian Electoral Officer for each State. ''(2) An Assistant Australian Electoral Officer for a State shall assist the Australian Electoral Officer for the State. ''(3) An Assistant Australian Electoral Officer for a State shall act as Australian Electoral Officer for the State- (a) during a vacancy in the office of Australian Electoral Officer for the State, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Australian Electoral Officer for the State is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office. ''(4) While a person is acting as Australian Electoral Officer for a State, he has, and may exercise, all the powers and shall perform all the functions of the Australian Electoral Officer for the State.''.