AGY-1157 | State Electoral Office (1929-2006) New South Wales Electoral Commission (2006- )

Full description

The Parliamentary Electorates and Elections (Amendment) Act, 1928 (Act No.55, 1928) provided for an Electoral Commissioner for New South Wales with the responsibility of administering the Electoral Act plus any other legislative provisions related to the -

* Registration or enrolment of electors
* Preparation of lists and rolls of electors
* Conduct of elections for the Legislative Assembly
* Compilation of a joint roll for the purposes of Commonwealth and New South Wales elections
* Compulsory expression of preferences in voting. (1)

The Constitution Further Amendment (Referendum) Act, 1920 (Act No.2, 1930) gave the Electoral Commissioner the responsibility for the conduct of referenda. On 17 June 1978 the referendum question - Do you approve of the Bill entitled 'A Bill for an Act to provide for the election of members of the Legislative Council directly by the people' - was approved by the people of New South Wales.

A Principal Returning Officer and such staff as may be necessary to enable the Electoral Commissioner to exercise his functions under the Parliamentary Electorates and Elections Act, 1912 (Act No.41 1912) are employed under the Public Sector Management Act, 1988 (Act No.33 1988). These staff comprise the State Electoral Office for which the Electoral Commissioner is the Chief Executive Officer.

In addition to the Federal and State polls the State Electoral Office conducts ballots for -
* Industrial organisations under the Industrial Relations Act 1996 (Act No.17, 1996)
* Secret ballots on strike action by industrial organisations under the Industrial Relations Act 1996 (Act No.17, 1996)
* Amalgamation polls for industrial organisations under the Industrial Relations Act 1996 (Act No.17, 1996)
* Statutory boards and authorities pursuant to various Acts
* Registered clubs under the Registered Clubs Act 1976 (Act No.31, 1976)
* Local Government elections pursuant to the Local Government Act 1993 (Act No.30, 1993).

By virtue of the of the Election Funding Act, 1981 (Act No.78, 1981) the Electoral Commissioner holds office as Chairman of the Election Funding Authority. In addition the Electoral Commissioner under the provisions of the Parliamentary Electorates and Elections Act, 1912 (Act No.41, 1912) is appointed as Electoral Districts Commissioner at the time of redistribution of Legislative Assembly electoral districts. The Electoral Commissioner is also the New South Wales Representative on the Australian Joint Roll Council.

From 20 October 2006 the name of the State Electoral Office was changed to the New South Wales Electoral Commission. (2) The name change followed a Review by the Council on the Cost of Quality in Government which recommended that the NSW Electoral Commissioner be given similar responsibilities, authority and accountabilities to his counterparts in other jurisdictions, for example, overall management of election processes, direct supervision of Returning Officers and accountability for the accuracy of election results. (3)

The Electoral Act 2017 re-established the Electoral Commission in NSW. The Act set out an electoral system for the election of members to the NSW Parliament; provided a system for distributing New South Wales into electoral districts; enabled electors to vote; provided for the registration of political parties in the Register of Parties; and allowed the Electoral Commissioner to enforce breaches of the Act. (4)

The Electoral Act 2017 set out the following functions for the Electoral Commission:
(1) The Electoral Commission has the functions conferred or imposed on it by or under the following: this Act; the Electoral Funding Act 2018; the Lobbying of Government Officials Act 2011; the Local Government Act 1993; and any other Act. Under the Electoral Funding Act 2018, the Electoral Commission has the function of administering the election funding, expenditure and disclosure scheme under that Act and registering electoral participants for the purposes of that scheme. Under the Lobbying of Government Officials Act 2011, the Electoral Commission has the function of maintaining the Register of Third-Party Lobbyists and Lobbyists Watch List, and of the enforcement of obligations relating to lobbying.
(2) The Electoral Commission may:
(a) provide assistance for the conduct of elections by the Electoral Commissioner under this or any other Act, and
(b) institute proceedings for offences under the following Acts; this Act; the Electoral Funding Act 2018; the Lobbying of Government Officials Act 2011; the Local Government Act 1993 (but only in connection with the conduct of a local government election), and
(c) make applications to the Supreme Court for injunctions, declarations or other orders within the jurisdiction of the Court for the purpose of ensuring compliance with the following: this Act; the Electoral Funding Act 2018; the Lobbying of Government Officials Act 2011; the Local Government Act 1993 (but only in connection with the conduct of a local government election), and
(d) conduct and promote research into electoral matters and other matters that relate to its functions, and publish the results of any such research, and
(e) promote public awareness of electoral matters that are in the general public interest by means of education and information programs.
(3) It is the duty of the Electoral Commission to exercise its functions under this or any other Act in a manner that is not unfairly biased against or in favour of any particular parties, groups, candidates or other persons, bodies or organisations.
(4) The Electoral Commission is not subject to the control or direction of the Minister in the exercise of its functions. (5)

The Electoral Act 2017 also established a Redistribution Panel in order to redistribute electoral districts according to the following criteria:
(1) In carrying out its functions, the Redistribution Panel, subject to complying with sections 28 and 28A of the Constitution Act 1902, is:
(a) to have regard to demographic trends within New South Wales and, as far as practicable, endeavour to ensure on the basis of those trends that, at the relevant future time, the number of electors enrolled in each electoral district will be equal (within a margin of allowance of 10 per cent more or less of the average enrolment in electoral districts at that future time), and
(b) subject to paragraph (a), to give due consideration, in relation to each electoral district, to:
(i) community of interests within the electoral district, including economic, social and regional interests, and
(ii) means of communication and travel within the electoral district, and
(iii) the physical features and area of the electoral district, and
(iv) mountain and other natural boundaries, and
(v) the boundaries of the existing electoral districts.
(2) For the purposes of subsection (1) (a), the relevant future time is 4 years from the day of the return of the writs for choosing the Assembly that exists at the time the distribution is carried out. (6)

On 1 September 2021 changes were made to the regulations that applied to the 2021 Local Government elections. The Local Government (General) Regulation 2005 was updated with the changes made by the Local Government (General) Amendment (Elections) Regulation 2021. (7)

These changes included the need to make arrangements for the COVID-19 pandemic with respect to polling places, scrutineers being present, and providing certain information be available on the election manager's website; to allow the election manager to make a direction about the display of a poster or the handing out of tangible election material, in or on particular premises, if the direction is intended to comply with a public health order and to reduce the risk of infection from COVID-19; and to make provision for technology assisted voting. (8)

Endnotes
1. Voting was made compulsory in Queensland in 1915, for the Commonwealth in 1924 while all states had followed suit by 1942 - Parker R. S. The Government of New South Wales, University of Queensland Press, St. Lucia, 1978, p.16.
2. Parliamentary Electorates and Elections Amendment Act 2006 (Act No.68, 2006), Schedule 4 which amended Part 3A section 21A of the Parliamentary Electorates and Elections Act 1912 (Act No.41, 1912); NSW Government Gazette No.124, 20 October 2006, p.8781.
3. State Electoral Office, Annual Report, 2005-2006, p.18.
4. NSW Electoral Commission website, https://www.elections.nsw.gov.au/About-us/Legislation/Election-legislation, (accessed 17 November, 2022)
5. Electoral Act 2017 (Act No. 66, 2017), S10.
6. Ibid. Pt. 3, Div. 2.
7. NSW Electoral Commission website, About-us-Legislation, https://www.elections.nsw.gov.au/About-us/Legislation, (accessed 15 November 2022).
8. Local Government (General) Amendment (Elections) Regulation 2021 (2021 No 617), NSW Legislation Website, 22 October 2021.