ACT Electoral Commission
A short factsheet on the ACT Electoral Commission: its establishing Act and its role running ACT Legislative Assembly elections and referendums independently of government.
Learning outcomes
- State the ACT Electoral Commission's establishing Act and its function running Assembly elections and referendums independently of the executive.
Act: Electoral Act 1992 (ACT).1
Established: A body of three, and the Commissioner is one of them. Section 5 establishes the Australian Capital Territory Electoral Commission, and s 6 constitutes it: the commission "consists of— (a) the chairperson; and (b) the commissioner; and (c) 1 other member". So "the Electoral Commissioner" is a member of a collegiate body, not the body itself, and s 11 gives the commissioner functions of their own alongside the commission's. Confusing the two is the easy error here: a decision of the commission is not a decision of the commissioner, and vice versa.
Purpose: The ACT Electoral Commission independently conducts elections for the ACT Legislative Assembly, including under the territory's Hare-Clark proportional representation system, and conducts referendums when required. Its independence from the executive it may need to administer election disputes about is the point of the statutory design, the same reasoning behind every other Australian electoral commission.
Where the authority sits
Independence is expressed member by member: s 6B gives a member of the commission complete discretion in exercising the member's functions, subject to the Act and other territory laws — the same formula the ACT uses for its Auditor-General in s 7 of that Act. The commission's functions in s 7(1) are to advise the Assembly on electoral matters and to consider and report on matters the Assembly refers to it.
Powers conferred under the Act
The Commission maintains the electoral roll, conducts polling, and administers election funding and disclosure requirements. Redistributions are the exception and the distinction is the point: electorate boundaries are determined not by the three-member Commission but by the augmented electoral commission (s 35(1)), a different body established for each redistribution under s 47 and consisting of the Commission's members together with the members of the redistribution committee other than the commissioner. Attributing boundary determination to the Commission itself names the wrong decision-maker. It does not adjudicate ordinary administrative disputes generally — its remit is specifically electoral administration.
Is it a prosecuting authority?
No, with one narrow exception that belongs to the Commissioner rather than the commission. The commission advises, reports and administers elections; this Act confers no prosecution function on it. Under s 326 of the Electoral Act 1992 (ACT) the Electoral Commissioner, as a member with functions of their own, may institute and conduct prosecutions for offences against ss 73(6) and 129(1), the enrolment and voting offences. Other electoral offences are for the ordinary prosecuting authority, and a fact pattern in which the commission "charges" a candidate has mistaken an administering body for a prosecuting one.
How it relates to the other ACT bodies
The Commission's electoral-administration role is distinct from the ACT Ombudsman's general administration complaints function and the ACT Integrity Commission's corruption-oversight function — a complaint about how an election was administered is the Commission's territory, not either of theirs; an allegation of corrupt conduct is a different kind of complaint, and may engage the Integrity Commission's corruption-oversight function instead.
Self-check
- Have I identified the Commission's establishing Act and its independence from the executive?
- Have I distinguished electoral administration from general administrative complaints and integrity oversight?