Bills Digest No.
11, 2020–21
PDF version [662KB]
Damon Muller
Politics and Public Administration Section
2
September 2020
Contents
The Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Other provisions
Concluding comments
Date introduced: 11
June 2020
House: Senate
Portfolio: Finance
Commencement: Schedule
1, Part 1 commences on the day after Royal Assent; Schedule 1, Part 2 and
Schedule 2 commence on the earlier of a day or days fixed by Proclamation,
or six months after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at September 2020.
The Bills Digest at a glance
The Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020 (the Bill) seeks to amend the Commonwealth
Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984
with a collection of largely unrelated provisions.
A number of the provisions were included in the Electoral
Legislation Amendment (Modernisation and Other Measures) Bill 2018, but were
excised from that Bill before passage following negotiations between the
Government and the Opposition. These provisions include updates to the language
of the Acts to be more consistent with modern drafting style, but also include
a number of substantive amendments, such as removing the requirements for the Australian
Electoral Commission (AEC) to provide pencils to voters (replacing it with a
requirement to provide some way of marking a ballot paper), removing the
requirement that AEC divisional offices be pre-poll voting centres, and
changing some details about how polling officials interact with voters (including
allowing the voter’s name to be marked off the certified list either before or
after they are handed the ballot paper).
The Bill also includes some workforce modernisation
provisions which extend but essentially follow some provisions in the 2018
Bill. These include allowing the AEC to delegate staff members as Divisional
Returning Officers for electorates, and to delegate appropriate officials to
participate in a Redistribution Committee for the Australian Capital Territory.
While these provisions are not completely uncontroversial
(the Greens in their submission to an inquiry into the Bill, for example, have
some objections to features of some of the provisions), they will generally not
be noticed by voters as they only affect the AEC, and they generally update the
legislation to better reflect existing AEC practice.
Most of these technical provisions are also reflected in
similar proposed amendments to the relevant equivalent provisions in the Referendum
(Machinery Provisions) Act 1984.
The Bill provides a number of clarifications relating to
how public election funding provisions apply for parties that run a joint
ticket in a Senate election. This does not change how these provisions operate,
but aligns the legislative language better with current practice (and
legislative intention).
The Bill includes provisions to require the AEC to provide
access to electronically assisted voting options for Australians who work in
Antarctica. Similar provisions currently provide for electronically assisted
voting for blind and low vision voters, and as currently prescribed in Regulation,
this takes the form of a telephone voting service. While the proposed
provisions do not preclude the possibility of remote internet voting, the
provisions are restricted to these very specific classes of voters.
Finally, the Bill seeks to replace section 302CA in the Commonwealth
Electoral Act 1918, which was struck down by the High Court in 2019. This
provision relates to how federal political finance laws for the provision,
receipt and use of donations interact with state and territory law. It also
proposes to replace section 314B, which deals with how federal political
donation disclosure law relates to state and territory laws. The proposed
sections are more limited in scope than the provisions they replace, and
according to some experts appear not to risk being ruled to be unconstitutional
in the way that the previous provisions were. However both the specific details
of the proposed provisions and the need for these provisions to exist at all
have been questioned by non-Government parties and experts on political finance
law.
Purpose of
the Bill
The purpose of the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020 (the Bill) is to amend the Commonwealth
Electoral Act 1918 (the CEA) and the Referendum
(Machinery Provisions) Act 1984 (the RMPA) to implement a number
of miscellaneous technical amendments, including to:
- clarify
the operation of the public funding provisions where candidates for more than
one party are in the same group on a Senate ballot paper (Senate groups)
- replace
the provisions relating to the interaction of state and federal political
finance laws held to be invalid by the High Court of Australia in Spence v
Queensland[1]
- increase
the flexibility of voting options to be offered to Australian voters in
Antarctica and
- introduce
a number of technical amendments, some of which were previously proposed in the
Electoral
Legislation Amendment (Modernisation and Other Measures) Bill 2018 but
removed prior to passage.
Structure of
the Bill
The Bills is in two Schedules.
Schedule 1, Part 1 relates to the CEA. It
includes technical amendments to address anomalies in entity registration and
public funding rules. Part 1 also includes new provisions to clarify the
interaction between federal and state and territory political finance laws
following the High Court decision in Spence v Queensland.
Schedule 1, Part 2, contains a number of technical
amendments to the CEA relating to voting options for Antarctic voters, the
use of AEC offices as pre-poll voting centres, the provision of pencils to
voters and a number of other miscellaneous measures. Part 2 also
includes amendments to the RMPA essentially replicating some of these
technical changes to the CEA.
Schedule 2 contains amendments to the CEA relating
to appointment to the Redistribution Committee for electoral redistributions of
the Australian Capital Territory (ACT).
Background
The genesis of the Bill derives mostly from two sources.
The first is a number of provisions that the Government attempted to legislate
as part of the Electoral Legislation Amendment (Modernisation and Other
Measures) Bill 2018 that were excised from that Bill by a Government amendment
prior to passage, which have reappeared (some in slightly changed form, and
some verbatim) in this Bill. The second source was the High Court decision in Spence
v Queensland where the Court ruled invalid a provision of the CEA that
dealt with the relationship between federal and state and territory political
finance laws. These two antecedents are discussed below.
Electoral
Legislation Amendment (Modernisation and Other Measures) Bill 2018
Following each federal election the Special Minister of
State typically provides a reference to the Joint Standing Committee on
Electoral Matters (JSCEM) to inquire into and report on all aspects of the
conduct of the federal election. While not specifically included in the terms
of reference for the inquiry into the 2016 federal election, many of the
provisions in the Bill relating to AEC procedure arose from the Committee’s
third interim report released as part of that inquiry.[2]
In particular, the Bill provides a partial response to Recommendation 1:
The Committee recommends that the Commonwealth Electoral
Act (1918) and the Referendum (Machinery Provisions) Act (1984) be
amended, based upon the Australian Electoral Commission’s proposals contained
in Appendix A of this report.[3]
Further information regarding the inquiry, including the
full terms of reference, is available on the inquiry
homepage.
The AEC’s recommendations to the Committee were relatively
extensive, however mostly dealt with technical provisions of the CEA.[4]
The AEC argued that the recommendations would allow it to run elections more
efficiently. The Committee referred to these as ‘technical amendments to
legislation’.[5]
For example, the AEC recommended removing the legislative requirement that
pencils be provided in polling booths, as the scanning of ballot papers for
counting might benefit from voters filling out the ballot in a pen instead. The
AEC also recommended making the AEC positions responsible for certain
activities or decisions under the CEA at an election more generic, so
the Electoral Commissioner could delegate to an appropriate AEC officer.[6]
Specifically, the Committee summarised the AEC’s
recommendations as:
- improving
consistency between the referendum legislation and the electoral legislation
- allowing
the AEC to undertake electoral processes more efficiently without compromising
integrity
- aligning
legislation with contemporary AEC management structures and administrative
arrangements and
- correcting
minor errors and omissions in the electoral legislation.[7]
Beyond endorsing the AEC’s recommendations, the Committee
provided little additional commentary on the recommended changes or their
effect on the electoral system.
The remaining four Recommendations from the third interim
report would not require legislation. They related to funding of the AEC, AEC
systems and training, the use of electronic certified lists for voter mark-off,
and timelines for the AEC to report to the JSCEM.[8]
In response to the JSCEM’s report the Government
introduced the Electoral
Legislation Amendment (Modernisation and Other Measures) Bill 2018 (MOM
Bill) on 29 November 2018, a Bill to amend the CEA. The Bill also effected
the Government’s response to the recommendations of the Joint Standing
Committee on Electoral Matters’ inquiry into the disqualification of 15 Members
and Senators due to their citizenship and section 44 of the Australian
Constitution by implementing a compulsory citizenship questionnaire as part
of the nomination process for an election. In addition, the Bill also included
a number of mechanical changes to the Act, some of which had been recommended
by the AEC through submissions to the JSCEM and some of which the source was
less apparent.
During the second reading debate for the MOM Bill in the
House of Representatives the ALP indicated that it supported the measures to
implement the candidate checklist and some other measures, however stated that
some of the measures would not be supported due to inadequate consultation:
Although these schedules do have merit, we on this side, the
Labor side, do not believe that the parliament should rush changes to our
elections and electoral system without just cause. It's vital that when this
parliament considers electoral law we do so with bipartisanship, consultation
and consideration. It's imperative we do this not because the proposed law is
overly complex or without merit but because it is a law that governs ourselves.
We owe every member of this parliament the chance to scrutinise such rules and
interrogate their practical application. For that reason, and thanks to
bipartisan negotiation between the government and Senator Farrell, this bill
will be amended in the Senate to reflect the extra work that has to go into the
other schedules.[9]
The Labor Member for Oxley indicated that the Bill would
be amended along the lines agreed between the Government and the ALP outside of
Parliamentary debate:
With that view, I understand that the bill will be amended in
the Senate in line with bipartisan discussions between the government and the
opposition, which have been held in a constructive way... Sections other than
these key changes should be removed from the current bill and, we believe—I
certainly believe—should be considered at a later debate.[10]
When the Bill was introduced in the Senate the Minister
noted:
Since the introduction of this bill in the House of
Representatives, the opposition have requested amendments to simplify the bill,
by removing some of the more complex modernisation amendments that are not
essential to the efficient conduct of the 2019 election. Such changes are
acceptable to the government and I can foreshadow that there will be government
amendments moved during the committee stage. Those amendments to remove
non-critical parts of the bill would allow some of the lower priority reforms
to be considered in detail after the election and progressed later, allowing
more time for their consideration.[11]
The Government introduced the foreshadowed amendment in
the Senate and the Bill quickly passed on the voices.[12]
A large proportion of the provisions of the current Bill
constitute those sections of the MOM Bill which were excised by government
amendment. Many of these provisions occur in this Bill essentially unchanged,
however some provisions have been adjusted slightly.
Newly added to these recycled provisions are a number of
provisions relating to Australian electors who are in or travelling to
Antarctica. While the CEA currently contains provisions specifically for
Antarctic voters, the new provisions allow Antarctic voters to access ‘electronically
assisted voting’ as provided for under Part XVB. Part XVB currently provides
for electronically assisted voting methods, the details of which are largely specified
by Regulation, for sight-impaired voters. Part 4, Division 1 of the Electoral and
Referendum Regulation 2016 provides that electronically assisted voting for
sight-impaired people be provided through a form of telephone voting.[13]
These changes to the Act would allow Antarctic voters to also access similar
telephone voting services to allow them to cast a confidential and anonymous
vote.
While the Minister’s second reading speech of the Bill
notes that the Bill contains amendments proposed by the AEC following the 2019
federal election, and it seems reasonable to assume that changes to as obscure
a topic as Antarctic voters likely came from AEC recommendations, the AEC does
not appear to have publicly suggested changes to this section of the CEA.[14]
A November 2019 working paper by the Democratic Audit of Australia and the
Electoral Regulation Research Network does, however, specifically recommend
extending the telephone voting service provided for blind and low vision voters
to Antarctic voters:
In 1983, when Part XVII was originally enacted, facilities
for telecommunication between Australian Antarctic bases and mainland Australia
were far more limited than they are now, with radio-telephone and telex
messaging (both explicitly mentioned in section 246 of the Act) then being the
mainstay. The rules-based approach of Part XVII still requires the individual
registration of Antarctic electors, the appointment of Antarctic Returning
Officers, voting in Antarctica using a paper ballot, transmission to Australian
Electoral Officers of details of ballots, and the transcription of those
details onto postal ballot papers. Had Antarctic voting instead been authorised
using the sort of principles-based provision flagged in the preceding
paragraph, a number of other options would have been open to the AEC. Most
notably, telephone voting of the type now made available to blind or low-vision
voters could easily have been extended to Antarctica.[15]
It is not known to what extent, if any, this publication
influenced this part of the Bill.
Another tranche of miscellaneous mechanical amendments
relate to the calculation of public funding paid to members of Senate groups
(where two or three parties elect to share the one column on the Senate ballot
paper, as is common with the Liberals and Nationals in some states). These
amendments do not appear to affect how the public funding is calculated in
practice, but clarify ambiguities introduced by the most recent changes to that
section of the Act by the Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018.
This ambiguity was highlighted in the Bills Digest to that
Bill, which noted:
The Explanatory Memorandum states that proposed paragraph
293(1)(b) requires that calculating whether a party reaches the four per cent
threshold includes both above and below the line votes cast for the candidates
in the group. However, proposed section 293 could be interpreted as providing
that public funding will no longer be paid for below the line votes for Senate
candidates endorsed by a party and part of a group, as most are. It is unclear
whether this was the intended outcome by the Government, however if the
Government intended below the lines party votes to be counted the Bill could
potentially be clarified.[16]
In addition this ambiguity may have resulted in questions
asked of the AEC at a JSCEM public hearing in December 2019 in relation to how
public funding applied to Senate groups:
Senator WATERS: ... On a related matter, looking at the figures
about election spending entitlements, we've noticed that there seems to be an
issue where parties run on a joint ticket. In particular, in Victoria in the
2019 Senate election, I understand the Liberal Party and National Party ran a
joint ticket with one Nationals candidate and five Liberal candidates, and The
Nationals Senate candidate got just shy of 2,000 below-the-line votes but their
approved interim claim appears to be calculated on almost twice that many
votes. The only way you can make the figures work is if The Nationals are
claiming both below the line and above the line for their public funding. But
the Liberals are also doing that. So the only way the figures added up to my
eye was effectively double-dipping, which presumably isn't what the legislation
intended. Have you had cause to examine that? Can you give us an explanation as
to how that was able to occur?
Mr Rogers: We might take that one on notice. I might have a
look at that in detail and come back to you about the specifics of it.[17]
Spence v
Queensland
The provisions in the Bill which are particularly likely
to be controversial involve the proposed provision to replace section 302CA of
the CEA, which was struck down by the High Court of Australia on 17 April 2019
in Spence v Queensland (Spence).[18]
Following the election of the Labor Government
in the 2015 Queensland state election, the Government commenced a major
overhaul of the state’s political finance laws. The Electoral and Other
Legislation Amendment Act 2015 (Qld) set the disclosure threshold for the
state to $1,000, and made the new disclosure threshold retrospective to the
2015 Queensland election.[19]
This threshold was interpreted by the Electoral Commission of Queensland to
apply to all political donations in Queensland, whether they were ultimately
destined for state or federal electoral purposes, as it was not feasible for
the Commission to distinguish the purpose of the donation.[20]
The political finance reform agenda
continued into Labor’s second term after the 2017 Queensland state election,
with the passage in 2018 of a law banning political donations by property
developers.[21]
One effect of the law was that the ban applied to any political donation by a
property developer, regardless of whether that donation was eventually used in
a state or federal campaign.
While the ban on donations by property
developers was the subject of Spence, this followed a prior Queensland
Supreme Court ruling where the Queensland Liberal National Party (LNP) was required
by the court to declare donations for federal campaigns in Queensland that were
below the federal disclosure cap (then $13,500) but were above the $1,000
Queensland disclosure cap.[22]
This decision was later upheld on appeal.[23]
As part of its 2018 reforms of federal
political finance laws, the federal government introduced the Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018,
which made amendments to the CEA providing that, in effect, when a donor
in a state jurisdiction makes a political donation, unless the donor or the
recipient indicate that the donation will be used for state political purposes,
federal law rather than state law would apply to those donations.[24] This would mean, for
example, that a property developer who was banned under Queensland law from
donating to a political party could still donate in Queensland, provided that
they did not specify that the donation was for a state election campaign.[25]
In challenging this legislation in the
High Court, Gary Spence, a former president of the Queensland LNP and a
property developer, argued that the Queensland ban was unconstitutional, and
conflicted with the new federal law.[26]
The High Court upheld the Queensland ban,
and found that section 302CA of the CEA, which related to how state and
federal laws covered donors, was unconstitutional as it went beyond the
Commonwealth’s legislative power.[27]
The main reason for the High Court’s decision, according to one analysis, was
that section 302CA constituted an overreach of the Commonwealth’s
constitutional powers as it purported to regulate political donations that
might never be used for federal electoral purposes.[28]
The High Court’s decision was delivered
after the issue of the writ for the 2019 federal election, hence the Parliament
did not have an opportunity to consider a legislative response prior to the
election. The provisions in Schedule 1 of the Bill propose to replace both
sections 302CA and 314B. The later section specifically relates to requirements
to disclose donations, and while section 314B was not declared invalid by the
High Court, the proposed replacement applies a similar logic to the disclosure
of donations as to the giving, receipt and use of donations.
Committee
consideration
Joint
Standing Committee on Electoral Matters
The Bill was referred to the Joint Standing Committee on
Electoral Matters for inquiry and report. Details of the inquiry are at the Committee
home page. Submissions to the Committee closed on 3 July 2020.
The Committee released its report into the Bill on 25
August 2020. The Committee recommended that the Government amend the Bill to provide
that Federal donation laws only apply exclusively in relation to recipients of
donations if the donations are kept solely in a federal electoral account. The
Committee suggests that this could be either by using existing legal
distinctions between federal and state arms of a political party and depositing
the donation in an account held by the federal arm of the party to quarantine
it from state law, or that parties designate a federal campaign account that
can only be used for federal purposes. In effect, the Committee recognised that
the system of campaign accounts used in some states and territories provided a
concrete way of delineating donations that were to be used for federal
purposes, and to which federal political finance law exclusively applied, and
that this should be reflected in the CEA. Subject to this change, the
Committee recommended that the Bill be passed.[29]
The operation of campaign accounts is discussed in further detail below.
Dissenting reports were produced by the Labor members of
the Committee and the Greens member. Labor supported the passage of the Bill
and the recommendations of the Committee for campaign accounts, and argued that
the commencement date of the Bill should be delayed until after the 31 October
2020 Queensland state election. The dissenting reports otherwise essentially
reflected the otherwise stated views of these parties, as discussed in greater
depth in the next section of this Bills Digest.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
had no comment on the Bill.[30]
Policy
position of non-government parties/independents
The Australian Labor Party (Labor) has not taken a public
position on the Bill, however media reports indicate that Labor is in
negotiations with the Government over the provisions of the Bill. Labor
supported the referral of the Bill to the Joint Standing Committee on Electoral
Matters for inquiry.[31]
Labor has introduced a number of private senators’ bills in the current
Parliament that deal with political finance reform however none directly relate
to issues addressed by the current Bill. [32] While a submission
to the JSCEM inquiry into the Bill was received from the Queensland Labor state
secretary, it is unclear whether that submission is only on behalf of the
Queensland state Labor branch, which was in government when the legislation
challenged in Spence was passed, or is also on behalf of the federal
parliamentary Labor Party, which will vote on the Bill in the federal
Parliament.[33]
Senator Jacquie Lambie (Jacqui Lambie Network, Tas.) and
the Australian Greens have commented specifically on the provisions of the Bill
that address the interaction between state and territory and federal political
finance laws. These provisions replace the sections of the Act that were ruled
to be unconstitutional by the High Court in Spence (see discussion in
Background section).
Senator Lambie and the Greens argue that the provisions in
the Bill will allow parties to move money from donations between state and
federal branches in order to avoid state and territory laws that limit
donations, ban certain donors, and have lower disclosure thresholds.[34]
Senator Lambie, in an opinion piece, argued that the Bill ‘would let the state
branches of political parties take donations from banned donors, and avoid
state disclosure rules, if they claim the money is being used “for a federal
purpose”’.[35]
The Greens subsequently introduced their own legislation which proposes to
re-legislate some of these aspects of political finance federally.[36]
In their submission to the JSCEM inquiry into the Bill the
Greens generally support the AEC workforce flexibility measures, but argue that
these provisions should be more restricted and more formalised. They argue that
the ballot paper marking provisions should only be allowed if the AEC can
demonstrate that scanning, data entry and scrutiny will not be compromised. In
addition, they express concern that the changes to the questions that polling
officials must ask voters before they are issued a vote may allow polling
officials to require a voter to produce identification in order to vote.[37]
In a submission to the inquiry into the Bill Independent member
for the Tasmanian division of Clarke, Mr Andrew Wilkie MP, argues that the Bill
will undermine strict state and territory political donation laws and provide a
way for parties to circumvent donation prohibitions.[38]
Position of
major interest groups
A total of 20 submissions were published by the JSCEM for
its inquiry into the Bill. Many of the submissions did not deal specifically
with the provisions of the Bill, and instead argued for further or different
reforms, particularly relating to political finance regulation. There has been
little public commentary in the media on the Bill.
A number of respondents and experts argued in submissions
to the JSCEM inquiry that sections 302CA and/or 314B should be repealed rather
than replaced, as they would act to override and weaken state and territory
anti-corruption measures. Electoral law expert Professor Graeme Orr, for
example, had no issue with proposed section 302CA, however argued that proposed
section 314B (on the relationship between state and federal disclosure laws)
undermines disclosure and therefore electoral integrity.[39]
Electoral law expert Professor Joo-Cheong Tham argued that while proposed
sections 302CA and 314B likely fix the constitutional issue with the struck
down provisions, the proposed replacements will lead to weaker political
finance regulation and increased confusion.[40]
Constitutional law expert Professor Anne Twomey in her
submission to the inquiry concludes that the proposed amendments to section
302CA probably address the High Court’s issues with the struck down section,
but argues that the provisions ‘seem to be quite deliberately drafted’ to allow
prohibited (under state law) donations to be made with the intention that they
be used for state purposes, but for those donations to be kept and used for
federal purposes. Professor Twomey states:
The Committee might wish to inquire of the Government why it
is seeking to ensure that political parties can retain political donations made
for non-federal purposes in breach of State laws if they are received, kept and
used for federal purposes. This might give rise to a constitutional issue
(although the extent of the effect of such unconstitutionality has been
mitigated by the reading down provision in s 302CA(6)). More importantly,
however, it gives rise to a policy issue about the appropriateness of the
provision.[41]
A group of computer security experts expressed concern
with the provisions that will remove the requirement to provide pencils in each
polling place as they believe this may allow votes to be recorded entirely
electronically, without a paper ballot paper as backup. They also express
concern that the electronically assisted voting provisions may lead the AEC to
implement internet voting, which they argue may lead to privacy breaches or
electoral fraud.[42]
Progressive campaign organisation GetUp! also argued that
the changes to the questions asked of voters ‘will allow Voter ID laws by
stealth and could be used as a form of voter suppression’.[43]
Financial
implications
The Explanatory Memorandum for the Bill indicates that the
measures in the Bill are expected to be cost neutral.[44]
The only measures in the Bill that are likely to have cost implications are the
telephone voting provisions for Antarctic voters, however these provisions
would only be expected to be used by a very small number of voters which may be
entirely within the expected normal variance of demand for the blind and low
vision voting services.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[45]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights had no
comment on the Bill.[46]
Key issues
and provisions
The key issues and provisions of the
Bill are discussed below grouped by theme, which does not necessarily reflect
the order in which the specific provisions occur in the Bill.
Provisions
relating to donation laws
The regulation of political finance, including the receipt
of donations, requirements for disclosure, reporting requirements and the
banning of foreign donors are provided for under Part XX of the CEA.
As noted above in the Background section, section 302CA of
the Act was found to be unconstitutional by the High Court of Australia in Spence.
Section 302CA specifically related to the making and receiving of donations (described
as ‘gifts’ under the Act) and provided that the Act would apply in relation to the
donations given or received unless that donation was explicitly directed to a
purpose relating to a state, territory or local government election.
Section 314B was also introduced in the same amending Act
as section 302CA. While section 314B was not invalidated by the High Court, it
served essentially the same function as 302CA, however it specifically applied
to the disclosure of donations, whereas section 302CA applied to the provision
or receipt of donations.
As discussed above, sections 302CA and 314B were
legislated by the Government shortly after legislative reform in Queensland
that, amongst other provisions, banned political donations from property
developers. [47]
Item 25 of Schedule 1 to the Bill includes a new proposed
section 302CA to replace the struck down provision and item 27
replaces the existing section 314B with a new proposed section 314B. Item
26 amends subsection 302D(1C), which bans donations from foreign donors,
limiting the provision to donations used for federal purposes.
Item 2 of Schedule 1 adds definitions for ‘federal
purpose’ and ‘regulated entity’, which are relevant to these provisions. In
particular, a regulated entity is defined as a political entity, political
campaigner, third party (for sections 302CA and 314B) or as an associated
entity (for section 314B). Previously the Act did not have a ‘catch all’ term
to refer to entities which were subject to regulation under Part XX of the Act.
Many Australian states and territories now have political
finance laws which contain specific restrictions which are not reflected in
federal law. For example NSW and Victoria cap the maximum amount that can be
donated to a party, NSW and Queensland have bans on certain individuals such as
property developers donating to parties, and all states and territories except
Tasmania have much lower disclosure thresholds for donations (ranging from
$1,000 to around $5,000) than the Act imposes (an indexed amount which is $14,300
from 1 July 2020 to 30 June 2021).[48]
NSW has banned donations from property developers for some
time, the ban having withstood the scrutiny of the High Court.[49]
One potentially important distinction between the NSW restrictions and the
Queensland restrictions is the ease of distinguishing between state money and
federal money when it comes to political donations. NSW electoral law includes
a provision for state electoral donations to be paid into a specified campaign
account, and all electoral expenditure for state elections must come from that
campaign account.[50]
Parties are not able to pool state and federal money for state campaign
spending. In NSW, therefore, any donation may be considered to be for state
purposes if it is paid into the state campaign account where it is subject to
the state political finance laws, or for federal purposes, and subject to the
provisions of the CEA.
Queensland electoral law did not require a campaign
account at the time during which the Spence case occurred, however
provisions in the Electoral and Other Legislation (Accountability, Integrity
and Other Matters) Amendment Act 2020 (Qld) amended the Electoral Act
1992 (Qld) to require campaign accounts.[51]
Those provisions took effect on 1 August 2020.
Proposed section 302CA (item 25) seeks to delineate
donations to which Part XX of the Act applies for regulated entities for
donations offered, sought, received or kept, or used for federal purposes. The
Explanatory Memorandum explicitly frames these provisions as providing
‘immunity’ from state and territory laws.[52]
Donations that are offered, sought or given (proposed
subsections 302CA(1) through 302CA(3)) are allowed if the donation
is ‘expressly for federal purposes’. An exception to this is if the donations
are prohibited otherwise by another provision of Division 3A of Part XX, as per
proposed subsection 302CA(9), which would mainly apply to anonymous
donations or loans and donations from foreign donors. The Explanatory
Memorandum notes that expression of purpose ‘could be communicated by various
methods including for example by a description on an event invitation,
information on a donation form, by discussion, correspondence, or through
electronic messages’.[53]
It does not require that the expression of purpose be recorded or otherwise
kept on file, or that the AEC be able to require the donor or recipient to produce
proof of expression of purpose.
Proposed subsections 302CA(4) through 302CA(6)
seek to apply only federal law to the amounts if they are kept or used for
federal purposes. If the amount is ever used for anything other than federal
purposes, the immunities from state and territory law are deemed never to have
applied (proposed subsection 302CA(5)). Proposed subsection 302CA(5)
appears to be a direct response to the conclusions of the High Court in Spence
that the mere potential for an amount to be used for federal purposes was
insufficient for federal legislation to claim precedence over state
legislation. In her submission to the JSCEM inquiry into the Bill, Professor
Twomey stated that proposed subsection 302CA(4) was problematic in failing
to provide that immunity from state and territory law for the receipt or
retention of a gift only applies in circumstances where that gift was given for
federal purposes:
...a prohibited donor could make unlawful donations to a
political party, or donations could be made that exceed the donation cap, with
the intention that they be used for State purposes, breaching an applicable
State electoral law, but the donations could still be validly received, kept
and used by a political party, as long as this was done for federal purposes.
Given that the provisions seem to be quite deliberately drafted to achieve this
end, it does make one wonder why.[54]
Proposed subsection 302CA(7) allows a gift to be
used for federal purposes despite any state or territory electoral law. From
the wording of the provision it is not entirely clear whether it is
specifically authorising the general use of a gift (for any purposes) that was
received expressly for federal purposes, or authorising the use for federal
purposes of a gift that was received for any purpose. It appears to allow for
the possibility that a gift that is provided for state purposes but is illegal
under state law can be kept and used provided the recipient only uses it for
federal purposes. If this is the case, it is not clear how this provision might
interact with state and territory laws that allow for the recovery of unlawful
donations, including by deducting unlawful donations from public funding.[55]
Professor Twomey summarised the effect of proposed subsections 302CA(7) and (8)
as follows:
These clarify that a political party can still use a
political donation for federal purposes, even though a State law has validly
prohibited the offering, seeking, giving, receiving or keeping of that
political donation (eg because it breaches a cap on donations or comes from a
prohibited donor).[56]
As set out in the ‘Position of major interest groups’
section of this Digest, Professor Twomey expressed concern that allowing the
receipt, retention and use of:
political donations made for non-federal purposes in breach
of State laws... might give rise to a constitutional issue (although the extent
of the effect of such unconstitutionality has been mitigated by the reading
down provision in s 302CA(6)). More importantly, however, it gives rise to a
policy issue about the appropriateness of the provision.[57]
Item 27 (proposed subsection 314B),
according to the Explanatory Memorandum for the Bill, ‘establishes immunities
from state and territory electoral disclosure laws for donors, gift recipients
and the agents of gift recipients in relation to the amounts and expenditure’.[58]
It applies the principles established for the giving, receipt or use of
donations (new section 302CA) to the disclosure of donations, with the
effect that disclosure requirements under state and territory law will not
apply to amounts given or received for federal purposes. This means that
amounts given or received for federal purposes do not need to be disclosed
under state and territory law even if they exceed the disclosure threshold for
the relevant state or territory law.
Proposed subsection 314B(3) provides that the
immunity from state and territory law does not apply in relation to the
disclosure of amounts received by a regulated entity if the amount is not used
for federal purposes. However in the absence of a requirement to use a campaign
account for electoral spending (as recommended by the JSCEM in its inquiry into
the Bill), it is unclear how the legislation envisages that it will be possible
to determine that a certain amount is or is not used for federal purposes.
In practice it is likely that many donations will be added
to a candidate or party’s funds, and those funds will be used for multiple
purposes, some of which will involve electoral expenditure for federal
purposes, and some of which will be less defined, such as paying the wages of
administrative staff, rent on buildings, or generic election corflutes or
bunting that may be deployed at either state or federal electoral events. In
states and territories which do not require campaign accounts for state or
territory elections, it seems unlikely that either state or federal regulators
will be able to determine that a particular amount of money was not used for
federal purposes, and thus was immune from state laws, even if on receipt the
amount had been expressly nominated for federal purposes.
One effect of proposed section 314B, particularly subsection
314B(7), is that amounts that are either individually or cumulatively below
the disclosure threshold that are given or received for federal purposes, but
are above the disclosure threshold according to the state or territory law, do
not have to be disclosed under the state and territory law, and also do not
have to be counted where state and territory laws require disclosure of
aggregated amounts (such as total receipts). In addition, under proposed
subsection 314B(7) expenditure regulated as electoral expenditure under the
Act does not have to be reported under state or territory law as electoral
expenditure. This has potential consequences where states and territories have
caps on electoral expenditure but do not have laws distinguishing between state
or territory and federal electoral expenditure (the ACT, for example, has
expenditure caps but does not require the use of campaign accounts) as federal
electoral expenditure is not required to be reported to state or territory
electoral commissions under the respective state or territory law.
The Explanatory Memorandum notes that these new provisions
are narrower than the provisions that were struck down by the High Court,[59]
however the way in which they have been drafted is likely to continue to lead
to considerable confusion, particularly among donors. Additionally, in the
absence of state and territory campaign accounts, it may in practice prove
impossible to distinguish specific amounts that were expressly provided for
federal purposes but which are not directly used for federal purposes. This
would allow sufficiently motivated donors, parties and candidates to avoid more
stringent state and territory laws through the immunity from those laws provided
by these provisions. However it is notable that, since Spence, both
Queensland and the Northern Territory have legislated campaign accounts for
state/territory elections, suggesting that campaign accounts may be seen as an
effective way to facilitate the maintenance of stricter regulation of political
finance.[60]
Public
election funding
Items 1 through 24 of Schedule 1
relate primarily to the payment of election funding on the basis of a
specified, indexed amount of money multiplied by the number of votes received
by candidates who receive more than a certain proportion of the vote.
Items 1 and 6 amend sections 286A and
292G so that the proportion of the vote required to be received in order
to qualify for election funding is to be at least four per cent. Amendments to
the CEA enacted by the Electoral Legislation Amendment (Electoral
Funding and Disclosure Reform) Act 2018 specified, in some provisions that
the threshold to receive public funding was more than four per cent.[61]
Prior to amendment by the 2018 Act the CEA had consistently specified
that the threshold for public funding was at least four per cent. Several
other sections of the Act refer to the threshold for eligibility for public
funding being at least four per cent (subsection 293(1), paragraph 294(1)(b)
and paragraph 295(1)(b)) and the criteria for return of the nomination deposit
is at least four per cent of the vote (section 173). These items correct what
the Explanatory Memorandum acknowledges is an ‘error’ in the Act.[62]
The 2018 Act also amended the CEA so that in order
for a candidate or party to be paid the per-vote amount of public funding that
party or candidate must submit a claim to the AEC detailing their electoral
expenditure which the AEC may then approve, approve in part, or reject, up to
the per-vote dollar amount (section 297). Item 23 inserts new section
298B that allows a party to vary their interim or final claim for public
funding up until the time the Electoral Commissioner determines the claim
(which the Electoral Commissioner must do within 20 days of having received the
claim, subsection 298C(1)).
Item 2 amends section 287, the definitions section
of Part XX of the CEA adding, in addition to other items discussed
elsewhere, definitions for ‘group amount’, ‘jointly endorsed group’, and
‘single-party endorsed group’.[63]
It is not clear why these items are proposed to be added to the legislation in
a way that is generally inconsistent with the manner in which public funding
has otherwise been addressed in the Act.
The Act currently provides for the amount of per-vote
public election funding paid for each first preference vote for registered
political parties (paragraph 293(2)(a)), unendorsed candidates (paragraph
294(2)(a)) and unendorsed groups (paragraph 295(2)(a)), none of which are
defined in the definitions section of Part XX. It is therefore unclear why the
Bill adds the group amount (which is the same dollar value per vote) to the
definitions, but does not also include any of the other candidate categories
which are otherwise provided for in the Act in the definitions section.
While there is an argument to be made for the specified
per-vote public funding amount to be defined in only one place in the Act, the
effect of this item will be for the amount to be defined once for groups, and
three additional places for registered political parties, unendorsed candidates
and unendorsed groups. As this amount which occurs separately in four places is
indexed (under section 321), the Bill updates the amount to the current indexed
amount in items 8, 12 and 15.
The definitions of jointly endorsed group (that is, a
Senate group that is made up of candidates from more than one party, such as
the Liberals and the Nationals in certain states in recent Senate elections) and
single-party endorsed group (a group which only contains candidates from the
one party), are only used for provisions that relate to calculating public
funding entitlements for those groups.
The Explanatory Memorandum of the Bill claims that the
operation of public funding for jointly endorsed groups has not changed, but
that the policy intent of the provisions was not clearly conveyed by the Act. In
response to a question in relation to the provision of public funding for joint
Senate groups at the 6 December 2019 public hearing of the JSCEM the AEC
responded on notice:
The calculation of the election funding entitlement for the
Senate group includes both above and below the line first preference votes. The
decision as to how the Senate group entitlement is claimed by members of a
Senate group is a matter for the relevant political parties and candidates to
determine.[64]
For the purpose of calculating the number of votes
received by a group on the Senate ballot paper, the votes above the line for a
group are counted as a first preference vote for the first member of that
group. This has not changed, but is clarified by item 3.
Item 11 provides that parties that run in joint
groups in a Senate election will be required to provide to the Electoral
Commissioner a statement signed by the agents of all of the parties in the
group as to how the public funding for the group should be distributed among
the members of the group.[65]
Item 8 provides that, in the absence of such a statement, the Electoral
Commissioner will determine how the public funding is divided between the
parties.
The CEA provides for an automatic payment of
$10,000 (indexed) for parties and candidates that have received at least four
per cent of the first preference vote.[66]
For claims for public funding above $10,000, the party or candidate must submit
a claim to the AEC under section 297. Item 19 provides that for parties
in a joint group that are only entitled to the automatic payment (for example
if the group jointly received at least four per cent of the vote but neither of
the parties individually otherwise received at least four per cent), then the
automatic payment will be divided between the parties as per the arrangement
provided for in item 11. It is not specified how the Electoral
Commissioner might divide the funding in the absence of an agreement under
proposed subparagraph 293(2)(a)(iii).
The remaining provisions in this part of the Bill are
largely consequential to the clarifications as to how public funding is
provided to Senate groups (for example, items 14, 16, 17
and 18), or to tidy legislative language without materially changing the
meaning of the respective provisions (for example, items 17, 21
and 22).
The public funding amount (and now the group amount), the
automatic payment amount, and the disclosure threshold amount (the amount below
which donations do not need to be disclosed) are all indexed. Items 30 through
33 clarify how the indexation is to be rounded. The only substantive
changes made by these provisions are to specify that the automatic payment
amount should be rounded to the nearest $1.
Electronically
assisted voting for Antarctic electors
Part XVII of the CEA currently provides for voting
for Australians who are part of an Australian research mission in Antarctica.
The current provisions, which date from 1983, essentially require Antarctic-based
individuals to be appointed as Antarctic returning officers who must then
establish a polling place in the research station, mark off the roll, collect
votes, return the results to the AEC and preserve the ballot papers.
The proposed amendments will remove the existing system of
Antarctic voting and will instead provide electors in Antarctica access to the
electronically assisted voting option, similar to that currently provided for
blind and low vision electors. The provisions for electronically assisted
voting are prescribed by Regulation, and the current provisions are in Division
1 of Part 4 of the Electoral
and Referendum Regulation 2016.
Under the existing Regulation the electronically assisted
voting option involves authorised call centres. Eligible voters may phone these
call centres where they will speak to one person who marks their name off the
roll and will then speak to another person who takes their vote without knowing
the voter’s name, thus allowing the voter to lodge an anonymous vote. The
ballot papers are then placed in a ballot box and counted normally, with the
votes entered against a polling place which is classified as a pre-poll voting
centre (subsection 202AE(1)) labelled as ‘BLV’ (for blind and low vision). The
voting process is accessible to scrutineers.
The CEA is quite non-specific in relation to the
exact method of electronically assisted voting, essentially requiring only that
there be a record of who voted (section 202AC) and a record of the vote
(section 202AD). The wording of the Act does not preclude the possibility of
remote electronic voting, should these basic requirements be met, however
currently it does explicitly restrict access to sight-impaired electors (with
the Regulations able to more specifically define who may use this form of
voting). The provisions of the Bill will extend access to Antarctic voters.
The provisions relating to voting for Antarctic electors
are in Part 2 of Schedule 1 of the Bill, and are split into two
main sections. One group of provisions, which is in items 35 to 37
and 40 to 46 of the Bill, primarily relates to enrolment of
Antarctic electors, and the other, in items 64 to 73, amends the
existing provisions for electronically assisted voting to extend those
provisions to Antarctic voters. In addition, item 123 repeals the
existing Part XVII, which currently provides for Antarctic voting.
Items 35 and 36 add definitions of ‘Antarctica’ and
‘Antarctic elector’ to the definitions in subsection 4(1) of the CEA.
These are substantially similar to, though more concise than, the current
definitions in section 246, which will be repealed by item 123. The
proposed amendments expand who is considered an Antarctic elector from the
current definition of, essentially, personnel on a Commonwealth research
station, to those who are in the course of their employment either in
Antarctica or in transit to or from Antarctica on a ship. As such it would no
longer be required that Antarctic electors be working for the Commonwealth at a
research station, but would not extend the franchise to those who are tourists
in Antarctica or in transit on a flight.
Item 40 inserts new section 96B which provides
for enrolment as an Antarctic elector for persons who are both currently on the
roll and who are not currently enrolled but are entitled to be enrolled. In
general, this item provides an entitlement for Antarctic electors to vote by
electronically assisted voting, Antarctic electors to be able to notify the
Electoral Commissioner than they are an Antarctic elector, and for the
Electoral Commissioner to annotate the roll to note that the person is an
Antarctic elector. The provisions in this item for electors who are not already
on the roll (proposed subsections 96B(4) and (5)) largely mirror the
provisions in sections 96 for itinerant electors and section 94A for overseas
electors in terms of the divisions in which an elector is to be enrolled.[67]
Thus, for example, an Australian in Antarctica who has never lived in Australia
can be enrolled in the division in which their next of kin is enrolled, or in
which the person was born, or for which the person has the closest connection.
Items 41 to 46 are consequential amendments
to enrolment provisions resulting from the changes to Antarctic electors.
Section 202AB provides for Regulations to be made to
provide for voting by an electronically assisted voting method. Item 67 inserts
new subsection 202AB(1A) specifically adding Antarctic electors as a
class of electors for whom Regulations must provide access to electronically
assisted voting. Item 64 amends the existing Part XVB heading ‘Electronically
assisted voting for sight‑impaired people’, removing the words ‘for
sight-impaired people’. Items 65 and 66 also amend current
language, to account for the change that electronically assisted voting must be
provided for Antarctic electors.
Items 68 through 72 are largely
consequential, accommodating that electronically assisted voting must be
provided for Antarctic voters but may not, at the Electoral Commissioner’s
discretion, be provided for sight-impaired voters. It is not clear, and not
commented on in the Explanatory Memorandum, why the Electoral Commissioner
might decide not to provide electronically assisted voting to sight-impaired
voters, and why this discretion should be retained by the Electoral
Commissioner. The positive obligation on the Electoral Commissioner to provide
electronically assisted voting for Antarctic voters, however, recognises that
with the repeal of Part XVII Australians in Antarctica may have no other access
to the franchise.
Divisional
offices as pre-poll polling places
Subsections 200D(1) and 200DD(1) of the CEA require
that ‘the office of the DRO during ordinary office hours or during the hours of
polling on polling day’ be a polling place for pre-poll votes. Items 49
to 54 of Schedule 1 of the Bill repeal these provisions, leaving
designated pre-poll voting centres the only venues for pre-poll voting. The
Explanatory Memorandum for the Bill notes that divisional offices could still
be declared to be pre-poll polling places under section 200BA of the CEA.[68]
While the AEC has historically had ‘divisional offices’ in
each electoral division, it has been increasingly consolidating to fewer
offices that hold more AEC staff as the functions for which it once used a
‘shopfront’, such as enrolment, have primarily moved online. This amendment
will allow the AEC more flexibility in how it physically locates its staff and
other resources for an election.
Pencils in polling places
In one of its recommendations to the JSCEM inquiry into
the 2016 federal election the AEC recommended that ‘that section 206 of the Commonwealth
Electoral Act (1918) be amended to remove the prescription for pencils and
allow for pens or pencils to be provided in polling booths’.[69]
The AEC argued that it should have the flexibility to provide pens rather than
pencils as pens may aid the electronic scanning of Senate ballot papers.[70]
Items 74 and 75 (for the CEA) and 151
and 152 (for the RMPA) of Schedule 1 of the Bill enact
these changes for election day polling places. Item 55 does likewise for
pre-poll polling places (for the CEA).
Having the ability to decide issues such as the provision
of pencils to voters would likely have been useful to the AEC at the 4 July
Eden-Monaro by-election, which occurred during the COVID-19 pandemic, where the
AEC encouraged voters to bring their own writing implements for marking the
ballot paper as an infection control measure, and issued single-use pencils for
those who did not bring their own.[71]
Other provisions
In addition to the headline provisions discussed above,
the Bill contains a number of provisions which are generally technical,
consequential, or simply serve to clarify, correct or modernise the language in
existing provisions of the CEA and RMPA. Some of these are
described below.
Item 38 inserts new section 37 into the Act
that allows the Electoral Commissioner to delegate AEC staff as Divisional
Returning Officers (DROs) or Assistant Division Returning Officers. The Act
prescribes a range of election-related activities that are required to be
undertaken by the DRO and many of these provisions date from when the AEC had a
more distributed organisational structure and approach to planning elections.
For reasons of efficiency and consistency, modern federal elections are much
more centrally managed. New section 37 does not limit the time in which
the Electoral Commissioner can make these appointments, meaning the AEC can
more quickly respond to changing circumstances. This provision essentially
codifies existing AEC practice, rather than introducing a substantive change. Item
148 mirrors these changes into the RMPA.
Similar provisions were implemented in the Electoral
Legislation Amendment (Modernisation and Other Measures) Act 2019
specifically in relation to the functions of the DROs in relation to the
forwarding of declaration votes and preliminary scrutiny. These new provisions in
the Bill extend the appointments more generally to all other DRO functions.
A number of provisions amend existing provisions in the
Act which require a specific official to do a specific thing with more
inclusive language to allow for the possibility of another official doing that
thing. For example, a polling official may forward declaration votes, not only
the presiding officer (item 80), and an ‘officer or official’ may ask a
person seeking to vote as an absent voter to identify the Division for which
the person is enrolled, not just ‘the presiding officer’ (item 83). More
changes of this nature generally account for the provisions of items 84
through 124. Again, these changes generally bring the legislation in
line with existing practice, rather than changing the operation of AEC election
activity more generally.
The bulk of the remaining provisions of Part 2 of Schedule
1 of the Bill are technical or consequential provisions, and only a small
number of these provisions are likely to be noticed by anyone who is not
working at a polling place as a polling official or a scrutineer.
One main change in the Bill that does potentially affect
voters is the three questions asked of voters when they present at a polling
place to vote (their name, their address and whether they have already voted).
This will be less prescriptive. The CEA states an officer must ask the
voter the ‘following questions’ (subsections 200DI(1) and 229(1)) whereas the
proposed amendments require the asking of ‘questions in order to ascertain’
that same information (item 57 for pre-poll voting and item 82
for election day voting).
Another change that may be noted by voters is that the CEA
requires the officer to mark the voter off the certified list after handing the
voter the ballot paper(s), whereas the proposed amendments state the name is to
be marked off either before or after the ballot paper is given to the voter (item
59 for pre-poll voting and item 91 for election day voting).[72]
It is likely that this change simply reflects common practice (if a polling
officer has just looked up a voter on the certified list it would make sense
that they would mark off that voter before handing the voter the ballot papers,
rather than risk losing their place in a long list of names).
Item 48 repeals the prohibition on the AEC of sending
postal ballot papers by means such as fax or email where the material may not
have sufficient time to reach the voter by post, and authorises the AEC to send
the material in a way that is ‘the most reasonable and practicable in the
circumstances’. The Explanatory Memorandum does, however, note that this item
‘will not change the existing delivery methods or extend to electronic means,
such as email. While voters can apply on-line for a postal vote, voting itself
remains a paper based process.’[73]
Item 76 responds to recommendation 7 from the AEC
to the JSCEM to allow the AEC to place administrative markings on ballot papers.[74]
This would mean, for example, that batch numbers of scanned ballot papers could
be printed on a ballot paper to more easily reconcile the ballot paper and its
scanned image. The provision specifies that the mark may not identify the
elector, noting that this may be an offence under section 271. Not explicitly
noted is that such a mark that identified a voter may also cause the ballot
paper to be deemed informal under paragraph 268(1)(d).
Item 141 replaces Form E, the Senate ballot paper
layout, to correct a number of drafting errors identified by the AEC in their
recommendation 9 to the JSCEM.[75]
Items 125, 126 and 135 change the wording of the
relationship between the party name and the party square on the Senate ballot
paper to in effect allow the party name to be printed, for example, below the
square, rather than opposite the square, to save room on the ballot paper.
A number of the provisions seek to modernise the language
in the Acts without changing their meaning. Items 74, 93, 94
and 96, for example, simply replace the word ‘shall’ with ‘must’. This
is consistent with the Office of Parliamentary Counsel’s Plain English
Manual.[76]
Items 143 through 236 of Schedule 1
contain amendments implementing changes to the RPMA that mirror the
amendments to the CEA in this schedule. These includes the provisions
relating to Antarctic voters, the provision of pencils in polling places, the
questions put to voters, and the expanded classes of polling officials who are
permitted or required to perform certain acts. Not included are the political
finance provisions, which do not have an equivalent in the RMPA. As
these amendments simply repeat the CEA provisions they will not be
discussed separately here.
Schedule 2 contains a number of provisions that
replace the requirement for the senior DRO for the ACT to be appointed to the
Redistribution Committee for a redistribution of the ACT’s electoral divisions.
The Electoral Commissioner may appoint an AEC staff member to the position
instead. The Explanatory Memorandum for the Bill notes that this appointed
staff member would be a more senior position to the DRO (who is usually an APS6
officer) and more in line with the requirements for other state redistributions
that require the AEO for the state being appointed (usually a Senior Executive
Service AEC officer).[77]
Concluding comments
While the provisions in the Bill relating to the
interaction between federal and state and territory political finance laws are
likely to receive the most attention, the proposed new sections are
deliberately limited and defined in scope compared to the provisions that were
struck down by the High Court. The proposed provisions are likely not in
violation of the Constitution according to experts who lodged
submissions with the JSCEM inquiry into the Bill.
Whether the provisions should exist at all is a matter of
political opinion. The requirements to use campaign accounts for state or
territory elections, depending on the specific provisions of the laws around
those accounts and how ‘leaky’ they may be in relation to other money or
spending, appears to be a relatively effective remedy for state or territories
wanting to maintain the integrity of their political finance regimes.
More generally, the federal Parliament has traditionally
given the AEC very little discretion over how to run an election, with the CEA
prescribing everything from how votes are counted to what writing implement
should be provided in a polling place, and consistency in all of these things
is not equally important. Indeed, the Minister’s Second reading speech for the
Bill notes that the Bill ‘reduces unnecessarily prescriptive practices’, and in
a submission to the JSCEM inquiry into the Bill electoral law expert Professor
Graeme Orr welcomes the loosening of the prescriptiveness of the Act, however
argues that more of the details of the Act should be delegated to the AEC to
increase flexibility.[78]
Providing the AEC some operational discretion within
certain limitations in functions such as how to appoint staff and whether or
not their offices are required to be pre-poll voting centres is sensible and
overdue reform. Further reform along these lines may be required to allow the
AEC to continue to quickly respond to evolving situations, such as elections in
the midst of a pandemic outbreak in the future.
[1]. Spence
v Queensland (2019) 367 ALR 587, [2019]
HCA 15.
[2]. Joint
Standing Committee on Electoral Matters (JSCEM), Third
interim report on the inquiry into the conduct of the 2016 federal election:
AEC modernisation, JSCEM, Canberra, June 2017.
[3]. Ibid.,
p. xiii.
[4]. Australian
Electoral Commission (AEC) Submission
to JSCEM, Inquiry into and report on all aspects of the
conduct of the 2016 Federal Election and matters related thereto, [Submission no. 66], various dates.
[5]. JSCEM,
Third
interim report on the inquiry into the conduct of the 2016 federal election:
AEC modernisation, op. cit., p. 29.
[6]. Ibid.,
pp. 38–39.
[7]. Ibid.,
p. 16.
[8]. Ibid.,
pp. xiii–xiv.
[9]. J
Chalmers, ‘Second
reading speech: Electoral Legislation Amendment (Modernisation and Other
Measures) Bill 2018’, House of Representatives, Debates, 12 February
2019, p. 19.
[10]. M
Dick, ‘Second
reading speech: Electoral Legislation Amendment (Modernisation and Other
Measures) Bill 2018’, House of Representatives, Debates, 12 February
2019, p. 117.
[11]. M
Cormann, ‘Second
reading speech: Electoral Legislation Amendment (Modernisation and Other
Measures) Bill 2018’, Senate, Debates, 14 February 2019, p. 582.
[12]. Australia,
Senate, ‘Electoral
Legislation Amendment (Modernisation and Other Measures) Bill 2018’, Journals,
140, 14 February 2019, pp. 4716–4720.
[13]. Electoral and
Referendum Regulation 2016.
[14]. M
Cormann, ‘Second
reading speech: Electoral Legislation Amendment (Miscellaneous Measures) Bill
2020’, Senate, Debates, 11 June 2020, p. 2800.
[15]. M
Maley and G Orr, Developing
a legislative framework for a complex and dynamic electoral environment: discussion
paper, Working paper, 64, Electoral Regulation Research
Network/Democratic Audit of Australia Joint Working Paper Series, Melbourne Law
School, Melbourne, November 2019, paragraph 3.6.
[16]. D
Muller, Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017,
Bills digest, 81, 2017–18, Parliamentary Library, Canberra, 20 February 2018,
p. 27.
[17]. T
Rogers (Electoral Commissioner), Evidence
to JSCEM, Inquiry into and report on all aspects of the conduct of the 2019
federal election and matters related thereto, 6 December 2019, p. 20.
[18]. Spence
v Queensland (2019) 367 ALR 587, [2019]
HCA 15.
[19]. Electoral and Other Legislation Amendment Act 2015 (Qld); Explanatory
Notes, Electoral and Other Legislation Amendment
Bill 2015, p. 1.
[20]. ‘Donation
laws go to court’, Courier Mail, 3 November 2017, p. 10; M McKenna,
‘LNP
under pressure to disclose donators’, The Australian, 22 August
2017, p. 2.
[21]. Local
Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation
Amendment Act 2018 (Qld). See also Explanatory
Notes, Local Government Electoral (Implementing Stage 1 of Belcarra) and
Other Legislation Amendment Bill 2018.
[22]. S
Elks, ‘LNP
boss attacks ban on donors’, The Australian, 2 March 2018, p. 8.
[23]. Awabdy
& Anor v Electoral Commission of Queensland & Anor (2019) 372 ALR
740, [2019] QCA 187.
[24]. Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018.
[25]. Spence
v Queensland op. cit., [4].
[26]. Ibid.,
[7]—[9].
[27]. Ibid.
[28]. N
Aroney and D Whitmore, ‘Spence
v Queensland: a turning point in the High Court’s approach to federalism?’,
AusPubLaw, blog, 16 October 2019.
[29]. Joint
Standing Committee on Electoral Matters (JSCEM), Advisory
report on the Electoral Legislation Amendment (Miscellaneous Measures) Bill
2020, JSCEM, Canberra, August 2020, p. xi.
[30]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2020, The Senate, Canberra, 17 June 2020, p. 24.
[31]. D
Crowe, ‘Changes
to election law faces inquiry’, The Age, 18 June 2020, p. 4.
[32]. For
example, see: Parliament of Australia, ’Commonwealth
Electoral Amendment (Transparency Measures—Lowering the Disclosure Threshold)
Bill 2019 homepage’, Australian Parliament website; Parliament of Australia, ’Commonwealth
Electoral Amendment (Transparency Measures—Real Time Disclosure) Bill 2019
homepage’, Australian Parliament website.
[33]. Australian
Labor Party (State of Queensland), Submission
to the JSCEM, Inquiry into the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020, [Submission no. 14], 3 July 2020.
[34]. P
Karp, ‘Jacqui
Lambie and Greens criticise bid to reimpose weaker political donations laws’,
The Guardian, 17 June 2020.
[35]. J
Lambie, ‘Federal
politicians want to water down state donation laws’, Hobart Mercury,
18 June 2020, p. 26.
[36]. L
Waters, ‘Greens
push to ban dirty political donations and restore democracy’, media
release, 17 June 2020; Parliament of Australia, ‘Commonwealth
Electoral Amendment (Banning Dirty Donations) Bill 2020 homepage’,
Australian Parliament website.
[37]. The
Australian Greens, Submission
to the JSCEM, Inquiry into the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020, [Submission no. 5].
[38]. A
Wilkie, Submission
to the JSCEM, Inquiry into the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020, [Submission no. 11].
[39]. G
Orr, Submission
to the JSCEM, Inquiry into the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020, [Submission no. 1].
[40]. JC
Tham, Submission
to the JSCEM, Inquiry into the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020, [Submission no. 2], 24 June 2020.
[41]. A
Twomey and G Rotolo-Ross, Submission
to the JSCEM, Inquiry into the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020, [Submission no. 16], 3 July 2020.
[42]. M
Blom, R Goré, PB Stark, P Stuckey, V Teague and D Vukcevic, Submission
to the JSCEM, Inquiry into the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020, [Submission no. 6], 3 July 2020.
[43]. GetUp!,
Submission
to the JSCEM, Inquiry into the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020, [Submission no. 17].
[44]. Explanatory
Memorandum, Electoral Legislation Amendment (Miscellaneous Measures) Bill
2020, p. 5.
[45]. The
Statement of Compatibility with Human Rights can be found at page 6 of the
Explanatory Memorandum to the Bill.
[46]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 8, 2020, Australian Parliament, Canberra,
1 July 2020, p. 37.
[47]. Queensland
government announced its intention to ban donations from property developers in
mid-October
2017 and the federal legislation was introduced
in early December 2017.
[48]. D
Muller, Election
funding and disclosure in Australian states and territories: a quick guide,
Research paper series, 2018–19, Parliamentary Library, Canberra, 28 November
2018; AEC, ‘Disclosure
threshold’, AEC website, updated 25 May 2020.
[49]. McCloy
v New South Wales (2015) 257 CLR 178, [2015]
HCA 34.
[50]. Electoral
Funding Act 2018 (NSW), section 37.
[51]. Electoral
and Other Legislation (Accountability, Integrity and Other Matters) Amendment
Act 2020 (Qld), section 17, inserted Division 3 of Part 11 into the Electoral
Act 1992 (Qld).
[52]. Explanatory
Memorandum, op. cit., p. 18.
[53]. Ibid.,
p. 18.
[54]. A
Twomey and G Rotolo-Ross, Submission
to the JSCEM, Inquiry into the Electoral Legislation Amendment
(Miscellaneous Measures) Bill 2020, [Submission no. 16], op. cit., p. [2].
[55]. See,
for example, Electoral
Funding Act 2018 (NSW) sections 58 and subsection 78(2).
[56]. A
Twomey and G Rotolo-Ross, Submission
to the JSCEM, op. cit., p. [3].
[57]. Ibid.
[58]. Explanatory
Memorandum, op. cit., p. 20.
[59]. Ibid.,
p. 17.
[60]. Part
10, division 5A, Electoral
Act 2004 (NT); Part 11, Division 3, subdivision 2, Electoral
Act 1992 (Qld).
[61]. Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018.
[62]. Explanatory
Memorandum, op. cit., p. 11.
[63]. The
other new definitions are discussed under ‘Provisions relating to donation laws’
on page 11 of this Bills Digest.
[64]. AEC,
Supplementary
Submission to the JSCEM, Inquiry into and report on all aspects of the
conduct of the 2019 federal election and matters related thereto,
[Submission no. 120.1], 28 January 2020, p. 4.
[65]. Item
11 appears to contain a drafting error. The Explanatory Memorandum (page 14)
indicates that the reference should be to subparagraph 293(2)(a)(iii), rather
than 293(2)(b)(iii), which does not exist.
[66]. CEA,
subsections 293(1), 294(1), 295(1) and 296(1).
[67]. Item
41 corrects a drafting error in section 96 which might not have been
noticed until the drafters were copying the text of this provision.
[68]. Explanatory
Memorandum, op. cit., p. 26.
[69]. JSCEM,
Third interim report, op. cit., p. 38.
[70]. Ibid.
[71]. P
Coorey and A Tillett, ‘Eden-Monaro
voters sharpen pencils for July 4 byelection’, The Australian Financial
Review, 26 May 2020, p. 2.
[72]. This
is a change from the proposed equivalent provisions in the Electoral
Legislation Amendment (Modernisation and Other Measures) Bill 2018, which
specified that the name must be marked off before the ballot paper was
handed to the voter.
[73]. Explanatory
Memorandum, op. cit., p. 26.
[74]. JSCEM,
Third interim report, op. cit., pp. 31–32.
[75]. Ibid.,
p. 32.
[76]. Office
of Parliamentary Counsel (OPC), Plain
English Manual, OPC, [Canberra], 1993, p. 20.
[77]. Explanatory
Memorandum, op. cit., p. 50.
[78]. M
Cormann, ‘Second
reading speech: Electoral Legislation Amendment (Miscellaneous Measures) Bill
2020’, Senate, Debates, 11 June 2020; Orr, op. cit.
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