Additional comments by Senator David Pocock
1.1I thank the Committee for their work on this report, and the efforts of the community in making their voices heard through the submission process. I would like to take the opportunity to again commend the Australian Electoral Commission for the professional way in which the 2022 elections were conducted despite the challenging context. We are fortunate to have a respected, independent electoral commission to run our elections and ensure a peaceful transfer of governance in this country.
1.2While I support the Committee Report, I believe that the committee did not go far enough in ensuring that all Australians have an equal voice in our democracy. To this end, my additional comments make a number of recommendations designed to improve representation, transparency and integrity in our political system.
1.3I am disappointed that the report did not consider the issue of Territory representation, which I raised in my submission, and was also raised by the ACT Government, Professor Kim Rubenstein and The Australia Institute among others in their submissions.I believe that in neglecting to address Territory Senate representation, the Committee has missed a vital opportunity to examine an issue which goes to the heart of our democracy; the opportunity for all Australians to be heard and fairly represented
1.4In 1975, a deal was struck to grant two Senators to each Territory. This was a political decision which all but guaranteed two more representatives for the major parties. This calculation did not address the core question of what baseline level of democracy is appropriate for small (non-Original State) jurisdictions? What is the appropriate balance between federalism and representative democracy?
1.5The issue was addressed in the Constitution with the smallest State granted the same level of Senate representation as the largest State. This equality of Senate representation between States exists today. No considerations of equality of representation were part of the decision-making process when the ACT and NT were granted Senators in 1975.
1.6In my submission to the Committee, I proposed a logical and balanced basis for determining the number of Senators that should represent the ACT and NT.
1.7The base level of representation should be as close as possible to half the number of Senators from each state, resulting in six (6) for each Territory at current State levels. I note the recommendations from Professor Kim Rubenstein and The Australia Institute that each Territory be represented by four Senators.
1.8The Committee has missed an opportunity to recommend guidelines for the long overdue reform of Territory representation in the Senate. Such guidelines could ensure that Territory representation would grow proportionally with the electorate as it will for the States, thus providing a permanent structural solution aligned with the values of representative democracy. In my submission I suggested that the number of Senators from each Territory remain at more than one third, but less than two thirds of the States’ Senate allocation.
1.9I am disappointed that no consideration was given to establishing a rational basis for the number of Senators from each Territory. The Committee has chosen not to recommend a durable solution that can be used into the future should the level of representation from the States change. Territories should not have to continually fight to ensure that they are fairly represented in the Federal Parliament.
1.10Increase the baseline level of representation for the ACT and NT in the Senate to as close to half the representation of States as possible. Given the current number of Senators in each State, this would see the ACT and the NT each have 6 Senators. Terms should increase to six years and commence on 1 July following the election in line with the states.
1.11The ACT community is frustrated with the lack of transparency in the federal electoral system. As noted in my submission, knowing who is donating money to candidates, political parties and other political actors is critical in gaining an understanding of who might be influencing decision-making in government.
1.12I welcome and support recommendations 1, 2 and 3 of the Committee Report.
1.13Australians have been calling on federal governments to lower the donation threshold, and to mandate a requirement that donations to political candidates and parties be disclosed in real time. The Committee received numerous submissions from experts and community members about the corrosive effect of secrecy, deceit, and lack of transparency regarding donations on our democracy. This undermines Australians’ faith that their elected representatives are working for them. The Committee Report provides important examples of these.
1.14‘Dark money’ remains a huge problem in Australian politics. The concerns of submitters and witnesses in relation to transparency around gifts and ‘other receipts’ is accurately summarised in the Committee Report.However, Recommendation 3 of the Committee Report does not recognise the highly political nature of changing the definition of ‘gift’. It also does not properly unpack issues highlighted by numerous submitters and witnesses around ‘other receipts.’
1.15The government should commission an independent body, such as the Australian Law Reform Commission, to develop recommendations to require full disclosure of all receipts above the threshold. Consideration should be given to removing the ‘other receipts’ category, disclosure of loans and the creation of an AEC Transparency Register, in accordance with Recommendation 1 made by the Member for Curtin, Kate Chaney MP in her Additional Comments.
1.16I support Recommendation 2 made by the Member for Curtin, Kate Chaney MP in her Additional Comments that the government should expand the lobbyist register to include in-house lobbyists. I further recommend that, if a lobbyist holds a sponsored pass that gives access to the Australian Parliament House, the details of the pass including the sponsoring MP or Senator are captured on the lobbyist register. Details of sponsored passes should also be listed on Parliamentarians profiles on the Australian Parliament House website.
1.17I support Recommendations 4(a) and (b) made by the Member for Curtin, Kate Chaney MP in her Additional Comments in relation to prohibited donations and for some entities.
1.18There will always be a risk that donations will influence policy. Where the influence of an industry is at odds with broader community values, the barrier to donations and access by lobbyists should be impenetrable. The tobacco, gambling and liquor industries are all contributors to significant social harm and so should be unequivocally barred from such influence.
1.19As Ms Chaney MP sets out in paragraphs 1.30 to 1.32 of her Additional Comments, there are serious probity concerns where substantial government contractors are able to make political donations. The only effective way to address this is through the prohibition Ms Chaney MP proposes.
1.20I support and welcome recommendations 11 and 12 of the Committee Report.
1.21As I said in my submission, I believe that politics should be about ideas and about people. Our democracy relies on a well-informed public to elect their best representatives and hold those representatives accountable. That’s why I am in favour of attempting to stop lies and misinformation being part of our political system. Campaigning against someone’s voting record or things they have publicly said is part of holding people to account; smearing political opponents with lies is not.
1.22However, I remain concerned about risks of regulation to the freedom of political communication which is fundamental to the democratic process. I believe any regulation must be alive to these risks and strike a careful balance between securing the integrity of our elections and continuing to uphold these freedoms. I also believe that determining truth in advertising has the potential to be a highly politicised issue. As such, I would urge the government to consider establishing an independent review body outside the AEC to safeguard the commission’s neutrality.While I am supportive of developing an effective framework with reference to the South Australian model, regulations should keep these concerns in mind.
1.23The government should establish an independent body to manage and rule on truth in political advertising complaints. This body should be completely separate from the AEC, whose neutrality is a critical feature of our electoral architecture and must be maintained.
1.24I welcome and support recommendations 14 and 15 of the Committee Report. In particular, I am pleased to see the focus on engagement with Aboriginal and Torres Strait Islander community organisations. As I stated in my submission, durable solutions to increasing First Nations’ electoral participation can only be found through working with the communities with lived experience.
1.25It is clear that the AEC will require additional resources to continue to encourage enfranchisement and participation from remote Aboriginal and Torres Strait Islander communities.
1.26The government should consider providing additional resources to the AEC to deliver elections to remote communities.
1.27I support Recommendation 3 made by the Member for Curtin, Kate Chaney MP in her Additional Comments. Any change to donation or spending caps should be informed by the principle of creating a level playing field including for new entrant parties and candidates.
1.28Caps on political donations provide an opportunity to safeguard our democracy by limiting the influence an individual, company or other entitycan have over a candidate or political party.However, careful consideration must be given to the design of any system to ensure that it does not unduly limit the ability of Independent candidates and micro parties to compete with larger political parties.
1.29My support for donation caps in accordance with Recommendation 4 of the Committee Report is contingent on any design being in accordance with the principles set out at paragraph 1.29 of the Additional Comments provided by the Member for Curtin, Kate Chaney MP.
1.30Regulation of donation caps must be developed in conjunction with any changes to the public election funding system developed under Recommendation 9 of the Committee’s Report to ensure that they are complementary and neither act as a barrier to entry for new participants.
1.31Caps on spending on political campaigns provide an opportunity to remove the damaging effect that big money can have on our political system. However, badly designed spending caps will entrench advantages of incumbency and the existence of party machinery. This would be a bad outcome for our democracy, which has been recently enlivened through the community-based independents’ movement.
1.32Any system to regulate the level of spending in elections must also be carefully considered, again independently of government. My support for spending caps in Recommendation 4 of the Committee Report is contingent on their careful calibration to ensure that the full value of incumbency and party machinery is reflected, and higher spending caps for new entrants are considered to allow them to compete on an equal footing. The risks associated withfailing to do this are eloquently articulated in paragraph 1.43 of the Additional Comments to this report made by the Member for Curtin, Kate Chaney MP.
1.33There is a strong incentive for governments and major parties to design spending and donation caps in a way that will entrench the electoral status-quo. The design of donation caps should be undertaken independently of the government of the day and should consider all sources of income for political parties, consistent with the Recommendation above that an independent body such as the ALRC develop a system that ensures all receipts above the donation threshold are disclosed.
1.34Any system developed to regulate political donations and election spending must be developed by a non-partisan, independent body. The introduction of donation and spending caps has the potential to have a significant impact on the ability of independent candidates and micro parties to be elected to Parliament and as such the development of any system must be free of the undue political influence of incumbents.
1.35I also support the comments made by the Member for Curtin, Kate Chaney MP at paragraph 1.25 of her Additional Comments.
1.36The deleterious impact that incumbency advantage has on our democratic system is well documented. New entrants and challengers inject energy, dynamism and more effective representation into politics. Yet the barriers to entry are high, and the interest in addressing the issue is low amongst the major parties.
1.37I support the recommendations made by the Member for Curtin, Kate Chaney MP in her Additional Comments that go to levelling the playing field and addressing the advantages of incumbency and major party structure. In particular:
Senator David Pocock
Independent Senator for the Australian Capital Territory
On 5 August 2022 the Special Minister of State, Senator the Hon Don Farrell, asked the Committee to inquire into and report on all aspects of the conduct of the 2022 federal election.
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