Introductory Info

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.

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.