Tuesday, 16 October 2018
Electoral Legislation (Electoral Funding and Disclosure Reform) Bill 2017; Report from Committee
I rise to speak on the report of the Joint Standing Committee on Electoral Matters which deals with the Electoral Legislation (Electoral Funding and Disclosure Reform) Bill 2017. Principally, the proposed amendments which arise out of this bill, firstly, ensure that key political actors that have significant amounts of electoral expenditure are subject to appropriate disclosure obligations, with obligations commensurate with their level of electoral expenditure; secondly, clarify that spending solely on issue advocacy is not treated as electoral expenditure when that spending is not aimed at influencing voting in a federal election—and this has been the main concern for charities and other organisations that lobby on laws where those groups do not also seek to influence voting in elections—and, thirdly, override state laws to the extent that they would prevent donations or compel reporting of donations that were made for Commonwealth electoral purposes or are available for Commonwealth purposes.
I listened intently to the member for Oxley, who is on the committee. I'm not on the committee but this is an issue that I have been following closely. I also note that the Labor members of this committee provided a dissenting report in respect of recommendation 10. The reasoning for the dissent of the Labor members of this committee is unclear, and it's important that we pull this apart. During the committee hearings, the committee heard evidence from Professor Anne Twomey, who, as most of us would know, is a constitutional law expert. Specifically in relation to recommendation 10, she said:
These provisions need to be altered to ensure that the Commonwealth law does not purport to override the State law where the donation concerned is used for the purpose of State electoral expenditure—
She then went on to say—and this is important:
Certainly, if it is used for Commonwealth electoral expenditure, then the Commonwealth law should prevail over the State law.
Of course, section 109 of the Australian Constitution provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
The committee recognises that, to the extent that any proposed amendment of the Commonwealth seeks to override a state law in relation to state electoral matters, that would be overreach on the part of the Commonwealth. But where a state law seeks to effectively override a Commonwealth law on Commonwealth electoral matters, then section 109 will rule that state law to be invalid. Those members opposite want to talk about transparency and consistency. Well, they can't get much more transparent than section 109 of the Constitution. Section 109 of the Constitution is patently clear. It is patently clear that where this state law—or any state law, for that matter, or a territory law—is inconsistent with a federal law, then that state law should be ruled down.
This is a fundamental issue that has been identified by the committee. I don't quite understand why the committee is concerned in instances where recommendation 10 accepts that the original proposal of the Commonwealth may have overreached to the extent it may seek to impact upon state laws. That is not the case now.
The Commonwealth recognises that, and the government wants to work closely with the opposition to ensure that section 109 is protected and that it is made very clear that these federal electoral laws—to the extent that we are talking about the Commonwealth's right to enact legislation which impacts upon federal electoral matters—cannot be impacted deleteriously by state legislation. If those members opposite want to try and argue something different then they can go for their life. I'd like to say, though, that a first-year law student would be able to identify that that position is absolutely untenable. Should the need arise that the Commonwealth has to expend taxpayers' money on fighting this matter in the High Court, that is assumedly what we'll do. And I hope it is what we would do, because the right thing to do is to ensure that the federal parliament's right to enact legislation on federal matters takes precedence over a state or a territory.