Thursday, 29 October 2020
Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020; Consideration in Detail
I move amendment (3) as circulated in my name:
(3) Schedule 1, page 8 (after line 5), after item 24, insert:
24A Section 302CA
Repeal the section.
24B Section 314B
Repeal the section.
The main focus of this amendment is that it repeals section 302CA and 314B from the act. Amendment No. 4 will omit the replacement provisions from this bill. This is consistent with the recommendations of the Centre for Public Integrity and the Human Rights Law Centre in their submissions to the Joint Standing Committee on Electoral Matters.
The effect of this amendment is that donations to federal parties would need to be disclosed in accordance with state and territory regulations. These amendments moved by the government and supported by the opposition are a direct attempt to circumvent a ruling by the High Court and stronger state donation laws. This is contrary to what the Australian people want to see in this place, and we finally have people here to actually acknowledge what this is about.
The consequential amendments to the bill, in relation to amendments (3) and (4), are really important when it comes to definitions of 'federal purpose' and 'regulated entity' under the legislation. This goes to the intent of section 302CA, gifts made for federal purposes. The Commonwealth has the weakest political finance laws in Australia in relation to donations. The proposed amendments mean that stronger state bills would be overwritten by weaker Commonwealth laws, thereby limiting their effectiveness.
Professor Anne Twomey, in her submission, questioned the intent of the amendments. She asked:
Given that the provisions seem to be quite deliberately drafted to achieve this end, it does make one wonder why. Are political parties aware of the existence of large amounts of donations that are unlawful under State laws, which they want to ensure they can keep? Is this a means of also avoiding any State laws that would not only require the return of unlawfully received donations but also penalise the party that adopts them (such as the NSW provision that requires a party to return double the value of the donation if it knew the donation was unlawful)? Are political parties hoping to be able to attract and retain such donations in the future, despite the application of State law, perhaps gambling on a State failing properly to police or enforce its laws, while still protecting the recipient parties if the donors are caught?
Professor Twomey argues:
It is apparent that the drafters of this Bill were not only conscious of this problem, but also concerned that it might be unconstitutional, given that the purpose of the donation is not required to be ‘earmarked from the outset’.
These clauses show deliberate effort from the government and the opposition to work around state and territory electoral laws and any constitutional challenge. They clarify that a political party can still use a political donation for federal purposes, even though a state law has validly prohibited it. In addition to the ability to connive to get around state laws, there are also questions about the ability to launder political donations through this new regime, and concerns about additional administrative complexity in policing the law.
This amendment to the bill calls for the existing section 302CA of the act to be repealed, as it was deemed unconstitutional. This is important legislation, and it is only in the interests of obfuscating where donations are coming from—whether that be from private companies or unions—that people are supporting this rubbish.