Thursday, 29 October 2020
Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020; Second Reading
The Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020 seeks to make a number of amendments to the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984, and Labor is happy to support this bill. The amendments are technical and varied. They were recommended by the Joint Standing Committee on Electoral Matters in its review of the 2016 federal election. These recommendations flowed from submissions by the independent regulator of our elections, the Australian Electoral Commission.
The amendments contained in this bill include amendments to the Commonwealth Electoral Act 1918 to clarify the interaction between federal, state and territory electoral funding and disclosure regimes, following the High Court decision in Spence and Queensland. It makes technical amendments in relation to entity registration and public election funding rules, and allows a senior Australian Electoral Commission staff member, rather than a senior divisional returning officer, to be on the redistribution committee for the Australian Capital Territory. The bill also amends aspects of voting and scrutiny processes in both the Commonwealth Electoral Act and the Referendum (Machinery Provisions) Act, including extending electronically assisted voting methods to Australians working in Antarctica.
The bill has been considered by JSCEM. The amendments that were the subject of most of the submissions to JSCEM's inquiry were the changes to sections 302CA and 314B of the Commonwealth Electoral Act. The amendments to 302CA seek to rectify drafting errors after the High Court's decision in Spence and Queensland found that section to be wholly invalid. That section provided that, if a donation was made to a federally registered party and that donation was required to be, or may be, used for federal purposes, then the relevant state or territory law would not apply. This provision allowed gifts to be made to a party which may not be permitted at a state level as long as the gift was used or might be used for federal purposes. Under the proposed amendment, for the Commonwealth law to apply, the donation must be used for federal purposes. It is not good enough that it might merely be used for federal purposes. The amendment in section 314B would mean that donations which are above a state's threshold for disclosure but below the federal threshold, which is currently $14,300, would not need to be disclosed to the state electoral commission if they are expressly given and used for a federal purpose.
These amendments clarify the Commonwealth's power to make laws in respect of Commonwealth elections. It is appropriate that the Commonwealth has the power and that the laws it makes are not overridden by state laws. State parliaments are still free to make laws in relation to state elections. This bill is not trying to interfere with that. This bill simply confirms the Commonwealth parliament as the legislature responsible for making laws in relation to Commonwealth elections. Labor therefore supports this bill, now that two important amendments have been made in the Senate, which I'll expand on shortly.
Labor believes in a uniform federal system that treats federal parties and candidates equally, regardless of which state or territory they come from. The rules that federal parties and candidates play by should all be contained in the Commonwealth Electoral Act, not the various electoral acts of the eight different states and territories of our nation. If that were the case, then we would have a US style of government, where the laws that govern a federal election would be different depending on which state we lived in. We're seeing those different laws playing out right now, with some states not allowing postal voting for the current US presidential election. We are fortunate in Australia to have a uniform federal system for federal elections, and, if we do not make the changes contained in this bill, then we will be undermining that system.
As many of the submissions to JSCEM noted, the Commonwealth laws on political donations lag behind those of some of the states. But, if we do not make these amendments and state laws continue to apply to federal actors, then it is entirely possible that a state government could implement a law that is actually worse than the Commonwealth's. A state government might try to restrict the role of third-party participants in elections, such as unions or charities. If we do not make these changes, then those regressive laws could apply to participants in federal elections. The argument that these amendments should be opposed because the state laws are better doesn't hold water. We wouldn't be trying to apply a state law if it were worse, so we shouldn't want to apply it just because it is better. What we should be aiming for is a better federal system.
We recognise the concerns raised by some of the submissions to the JSCEM inquiry. We are pleased that the government listened to Labor's concerns, and an amendment was passed in the Senate to require federal donations to be paid into dedicated federal campaign accounts. Several state jurisdictions already require that separate state campaign accounts be maintained. Separate federal accounts will provide an additional layer of transparency and accountability and ensure that actors in the electoral process cannot use the Commonwealth Electoral Act to circumvent state electoral laws.
Labor also successfully moved an amendment in the Senate to delay the bill's commencement date until 1 December this year. This will ensure that the AEC and parties have time to familiarise themselves with the new regime and ensure that they have their compliance systems properly in place. In addition, there are currently state jurisdictions that are undergoing state or local government elections. The starting date later in the year, particularly later from when this bill was first introduced, lessens the risk of confusion for voters and election participants.
Many of the submissions to JSCEM's inquiry also highlighted the need for comprehensive donations reform to improve the transparency of our electoral system. That is Labor's position, and we have a proud history in this area. It was Labor's amendments that secured a ban on foreign donations. It was Labor's amendments that linked public funding to campaign expenditure, preventing parties from profiting from the electoral system. And let's not forget that it was Labor, under Prime Minister Hawke, that was first to introduce a donations disclosure regime, back in 1983. Indeed, even in my university honours thesis, back in 2003, I wrote about these particular issues. According to a 21-year-old version of myself:
… the expenditure of funds—
in an election—
is a form of freedom of speech. However, the political equality of "the people" is eroded if the wealthy can determine the results of elections based on who they donate funds to and therefore provide the means to expend more money on an election campaign.
… … …
The Australian electoral campaign finance regulatory regime is one that was established to increase equality for electoral participants, provide a level of transparency and in doing so provide for a pluralistic society in Australia.
Now, as I stand in the House today, Labor are continuing with our reform agenda. We currently have two bills before the Senate to deliver on our commitments. The first of these bills seeks to lower the disclosure threshold from the current $14,300 to a fixed $1,000 and removing indexation which has resulted in a blowout of the current threshold. The other bill would require real-time disclosure, where donations would be disclosed within seven days. Interestingly, this was also a recommendation from my honours thesis.