House debates

Tuesday, 16 October 2018


Electoral Legislation (Electoral Funding and Disclosure Reform) Bill 2017; Report from Committee

5:26 pm

Photo of Milton DickMilton Dick (Oxley, Australian Labor Party) Share this | | Hansard source

I rise as a member of the Joint Standing Committee on Electoral Matters to speak on the second advisory report on the Electoral Legislation (Electoral Funding and Disclosure Reform) Bill 2017, which was tabled yesterday. The matters concerning electoral funding and disclosure have received much scrutiny in recent times—and, in my opinion, rightly so. I'd like to start by acknowledging the work of my fellow Labor colleagues Senator Ketter; Senator Brown; the member for Scullin, who is the deputy chair of the committee; and, in particular, Senator Don Farrell, who, as Labor's shadow special minister of state, has worked tirelessly with the committee to ensure that all views are heard and taken into consideration to ensure that we deliver the right outcome for the Australian people.

It is essential for a properly functioning democracy that donations to political parties are transparent and in line with community expectations. That is exactly what this committee has tried to do over the past months; however, it appears the Morrison government may be more interested in creating back doors for donors than ensuring our donation laws are a level playing field for all. This report is due to further amendments made by the government which were not a part of a bipartisan report which was agreed upon in April this year. I will say that very clearly: this report dealt with some significant foreign donations and reform that the parliament was very keen to deal with and, out of nowhere, without any consultation, any evidence or any advice to the committee—not once raised by the former chair, Senator Linda Reynolds, or any government member—the government dropped in new amendments. They did that without any consultation or any reference to what we were dealing with—completely unacceptable. It seems the Morrison government have since had a change of heart and have instead opted to try and, in my opinion, sneak in changes that would mean donors would gain immunity from state and territory laws prohibiting gifts and imposing obligations to disclose donations, provided there is a connection to federal election spending.

As my federal colleague and friend the member for Scullin noted in the dissenting report tabled yesterday, Labor members of the committee do not support, in particular, recommendation 10 of the report and are deeply concerned that it has been proposed by the government. There has been no explanation given by members of the government or by the chair, and I think it should be of great concern to even members of the government that these provisions have now come in. I would like some answers particularly on what the impact will be in Queensland. These recommendations are especially relevant to my home state of Queensland, and I will give the chamber a little bit of history regarding donation reforms in the Queensland context.

Premier Annastacia Palaszczuk and the state Labor government have been at the forefront, leading the way in disclosing details about how and when political donations are made. The first bill the Palaszczuk government introduced into the parliament in 2015 decreased the donation disclosure threshold from $12,800 to $1,000, which mirrors Labor's federal policy to lower the disclosure threshold to a fixed $1,000, which has been violently opposed by members of the government.

This meant that my home state of Queensland now has some of the most progressive, open and transparent political donations laws in the country. Why was this necessary? I remind the chamber of the toxic dissenting years of the LNP Newman government, which wound back donation laws in Queensland, which was an article of faith for the LNP in Queensland. In fact, the LNP in Queensland are now challenging those laws in the courts, so I won't refer to those. Nonetheless, the LNP have a very poor track record when it comes to open and transparent political reform in Queensland.

But the amendments proposed by the federal government to the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill seek to circumvent these open and transparent state laws by ensuring that Commonwealth laws would not apply to money that is directed towards non-federal campaigns, including state, territory and local government campaigns, as noted in recommendation 10 of yesterday's tabled report. This recommendation would have a significant impact in the Queensland context, where the Liberal and National parties are represented as one entity.

As Labor members of the committee, we do not believe interference with state and territory laws, properly made, which have put in place caps on political donations and bans on particular donors, like property developers, is warranted. We note that some of these provisions potentially affected have been put in place on the recommendation of anticorruption commissions. Professor Tham, of the University of Melbourne, has supported this stance by stating in his submission to the committee that the amendments would undermine the states' ability to 'protect the integrity of representative government from the dangers of political money' and that there are serious problems with proposed sections.

Professor Graeme Orr, an electoral law expert at the University of Queensland, supported this by stating that the coalition had at the last minute included sections that would 'limit existing and future state and territory laws'. He went on further to say that 'this will reduce transparency, which is ironic because the whole point of this bill is it was supposed to be about increasing transparency'.

Once again, there are no explanations from the government. When I questioned the department about where this came from, who dreamt it up and why it was even in our report, when we had not been discussing this in any way, shape or form, there was silence—no explanation. So I'm glad there are members of the government here who will be speaking on this, who clearly are going to outline where this came from and why it was dumped in this. You've got to remember that this report has been going on for months and months. There has been no fanfare from the minister about why these amendments were put into place. There has been no explanation or media release by the relevant minister. The minister was quoted yesterday as saying that the provisions were intended and necessary to clarify the relationship between the federal and state laws. I believe that, on the contrary, these amendments will have quite the opposite effect. They will only create more confusion and complexities between federal and state laws, leading to donations falling between the cracks and ultimately being made behind closed doors.

In closing, I'd like to acknowledge and give my thanks and appreciation particularly to the charities, the non-profit sector and the interested and professional academics who gave evidence throughout this process. I want to say to them: your ongoing contributions to this important piece of legislation are vital and will help shape the future of political donations. Additionally, Labor remain committed to wide-ranging democratic reforms beyond those contained in this legislation, to restore trust in politics. We will continue to pursue the introduction of a national integrity commission and further donations reforms as priorities in line with community expectations. I thank members of the committee and the secretariat for their hard work to make sure that this report has now come so far. But in my opinion we still have more work to do in this important reform area.

5:34 pm

Photo of Andrew WallaceAndrew Wallace (Fisher, Liberal Party) Share this | | Hansard source

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.

Honourable Member:

An honourable member interjecting

Photo of Andrew WallaceAndrew Wallace (Fisher, Liberal Party) Share this | | Hansard source

I will take that interjection! It's important to recognise that the recommendations that have come out of this committee are not just in relation to this one issue. It is vitally important that we as a federal government and we as a parliament ensure that we have open and transparent provisions, particularly in relation to our electoral laws. We want to ensure that to the best of our ability. If we have situations where foreign players—whether they be a foreign government or a foreign party—are making electoral donations to perhaps try and influence the outcome of a federal election, it is only right and proper that the Australian people are notified that a particular company, a particular government or a third party from another country is identified as being just that. Without that clear transparency, a cloud will descend upon this parliament, as we have seen in other countries.

I, for one, want to ensure that we don't head down the same route other countries have. We want to have what I believe are the strongest electoral laws in the world to ensure that we have that openness and transparency, to ensure that foreign players are identified as exactly what they are and so that the Australian public can be assured that any donations that are made are clearly identified as coming from an international third party. I don't think that that is too much to ask.

I call upon those members opposite who provided that dissenting report on just this one issue, on recommendation 10, to work with the government to ensure that the primacy of the Australian parliament is protected. Those members opposite can't have it both ways. Irrespective of the merits of what that state law might be, the simple fact of the matter is you cannot escape section 109, and those members opposite would know it or at least should know it. They ought not try and argue that a state law, irrespective of what they would regard to be the merits of that case, should somehow override a federal law where it is inconsistent. That's not rocket science; it's something that is very, very plain and simple. This federal government, our federal government, will act to protect the primacy of any Commonwealth law.

Debate adjourned.