David Pocock (ACT, Independent) Share this | Hansard source

Yes. I seek leave to move amendment (1) on sheet 1851, amendments (1) to (12) on sheet 1815 and amendment (1) on 1816 together.

Leave granted.

I move:

Sheet 1851

(1) Page 10 (after line 15), after Schedule 2, insert:

Schedule 2A — Exclu sion zones

Referendum (Machinery Provisions) Act 1984

1 Paragraphs 131(1)(b) and (1A)(b)

Omit "6 metres", substitute "100 metres".

2 Subparagraph 131(1A)(d)(iii)

Omit "6 metres", substitute "100 metres".

3 Application of amendments

The amendments made by this Schedule apply in relation to referendums the writs for which are issued on or after the commencement of this Schedule.

Sheet 1815

(1) Schedule 4, item 1, page 18 (after line 13), after the definition of gift, insert:

initial disclosure period means the period, in a referendum expenditure period, that:

(a) starts at the start of the referendum expenditure period; and

(b) ends on the day of the issue of the writ for the referendum to which the referendum expenditure period relates.

ongoing discl osure period means the period, in a referendum expenditure period, that:

(a) starts on the day after the issue of the writ for the referendum to which the referendum expenditure period relates; and

(b) ends at the end of the referendum expenditure period.

(2) Schedule 4, item 3, page 20 (line 31), at the end of section 109D, add:

; and (c) a contravention of section 109GA or 109GB that would otherwise have been committed by an entity that is not a legal person is taken to have been committed by each member or officer (however described) of the entity, who, acting in that person's actual or apparent authority, engaged in any conduct or made any omission contributing to the contravention.

(3) Schedule 4, item 3, page 25 (after line 2), after Division 2, insert:

Division 2A — Early disclosure of gifts

109GA Disclosure by gift recipients in relation to initial disclosure period

(1) A person or entity (the relevant person), other than the Commonwealth or a State or Territory, must provide a return in accordance with this section if:

(a) the relevant person received a gift or gifts covered by subsection (2) at any time during the initial disclosure period in a referendum expenditure period; and

(b) either:

(i) the amount of at least one such gift was more than the disclosure threshold; or

(ii) the total amount of all gifts received by the relevant person from at least one single person during the initial disclosure period was more than the disclosure threshold.

Note: Returns provided under this section must be published by the Electoral Commissioner on the Transparency Register (see section 320 of the Commonwealth Electoral Act 1918).

Civil penalty:

The higher of the following amounts:

(a) 60 penalty units;

(b) if there is sufficient evidence for the court to determine the amount, or an estimate of the amount, of the gifts not disclosed—3 times that amount.

(2) A gift is covered by this subsection if:

(a) the relevant person knows that the person or entity who made the gift intends the gift to be used for the purposes of incurring referendum expenditure, or for the dominant purpose of creating or communicating referendum matter; or

(b) the relevant person accepted the gift intending to use the gift for the purposes of incurring referendum expenditure, or for the dominant purpose of creating or communicating referendum matter.

(3) The relevant person must provide to the Electoral Commission a return for the initial disclosure period setting out the following details:

(a) for subparagraph (1)(b)(i):

(i) the amount of each gift covered by that subparagraph; and

(ii) the date on which the gift was made;

(b) for subparagraph (1)(b)(ii):

(i) the total amount of gifts made by each single person who is covered by that subparagraph; and

(ii) the date on which each of those gifts were made;

(c) in any case:

(i) for a gift or gifts on behalf of the members of an unincorporated association (other than a registered industrial organisation within the meaning of Part XX of the Commonwealth Electoral Act 1918)—the name of the association, and the names and addresses of the members of the executive committee (however described) of the association; or

(ii) for a gift or gifts purportedly made out of a trust fund, or out of the funds of a foundation—the names and addresses of the trustees of the fund or foundation, and the title, name or other description of the trust fund or foundation; or

(iii) for any other gift or gifts—the name and address of the person who made the gift or gifts.

(4) The return must:

(a) be provided before the end of 7 days after the end of the initial disclosure period; and

(b) be in the approved form.

(5) Subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (1) of this section.

109GB Disclosure by gift recipients in relation to ongoing disclosure period

(1) A person or entity (the relevant person), other than the Commonwealth or a State or Territory, must provide a return in accordance with this section if:

(a) the relevant person receives a gift covered by subsection (2) from another person or entity at any time during the ongoing disclosure period in a referendum expenditure period; and

(b) the total amount of the following is more than the disclosure threshold:

(i) the gift;

(ii) any earlier gifts covered by subsection (2) that the relevant person has received from the other person or entity since the start of the referendum expenditure period.

Note: Returns provided under this section must be published by the Electoral Commissioner on the Transparency Register (see section 320 of the Commonwealth Electoral Act 1918).

Civil penalty:

The higher of the following amounts:

(a) 60 penalty units;

(b) if there is sufficient evidence for the court to determine the amount, or an estimate of the amount, of the gifts not disclosed—3 times that amount.

(2) A gift is covered by this subsection if:

(a) the relevant person knows that the person or entity who made the gift intends the gift to be used for the purposes of incurring referendum expenditure, or for the dominant purpose of creating or communicating referendum matter; or

(b) the relevant person accepted the gift intending to use the gift for the purposes of incurring referendum expenditure, or for the dominant purpose of creating or communicating referendum matter.

(3) The return must include the information referred to in subsection (4) in relation to:

(a) the gift mentioned in paragraph (1)(a); and

(b) any earlier gifts mentioned in subparagraph (1)(b)(ii) in relation to which the relevant person was not already required to give information in a return under section 109GA or this section.

(4) For the purposes of subsection (3), the information is:

(a) the amount of the gift or each of the gifts; and

(b) if the return relates to 2 or more gifts—the total amount of those gifts; and

(c) the date or dates on which the gift or gifts were made; and

(d) the following:

(i) for a gift or gifts on behalf of the members of an unincorporated association (other than a registered industrial organisation within the meaning of Part XX of the Commonwealth Electoral Act 1918)—the name of the association, and the names and addresses of the members of the executive committee (however described) of the association;

(ii) for a gift or gifts purportedly made out of a trust fund, or out of the funds of a foundation—the names and addresses of the trustees of the fund or foundation, and the title, name or other description of the trust fund or foundation;

(iii) for any other gift or gifts—the name and address of the person who made the gift or gifts.

(5) The return must:

(a) be provided before the end of 7 days after the gift mentioned in paragraph (1)(a) is received; and

(b) be in the approved form.

(6) Subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (1) of this section.

109GC Disclosure by gift donors in relation to initial disclosure period

(1) This section applies if:

(a) a person or entity (the donor) makes one or more gifts covered by subsection (3) to another person or entity, other than the Commonwealth or a State or Territory, at any time during the initial disclosure period in a referendum expenditure period; and

(b) the total value of the gift or gifts exceeds the disclosure threshold.

(2) The donor must, within 7 days after the end of the initial disclosure period, give to the Electoral Commission a return, in an approved form and in accordance with subsection (4).

Civil penalty:

The higher of the following amounts:

(a) 60 penalty units;

(b) if there is sufficient evidence for the court to determine the amount, or an estimate of the amount, of the gifts not disclosed—3 times that amount.

(3) A gift is covered by this subsection if the donor intends for the gift to be used:

(a) for the dominant purpose of incurring referendum expenditure; or

(b) for the dominant purpose of creating or communicating referendum matter.

(4) The return must include the following information:

(a) the value of the gift, or each of the gifts, made in the initial disclosure period by the donor to the other person or entity;

(b) if the return relates to 2 or more gifts—the total value of those gifts;

(c) the name of that other person or entity;

(d) the date or dates on which the gift or gifts were made.

Note: Returns provided under this section must be published by the Electoral Commissioner on the Transparency Register (see section 320 of the Commonwealth Electoral Act 1918).

(5) Subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (2) of this section.

109GD Disclosure by gift donors in relation to ongoing disclosure period

(1) This section applies if:

(a) a person or entity (the donor) makes a gift covered by subsection (3) to another person or entity, other than the Commonwealth or a State or Territory, at any time during the ongoing disclosure period in a referendum expenditure period; and

(b) the total value of the following is more than the disclosure threshold:

(i) the gift;

(ii) any earlier gifts covered by subsection (3) made by the donor to that other person or entity since the start of the referendum expenditure period.

(2) The donor must, within 7 days after the end of the ongoing disclosure period, give to the Electoral Commission a return, in an approved form and in accordance with subsection (4).

Civil penalty:

The higher of the following amounts:

(a) 60 penalty units;

(b) if there is sufficient evidence for the court to determine the amount, or an estimate of the amount, of the gifts not disclosed—3 times that amount.

(3) A gift is covered by this subsection if the donor intends for the gift to be used:

(a) for the dominant purpose of incurring referendum expenditure; or

(b) for the dominant purpose of creating or communicating referendum matter.

(4) The return must include the information referred to in subsection (5) in relation to:

(a) the gift mentioned in paragraph (1)(a); and

(b) any earlier gifts mentioned in subparagraph (1)(b)(ii) in relation to which the donor was not already required to give information in a return under section 109GC or this section.

(5) For the purposes of subsection (4), the information is:

(a) the amount of the gift or each of the gifts; and

(b) if the return relates to 2 or more gifts—the total value of those gifts; and

(c) the name of other person or entity to whom the gift or gifts were made; and

(d) the date or dates on which the gift or gifts were made.

Note: Returns provided under this section must be published by the Electoral Commissioner on the Transparency Register (see section 320 of the Commonwealth Electoral Act 1918).

(6) Subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (2) of this section.

(4) Schedule 4, item 3, page 29 (line 31), after "109G,", insert "109GA, 109GB, 109GC, 109GD,".

(5) Schedule 4, item 3, page 33 (line 31), omit "or 109G", substitute ", 109G, 109GA, 109GB, 109GC or 109GD".

(6) Schedule 4, item 3, page 34 (line 25), omit "or 109G", substitute ", 109G, 109GA, 109GB, 109GC or 109GD".

(7) Schedule 4, item 3, page 35 (line 21), omit "or 109G", substitute ", 109G, 109GA, 109GB, 109GC or 109GD".

(8) Schedule 4, item 3, page 35 (line 23), omit "or 109G", substitute ", 109G, 109GA, 109GB, 109GC or 109GD".

(9) Schedule 4, item 3, page 36 (line 12), omit "or 109G", substitute ", 109G, 109GA, 109GB, 109GC or 109GD".

(10) Schedule 4, item 3, page 37 (lines 24 and 25), omit "are or may be required to give a return under section 109G", substitute "have been, are or may be required to give a return under section 109G, 109GC or 109GD".

(11) Schedule 4, item 7, page 40 (after table item 6), insert:

(12) Schedule 4, item 8, page 41 (lines 3 and 4), omit "Division 2 of Part VIIIA of the Referendum (Machinery Provisions) Act 1984, as inserted by this Schedule, applies", substitute "Divisions 2 and 2A of Part VIIIA of the Referendum (Machinery Provisions) Act 1984, as inserted by this Schedule, apply".

Sheet 1816

(1) Page 63 (after line 2), at the end of the Bill, add:

Schedule 9 — Referendum Pamphlet Review Panel

Referendum (Machinery Provisions) Act 1984

1 Subsection 3(1)

Insert:

Panel means a Referendum Pamphlet Review Panel established under subsection 135A(1).

2 After subsection 11(2)

Insert:

(2AA) Members of the Parliament may not authorize an argument in favour of, or against, a proposed law for the alteration of the Constitution for the purposes of subparagraph (1)(b)(i) or (ii), or (2)(b)(i) or (ii), unless:

(a) the argument has been given to the Panel established in relation to the proposed law for its review; and

(b) the Panel has approved the argument.

(2AB) To avoid doubt, the Electoral Commissioner must not arrange for the printing and sending of a pamphlet under subsection (1) or (2) unless the authorizations of members of the Parliament referred to in that subsection are in accordance with subsection (2AA).

3 After Part X

Insert:

Part XA — Referendum Pam phlet Review Panel

135A Establishment of Referendum Pamphlet Review Panel

(1) If a proposed law for the alteration of the Constitution is to be submitted to the electors, the Minister must, by writing, establish a panel to be known as the Referendum Pamphlet Review Panel.

(2) The Minister must ensure that the Panel is established, and members mentioned in paragraph 135C(1)(c) appointed, such that it will have sufficient time to perform its functions in relation to the proposed law for the alteration of the Constitution, taking into account the period within which arguments may be forwarded to the Electoral Commissioner in accordance with subsections 11(1) and (2).

(3) An instrument made under subsection (1) is not a legislative instrument.

135B Functions of the Panel

(1) The Panel has the following functions:

(a) to conduct a review of the arguments in favour, and against, the proposed law for the alteration of the Constitution, which are to be contained in pamphlets referred to in section 11;

(b) to determine what changes (if any) to the arguments the Panel considers should be made to address any concerns of the Panel in relation to the arguments;

(c) to decide whether to approve the arguments;

(d) to do anything else that is incidental or conducive to the performance of any of the preceding functions.

(2) In performing its functions in relation to an argument mentioned in subsection (1), the Panel must only consider matters relating to whether the argument contains:

(a) any statements purporting to be a statement of fact that are:

(i) misleading or deceptive to a material extent; or

(ii) likely to mislead or deceive to a material extent; or

(b) any statements that are reasonably likely to offend, insult, humiliate or intimidate one or more persons on the ground of the persons':

(i) race, colour or national or ethnic origin; or

(ii) sex; or

(iii) sexual orientation, gender identity or intersex status (all within the meaning of the Sex Discrimination Act 1984); or

(iv) age; or

(v) disability (within the meaning of the Disability Discrimination Act 1992).

135C Membership of the Panel

(1) The Panel consists of the following members:

(a) the Electoral Commissioner;

(b) the Parliamentary Librarian appointed under section 38C of the Parliamentary Service Act 1999;

(c) at least 3 persons appointed by the Minister under subsection (2) of this section.

(2) Members of the Panel mentioned in paragraph (1)(c) are to be appointed by the Minister by written instrument.

(3) A person must not be appointed as a member of the Panel under subsection (2) unless:

(a) the Minister is satisfied that the person has appropriate qualifications, skills or experience in fact-checking or culturally appropriate communications; and

(b) the Minister is satisfied that the person does not have any interest, pecuniary or otherwise, that conflicts or could conflict with the proper performance of the person's duties as a member of the Panel; and

(c) the Prime Minister has consulted with the Leader of the Opposition in the House of Representatives about the appointment.

(4) In appointing members of the Panel under subsection (2), the Minister must ensure, to the extent practicable, that:

(a) the members of the Panel mentioned in paragraph (1)(c) are an appropriate mix of persons with the qualifications, skills or experience mentioned in paragraph (3)(a); and

(b) if one or more working groups (however described) were established by or on behalf of the Commonwealth in relation to the development of the proposed law for the alteration of the Constitution—the Panel includes one or more persons who were included in such working groups; and

(c) the Panel includes at least 2 other persons who have extensive experience at a high level in a field of research relevant to the Panel's functions in relation to the proposed law for the alteration of the Constitution.

(5) To avoid doubt, the Electoral Commissioner may not delegate under section 138 the Commissioner's duties as a member of the Panel.

135D Other matters relating to the Panel

(1) The regulations may prescribe matters relating to the Panel, including, but not limited to, the following:

(a) the operation and procedures of the Panel;

(b) remuneration or allowances of members mentioned in paragraph 135C(1)(c);

(c) resignation of members mentioned in paragraph 135C(1)(c);

(d) disclosure of interests by members of the Panel;

(e) termination of appointment of members mentioned in paragraph 135C(1)(c);

(f) leave of absence of members of the Panel.

(2) If no regulations are in force under subsection (1), the operation and procedures of the Panel may be as determined in writing by the Panel.

(3) Subsections 7(9) and (13) of the Remuneration Tribunal Act 1979 do not apply in relation to the office of a member of the Panel mentioned in paragraph 135C(1)(c).

Note: The effect of this subsection is that any remuneration or allowances of a such a member will be paid out of money appropriated by an Act other than the Remuneration Tribunal Act 1973.

I have been in discussions with the government about these amendments. The first one is about simply having an exclusion zone around polling booths. This is done in Tasmania and the ACT. It works very effectively in taking the heat out of polling booths. In my opinion it's a much nicer experience for voters. Given the sensitivity of this referendum and some of the rhetoric we are already hearing, I believe it is a sensible amendment to ensure that people are safe when they're casting their vote.

The amendments on sheet 1815 truncate the disclosure time frame. To me it's frankly ridiculous in 2023 that, six months after an election, we find out who funded it. We have plenty of technology to be able to do that in a much more timely manner. I'm proposing seven days to disclose, seven days to make that public. I understand the government's reason—that they're waiting for JSCEM—but this is something that we know Australians want and something we have the technology to do, and it's disappointing not to have support for a sensible amendment like that.

Finally, a review of the pamphlet arguments—just leaving it up to politicians. We've seen over a number of elections political parties being willing to be very creative with the truth, down to smear campaigns and misinformation. It seems to me that having some sort of independent check on that is a sensible move.