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Joint Committee on Electoral Matters
The 1998 federal election
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Joint Committee on Electoral Matters
Mr LAURIE FERGUSON
The 1998 federal election
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Content WindowJoint Committee on Electoral Matters - 24/08/99 - The 1998 federal election
CHAIR —I welcome Senator Andrew Bartlett from the Australian Democrats to today's public hearing. Being a member of this committee, you are aware that the evidence you give at the public hearing today is considered to be part of the proceedings of parliament. Accordingly, parliamentary privilege applies. You know the other aspects in relation to misleading the committee. The committee has received your submission No. 207 and it has been authorised for publication. Are there any corrections or amendments that you would like to make to that submission?
Senator Bartlett —No.
CHAIR —In that case, would you like to make a brief opening statement? I will then invite members to ask questions.
Senator Bartlett —Firstly, the Democrats thank you for the opportunity to build on our submission to the committee. I could have given evidence in Brisbane the other day, but it is probably best that I separate myself from them so that you do not confuse the messages.
Some of the matters in here are ones that I am sure will be familiar to all people on the committee. Probably all of you would be aware of the ones the Democrats have been highlighting for a number of years, such as truth in political advertising, office of profit under the Crown, dual citizenship under section 44 of the Constitution and the voting rights of prisoners. I will not go into them again. I put them in there to re-emphasise our party's view that they are ones that we continue to give importance to. Indeed, we have not put in a number of others which we have pursued over time. However, just because they are not there does not mean that we are still not interested in pursuing them. They include phasing out, banning or modifying the use of how-to-vote cards, for example.
I want to make a few brief comments on a newer area. I believe that it is worthwhile for the committee to examine and consider the options regarding it. Firstly, I draw brief attention to the section dealing with disclosing donations and expenditure. I highlight the recommendation about disclosing large donations within a short time rather than leaving it for 12 months. We are concerned about people getting large donations leading into an election that are not disclosed prior to the election and which only become public down the track. We believe that there has been a lot of focus on issues regarding the disclosure of donations and other advances over the last decade or so. There is greater openness in that regard. We believe that, in the interests of openness and accountability as well as public confidence in the political system, it is important for the parliament to continue to examine ongoing improvements in that area.
The main area I would like to comment briefly on is the initial section of our submission, which deals with regulating political parties. This inquiry is looking at the conduct of the 1998 federal election. To some extent, this is not being raised as something that was perceived as a problem in the election. We believe that it may be a problem down the track. It may be worth examining in terms of some preventative mechanisms.
Members would be aware of the recent publicity in relation to the One Nation political party's registration problems in Queensland. That was obviously under a different act. The requirements in Queensland are that people have 500 members or a member of parliament in Queensland, which One Nation did not have at the time they were registered. The Democrats in Queensland are only able to be registered because of their 500-plus membership. We do not have any members in the state parliament there. That is different from the federal act, which allows you to be a parliamentary party if you have a member in any parliament at state, territory or federal level.
The issue was obviously the genuineness of the members claimed to be had by that party. That issue is relevant at federal level and not only for One Nation—they have a member of parliament; they do not need to have 500 members—but also for other parties that are registered but which are not parliamentary parties. As members of the committee would know, there is quite a large number of them.
Our concern is the adequacy of initially checking whether or not there are 500 genuine members with the party and then checking on an ongoing basis whether or not the party retains 500 members over time. A number of parties registered under the Electoral Act have been registered for quite some time. Without having any specific individual evidence—I would not want to cast aspersions without any evidence to prove it—I would find it difficult to believe that they would retain 500 members. If they do, I think it appropriate that they be required to demonstrate that on a regular basis. Otherwise, once a party has managed to get registration, they basically then have ownership of that name and are able to utilise it over time.
I also draw parallels with the New South Wales upper house situation. Again, as members would know, a large number of parties were registered. Over 80 were standing in the upper house there. Obviously, the motivation was the very low quota of 4[half ] per cent. I remind members, of course, that in the event of a double dissolution the quota for a Senate seat here is about 7.7 per cent. We have had people elected to the Senate on primary votes of between two and three per cent a couple of times in the past. When you get to those sorts of figures, the potential to garner even half a per cent by virtue of having ownership of a particular political party's name potentially becomes significant. We believe it is important that people not be able to gain registration of a name without being a valid political party.
Building on that, another issue is how a political party is defined. Political parties are barely mentioned in our Constitution and are not particularly or significantly regulated compared with most other organisations in Australia. However, they are obviously organisations that can have an extremely influential role. We have suggested some extra requirements for political parties to have in their constitutions so that there can be some basic requirements for a party to meet in the same way as incorporated associations or other bodies have to meet legal requirements.
Currently, as I understand it, a party to be registered just has to present a constitution. There are no requirements as to what is contained in it. Again, some of the parties registered in the New South Wales state election had fairly minimalist constitutions, to put it mildly. So we believe that those areas should be explored.
Another loophole is that the same group of 500 people could potentially register more than one party name, because there is no limitation on people belonging to one party. We are not suggesting that people be prohibited from belonging to more than one party, if that is the way a party wants to structure itself. However, the same person should not be able to be counted more than once in that number of 500 with different names. Otherwise, again, you could easily have 500 people, even assuming that that number were legitimate, who could then lay claim to a limitless number of labels.
This leads to a final point about the party name itself. I have used the example in the submission of the Animal Liberation Party in New South Wales, which was set up despite having no connection or involvement with the existing Animal Liberation organisation. There is the potential for misrepresentation or passing off in registering a name for a political party. It can imply an association with an existing group that is not a real association. Currently, as I understand it, the main ground for objection to a registration of a name is if it leads to confusion with an existing political party but not with any other organisation.
Precisely how that could be done is an issue that needs to be explored. It would be difficult to have a blanket requirement that you had to prove your name related to your objective. Otherwise you would have people saying that the Liberal Party could not be called Liberal because they are not really liberal, Labor are not really about labour any more and that the Democrats are not really democratic; there would be proposals like that. I am not suggesting that you have to prove some sort ideological parity with your party name. There could possibly be some grounds for objection by existing organisations which feel that someone is registering a name that implies an association with them which is false. It is an area that certainly should be explored.
Those sorts of issues are the ones that we have tried to emphasise in our submission about the registration of political parties. We do not see it as an area that has been a problem to date at the federal level. We certainly think it has been a problem at state level in a couple of instances. It has the potential to be a problem at the federal level. We could examine some of those loopholes before it becomes a problem. Similarly, there is the issue of the structure of political parties and making them a bit more accountable. Their internal affairs need to be a little more regulated so that at least there are some basic principles they have to follow. That is the main thrust of the submission that the Democrats want the committee to consider.
CHAIR —Thank you, Senator Bartlett. With regard to truth in political advertising, have you got any evidence about the operation of the South Australian act, such as where it has been used, where it has been tried to be used, where it has been effectual and where it has not been at all?
Senator Bartlett —My main understanding of the South Australian act is that it has been in place for a little while now. It has been tested in the courts in relation to one incident which, I think from memory, was from the last South Australian state election. It related to, if I recall correctly, misleading statements made by a candidate, who may have been a Liberal candidate, about the Democrats. Certainly, it was used. Some of the suggested potential problems with it, such as cutting across the implied constitutional right to freedom of speech that the High Court found a little while ago, were not found to be problems. From
our view, it was tested and operated acceptably. In that sense, it has a run or two on the board. For that reason, if for no other, it is worth modelling any similar legislation at federal level rather than trying to go down another path.
CHAIR —It is only that one circumstance that you are aware of?
Senator Bartlett —That is the only one I am aware of, yes.
CHAIR —I thought there was a very different one.
Senator Bartlett —Since it came in in South Australia, that is the main one I am aware of.
CHAIR —Having the South Australian Electoral Commission as the appropriate body to administer it has not caused a problem?
Senator Bartlett —Not to my knowledge. As I say, it was used, and some action was taken on it. There have not been any changes made to the act since then as a result of any problems that I am aware of. I will double check that with our South Australian parliamentarians, but that is my understanding of it.
CHAIR —Your submission deals with the provisions in section 44 of the Constitution. What is your view of the Labor Party's submission that the office of profit exclusion should take place only from the time a member's term starts rather than from nomination? Would the Democrats support that?
Senator Bartlett —That is one workable approach that could be taken. People could nominate and just automatically cease to hold the office of profit once they are declared elected. That is a workable approach. The main aspect that we believe needs to be addressed is removing what we see as an unfair discrimination against what is obviously a significant minority of the population who are working in the public sector. They hold an office of profit and have an extra disincentive in trying to run for parliament.
Mr SOMLYAY —Does that proposition not reverse the situation as it is now? If you are a member of parliament, you cannot have an office of profit?
Senator Bartlett —That is right.
CHAIR —You also cannot nominate while you hold that position. That is why people have to resign. If they do not win, they run the gauntlet of being reinstated. Some governments have made it quite clear that people will be automatically reinstated, but others have not. Even where there is automatic reinstatement, you are not necessarily guaranteed of the same job.
Senator Bartlett —There is that issue. However, particularly for those running in smaller parties, who realise that their chances of success are fairly minimal—they could be lower down on Senate tickets or whatever—there is also the financial penalty of having to go without five weeks pay. That is not insignificant to a number of people.
Senator FAULKNER —I noted the section of your submission on disclosing donations and expenditure and the three substantive recommendations you make. In a general sense, would you be willing to indicate to the committee that it is the view of the Australian Democrats that the current disclosure provisions of the act should not be watered down in any way? Appreciating that you want to extend the provisions as you outlined, I assume you would not want to see any weakening of the act in this area. Is that assumption reasonable? I think it is fair, from reading your submission, but I thought we might hear from you on it.
Senator Bartlett —It probably depends how you define `watering down' or `weakening'. In broad terms, if it reduced transparency, in most circumstances it would be interpreted as a watering down or weakening. There would need to be very strong arguments in favour of it.
Senator FAULKNER —I will use the terminology `increasing disclosure thresholds'. The parliament has been considering that in recent times. That did not appear to find the favour of the Democrats in the Senate when it was most recently dealt with. Is it still a position that the Democrats warmly embrace?
Senator Bartlett —It would depend on the extent of it, basically, in terms of disclosure thresholds.
Senator FAULKNER —So you might embrace increasing a disclosure threshold?
Senator Bartlett —It would depend on the specific proposal. Increasing a disclosure threshold by $500 is very different from increasing it by $20,000, for example. So it would depend on the justification for it. Similarly, changes were made a few years back which in a political sense could have been described as a watering down of the disclosure requirements. That was basically done because the administrative burden of having to declare every ticket in a chook raffle or a vegie tray raffle was seen to be unreasonable. People could have portrayed that as a watering down. In our view, it was a good argument as long as the fundamental principles were still contained within the act.
Senator FAULKNER —You say that watering down is in the eye of the beholder?
Senator Bartlett —I suppose that everything is in the eye of the beholder. There is always a grey area somewhere on a line as to where it moves into that territory. Obviously, you can clearly define something as being well and truly into the watering down territory. You can argue about where the line is.
Senator FAULKNER —But could you not sail the Queen Mary through your recommendation 2.1(b), which talks about receiving donations from trusts or foundations? I understand the point that you are getting to, but here you state:
(b) One of the key screening devices for hiding the true source of donations is the use of Trusts.
That is fair enough. You then say:
Political parties that receive donations from Trusts or Foundations should be obligated to return the money unless the following is fully disclosed:
This goes to an issue that has been the subject of debate in recent times. Some have tried to argue about foundations like the Greenfields Foundation. They say, `We are not actually talking about donations. We are talking about loans, debts or something else.' This may not be tight enough. Have you got any concerns about that?
Senator Bartlett —I would not suggest that what is proposed here would solve every potential problem. It is just another option that we are putting forward for consideration. We are not saying that other approaches may not also be appropriate or necessary in addition to or separate from what is here.
Senator FAULKNER —I agree about hiding the true source of donations through the use of trusts. As you probably know, I have argued as strenuously as I can for strengthening the provisions relating to associated entities. But you have seen a lot of attempts to skirt around these sorts of things in recent times. Some political parties have redefined donations into loans, debts or the like. I am not arguing that the spirit of what you are saying is not reasonable. However, you are dealing with some pretty shady characters here. You have to be on your toes, haven't you?
Senator Bartlett —Without necessarily knowing whether or not any characters are shady, it is important to be on your toes in ensuring that the provisions do not have significant loopholes. That is partly so that they do not get abused and, equally importantly, for public confidence in the system, which I think is very important.
Senator FAULKNER —The thrust of what you are saying is that you want to get behind some of these donations or entities to really find out who is fronting up with the money. Isn't that basically the spirit of what you are saying?
Senator Bartlett —Yes. That is basically correct. There are a number of principles behind why political parties across the board have agreed over time for greater disclosure. One is so that the public can have some idea of where the money is coming from and draw their own judgment from that. Using front organisations as a screen cuts across that principle.
Senator FAULKNER —A club might have 20,000 or 50,000 members. How do you envisage dealing with that situation? It is a little different from something like the Greenfields Foundation, which is an open and shut rort, as we know.
CHAIR —Unlike union donations!
Senator FAULKNER —Exactly. I agree with you; absolutely unlike union donations. They are up front; we know where they come from. I am glad you support me on that one, Mr Chairman. Let us say that a club with 20,000 members makes a donation to either the Liberal Party, the Labor Party or the Democrats. How do you deal with this situation? You made the point before about aggregation and changes to disclosure provisions to deal with that sort of thing. That really goes to individual donations, I suspect. But some of these things become tough, don't they? How do you approach it? Where do you draw the line? How vigilant do we need to be?
Senator Bartlett —I suppose there is always going to be an argument about how watertight you can make anything. If it is from a club, for example, there needs to be an indication of the nature of that club. It is similar to the issues outlined in relation to trusts. I do not know whether it is completely appropriate to have exactly the same requirements there. Basically, there needs to be some indication that it is a bona fide donation rather than being used as a front.
Senator FAULKNER —Is it fair to say that some entities are established for the purpose of avoiding disclosure? Others might be longstanding and different in their nature. A long-established sporting club is probably a good example. Its intention would hardly be to subvert the electoral laws of the land. Aren't these the sorts of balances that we have to deal with in the parliament?
Senator Bartlett —They are some of the issues you have to balance. It is reasonable to suspect that some bodies are established specifically for that purpose. It may also be that bodies or structures which are already established may then be used for that purpose as well. They do not have to be set up specially for that purpose. Once they are there, they could possibly be used in that way.
Mr FORREST —The early part of your submission talks about regulating political parties. It makes reference to the way that the One Nation Party manages its affairs. I assume that your submission was prepared before the events of the last few weeks. You are suggesting that in some way the Electoral Act is broken and that it needs to be fixed to provide proper management of the internal affairs of political parties. Given the recent court decisions, are you still of the view that the committee ought to be recommending changes, or are you now satisfied that some regulation does exist?
Senator Bartlett —This was prepared before the outcome of the One Nation situation in Queensland was known. I think the court cases were already under way. I still think there are issues that should be examined. Firstly, the One Nation court case relates to Queensland electoral law. I was involved in a party capacity when the Democrats sought and gained registration in Queensland under state electoral law in 1995, from memory. From my recollection, you had to send the names and addresses of at least 500 members to the State Electoral Commission. They actually did direct checking with a significant proportion of those people. I assume they still did that with One Nation. The issue there was whether people were actually members rather than whether the names were false.
I do not know whether the Australian Electoral Commission follows the same procedure for people who register at federal level. Obviously, that has not been an issue for the Democrats. We are a parliamentary party, so we do not need to provide any membership names. That is something that needs to be established, for starters. I assume that happened in Queensland but not adequately in terms of determining whether or not people were actually members.
As we have indicated here, even if it is done properly, it does not then deal with the problem of ensuring that the party retains its 500 members. Given the advantages that people have under the federal Electoral Act by being able to be registered as a political party, we believe it is important that those advantages are not retained without at least some
demonstration that the advantages have been earned and that they are a legitimate political party. The public probably has some expectations about what constitutes a legitimate political party.
We think it is appropriate that the Electoral Act be strengthened to ensure that public expectations are reflected in reality. It is probably worth re-emphasising that formalising the concept of a political party in legislation is relatively recent. I may be wrong, but I suspect that it was not detailed in the Electoral Act until it was agreed to put party names on ballot papers and public funding was provided and issues such as that came along. Parties had to be able to be registered so that you could figure out where the money went to and who was nominating candidates, et cetera.
In many ways, whilst we have had political parties for 100 years, we have not had them detailed in electoral acts for a terribly long time. Particularly given that significant amounts of public funding can now be provided, above the line voting in the Senate enables someone that has a party name to channel preferences in a particular way. The significant advantages in being a political party need to be given only to people in legitimate political parties.
Mr FORREST —That is not my problem now. I am wondering about recommending changes to the Electoral Act. Perhaps there could be a stronger role by the Electoral Commission in the management of registration of political parties rather than legislative changes.
Senator Bartlett —We are suggesting some basic amendments to the Electoral Act to strengthen the requirements of the Electoral Commission to check the validity of people's registration. They need to repeat that procedure on a regular basis; we suggest that it be after each federal election. A person should only be able to be counted once as a member of a party rather than be used to register a number of names. Some basic principles need to be contained within a constitution of a political party. If a body is going to portray itself as a real political party, we think it should meet some fundamental structural requirements.
We think the Electoral Commission is best placed to oversee that. Those controls are not there at the moment. Whilst we are not saying that the act is broken in the sense that it has been a problem to date at the federal level, we believe it potentially can be a problem. These sorts of measures would prevent them.
Mr FORREST —Mr Chairman, will we have the AEC back?
CHAIR —We have one more hearing with the AEC. I will ask a question on behalf of Senator Murray, who had to go. This is a bit unusual. At recommendation 1.3(f), you mention what the key constitutional principles of the political parties should include. There is then a series of dot points. Senator Murray wanted to know whether it is the Democrats' intention that they just be the areas to be covered in the constitution of the party and that they are not to be prescriptive. Will they not be details where the AEC will insist on parts of it? Are they designed to be the areas included in the constitution provided? Is that correct?
Senator Bartlett —Yes. That is how I would see it. We would not want to be seen to be telling people how they have to structure themselves as a political party. The Democrats like
to structure themselves in a way that other parties may well see as a particularly strange way to structure yourself. They may think it best to go completely differently. But I think that is so for particular issues, such as the definition of what constitutes a member of the party. If you have to prove that you have 500 members in your party, it seems pretty fundamental that you define what a member is in your constitution.
There was an allegation that a number of the parties in New South Wales used the names of people who had just signed petitions. They did not realise, basically, that they were being put forward as a member of a political party. Some of those fundamental things, such as actually defining what is a member, are quite reasonable. How parties decide to do that is up to them.
CHAIR —A variety of people have found themselves members of various political parties that they did not know about. I do not think anybody will have a real problem with tightening some of those things.
Senator Bartlett —The reverse applies as well. This is probably the One Nation example, without beating up on them. Quite possibly a number of people thought they were members and actually were not. There has obviously been some public debate about what actually constitutes a member of that organisation. I think that is important from the reverse angle as well.
CHAIR —On my own behalf, I want to ask you a couple of things. You recommend that donations over $10,000 be disclosed to the AEC within a short period. I am not sure what you refer to as a short period. What do you expect the AEC to do with that? Are they going to be constantly making this information available to the public? What is the point of disclosing it to the AEC if it is not going to become public? I think most political parties would get donations throughout the year. Presumably more money comes in when an election comes around. There would be money coming in on a regular basis. They would be constantly reporting figures over $10,000. The AEC would be constantly disclosing it. Administratively, it seems like a bit of a nightmare.
Senator Bartlett —The workability of it, I guess, is something that the AEC may comment on in terms of it being made public. That is obviously the main purpose of it. The recommendation says that it be disclosed so that it can be made public. It may be quite workable these days. The definition of `made public' could simply be on the Internet or something like that so that it does not require publication and postage and vast reams of paper around the place. We have not gone into great detail there because I think it could work in a number of different ways. It is meant to apply to donations of a fairly significant size. From the public point of view, they are ones where there would be legitimate public interest in knowing that a very sizeable single donation has been made to a political party.
It may just be that every month a party has to declare donations above a significant size. I do not, sadly, have much experience with regular, huge donations coming to my party. I do not think it would be a massive administrative burden in terms of the regularity of those donations.
Mr DANBY —The Labor Party has proposed to amend section 44. It will apply exclusion from office from the start of a date of a member or a senator's term of office rather than the date of nomination. I understand in general terms from what you are saying and from the submission that the Democrats favour that. Is there a specific attitude you have that you could tell us about now?
Senator Bartlett —It is an issue that has been looked at any number of times and reported on. I think it has been even recommended many times as well without any action actually being taken at the legislative level. We have outlined a recommendation that came from the 1998 Constitutional Convention. I do not think the approach you have mentioned is a problem. I think it is quite workable. It addresses the fundamental problems that exist with the section of the Constitution as it stands.
Mr DANBY —In the Senate debate on the republic referendum and the presidential nomination bills, did you support that amendment being included with regard to a prospective President?
Senator Bartlett —That they not be able to hold an office of profit?
Mr DANBY —This similar change to one of the people who could be nominated? That was one of the recommendations of the joint select committee.
Senator Bartlett —I did not have carriage of that bill. I really cannot recall precisely what we did or did not do on that.
Mr DANBY —Maybe we will talk about it privately some time. I would be interested to know.
Senator Bartlett —The main thing that should apply is that the qualification requirements be the same for the President.
Mr DANBY —Across all public offices.
Senator Bartlett —So there is consistency. The office of profit provision is obviously a major problem. It has been identified as such for years.
CHAIR —Would that require constitutional change or legislative change?
Mr DANBY —Constitutional change.
CHAIR —In the case of the President, it may not. It could be done by legislation.
Mr DANBY —My understanding is that the joint select committee recommended it. It should be in one of the bills and not just lost as that little issue at the end of the process.
CHAIR —Finally, in relation to the voting rights of prisoners, what do you say to people who say, `If somebody has committed a crime against the community, we are going to take
away certain rights as punishment for that crime. Why shouldn't those rights that are taken away include the right to vote'?
Senator Bartlett —I would say to them that I can understand the rationale.
CHAIR —Why is it any different from any of the other rights that are taken away?
Senator Bartlett —I can understand their rationale but I do not support it. I think it is a fundamental right of a member of society. It is an additional penalty that is on top of the one provided by the court. I do not see any logical connection between the right to vote and the commission of specific offences. I understand the rationale that people have when they put forward that argument, but the Democrats do not support it.
CHAIR —So you understand the argument but you just do not support it?
Senator Bartlett —I understand it, but I think it is wrong.
CHAIR —It could be promoted as an additional reason why people might not commit crime.
Senator Bartlett —They will not rob a bank because they will not be able to vote next week. It could be promoted that way. We are getting into arguments about the various motivations for imprisonment, et cetera.
Senator MASON —Is it a fundamental citizenship right?
Senator Bartlett —We believe that it is. It is also counterproductive. We need to maximise people's ability to reintegrate into society. Whilst I would not put it up there as the major issue, I think it is part of keeping people connected to society and making rehabilitation easier. There are issues about the differences for people who get sentenced for a year where there is no election and people who are sentenced over a longer period where there is a state election, a federal election or a local government election; these latter people miss out on three chances to vote, so they get penalised more than someone else.
Mr SOMLYAY —In Queensland, they would have to vote absentee.
Senator Bartlett —It is just a matter of principle.
CHAIR —We could argue about it all day. Many would say that in allowing people the right to vote you are saying, `Irrespective of how you abuse the community, we will still allow you the opportunity to elect the community's leaders.' It is just incongruous to many people that that circumstance should occur.
Senator Bartlett —At the same time, many people find it incongruous, particularly when you are looking at different penalties in different states for various crimes. You get inconsistencies there. As we put in the submission, there are universal human rights and universal suffrage issues.
Mr LAURIE FERGUSON —We might see it, Mr Chairman, as cutting the ties of mutual obligation.
CHAIR —We will close the hearing there. Thank you very much, Senator Bartlett, for appearing today.
Resolved (on motion by Mr Forrest ):
That this committee authorises publication, including publication on the parliamentary database, of the proof transcript of the evidence given before it at public hearing this day.
Committee adjourned at 1.53 p.m.