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Thursday, 12 August 2004
Page: 26576


Senator MURRAY (5:59 PM) —I think we will have to go through them one by one, down to the third item on the amendment sheet, because the Australian Greens' amendment is an alternative. After that I would be happy to move them all together.


The TEMPORARY CHAIRMAN —I am sorry but the time for the consideration of the bill has expired, so I am obliged to put them together.

The amendments read as follows—

(1) Schedule 1, page 4 (after line 5), before item 1, insert:

1A After Part IV

Insert:

Part IVA--Equal suffrage-Article 25 of the International Covenant on Civil and Political Rights to apply to elections for the Australian Federal Parliament and for State Parliaments

78A Preamble to this Part

(1) The International Covenant on Civil and Political Rights was opened for signature on 19 December 1966, was signed by Australia on 18 December 1972 and entered into force for Australia (except article 41) on 13 November 1980. Article 25 of the Covenant reads as follows:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

(2) The instrument of ratification which was deposited for Australia with the United Nations on 13 August 1981 contained various reservations and declarations including the following concerning Article 25 of the Covenant:

The reference in paragraph (b) of Article 25 to “universal and equal suffrage” is accepted without prejudice to laws which provide that factors such as regional interests may be taken into account in defining electoral divisions, or which establish franchises for municipal and other local government elections related to the sources of revenue and the functions of such governments.

(3) This Part will enable Australia to fulfil its obligations under Article 25 of the International Covenant on Civil and Political Rights by requiring the laws governing the parliamentary elections of the Commonwealth and the States to conform to that Article of the Covenant with the reservations and declarations made by the Australian Government in the instrument of ratification of the Covenant.

78B Interpretation

In this Part:

Covenant means the International Covenant on Civil and Political Rights as contained in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986.

State includes the Northern Territory and the Australian Capital Territory.

78C The International Covenant on Civil and Political Rights to apply to elections for the Australian Federal Parliament and for state parliaments

(1) Article 25 of the International Covenant on Civil and Political Rights with the reservations and declarations made by the Australian Government in the instrument of ratification dated 13 August 1981 is hereby declared to apply to all elections for the Australian Federal Parliament and for all State Parliaments.

(2) Where for the purposes of electing members of a house of the Federal Parliament or of a State Parliament a State is divided into more than one electorate, the reference in paragraph (b) of Article 25 of the Covenant to universal and equal suffrage is to be construed as permitting a margin of allowance in the number of voters in each electorate, to be used whenever necessary, but in no case shall the margin of allowance be greater than one-tenth more or one-tenth less than the average number of voters in each electorate in that State.

78D Judicial review

(1) An action may be brought under this Part in a court of competent jurisdiction provided that the court shall refer all questions relating to whether the electoral arrangements in any jurisdiction conform to the requirements set out in section 78C to the Electoral Commissioner for investigation and determination.

(2) The Electoral Commissioner may inform himself on any matter in such manner as he thinks fit and may consult with such persons as he thinks fit.

(3) Notwithstanding anything contained in any other law, but subject to the Constitution and to section 39B and Part VII of the Judiciary Act 1903, a determination by the Electoral Commissioner made, or purporting to be made, under subsection (1):

(a) is final and conclusive; and

(b) shall not be challenged, appealed against, reviewed, quashed, set aside or called in question in any court or tribunal on any ground; and

(c) is not subject to mandamus, prohibition, certiorari or injunction, or the making of a declaratory or other order, in any court on any ground.

(4) A determination made, or purporting to be made, under subsection (1) shall be made by instrument in writing.

(5) The Electoral Commissioner shall send a copy of the determination made, or purporting to be made under subsection (1) to the court which referred the matter.

(6) A determination made, or purporting to be made under subsection (1) must be published by the Australian Electoral Commissioner in the Gazette within twenty one days of being made.

78E Application

This Part applies to any State election held more than 6 months after the commencement of the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004.

(2) Schedule 1, item 1, page 4 (lines 6 to 10), omit the item, substitute:

1 Paragraph 93(8)(b)

Repeal the paragraph.

(3) Schedule 1, item 2, page 4 (lines 11 to 16), omit the item, substitute:

2 Subsection 93(8AA)

Repeal the subsection.

(4) Schedule 1, item 3, page 4 (lines 17 to 19), omit the item, substitute:

3 Section 109

Repeal the section.

(5) Schedule 1, page 4 (after line 19), after item 3, insert:

3A Subsection 123(1) (paragraph (b) of the definition of eligible political party)

After “(however described)”, insert “that compiles with the minimum constitutional requirements set out in section 129A and”.

(6) Schedule 1, page 4 (after line 19), after item 3, insert:

3B After section 129

Insert:

129A Party not to be registered unless it meets minimum constitutional requirements

(1) The Commission must refuse an application for the registration of a political party unless, in its opinion, the constitution of the party complies with minimum constitutional requirements set out in subsections (2), (3) and (4).

(2) For the purposes of subsection (1), a constitution complies with minimum constitutional requirements if it provides the following rights and opportunities for each of its members, including members in specified classes of membership, who have complied with any requirements of the party in relation to the payment of fees or subscriptions:

(a) to take part in the conduct of the party's affairs, either directly or through freely chosen representatives;

(b) to freely express choices about party matters, including the choice of candidates for elections, at genuine periodic ballots;

(c) to vote at such periodic ballots by secret ballot;

(d) to exercise a vote of equal value with the vote of any other member in the same class of membership as the member.

(3) For the purposes of subsection (1), a constitution complies with minimal constitutional requirementsif it includes:

(a) the conditions and rules of membership of a political party;

(b) how office-bearers are preselected and elected;

(c) how preselection of political candidates is to be conducted;

(d) the processes that exist for the resolution of disputes and conflicts of interest;

(e) the processes that exist for changing the constitution;

(f) the processes for administration, management and financial management of the political party.

(4) It is also a minimal constitutional requirement for a political party constitution to be:

(a) publicly available in printed form; and

(b) reviewed at least once in every electoral cycle of the political party and altered as required.

Any alterations made in accordance with paragraph (b) are to be notified to the AEC.

(5) Failure to comply with this section makes a political party ineligible to obtain funding in accordance with section 297A.

(7) Schedule 1, page 4 (after line 19), after item 3, insert:

3C After Part XI

Insert:

Part XIA—Supervision of registration of political parties

141A Object of Part

The object of this Part is to provide for the supervision by the Electoral Commission of certain aspects of the operation of registered political parties, for the investigation of complaints that a party has not complied with its constitution, and for the imposition of penalties where there has been a breach of a provision.

141B Complaints

(1) A person may complain in writing to the Electoral Commission that a registered political party has failed to comply with its constitution.

(2) A complaint under subsection (1) must set out particulars of the party's failure to comply with its constitution.

141C Discretion not to investigate certain complaints

The Electoral Commission may decide not to investigate, or not to continue to investigate, a complaint made under section 141B if:

(a) the complainant does not provide particulars under subsection 141B(2); or

(b) the complainant is, or has been, a member of a registered political party and has not first exhausted the procedures available under the party's constitution for the resolution of disputes; or

(c) in the opinion of the Electoral Commission, the complaint is frivolous or vexatious or was not made in good faith.

141D Investigations

(1) Before commencing an investigation under this Part, the Electoral Commission must inform theregistered officer of the political party of the alleged breach of the party's constitution which is to be investigated.

(2) An investigation under this Part is to be conducted in private and, subject to this Act, in such manner as the authorised person thinks fit.

(3) An authorised person may, for the purposes of this Part, obtain information from such persons, and make such inquiries, as it thinks fit.

(4) Subject to subsection (5), it is not necessary for the complainant or any other person to be afforded an opportunity to appear before the authorised person or any other person in connection with an investigation by the authorised person under this Part.

(5) The Electoral Commission must not take any action, as a result of an investigation under this Part, to deregister a political party for non-compliance with its constitution unless the Electoral Commission has afforded the registered officer and the person or persons principally concerned in the matter to which the investigation relates opportunities to appear before the Electoral Commission, or an authorised person, and to make such submissions, either orally or in writing, in relation to that matter as they think fit.

(6) A person who appears before the Electoral Commission under subsection (5) may, with the permission of the Electoral Commission, be represented by another person.

(7) For the purposes of this Part, the Electoral Commission may, by instrument in writing, authorise a person or a person in a class of persons, to perform duties under this Part.

141E Power to obtain information and documents

(1) Where an authorised person has reason to believe that a person is capable of furnishing information or producing documents or other records relevant to an investigation under this Part, the authorised person may, by notice in writing served on the person, require that person, at such place, and within such period or on such date and at such time, as are specified in the notice:

(a) to furnish to the authorised person, by writing signed by that person, or in the case of a body corporate, by an officer of the body corporate, any such information; or

(b) to produce to the authorised person such documents or other records as are specified in the notice.

(2) Where documents or other records are produced to the Electoral Commission in accordance with a requirement under subsection (1) or an order under subsection 141F(1), the authorised person:

(a) may take possession of, and may make copies of, or take extracts from, the documents or other records; and

(b) may retain possession of the documents or other records for such period as is necessary for the purposes of the investigation to which the documents or other records relate; and

(c) during that period shall permit a person who would be entitled to inspect any one or more of the documents or other records if they were not in the possession of the Electoral Commission to inspect at all reasonable times such of the documents or other records as that person would be so entitled to inspect.

For the purposes of this subsection a person entitled to inspect a document includes a person from whom the document has been obtained.

(3) Where the authorised person has reason to believe that a person is able to give information relevant to an investigation under this Part, the authorised person may, by notice in writing served on the person, require the person to attend before a person specified in the notice, on such date and at such time and place as are specified in the notice, to answer questions relevant to the investigation.

(4) Notwithstanding the provisions of any enactment, a person is not excused from furnishing any information, producing a document or other record or answering a question when required to do so under this Part on the ground that the furnishing of the information, the production of the document or record or the answer to the question:

(a) would contravene the provisions of any other enactment; or

(b) might tend to incriminate the person or make the person liable to a penalty; or

(c) would be otherwise contrary to the public interest;

but the information, the production of the document or record or the answer to the question is not admissible in evidence against the person in proceedings other than:

(d) an application under subsection 141F(1); or

(e) proceedings for an offence against section 315.

(5) A person is not liable to any penalty under the provisions of any other enactment by reason of his or her furnishing information, producing a document or other record or answering a question when required to do so under this Part.

(6) The reference in subsection (1) to an officer, in relation to a body corporate, being a body corporate that is not a prescribed authority, includes a reference to a director, secretary, executive officer or employee of the body corporate.

141F Powers of Federal Court of Australia

(1) Where a person fails to comply with a requirement made by an authorised person by notice under section 141E to furnish information, to produce documents or other records or to attend before an authorised person to answer questions in relation to an investigation under this Part, the Electoral Commission may make an application to the Federal Court of Australia for an order directing that person to furnish the information, or to produce the documents or other records, at such place, and within such period or on such date and at such time, as are specified in the order, or to attend before the Electoral Commission to answer questions at such place, and on such date and at such time, as are specified in the order, as the case may be.

(2) The Federal Court of Australia has jurisdiction with respect to matters arising under this section in respect of which applications are made to the Court.

141G Complainant and registered officer etc. to be informed

(1) Where the Electoral Commission does not, for any reason, investigate, or continue to investigate, allegations that a registered political party has failed to comply with its constitution in a material particular, the Electoral Commission must, as soon as practicable and in such manner as the Electoral Commission thinks fit, inform the complainant and the registered officer of the political party concerned, of the Electoral Commission's decision and of the reasons for that decision.

(2) Where the Electoral Commission completes an investigation of an allegation that a registered political party has failed to comply with its constitution in a material particular, the Electoral Commission must, in such manner and at such times as it thinks fit, furnish to the complainant and to the registered officer of the political party particulars of the investigation.

(3) The Electoral Commission may, if it thinks fit, furnish comments or suggestions with respect to any matter relating to or arising out of an investigation under this Part to the registered officer of any registered political party.

141H Power to examine witnesses

(1) An authorised person may administer an oath or affirmation to a person required to attend before it in compliance with section 141E and may examine the person on oath or affirmation.

(2) A person before whom another person (in this subsection called the respondent) attends in compliance with a notice under subsection 141E(3) may:

(a) administer an oath or affirmation to the respondent; and

(b) examine the respondent on oath or affirmation.

141I Power to enter premises

(1) For the purposes of an investigation under this Part, an authorised person may, at any reasonable time of the day, enter any place occupied by a registered political party and may carry on the investigation at the place.

(2) For the purposes of an investigation under this Part, an authorised person is entitled to inspect any documents relevant to the investigation kept at premises entered by him or her under this section, at a reasonable time of the day arranged with the registered officer of the registered political party concerned.

(3) Subsection (2) does not restrict the operation of section 141E.

Part XIB—Selection of candidates by registered political parties

141J Ballots for candidate selection may be conducted by Electoral Commission

(1) At the request of a political party, any ballot for the selection by a registered political party of candidates to stand for elections covered by this Act may be conducted by the Electoral Commission and a returning officer shall be appointed by the Commission for that purpose.

(2) The regulations may prescribe the method of candidate selection to be used by registered political parties.

141K Certificates under this Part

Where the Electoral Commission has conducted a ballot for the selection of a candidate by a registered political party, the Commission must issue a certificate to that effect.

(8) Schedule 1, page 4 (after line 22), after item 4, insert:

4A After section 297

Insert:

297A Payment not to be made unless certain conditions met

(1) A payment under this Division must not be made in respect of votes given in respect of:

(a) a candidate or candidates endorsed by a registered political party; or

(b) for a Senate election—a group where members of the group were endorsed by one or more registered political parties;

unless the Electoral Commission is satisfied that the constitution of the registered political party complies with the requirements set out in subsection (3).

(2) For the purposes of subsection (1), a registered political party must provide the Electoral Commission with a copy of its current constitution at the request of the Commission.

(3) The requirements of this subsection are as follows:

(a) the requirement that the voting members of the executive committee of a registered political party are elected only by financial members of the party;

(b) the requirement that a financial member of a registered political party is entitled to exercise a vote of equal value to the vote of any other financial member in the party or—if the party's constitution provides for different classes of membership—in the same class of membership as the member.

(4) Paragraph (3)(b) does not apply to the representation on the executive committee of:

(a) the parliamentary members of the party; or

(b) previous members of the executive committee of the party [in an ex officio capacity].

(5) In determining whether the constitution of a registered political party complies with the requirement set out in paragraph (3)(b), the Electoral Commission is to disregard the following:

(a) any difference in the size of the States and Territories of the Commonwealth, based on the number of electors enrolled in each State and Territory;

(b) any difference in the number of members enrolled as members of a registered political party in each State and Territory;

(c) any provision made in the constitution of the registered political party for the representation on the executive committee of members representing any affirmative action target groups or the designated youth sector of the party.

(6) For the purpose of this section, a financial member of a registered political party means a member who, if the constitution of the party requires a member to pay dues in relation to the person's membership of the party, has paid any dues that are payable and includes life members, patrons or honorary holders of positions in the party.

(9) Schedule 1, page 4 (after line 22), after item 4, insert:

4B After section 306B

Insert:

306C Foreign donations prohibited

It is unlawful for a political party or a State branch of a political party or a person acting on behalf of a political party or a State branch of a political party to receive a foreign gift, donation or disposition of property originating by whatever means from a foreign source.

306D Forfeiture of foreign donations

For the avoidance of doubt, where a foreign gift, or disposition of property is made to a political party or a State branch of a political party or a person acting on behalf of a political party or a State branch of a political party, the foreign gift is presumed to be in breach of section 305C and is to be dealt with accordingly.

Note: For strict liability, see section 6.1 of the Criminal Code.

306E Donations by non-citizens resident in Australia lawful

A donation in Australia to a political party by a person who is a non-citizen resident in Australia is not a foreign donation for the purposes of section 306C or 306D.

306F Donations by Australians living abroad lawful

A donation by a person registered on a Commonwealth Electoral Roll living overseas is not a foreign donation for the purposes of section 306C or 306D.

(10) Schedule 1, page 4 (after line 22), after item 4, insert:

4C After section 320

Insert:

320A Publication of returns of donations

(1) The Electoral Commission is to publish free of charge on its website all returns kept by it in accordance with subsection 320(1).

(2) Publication by the Electoral Commission on its website is to occur at the same time as the returns are made available under subsections 320(4) and (5).

(3) Subject to subsection (2), all returns are to be published on the website quarterly.

(11) Schedule 1, page 4, (after line 22), after item 4, insert:

4D After section 326

Insert:

326A Donations with strings attached prohibited

It is unlawful for a grant, donation, gift or gift in kind to be given to a candidate or a political party if that grant, donation, gift or gift in kind is made for the purpose of:

(a) soliciting the candidate's or the political party's support for a particular purpose or course of action;

(b) colluding with the candidate or the political party to secure the candidate's support or the political party's support for a particular purpose or course of action;

(c) causing the candidate or the political party to take a decision in his or her or the party's official capacity once elected;

(d) bribing the candidate or the political party or causing the candidate or political party to act in a corrupt manner once elected.

Note: Bribery or corruption is defined in section 326 of the Commonwealth Electoral Act 1918.

Penalty: In the case of an individual—30 penalty units.

In the case of a political party—300 penalty units.

(12) Schedule 1, page 4 (after line 22), after item 4, insert:

4E Section 394

Repeal the section.

(13) Schedule 1, item 5, page 4 (lines 23 to 26), omit the item, substitute:

5 Clause 9 of Schedule 2

Omit “but not serving a sentence of imprisonment (within the meaning of subsection 93(8))”.

(14) Schedule 1, item 6, page 4 (line 28) to page 5 (line 4), omit the item, substitute:

6 Clause 9 of Schedule 3

Omit “but not serving a sentence of imprisonment (within the meaning of subsection 93(8) of the Commonwealth Electoral Act 1918)”.

Schedule 1, item 1, page 4 (lines 6 to 10), omit the item, substitute:

1 Paragraph 93(8)(b)

Repeal the paragraph.

Schedule 1, item 3, page 4 (lines 17 to 19), omit the item, substitute:

3 Section 109

Repeal the section.

Schedule 1, item 1, page 4 (line 8), omit “3”, substitute “5”.

Schedule 1, item 2, page 4 (lines 11 to 16), omit the item.

Schedule 1, item 3, page 4 (line 19), omit “3”, substitute ”5”.

Question negatived.

Bill agreed to.

Bill reported without amendment.