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Monday, 25 February 2013
Page: 661


Senator XENOPHON (South Australia) (11:32): I indicate that I do support in broad terms the measures in the Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012, but I think the bill needs to go further and that is why I will be moving a number of amendments, particularly in relation to issues of transparency. At this stage we are told by the Prime Minister that the election will not take place until Saturday, 14 September but who knows what may happen between now and then? It is not a sure thing, despite what Centrebet or Sportsbet have said about the odds that there will be an election on that day. I think it is more likely than not, but we may find this to be one of the last opportunities we have for some electoral reform. I think it is important that we seize the opportunity, particularly in relation to transparency and in respect of the disclosure of donations, because our current disclosure laws are woefully inadequate.

In respect of the proposals in this bill, I think it is worth reflecting on the simplifying and facilitating of the application of technology to postal-voting arrangements. I welcome that, but I also think it is worth reflecting on what some key stakeholders have said about the current postal-voting arrangements and how these favour incumbents and the major parties. I do not think that is such a good thing in a democracy.

In line with Senator John Madigan's amendment from the DLP, I do have some concerns about the increase in the nomination deposit. I believe it would be beneficial to phase this in, given the nearness of the next election and that is why I will be supporting Senator Madigan's amendment.

Beyond the provisions in this bill, there are serious and significant problems with the Electoral Act itself. I acknowledge the work the government has done in this area so far, but a number of reforms proposed by Senator Faulkner when he was Special Minister of State have not been followed through. I do not blame Senator Faulkner for that. It was because it was delayed in the Senate.

Senator Faulkner: It was not for want for trying.

Senator XENOPHON: I make it absolutely clear that it was not through want of trying—through the disorderly interjection of Senator Faulkner—and it was not through lack of trying. I acknowledge and applaud the work that Senator Faulkner has done on electoral reform as Special Minister of State. We do need to go further. We have an election coming up in the next few months. Senator Joyce, who has just entered the chamber, may know more about this—14 September is the nominal date but who knows whether the election will be held before then.

Senator Joyce: I will tell you later.

Senator XENOPHON: He will tell us later on. In particular, the provisions relating to disclosure of donations are a mess. They are unclear, they are inconsistent and they are almost contradictory. There are loopholes in those provisions big enough to drive B-triple through and that is an area of real concern. I believe that voters have the right to know where candidates, parties and sitting members get their funding from in accordance with appropriate thresholds in respect of donations. It is a basic matter of transparency. Currently the disclosure requirements in the act change depending on whether you are the donor or the recipient, whether the donation is to a party or an individual and whether the donation is 'personal use'. There are many loopholes in what I think is a fundamental part of a democracy. It reminds me of a quote by a man called Mr Hanna who was the campaign director for President McKinley over 100 years ago in the United States. He said there are basically two rules in politics: the first is money and he could not remember the second. I think that basically sums up the importance of getting the transparency provisions right.

For example, parties only have to submit annual returns to the AEC, the Australian Electoral Commission, whether or not there has been an election. Candidates have to submit an election return, but many party endorsed candidates simply state that all their donations went to their party and submit a nil return. Independents once elected do not have to submit another return until they come up for re-election three or six years later. To put it mildly these provisions are a dog's breakfast and it is voters who are forced to eat Chum.

Senator Joyce interjecting

Senator XENOPHON: I am sorry, Mr Acting Deputy President Fawcett, Senator Joyce has been amused by that and is distracting me. Other countries such as the United States and the United Kingdom have much stricter rules about disclosure, including requirements for campaign accounts where each transaction can be tracked. They also have disclosure laws relating to other organisations that accept donations for campaigns on political issues, such as the notorious PACs in the United States. These rules apply across the board and apply to everyone equally—politicians, parties, candidates and other organisations. There have been many attempts to capture and disclose multiple donations made by associated legal entities in other countries, but we are lagging far behind the rest of the world. In a democracy as advanced, as robust and as sophisticated as ours, we ought to be doing better.

To try and address some of these issues I will be moving amendments relating to the time period for donation disclosures. Under these amendments political parties, candidates and members of parliament will have 30 days to disclose donations to the AEC outside an election period. The AEC then has a week to post that disclosure on their website. At the moment we have a situation where, if a donation were made on 1 July 2011, we do not get to find out about it until 1 February 2013, some 19 months after that donation was made. Surely that time lag is simply unacceptable and is not in the interests of a transparent democracy. For instance, in the course of the poker machine reform debate of last year, I think it would have been quite interesting to find out how much money was given by various interest groups from the poker machine lobby, from hotels, from clubs and from others who have key interests, such as Mr James Packer's corporate entities, for instance. It would have been interesting to find out, within a timely manner, what donations they made and not have to wait a number of months until after the dust had already settled in the course of the debate. I think it is legitimate for us to know about that. During an election period parties, candidates and members of parliament will have 24 hours to submit their disclosure to the AEC. The AEC will then have 24 hours to post that disclosure on their website, and there is no reason why we cannot and should not be doing that.

These amendments can also capture aggregate donations where the total amount of more than one donation from the same source exceeds the threshold amount, which is currently in the order of just under $12,000. An offence provision is also included which states that an offence occurs where the disclosure requirements are not met. In this case the Commonwealth may recover an amount equal to the donation or gift, so there is a very real disincentive for not complying with the laws. This is in line with similar offence provisions that already exist in the Electoral Act, so it borrows from our current framework. The intention of these amendments is to bring some clarity and consistency to disclosure. The amendments also make disclosures much more timely which means that voters have access to current information. Postelection disclosures mean that it is all too late and no matter what voters find out there is nothing they can do.

There are many more changes we need to make to this part of the act and these amendments are a start. I note that the government currently has a bill before the Senate that aims to address some of these issues, but I hope we can get some safeguards in place before the next election. We need to get these reforms in place before another cycle passes and the political will of change disappears.

I would like to take this opportunity to thank advisers from the Special Minister of State's office and officers from the AEC who took the time to brief me on the complexities of the act. That was very useful and I am genuinely grateful for, in particular, their professionalism and the impartiality of the Australian Electoral Commission. I think we can be very proud of them on a global basis in terms of the way they conduct themselves. I think—and it is not a criticism of the AEC—they do have one hand tied behind their back under our current legislative framework. They do not have the necessary legislative tools in order to do their job as well as they could because of the inconsistencies, the complexities and the loopholes that exist in our current disclosure laws.

In relation to the issue of postal voting it is worth reflecting on a concern that was expressed by the Democratic Audit of Australia, a major interest group in relation to this. The Democratic Audit of Australia has recommended the repeal of certain provisions of the Commonwealth Electoral Act dealing with the handling of postal vote applications. I am referring to a very good summary in the Bills Digest provided to members of parliament. It says:

In particular the Audit objects to 'the practice whereby political parties harvest postal vote applications and use the party's post box as the return address' for the PVA. The Audit considers that this unfairly favours incumbents and offends the principles of non-partisanship in electoral administration.

…   …   …

The Audit is 'in general support' of the amendments contained in Schedule 2 of the proposed Bill. It also believes that Schedule 3 of the Bill provides for 'important amendments'—although the Audit raises some questions about the scope and qualifications of those whose opinion is to be relied upon concerning a voter's capacity to make a voting decision.

The Democratic Audit of Australia, which, I believe, is well regarded and highly regarded for the forensic work that it does in looking at our electoral system, does recommend the bill. My question to the minister and to the government in relation to this is: to what extent are the concerns of the Democratic Audit of Australia about the practice whereby political parties harvest postal-voting applications and use the party's postbox as a return address for the postal-voting application being dealt with?

I was, as part of a thwarted parliamentary delegation into Malaysia just a few days ago, to look at these matters with my colleagues: Senator John Williams, who was formerly an election observer for the Republic of Georgia's elections late last year; Dr Mal Washer, a highly regarded member of the lower house and a coalition member; and Steve Georganas, a very highly regarded member for Hindmarsh in South Australia and a government member. We were invited to visit Malaysia and look at their electoral system by Bersih, the clean elections movement, the umbrella civil society organisation.

Whatever relatively minor problems we have with postal votes here in Australia are nothing compared to the concerns raised by Bersih in relation to what is happening in Malaysia. I do support this bill; I will be vigorously pursuing amendments for greater transparency because this may be one of the last opportunities we have to fix up issues of transparency in terms of donations.

Ultimately the aim of this bill is to smooth out some of the bumps in our electoral processes, but, given that we are facing another election this year, I believe this is an opportunity to make significant and meaningful changes. Another area of reform in this bill relates to the issue of the nominations to increase from 50 to 100. I note a very interesting submission from Family Voice Australia, which believes that:

… some constraints on the nomination procedure may be necessary to avoid manipulation or abuse of the electoral process. FVA considers that the proposal that, to be grouped, Senate candidates each need 100 unique endorsements, is problematic. FVA argues that groups of between two and four candidates … enjoy 'the privilege of a "group voting square", with much lower endorsement requirements than political parties who require at least 500 members to receive registration.

On the other hand, a group of six or more candidates would be required to deliver 600 or more signatures more than a political party and Family Voice Australia regards this as unfair. In their submission they say that group candidates get the same advantages as registered political parties of an above-the-line box. Registered political parties need 500 current members, and this bill should be amended to require any application for grouping on the Senate ballot paper be accompanied by a total of at least 500 unique endorsements, regardless of the number of candidates applying to be grouped. I think that there is some merit in that.

If we do get an opportunity to revisit the Electoral Act before the election, it would be worth dealing with that. The problem that I faced when I ran as an Independent candidate for the Senate in 2007 is that, whilst I was grouped because I had the requisite 50 signatures, my name or any identifying features were not above the line. It was just box S. That is a real disadvantage for an Independent candidate. I think there ought to be some consideration given. An issue I will take up with the Special Minister of State, the Hon. Gary Gray, as a matter of some urgency is whether there ought to be a mechanism where you can be grouped with a high threshold but have the right to have the name of the candidate or the name of the group you represent above the line. This occurs in South Australia for the Legislative Council, where I think you need only a couple of people to nominate you, but have a stricter requirement of at least 500 people, similar to a political party, but you then have the right to have your name above the line for the group that you represent or the cause that you represent. I think that would be a fair and sensible reform, because it does put Independent candidates at a real disadvantage and I think that is fundamentally unfair in respect of the current rules.

I look forward to discussing the provisions of this bill and the proposed amendments further in the committee stage. There is a lot more that needs to be done, but I do indicate that the priority that I have is to make sure we have much greater transparency in the issue of political donations. I believe that the Australian Electoral Commission with appropriate resources should be able to ensure that there is a much more timely disclosure of political donations, because, quite frankly, the current timelines for political donations are beyond a joke. They lack transparency and robustness, and that is something that we as a parliament have an obligation to remedy in the interests of greater transparency of Australian democracy.