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Electoral (Greater Fairness of Electoral Processes) Amendment Bill 2007 [2008]

Schedule 1 Amendments relating to political governance

Commonwealth Electoral Act 1918

1  Subsection 4(1)

            Insert:

person includes a trading or financial corporation within the meaning of paragraph 51(xx) of the Constitution, or a person acting on behalf of such a trading or financial corporation.

2  Subsection 123(1) (definition of eligible political party )

            Repeal the definition, substitute:

eligible political party means a political party that:

                     (a)  either:

                              (i)  is a Parliamentary party; or

                             (ii)  satisfies minimum membership requirements; and

                     (b)  is established on the basis of a written constitution (however described) that sets out the aims of the party; and

                     (c)  complies with the minimum constitutional requirements set out in section 129A.

3  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 the constitution of the party complies with minimum constitutional requirements set out in subsections (2) to (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, subscriptions or membership:

                     (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 minimum constitutional requirements if it includes:

                     (a)  the aim of contesting a federal election;

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

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

                     (d)  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;

                     (e)  how office-bearers are nominated and elected;

                      (f)  how selection of political candidates is to be conducted;

                     (g)  the processes for the resolution of disputes and conflicts of interest;

                     (h)  the processes for changing the constitution;

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

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

                     (a)  publicly available in printed and electronic form; and

                     (b)  updated at least once in every electoral cycle and the update is provided to the Electoral Commission.

             (5)  A registered political party must provide the Electoral Commission with a copy of its current constitution at the request of the Commission.

             (6)  Paragraph (3)(c) 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).

             (7)  In determining whether the constitution of a registered political party complies with the requirement set out in paragraph (3)(c), 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 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.

             (8)  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.

4  Subsection 141(1) (at the end of the definition of reviewable decision )

Add:

               ; or (f)  to not investigate a complaint under section 141C.

5  After Part XI

Insert:

Part XIA Scrutiny of registered political parties

141A   Object of Part

                   The object of this Part is to provide for the scrutiny by the Electoral Commission 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 in a material particular relating to paragraph 129A(2)(c), (3)(a), (c) or (e).

             (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 demonstrated to the satisfaction of the Commission that he or she 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 the registered 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 Electoral Commission thinks fit.

             (3)  Subject to the Act, the Electoral Commission may, for the purposes of this Act, 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 Electoral Commission or any other person in connection with an investigation by the Electoral Commission 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.

141E   Power to obtain information and documents

             (1)  Where the Electoral Commission 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 Electoral Commission 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 Electoral Commission, 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 Electoral Commission 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 Electoral Commission:

                     (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.

             (3)  Where the Electoral Commission has reason to believe that a person is able to give information relevant to an investigation under this Part, the Electoral Commission 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   Retention and disposal of documents etc.

             (1)  Subject to any contrary order of a court, if the Electoral Commission obtains documents under this Part, the Electoral Commission must return the documents if:

                     (a)  the reason for the documents being obtained no longer exists or it is decided that the documents are not to be used in evidence; or

                     (b)  the period of 60 days after the documents were obtained ends;

whichever first occurs, unless the documents are forfeited or forfeitable to the Commonwealth or are the subject of a dispute as to ownership.

             (2)  If the Electoral Commission is unable to return the documents, the Commission must, after exhausting reasonable attempts to return the documents, cause the documents to be disposed of in a secure waste-disposal facility.

141G   Powers of Federal Court of Australia

             (1)  Where a person fails to comply with a requirement made by the Electoral Commission by notice under section 141E to furnish information, to produce documents or other records or to attend before the Electoral Commission 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.

141H   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.

141I   Power to examine witnesses

             (1)  The Electoral Commission 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.

141J   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

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

             (1)  A registered political party may request the Electoral Commission to conduct a ballot for the selection by a registered political party of candidates to stand for elections covered by this Act.

             (2)  Any ballot for the selection by a registered political party of candidates to stand for elections covered by this Act may, at the discretion of the Electoral Commission, be conducted by the Electoral Commission.

             (3)  The regulations may prescribe any matters necessary or convenient for the conduct of ballots under this section.

141L   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.