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

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2004-2005-2006-2007

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

ELECTORAL (GREATER FAIRNESS OF ELECTORAL PROCESSES) AMENDMENT BILL 2007

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

Circulated by authority of Senator Andrew Murray

(Australian Democrats Electoral Matters Spokesperson)

 

 

 

 

 

 

 

ELECTORAL (GREATER FAIRNESS OF ELECTORAL PROCESSES) AMENDMENT ACT 2007

 

 

GENERAL OUTLINE

 

The purpose of the Electoral (Greater Fairness of Electoral Processes) Amendment Bill 2007 is to amend the Commonwealth Electoral Act 1918 (the Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).

 

This Bill is introduced to implement the Australian Democrats long-standing commitment to improve political governance, political funding and disclosure rules and the integrity of the electoral process in general.

 

In the Democrats’ Minority Reports on the Joint Standing Committee on Electoral Matters (JSCEM) Reports into the 1996, 1998, 2001 and 2004 elections, we drew attention to voter discontent with politics, politicians and parliaments as revealed through polls and the media.

 

The government and parliament have not addressed this discontent.  Indeed, the passing of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2006 will reinforce this discontent.  It was a bill that ran contrary to best practice and to the historical and high regard that Australia has had in the pantheon of representative democracies around the world.

 

Accordingly, the Greater Fairness Bill aims to address issues of legitimate public disquiet and disrepute. The following are the proposed major amendment areas:

 

Schedule 1 - Political governance amendments

 

As political parties are vital to democratic participation and as they have access to public funding, their very conduct is of great public concern. These amendments propose:

 

1.       an accountability regime for political parties -  which includes a written and publicly available constitution that must contain certain matters; protect the equal rights of member and allow for regulatory oversight;

2.       provisions for the scrutiny of political parties - whereby the Electoral Commission (EC) has the discretion to undertake an investigation of complaints lodged against parties for non-compliance with its constitution; and

3.       processes for the selection of candidates - whereby parties can call on the 

EC to conduct ballots for candidate selection.

 

Schedule 2 - Amendments relating to advertising

 

These stem from the advertising matters covered in Senator Murray’s Charter of Political Honesty Bill 2000, which seeks to address the growing public view that politicians are dishonest and untrustworthy. The legislative solutions include:

 

1.       that inaccurate or misleading statements of fact in political advertising be prohibited; and

2.       that there be restrictions on government advertising during the caretaker period.

 

Schedule 3 - Amendments relating to electoral funding and disclosure

 

These amendments to the CEA represent the legislative expression of the Democrats' long history of activism for greater accountability, transparency and disclosure in political finances. They include:

 

1.       setting reduced limits on donations;

2.       ensuring the true identities of donors are disclosed;

3.       prohibiting multiple donations to separate federal, state and territory divisions of political parties;

4.       prohibiting electoral campaign funding from media companies;

5.       prohibiting foreign donations unless made by Australians living abroad or by non-citizens resident in Australia; and

6.       prohibiting donations with strings attached.

 

Schedule 4 - Electoral enrolment and other electoral matters

 

The proposed amendments in this schedule address the following:

 

1.       The voting rights of prisoners - currently, any person serving a term of imprisonment is not entitled to vote. The Democrats consider that although prisoners are deprived of their liberty while serving time, they do remain citizens. To disenfranchise them by removing their citizenship rights is to add an extra judicial penalty. The amendment reflects this point of view by allowing all prisoners to vote unless convicted of treason or unsound mind, or having this right removed by a judge as part of a sentence.

2.       The early closure of the electoral rolls - the Democrats believe that closing the electoral rolls on the day the election writs are issued will disenfranchise many voters, especially those who have turned 18 or need to change their address. We therefore propose that the close of the rolls be 7 days after the date of the writ.

3.       Reduces the deposit amount required for candidates - for both Senate and the House of Representatives.

4.       Certain services not to be used - prohibits the use by political parties of certain commonwealth facilities and services by certain classes of people for party business.

 

Amendments to the Referendum (Machinery Provisions) Act 1984 essentially apply the same changes this Bill makes to the Electoral Act to the Referendum Act.

 

FINANCIAL IMPACT

 

There is no direct financial impact on Government revenue from this Bill.

 

 

 

NOTES ON CLAUSES

 

Clause 1 Short Title

 

This is a formal clause which provides for the Act, when it is enacted, to be cited as the Electoral (Greater Fairness of Electoral Processes) Amendment Act 2007 .

 

Clause 2 Commencement

 

This clause provides for the commencement of the Act on Royal Assent .

 

Clause 3 Schedules

 

This clause is the formal enabling provision for the Bill. The amendments proposed by this Bill are in the schedules, but they have effect as a result of this clause.

 

Schedule 1 - Amendments relating to political governance

 

Item 1 states that a person includes a trading or financial corporation as per section 51 (xx) of the Constitution, or a person acting on behalf of such a body. This ensures that the provisions cannot be avoided by individuals establishing corporations as a “cover” for their own activities.

 

Item 2 repeals the definition of an eligible political party under subsection 123(1) of the Act to that of a parliamentary party or one that satisfies minimum membership requirements. It also must be established on the basis of a written constitution that complies with minimum constitutional requirements.

 

Item 3 inserts after section 129 of the Act proposed new section 129A (1) to (8) which sets out the procedures and conditions for minimum constitutional requirements that a political party must meet to be eligible for registration.

 

Item 4 inserts at the end of the definition of reviewable decision in the Act, new paragraph (f) which makes the discretion power available to the Electoral Commission in 141C in Part XIA under item 5 reviewable by the Administrative Appeals Tribunal.

 

Item 5 inserts after Part XI of the Act concerning the registration of political parties, new sections Part XIA and Part XIB

 

Part XIA covers the Scrutiny of registered political parties and includes the following proposed sections:

 

·          141A states the object of this Part is to provide the Electoral Commission with the wherewithal to scrutinise political parties, to investigate complaints, and to provide penalties;

·          141B sets out when a person may make a complaint;

·          141C gives the Commission discretion not to investigate certain complaints;

·          141D sets out how investigations are to proceed;

·          141E gives the Commission power to obtain information and documents;

·          141F covers the retention and disposal of documents obtained by the Commission;

·          141G states the conditions whereby the Commission can make an application to the Federal Court of Australia when a person fails to comply with a notice to supply information;

·          141H sets out the processes whereby the Commission must inform a complainant and a registered party officer of the reasons for not continuing an investigation or of the particulars of an investigation’s completion;

·          141I gives the Commission the power to examine witnesses under an oath or affirmation; and

·          141J gives the Commission the power to enter premises of a political party and to inspect any documents relevant to an investigation.

 

PART XIB covers the Selection of candidates by registered political parties through the following proposed sections:

 

  • 141K allows a political party to have the Commission conduct a ballot for the selection of candidates to stand for elections; and
  • 141L states that the Commission must issue a certificate when it has conducted a ballot for candidate selection.

 

Schedule 2 - Amendments relating to advertising

 

Item 1 repeals the definition of what “publish” means under subsection 329(6) ofthe

Act.

 

Item 2 adds at the end of section 329 of the Act new subsections (7) to (14) which prohibit the production of inaccurate or misleading electoral material; imposes penalties for the same; states a possible defence for a person deemed to be in contravention; and states the procedures for the Commission to follow when it is satisfied that an electoral advertisement is misleading or inaccurate.

 

Item 3 inserts after section 334 of the Act dealing with the depiction of certain electoral material , new section 334A which places restrictions on government advertising during the caretaker period.

 

Schedule 3 - Amendments relating to electoral funding and disclosure

 

Item 1 at subsection 287(1) of the Act (definition of gift) inserts “and includes payments made at fundraising and like events”.

 

Item 2 inserts new section 297A after section 297 of the Act . This states that public funding payments are not to be made unless the Commission is satisfied that the constitution of the registered political party meets the requirements set out in 129A.

 

Item 3 reduces the disclosure threshold for donations made to a candidate for personal use from “$10,000 or less” and replaces with “less than $200” at subparagraph 304(5)(b)(ii) of the Act.

 

Item 4 reduces the disclosure threshold for donations made to a group from “$10,000 or less” and replaces with “less than $1,000” at paragraph 304(5)(c) of the Act.

 

Item 5 repeals the note at subsection 304(5) concerning the indexation of dollar amounts under section 321A of the Act.

 

Item 6 reduces the disclosure threshold to a person from “exceeds$10,000” and replaces with “is equal to or exceeds $200” at paragraph 304(6)(b) of the Act.

 

Item 7 reduces the disclosure threshold to a group from “exceeds $10,000” and replaces with “is equal to or exceeds $1,000” at paragraph 304(6)(c) of the Act.

 

Item 8 repeals the note at subsection 304(6) concerning indexation as per item 7.

 

Item 9 repeals subsections 305A(1), (1A), (2), (2A) and (3) concerning when a person must provide a return to the Commission, and replaces them with new subsections (1) and (2)

 

  • Subsection (1)(a) states that a person who makes a donation during the disclosure period of an election to a candidate, or (b) to any person or body specified by the Commission by notice in the Gazette during the disclosure period of an election, must submit a return to the Commission within 15 weeks after polling day in an approved format; and
  • Subsection (2)(a) states that a person need not lodge a return if the donation value in (1)(a) was less than the amount set, or $200 if no amount is set; and (b) if the total value in (1)(b) was less than the amount set, or $1,000 if no amount is set.

 

Item 10 reduces the total value amount of a donation made to a political party from “more than $10,000” to“1,500 or more” at subsection 305B(1) of the Act.

 

Item 11 repeals the note at subsection 305B(1) concerning indexation as per item 7.

 

Items 12 and 13 reduces the donation amount to a political party requiring disclosure at subsection 305B(3A) of the Act. Where first mentioned from “more than $10,000” to “1,500 or more”, and second mentioned from, “exceeds $10,000” to “is equal to or exceeds $1,000”.

 

Item 14 repeals the note at subsection 305B(3A) regarding indexation as per item 7 .

 

Item 15 inserts new section 305C after section 305B of the Act concerning gifts to political parties. The new proposed section will prohibit a person or corporation donating more than $100,000 in any one financial year.

 

Item 16 repeals subsections 306(1) and (2 ) of the Act concerning the value of certain gifts not to be received and substitutes new subsections (1) and (2):

 

·         Subsection (1) makes it unlawful for a political party to receive a donation which is equal to or exceeds $1,000 without full and transparent disclosure, which is a reduction from the current threshold amount of $10,000; and

·          Subsection (2)(a) makes it unlawful for a candidate to receive a donation that exceeds $200 or (b) for a group to receive a donation that exceeds $1,000 without fall and transparent disclosure.

 

Item 17 inserts after subsection 306(2A) of the Act proposed subsection (2AA) prohibits multiple donations ie the value amount of a donation is to be the total amount of all donations made to the party as a whole, whether to national, State and Territory branches of a party.

 

Item 18 adds at the end of section 306 regarding certain gifts not to be received, proposed subsection 6 making it unlawful for branches of registered political parties or party representatives to receive gifts valuing more than $10,000 by a person or a company holding a contract with any government.

 

Items 19 to 22 reduces value amounts at subsections 306A(1 ) and 306A(2) of the Act from “more than $10,000” and replaces with $1,500 or more”, and repeals the associated notes concerning indexation for the same sections.

 

Item 23 inserts new section 306AA after section 306A of the Act, which will prohibit political parties, or persons acting on their behalf, to receive gifts, donations or property from media companies.

 

Items 24 and 25 reduces the value amount under paragraph 306B(a) of the Act from “exceeds $10,000” and replaces with “is equal to or exceeds $1,000”, and repeals section 306B (note 3) concerning indexation.

 

Item 26 inserts after section 306B of the Act the following new sections:

 

·          section 306C which prohibits foreign donations to all political parties;

·          section 306D requiring forfeiture of a donation if there is any doubt about its origins;

·          sections 306E and 306F making it lawful for non-citizens resident in Australia and for Australian citizens living overseas to donate; and

·          section 306G which prohibits any quid pro quo donations being made.

 

Items 27 and 28 reduces the value amount at subsection 311A(2) of the Act from “$10,000 or less” and replaces with “less than $1,500”, and repeals the associated note .

 

Item 29 inserts at the end of subsection 314AB(2) concerning annual returns by political parties a new requirement paragraph (d) that requires a party to also include the total amount expended for electioneering from when the election is called until the closing of the polls.

 

 

Items 30 and 31 omits “more than $10,000” and replaces with “$1,500 or more” at subsection 314AC(1) of the Act and repeals the associated indexation note .

 

Items 32 and 33 omits “$10,000 or less” and replaces with “less than $1,500” at 314AC(2) and repeals the associated indexation note .

 

Item 34 inserts at the end of section 314AC of the Act new subsections (4) and (5) . These state that when a gift or an amount specified in subsection (1) is made out of trust, foundation or club funds, a declaration of interest form must be completed and included by the political party as part of its annual return; and that if a declaration is not made as per above, the gift is to be forfeited to the Commonwealth.

 

Items 35 and 36 omits “more than $10,000” and substitutes “$1,500 r more” at subsection 314AE(1) and repeals the associated indexation note .

 

Item 37 repeals subsection 314AG(3) concerning returns regulations and substitutes a new subsection stating that a party must provide:

 

·          (a) the total amount of donations received;

·          (b) individual donations that exceed the threshold;

·          (c) a total aggregate of donations received that are below the threshold; and

·          (d) the total amount of public funding received.

 

Item 38 at subsection 315(1) of the Act, dealing with offences for failing to lodge returns, inserts the following words after ‘return’: “which meets all of the requirements of this Act”.

 

Item 39 inserts after section 316 of the Act, dealing with investigations, a new section 316B that allows the Commission to refer matters for investigation to the Australian Tax Office or the Australian Securities and Investment Commission.

 

Item 40 repeals section 321A of the Act that allows for donation threshold amounts to be indexed against the Consumer Price Index.

 

Schedule 4 - Amendments relating to enrolment and other electoral matters

 

Item 1 repeals subsection 93(8AA) of the Act that disallows any person serving a term of imprisonment the right to vote. The proposed new subsection will restore this right unless:

 

(a) the person has had his/her right to vote removed by a judge; or

(b) the person is of unsound mind; or

(c)   has been convicted of treason.

 

Items 2 to 4 omits “the day of the writ” and replaces with “the day of the close of the Rolls at:

 

·          paragraph 94A(4)(a) of the Act concerning voter enrolments from outside Australia;

·          subsection 95(4) concerning the enrolments of eligible spouse and children of overseas voters; and

·          subsection 96(4) concerning the enrolment of itinerate persons.

 

Item 5 repeals section 99B of the Act concerning the application for enrolment from those about to become Australian citizens.

 

Item 6 omits “the date of the writ or writs for the election” and replaces with “the day on which the Rolls for the election close” at subsection 102(2A) of the Act.

 

Item 7 repeals subsections 102(4), (4AA) and (4AB) of the Act concerning claims made by persons under section 101 (compulsory enrolment and transfer) actions on receipt of claims for those.

 

Item 8 omits “8pm on the day of the writ” and replaces with “the close of the Rolls” at subsection 118(5) of the Act concerning the determination of objections to enrolments by Divisional Returning Officers.

 

Item 9 repeals section 155 of the Act concerning closure of the Rolls from 3 days after the date of the writ to 7 days.

 

Item 10 omits $1,000 and replaces with $700 at paragraph 170(3)(a) for the sum to be deposited when nominating a candidate for the Senate.

 

Item 11 omits $500 and replaces with $350 at paragraph 170(3)(b) for the sum to be deposited when nominating a candidate for the House.

 

Item 12 inserts after section 306A of the Act new section 306AB which makes it an offence for a political party to receive certain services, including Commonwealth vehicles and offices, office equipment, travel entitlements and the use of any of these for fund raising. It also sets out the class of persons not to be involved in the receipt of such services and imposes a penalty of 50 penalty units for non-compliance.

 

This item also inserts new subsection 306AC(1) making it unlawful for public servants to use Commonwealth facilities to support a political party. Subsection 306AC(2) provides a defence if the person is employed by a Senator or Member and is carrying out work for the purpose of re-election. A penalty of 50 penalty units for non-compliance is also imposed here.

 

Items 13 and 14 increases the penalties for bribery offences at subsections 326(1) and (2) of the Act from a $5,000 fine or 2 years imprisonment, or both, to 120 penalty units or 2 years imprisonment, or both.

 

Item 15 repeals section 394 of the Act which disallows a state referendum or vote to be held on polling day.

 

Referendum (Machinery Provisions) Act 1984

 

Items 16 to 20 propose amendments to the Referendum Act that reflect those relevant changes proposed above for the Electoral Act.