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Conduct of the 2004 federal election and matters related thereto

CHAIR —I welcome our next witness. We have received your organisation’s submission, which is numbered 121 and has been authorised for publication. Are there any corrections, amendments or additions you would like to make to it?

Mr Mulholland —Yes, there are just a few small points. At paragraph 4 on the first page, the reference to personally identifying information should include ‘together with political allegiances’. Perhaps it could go after ‘political party’, so it would read: ‘However, it is the view of the Democratic Labor Party’—

CHAIR —Could I make a suggestion without tying you up in too many formalities. Perhaps you could just generically tell us what the amendments are rather than convey all the wording. If it suits the committee, you could simply make a supplementary submission that cleans that up a little bit. I presume you have still got—

Mr Mulholland —It is only the reference to personally identifying information. Governments need personally identifying information all the time, but personally identifying information that includes political allegiances is really what—

CHAIR —That includes political allegiances—I think we have that. Before you leave, perhaps you could check that with the secretariat and make sure you are happy with it. There are no further additions?

Mr Mulholland —On the first line of page 3 there is just the omission of ‘to burden’—‘held the 500 rule and no overlap rule not to burden’—

CHAIR —Okay.

Mr Mulholland —There are a few minor—

CHAIR —As I said, you would still have this on computer, wouldn’t you? Even we make typos and that sort of thing! If you would like to and committee members are happy, you can simply submit another version and the secretariat will check it and ensure that the changes go on the web site. We have read your submission and we understand the substantive point, and that is why we have invited you here. I would like to open with some questions, unless you particularly wanted to make a statement, although your submission is pretty clear, concise and to the point.

Mr Mulholland —The last sentence in the submission may sound as though it is a bit over the top, so I wonder if I might present something that would put that in context. I have a copy of an affidavit which was submitted during the course of the proceedings, about which—

CHAIR —You would like to tender that as an exhibit?

Mr Mulholland —Yes, if I may.

CHAIR —Okay.

Mr Mulholland —Paragraphs 3 and 4 of the affidavit contain the background to the DLP’s concerns about the changes to the Electoral Act.

CHAIR —We will need to move to accept it as a supplementary submission. Now that members have it in front of them, I will take a motion from Senator Brandis, seconded by Mr Danby, that we accept this affidavit as a supplementary submission. There being no objection, it is so resolved. Could you briefly talk to that affidavit, then we will go to questions.

Mr Mulholland —Paragraphs 3 and 4 of the affidavit are the relevant parts. That just explains what motivated the DLP in opposing the registration provision of the Electoral Act and resisting the requirement of the Electoral Commission for submitting the names over a lengthy period of time. There is also something which may help to put that last comment in context. In the judgment of the High Court—does the committee have copies of that?

CHAIR —We certainly have access to it.

Mr Mulholland —Paragraph 258 of that judgment has this statement from Mr Justice Kirby:

There were times in the past, and they may return, when public signification to government officials of political allegiances could carry risks of present or future disadvantage.

He was referring to the Communist Party case at the time. That, I hope, will give some indication as to why it is important for us to make that last statement about the provisions requiring the registration, in effect, of electors who belong to political parties. I have lost the—

CHAIR —I think you have made it all pretty clear. Members and senators have had the opportunity to read those pertinent paragraphs and that short affidavit. I might open it up for questions. Some submissions we are less clear on than others, but on this one, as political practitioners, we are certainly across the detail of it and what the requirements are, and all of our respective parties go through this sort of process.

Senator MURRAY —There are two main aspects I can see, and maybe there are others that follow. With respect to registration of a political party, do you believe there should be a threshold of members to allow for the recognition of a political group as a party? In other words, do you think there should be a minimum?

Mr Mulholland —The feeling of members of the Democratic Labor Party is that it is unnecessary. The recognition of a party is a matter for the members of the party, but when it is publicly recognised or registered, there is no need for members of that party to be identified.

Senator MURRAY —No, that is a separate issue. I first of all want to know whether you think there should be a minimum number of members—in other words, a threshold—that a political party must have in order to gain the advantages that attach to a candidate who is identified as a candidate for a registered political party?

Mr Mulholland —I think there should be a minimum number of electors rather than members of the party.

Senator MURRAY —Are you then advocating the American primary system?

Mr Mulholland —No, I think the American primary system is perhaps a relic from a time when secret ballots did not exist. There would be a danger in that. What I am saying is that the system that we had before the registration of political parties was introduced was one where a candidate nominating for election to the federal parliament required six electors to make that nomination. It may have been 10; I am not sure of the number now, but it was a small number of electors. It was not necessarily members of the same party. If I wanted to stand at that time, I could have gone to my next-door neighbours, regardless of their political inclinations, tell them that I wanted to stand for parliament, and ask if they would support my nomination as an elector.

Senator MURRAY —The second area, which I gather is your prime area of concern, is that there are members who have had experience of being victimised because of their membership of the DLP—this is my summary, not your words—and believe that, even though they are giving their names to an independent authority on a confidential basis, that is no guarantee that their political allegiance will not become publicly known. That is your main concern, isn’t it?

Mr Mulholland —That is a concern, and it is not just in relation to this issue of registration of political parties, or the identification of the members of a political party; it applies to many areas where databases are kept by governments and government agencies. The fact that we have privacy legislation does not prevent information being disclosed. All it does is punish those who get caught. We believe that the identification of political allegiances is completely unnecessary for the purpose of registration.

Senator FORSHAW —There are many other areas where registers of members must be kept and be available. In some cases they must be provided to government authorities; in others, they must be available for perusal or inspection. A couple of examples include trade unions, which must provide a register of members to the Industrial Registrar, and registered clubs, which must keep a register of its members, and that must be made available if required to licensing authorities, government et cetera. Whilst your concern is about a fear, if you like, of action or discrimination being taken against people who might be identified on a database as members of the DLP or any other political party, do you have any other argument that a registered political party should not have to provide proof that it is a registered political party? A party can only exist if it is made up of members, in the same way as a club, a trade union or any other organisation, particularly in a situation where that body, namely, a political party, is participating in a process which involves, in a quasi way, if you like, the administration of government in this country through the election process, through getting electoral funding support et cetera.

Mr Mulholland —Other organisations, such as clubs and maybe even businesses or trade unions, fall into a different category from political parties, particularly where the requirements relate to the ordinary members. The ordinary members of a political party should be separated from the office bearers within a political party. When a trade union is registered, my understanding is that approximately 50 members are required—

Senator FORSHAW —To have it registered?

Mr Mulholland —to have it registered.

Senator FORSHAW —There is a range of other requirements contained in the act, but the actual register of all members of that body must be kept by the organisation and, certainly in my day as a union official, had to be provided to the Industrial Registry or at least be available on the premises of the organisation. It has to be available not only for the conduct of ballots but also because the act requires that it be available. If you are going to claim the status of a registered industrial organisation under what was then the C and A Act or the Industrial Relations Act, you had to be able to demonstrate that you had the members that you claimed you had, and who they were.

Mr Mulholland —In relation to a court controlled ballot, I think—

Senator FORSHAW —That was only one reason. I am just saying the principle of being able to demonstrate that you are a party or an organisation made up of members inherently, to my mind, involves providing proof that you actually do have members, and the only way you can do that is by identifying them by name and address. The real concern I think you have, and I share that in some respects, is if people use that in a way illegally to discriminate or injure those people.

Mr Mulholland —There are two issues in this regard. One is the issue of whether or not the actual number of members of a political party, any more than two, ought to be required to indicate that it is a party that is entitled to registration. If two people want to set up a party, they are not independents or individuals; they are a group. Two people should be able to say to the general public, ‘We are the Two People Party.’

Senator FORSHAW —The Fred Nile Party.

Mr Mulholland —‘We believe in whatever; we want you to support us.’ Why is it necessary to have 500 members in order to promote the policies that are appropriate for a two-people party?

Senator BRANDIS —Can I help you here, if I may intervene? It was not very many years before the Russian Revolution that there were fewer than 500 members of the Russian Communist Party. That might be an inappropriate metaphor for a member of the DLP, but the point is well made that very significant political movements have emerged very quickly from a membership base of quite a small number of people.

Mr Mulholland —I do not think we need to go to Russia. The Australian Labor Party and the Liberal Party of Australia were formed with fewer than 100 members.

Mr DANBY —I think Senator Brandis has made a good point. We are in an era of potential matching of funding of public moneys; we are in an era where a registered political party attracts some benefits vis-à-vis placement on above-the-line voting. The DLP has a long history as a political organisation in Australia which has legacies to both the Liberal Party and the Labor Party. I would not consider you in the same league as, say, the LaRouche Citizens Electoral Council party, which does have trouble finding 500 people as members. It may cause you a great deal of trouble in going out and finding 500 people who are actually signed up as members of the DLP et cetera, but because of your long history, I cannot see why it was an insurmountable barrier, whereas with an organisation that is a bogus foreign entity planted here—like Erich Von Daniken—by Mr LaRouche, they do have that barrier that they cannot jump over, and that is a very good thing for the Australian electoral process. Do you see the difference? Senator Brandis gave the example of the Russian Bolshevik Party, but I give it as a democratic comparison between the DLP and the Citizens Electoral Council. It is a positive point. I am not criticising you; I am just saying it is a barrier but it is a barrier that we have to think of because of electoral matching funding, Senate placements, above-the-line voting et cetera.

Mr Mulholland —My answer would be that it is a matter for the electors rather than the executive government to decide who is acceptable for registration as a political party. When the executive government or its agencies, including the Electoral Commission, decide what is for the good of the people, we are going a little bit beyond what I think the Electoral Commission was set up to do.

Mr DANBY —But aren’t we, the parliament, deciding rather than the executive government? Isn’t this committee, representing different groups in the federal parliament, deciding that and making non-partisan recommendations which government accepts? Shouldn’t your argument really be with us, if you have an argument?

Mr Mulholland —I suppose in a sense it should be. I do not wish to be disrespectful in saying this, but I think that the Electoral Commission has far too much influence with the parliament in determining what the rules should be.

Senator BRANDIS —When I refer to the DLP I guess I mean the Victorian branch of the DLP, but I will just speak about the DLP for the sake of brevity. Was the DLP at one stage a registered party, and it ceased to be registered because its membership, or the number of people prepared to sign the declaration, fell below 500?

Mr Mulholland —No. Since registration was introduced in 1984, we have been continuously registered.

Senator BRANDIS —I must be missing something in your submission. Why did you cease to be registered?

Mr Mulholland —We did not cease to be registered. We have been registered all the way through, but the Electoral Commission threatened to deregister us because we refused to provide the names.

Senator BRANDIS —As I gather from your submission, you refused to provide those names on privacy grounds?

Mr Mulholland —Well, largely on privacy grounds.

Senator BRANDIS —So you assert that in fact you do have more than 500 members in Victoria?

Mr Mulholland —Yes.

Senator BRANDIS —But of those members, fewer than 500 were prepared, largely for privacy reasons, to sign the declaration?

Mr Mulholland —It was a party decision that we were opposed in principle to the idea of handing over the names of the ordinary members.

Senator BRANDIS —So it was an ideological decision in effect rather than a decision based on an aggregate of individual concerns about personal privacy. I say ‘ideological’; I mean it was a matter of principle rather than privacy.

Mr Mulholland —It was a matter of principle. We took it to the Federal Court and then the High Court, and the membership accepted that what the High Court decided was in effect the umpire’s decision. We had to either comply with it or become deregistered. The problem that we had was that most of the members who had opposed the idea of handing over the names were not happy about our changing our position. The way that we were required to overcome that, according to a party decision, was that only the names of members who agreed to have their name submitted to the Electoral Commission would be used.

Senator BRANDIS —I am a little bit with Mr Danby on this. I can understand and sympathise with the policy reason for having a minimum number of registrants in order to avoid basically abuse of the system, but it seems to me that the position of an established existing party about whose authenticity as a political party there is no doubt is a little different from the position of some group that nobody has ever heard of arriving out of the blue and declaring themselves to be a political party. You may not agree with me, but nobody has any doubts that the DLP has historically been at various times over the last 50 years a very significant political party in this country.

Mr Mulholland —I heard an interview not long ago where Robert Manne said that the DLP died in 1974.

Senator BRANDIS —Well, Mr Manne says a lot of silly things! It seems to me that there might be a middle course here, that the threshold issue for a new political party—for all the reasons Mr Danby explored with you—could well be pitched at a higher level than the threshold of an existing political party. Let’s say for the sake of argument that the membership of the DLP had fallen below 500 but the few hundred souls who continued to be the DLP in Victoria wanted to continue to operate. There is no logical reason why the threshold for deregistering a party on the ground basically that it was defunct should not be set considerably lower than the threshold for registering a political party in the first instance where issues of bona fides need to be established. Would you agree with that?

Mr Mulholland —I can understand that the registration of a political party in the first instance has a purpose.

Senator BRANDIS —Would you agree with me that, in order to prevent abuse or to prevent gaming of the system, there is a respectable argument that the bona fides need to be established?

Mr Mulholland —Yes, but I would say that that can be established on the basis of electors rather than members of the party.

Senator BRANDIS —It becomes a chicken and egg question, does it not, because it has to be—

CHAIR —I am going to have to wind this up in the next couple of minutes, so you will be the last questioner.

Senator BRANDIS —All right—because it will have to be registered in the first instance before the first time at which it contests an election?

Mr Mulholland —Yes. What I am saying there is that electors, rather than members of the party, should determine whether the party should be registered. I am saying that 500 members is totally irrelevant to the issue.

Senator BRANDIS —Okay. But putting to one side your issue of principle about the privacy point, do you think a way of accommodating your concerns might be, as I suggested before, to have a lower threshold for deregistration than for registration? Because once a party is registered, it has competed in the electoral marketplace. Like the DLP, it has been a significant part of Australia’s political history; bona fides issues are irrelevant—the only question of the continuity of its registration is a different question, and that is whether it has become defunct.

Mr Mulholland —I think most parties that become defunct stop standing candidates.

Senator BRANDIS —Yes, that is a fair point. Do I have time to ask one more?

CHAIR —Yes, one more, briefly.

Senator BRANDIS —On the other point of your submission about the Senate above-the-line voting provisions, I have just been looking at the provisions of the act that you mention in your affidavit. In your submission to this committee, you connect the two, but in fact they are not necessarily connected, are they? Because there are three categories of Senate candidates: the registered political party candidates; the grouped candidates, who are not members of registered political parties; and the ungrouped Independents. I cannot see why the provisions dealing with the use of a name for above-the-line groups need only apply to registered political parties without doing violence to the principles underlying the registration system. In other words, even if you were an unregistered political party standing as a group, it would not do violence to the scheme of the act to allow you to put your name beside the box above the line above your group, would it?

Mr Mulholland —I would not have any problem with that if the name of the political party could be included on the ballot paper. The registration system for that purpose would be unnecessary. I understand that when the registration system was introduced there were three elements: one was that public funding was going to be introduced, the list system of voting in the Senate, and I have forgotten the third one just for the moment. As far as the public funding is concerned, registration of political parties is not relevant to that issue, or at least—

Senator BRANDIS —I am not sure about public funding, but my point is that it is not necessarily relevant to the shape of the Senate ballot paper either, because section 211(5) of the Commonwealth Electoral Act that provides for groups is a different section from the section of the Electoral Act that gives registered political parties but nobody else the right to have their name included beside their above-the-line box, which is section 214(2). So you could reform one without doing violence to the other.

Mr Mulholland —Yes, I think that is correct; I do not disagree with that.

Senator BRANDIS —Thanks, Mr Mulholland.

CHAIR —Thank you very much for your evidence and for your submission, and particularly for coming along today. That concludes our witnesses for today. I would just like to have a motion authorising the publication on the parliamentary database of the proof of the transcript.

Mr DANBY —Before you do, could I just put one thing on the record, because I feel obliged to do this since they made the effort to come in here today. The author of submission 155 attempted to make a presentation today but, after deliberations with the chair, decided to present their photographic, affidavit and coloured how-to-vote cards, which reveal different things, as a supplementary submission to the ALP. I think I have managed to convince them to provide all of that as sets of evidence to all members of the committee. They were unable to make their personal presentation here but they will be able to make it, as I understand it, as a supplementary submission to the ALP submission. I regret that it will be in late to the inquiry.

CHAIR —For the record, it is the case that someone who had made a submission who was not called as a witness sought of their own will to appear as a witness, as is the case with all our hearings, and we have made it clear at the outset of the hearings that we receive submissions and it is only those submissions that we wish to flesh out in further detail when we invite people to attend. The right that everyone has, throughout Australia, is to make a submission, but attending as a witness, as Mr Mulholland has done, is done by invitation, and that is well established.

I would also point out as a matter of fact that, whilst our official date for submissions has closed, we have accepted all additional submissions, and naturally we will accept any forthcoming submission. It is certainly the case that the person making the submission, I am advised, is a member of a major political party, that major political party being the Labor Party which is listed to give a submission. They will be giving a submission in Canberra. It is simply the case, no matter what one’s determination or passion might be, that our witness program has to operate according to a priority and not simply on the basis of somebody turning up and demanding that they appear before us. They are able to put it in writing and do so concisely, and that has been done.

Resolved (on motion by Senator Murray):

That, pursuant to the power conferred by section 2(2) of the Parliamentary Papers Act 1908, this committee authorises publication of the evidence given before it and submissions presented at public hearing this day.

Committee adjourned at 4.59 pm