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Wednesday, 2 September 2020
Page: 4681

Senator FARRELL (South Australia) (10:09): I seek to make a contribution to the Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020. This bill seeks to make a number of amendments to the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984. Many of the amendments contained in the bill are technical ones that were recommended by the Joint Standing Committee on Electoral Matters in its review of the 2016 federal election. These recommendations flowed from submissions by the independent regulator, the Australian Electoral Commission. However, the amendments which have garnered the most attention are the amendments to sections 302CA and 314B of the Commonwealth Electoral Act. I want to make Labor's position clear upfront: Labor supports the technical amendments and supports the intention of the amendments to sections 302CA and 314B to clarify the Commonwealth's power to make laws with respect to Commonwealth elections. Labor will therefore be supporting the bill provided some important amendments are made, which I will expand on shortly.

The bill's proposed amendments to section 302CA arise out of the High Court's decision in the case of Spence v Queensland [2019] HCA 15, where the court found section 302CA to be wholly invalid. Section 302CA provided that, despite any state or territory law, a donation could be made to a federally registered party if the donation was 'required to be, or may be,' used for federal purposes. This provision allowed gifts which were not permitted at a state level to be made to a party as long as the gift was used, or might be used, for federal purposes. The amendments to section 302CA seek to rectify errors in the drafting of the original clause and bring it within the Commonwealth's power. Under the amendment, it is not good enough that a donation might be used for a federal election. The donations must be expressly offered, sought, given, accepted and used for federal purposes. If they are not then the relevant state law will apply.

The bill also seeks to amend section 314B. The amendment should mean that donations which are above the state threshold for disclosure but below the federal threshold, which is currently $14,300, will not need to be disclosed to the state electoral commission if they are expressly given and used for federal purpose.

Labor's taken time to consider the implications of the bill and the recommendations of the Joint Standing Committee on Electoral Matters, including those in Labor's dissenting report. As many of the submissions to JSCEM noted, the Commonwealth laws on political donations lag behind those of the states. It's not Labor's intention in any way to weaken any of those provisions already in place in the states, but the Commonwealth parliament should be able to make laws with respect to Commonwealth elections, and those laws should not be overridden by the states. These amendments do not try to control the laws that state governments make in relation to state elections. They simply confirm the Commonwealth parliament has the legislative responsibility for making laws in relation to Commonwealth elections.

Labor is of the view that we should have a uniform federal system that treats federal parties and candidates equally no matter which state or territory they are based in. All federal parties and candidates should be playing by the same rules—those contained in the Commonwealth Electoral Act, not in eight different state and territory electoral acts. I think we can all agree that we do not want to go down the path of the United States, where the laws of the 50 states govern presidential elections. Imagine if an Australian state didn't allow postal voting in a federal election, for instance.

We must never forget how fortunate we are to have a uniform federal system for federal elections, and we should not be undermining that now. If we do not address the inconsistencies raised in the Spence case then it isn't beyond the realms of possibility that a state donation law that is actually worse than the Commonwealth law could be imposed upon us. A state government could, for example, try to restrict the role of unions or charities in elections—legitimate third parties that have a legitimate role to play in our democracy. Just because a current state law may be deemed to be better that the Commonwealth's, we cannot simply cherrypick that and apply it to Commonwealth elections. We wouldn't want to do that if the state law were worse, so we wouldn't want to do it just because it's allegedly better. What we should be aiming for is a better federal system, and we recognise the concerns raised by some submissions to JSCEM's inquiry. We're pleased that the government has listened to Labor's concerns and has drafted an amendment to require federal donations to be paid into dedicated federal campaign accounts. We will have more to say on this during the committee stage.

Because we don't want there to be any confusion as to which laws apply, during the committee stage Labor will also be moving an amendment to delay the commencement of the bill until after the Queensland election. That way, parties, candidates and the Queensland Electoral Commission will have certainty in the upcoming election. We believe a combination of those two amendments will ameliorate some of the concerns with this bill. Many of the submissions to the JSCEM inquiry called on the Morrison government to implement wholesale changes to the Commonwealth Electoral Act to improve the transparency of the electoral system.

Labor has a proud history of political donations reform. It was Labor that secured the ban on foreign donations, protecting our political system from foreign interference. It was Labor's amendments that linked public funding to the campaign expenditure, preventing parties from profiting from the electoral system. It was Labor, under Bob Hawke, that was the first to introduce a donations disclosure regime in back in 1983. The Labor Party currently has two bills before the Senate which deliver on some of our longstanding commitments. One bill seeks to lower the disclosure threshold from the current $14,300, indexed to inflation, to a fixed $1,000. The other bill seeks to introduce a system of real-time disclosure, where donations above the threshold would need to be disclosed within seven days.

If the Morrison government had any desire at all to improve the integrity of our system then it would immediately support these bills. I will be moving a second reading amendment calling on them to do just that. The second reading amendment includes other reforms that will increase transparency, level the playing field and reduce parties' reliance on political fundraising and the corollary risk of corruption. We must catch up with our state counterparts and implement donations and expenditure caps. Currently, there's no limit to how much a person or entity can donate to a political party or candidate. In 2016-17, Malcolm Turnbull donated $1.75 million to the Liberal Party, the largest political donation that year. That was, of course, eclipsed by Clive Palmer's record-breaking donation to the United Australia Party leading up to the 2019 election, an eye-watering $83 million.

New South Wales, Victoria and Queensland all have caps on political donations, and the Commonwealth should be following suit. Donations caps should work hand in hand with expenditure caps. Expenditure caps would level the playing field for candidates and parties, and assure that election debate is not dominated by the party with the biggest bank balance. To support these measures and reduce parties' reliance on fundraising, the rate of public election funding should be increased, and parties and elected Independents should be provided with administrative funding to help cover the increased cost of compliance. Labor calls on the Senate to support these measures to improve the integrity of our electoral system.

As mentioned earlier, the bill makes a number of technical amendments designed to rectify drafting errors and improve the processes of the Electoral Commission. Labor supports these technical amendments. However, I would like to note that one amendment in particular that was raised in submissions to the JSCEM inquiry is the provision relating to questions that polling officials asked of a voter to ascertain their entitlement to vote. Currently the Electoral Act requires a polling officer to ask: what is your full name, where do you live and have you voted before in this election? Occasionally, these questions can cause confusion, and a polling official may need some scope to rephrase the questions. The amendments provide flexibility, but some submissions raised concern that the changes would allow a polling official to ask a voter to provide identification.

As Labor's dissenting report for the JSCEM inquiry pointed out, Labor does not support so-called voter ID laws. We believe that requiring people to provide identification may have the effect of discouraging some people from voting and, in turn, undermine our system of compulsory voting. However, we are assured that the amendment is necessary in circumstances where the voter has a hearing disability or there is a language barrier, and we will be seeking further assurances from the Electoral Commission that it will not result in polling officials asking for identification. I look forward to speaking more on the bill during committee stage. I move:

At the end of the motion, add ", but the Senate:

(a) is of the opinion that Australia's electoral system would be strengthened by:

   (i) lowering the disclosure threshold for political donations from the current $14,300 to $1,000,

   (ii) removing the indexation of the political donation disclosure threshold, and

   (iii) requiring recipients of political donations to disclose those donations within seven days;

(b) notes that the Opposition has introduced the Commonwealth Electoral Amendment (Transparency Measures—Lowering the Disclosure Threshold) Bill 2019 and the Commonwealth Electoral Amendment (Transparency Measures—Real Time Disclosure) Bill 2019, which, if enacted, would achieve these outcomes;

(c) calls on the Government to support these bills; and

(d) is also of the opinion that Australia's electoral system would be further strengthened by:

   (i) implementing caps on political donations and electoral expenditure,

   (ii) increasing the rate of public funding concurrently with the implementation of these caps, to reduce the reliance of participants in the political process on political fundraising, and

   (iii) introducing administrative funding for parties and elected independents to cover administrative and operating expenses".