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Joint Standing Committee on Electoral Matters
05/10/2018

BAALMAN, Mr Malcolm, Senior Policy Officer, Public Health Association of Australia

BULLOCK, Ms Katrina, Legal and Governance Officer, Greenpeace Australia Pacific

BUNDOCK-LIVINGSTON, Mr Geordie, Lawyer, Human Rights Law Centre

FROST, Ms Lauren, Coordinator, Hands Off Our Charities alliance

McKINNON, Ms Elizabeth, General Counsel, Australian Conservation Foundation

O'LEARY, Mr Patrick, Senior Officer, Pew Charitable Trusts

ZOMER, Ms Saffron, Government Relations Manager, Australian Conservation Foundation

Evidence from Ms Bullock was taken via teleconference—

[11:49]

CHAIR: I welcome representatives of Hands Off Our Charities and Greenpeace. Does anyone have any comments to make on the capacity in which they appear?

Mr O'Leary : I am leading our work nationally with Indigenous partners.

CHAIR: Although the committee does not require you to provide evidence under oath, I wish to advise that this is a formal proceeding of the parliament. Giving false or misleading evidence is a serious matter and may be regarded as contempt of parliament. These proceedings are being broadcast and recorded by Hansard. These are public proceedings, although the committee will consider a request to have evidence heard in private session. If you object to answering a question, you should state the grounds of that objection, and the committee will consider the matter. I now invite you to make an opening statement. The committee will then proceed to questions. We have copies of your submissions. We might start with Greenpeace and then go to those in the room.

Ms Bullock : For a little bit of context, Greenpeace is a member of Hands Off Our Charities and is part of that joint submission, submission No. 27, which my learned friends currently in attendance in Canberra will speak to. Additionally, though, Greenpeace has made a separate submission, being submission No. 26. I'm here to assist the committee by answering any questions they may have in regard to that particular submission.

Greenpeace's submission made three salient points. The first is that the definition of electoral expenditure as drafted in the bill does inadvertently include some forms of non-partisan issues based advocacy. We understand from the explanatory memorandum and the committee report that this was not the intention of the committee. This issue could be alleviated, we would say, by removing the word 'including' from the definition of electoral expenditure and adding some carve-out provisions which explicitly note that non-partisan issues based advocacy of registered charities is not to be included.

Our second submission notes that the requirement to disclose the personal information of donors who make donations over the threshold is extremely problematic for charities. Maintaining and respecting the privacy of our donors is fundamental to the ongoing viability of the charity sector, and we submit that it's very problematic that the bill requires political campaigners to disclose identifying information about each foreign and domestic donor that makes a gift or grant over the disclosure threshold, particularly as it requires the disclosure of potentially apolitical gifts or gifts not intended to be used for the purpose of incurring electoral expenditure. So these disclosures, we believe, are disproportionate to the purpose of these amendments and to the electoral act itself.

Our third submission notes that the committee's intention was to allow charities to accept foreign moneys to assist in achieving their charitable purpose other than where those moneys were to be spent on electoral expenditure. In practice, however, the bill does not achieve this goal for charities who also happen to be political campaigners because many charities are using funds from a general pool of money to finance electoral expenditure, and when the charity receives the donation, even if the foreign donor does nto intend and the charity does not intend those funds to be used for electoral expenditure, at the time those donations are given, these funds are then essentially going into a general pool of funds from which electoral expenditure will be taken.

Because of that, there is potential—and it has happened in some of the state electoral laws—for the entire general pool of funds to become subject to the bill's prohibitions, such as the prohibition on political campaigners receiving foreign donations over $1,000. This, we believe, would result in charities refusing funds from foreign donors even where there's no intention for those funds to be used for electoral expenditure. To alleviate this, we submit that there should be a provision in the bill stating that charities or political campaigners more generally are only required to refuse funds over $1,000 when those funds have been donated by a donor with the intent that the funds will be used for electoral expenditure. That was all for our opening submission.

Ms Zomer : Thank you for the opportunity to appear today. We're here representing the Hands Off Our Charities alliance, which is an alliance of 42 charitable organisations that have been working together since late last year in response to this bill. In terms of process today, I'll make some opening remarks and then I'll refer to some specific outstanding matters that we wanted to draw to the attention of the committee. I'll also ask colleagues to speak in a little bit more detail in respect to a couple of those that are more complicated. Then, of course, we'll be happy to take any questions that you have.

By way of context, I did want to mention that the timeline on this process has been challenging for us, particularly with regard to the complexity of the subject matter and the volume of material that's been presented. Our analysis hasn't been as considered and thorough as we would've wished. We'd also make the observation that, overall, this bill misses some key opportunities to strengthen Australian electoral integrity, particularly around issues like transparency and caps for donations to political parties. Those are the kinds of measures that will rebuild the public's trust in politics. We see that as somewhat of a missed opportunity. To this particular bill, we as an alliance will only be able to support it if it meets our Red Line Principles, which were supported by the Senate in a motion earlier this year. Our view is that the current proposal does not meet those Red Line Principles yet, so we'll take the opportunity of our remarks today to raise the areas that we think are still problematic and which need to be addressed.

We have an additional document here, which I'd like to provide to the committee. The detailed Red Line Principles are outlined in our Hands Off Our Charities submission, so I direct you to that submission for the details. Broadly, we're looking for a regime which is clear and unambiguous and does not leave us in doubt about our obligations, does not stifle our legitimate advocacy activities and does not impose an undue or disproportionate red tape burden on our sector. Those are the things that we're looking for. If you take a look at that summary document that I just passed up—apologies for the lateness of us being able to provide that—we're requesting at item 2 clear guidance that particular types of internal costs be excluded. We're requesting that the requirement to disclose party membership of senior staff be removed; we don't think that's appropriate. We're suggesting finite periods for disclosure. We don't think that capture should apply all throughout the political cycle. In addition—it's not on this document—I want to raise the issue of the proposed criminal penalties for financial controllers of political campaigners. We think that's an excessively harsh approach and unnecessary. We oppose that as well. The outstanding items on this list are in relation to section 4AA and section 302F. I'll pass to my colleagues to speak to those in more detail.

Ms McKinnon : Similarly to other submitters I've heard this morning, our alliance appreciates the progress made in the bill seeking to narrow and clarify electoral expenditure and distinguish issues based policy advocacy from activities that are intended to influence voting in an election. We were pleased when we first saw the definition written. Reading it plainly, it seems that it should capture a narrow range of activities of third parties like charities close to an election. However, we then go on to read the subsections of section 4AA, and it makes clear that implied promotion or opposition will be sufficient to meet the test in the section. Those sections also contain a presumption, which the Human Rights Law Centre raised in their submission, that the dominant purpose of any communication that may implicitly promote or oppose a political entity or candidate is to direct votes towards or away from that candidate. We object to that; we think that that presumption should be removed. For many of our groups, the intent of those activities is to influence policy on our particular issue, so we think that that presumption is really problematic in the section.

We then turn to the explanatory memorandum, which was released 24 hours before the submissions were due. I've only been sitting in the room for an hour but I think, to a certain extent, the committee are across the ambiguity the examples in that explanatory memorandum throw up. I was going to go through some, but I think that you're across it. I will point to two examples that summarise precisely for us what the problem is though. One is the race track example on page 14 of the EM. The other is the 'take back control of planning' example on the T-shirts at the bottom of page 13.

In one instance, we have a group who is running an issues based campaign opposing the construction of a racetrack in a particular electorate. Because some candidates running for election in that electorate have positions that have been publicised and are known on that particular issue, the explanatory memorandum summarises that it is, therefore, an implicit comment against or for some of those candidates and is likely to be an electoral matter. On the other hand, we have the planning laws T-shirt example where a group is running an issues based campaign to close loopholes in planning laws. They make T-shirts that say, 'This election, take back control of planning.' We have an explicit reference to an election in that communication as opposed to the billboard, but because there's been no media coverage of any debate between candidates about that particular issue and it's not apparent how that issue relates to federal politics, that is deemed less likely to be an electoral matter. In both instances, the problem from the perspective of our alliance is that whether or not either of those issues based campaigns contained communications on electoral matters was dictated by outside influences in the world that we had no control over. In one case, it was media coverage and, in the other case, it was a particular candidate announcing a policy platform.

A charity could be campaigning on its issue—say, homelessness—all year around, as per usual, and then, because a candidate in an election suddenly releases a policy on that issue, that issue becomes an electoral matter overnight. This is unworkable and will result in a lot of our members needing to seek legal advice on each and every communication or activity when an election is reasonably foreseeable. Instead of labouring that, I thought I could throw to some of my colleagues to give some real-life examples of campaigns that their organisations run that are purely issues based that would be potentially captured by this regime.

Mr Baalman : I'll put on the table an illustration of how this works; it's a hypothetical example. Our organisation campaigns—let's use that word—for immunisation frequently. Let's imagine that a new vaccine is invented, and we commence arguing for it to be funded by the federal government. It is a nontrivial cost—let's say it's $50 million over four years—so we're unashamedly seeking the expenditure of federal funds. We campaign in various ways; we're in the offices of the health ministers but we're perhaps doing things in a public way as well for 18 months. Towards the end of that period, an election occurs abruptly. Now let's imagine that, one week into that election, one of the two major parties adopts a policy that they'll fund the immunisation campaign we seek. Our question is: what has changed about the nature of our campaign at that point?

To give the story a happy ending, one week before the election, the other major party—it doesn't matter which one—also matches the commitment and so the thing ends well. What does the law regard our behaviour as in that three-week period and what were our legal obligations 18 months ago? These are the questions we're struggling with. Were we partisans in that three-week period? Were we acting in a way that was seeking to influence the way people vote? My answer to that is: yes, but it's a secondary and consequential characteristic. In my little story, we have never at any point in this story issued publications calling for or against anyone to be voted for and, indeed, we get the day off on election day. A lot of the aspects of what might characterise electoral matter don't apply to my story, but in those three weeks were we engaging in electoral expenditure and how are we to know 18 months in advance?

What I want to put before you is that the settlement of these complex issues in the Charities Act, while not entirely free of ambiguity, made a fair bit of sense. What has gone wrong in the last 12 months and the toxic dispute we've been through was because the original bill stepped sharply away from that settlement, and we've been trying to get back to it ever since. The bipartisan approach you took several months ago has helped solve that debate. We welcome the government's comeback amendments. We're coming back towards a settlement that makes sense. I think we're now disputing the detail, and no doubt very clever people will wrangle the exact wording of amendments and might get there. At the heart of this debate, we ask you to have a correct understanding that we are engaged in public life in a way that is not the same partisan way that other actors are, and that's where we think the law should come back to.

Mr O'Leary : I work mainly on remote Indigenous ranger programs and Indigenous Protected Areas programs, with about 38 Indigenous partner groups of varying sizes, many of which are charitable organisations in their own right but are largely focused on delivery of the day-to-day work they have to deliver in quite challenging circumstances. We'll do a range of things throughout to advocate for the growth and security, basically, of those funding programs, predominantly around federal government funding but often around the states as well. That will result in a range of activities.

For example, we've put up billboards asking for growth and security showing Indigenous rangers doing positive work. We often use social media to promote success and positive outcomes, because, in a way, with a lot of policies, you often come to Canberra saying, 'We don't like this and we want it changed,' and we're arguably saying, 'Well, this is working well for people; we'll bring people with us to get them into the media, to talk about the success of the model and the benefits of further growth and investment.' That will often include media, of all sorts, where we can get attention to the issue, events and public forums where, sometimes, politicians will be present from all parties. We certainly seek to engage right across the spectrum, and, it would be fair to say, whenever you're engaging one politician there's another politician with a raised eyebrow. But our aim is to get cross-partisan support. People used to say 'bipartisan' but it's really cross-partisan now, because that is the sweet spot for a policy issue.

We have to put these issues on the public agenda because a lot of the mainstream of Australia doesn't understand that there is a lot of positivity and good stories coming from the bush and the work that people are doing. And that's really critical. At any given time there might be a state election on or a federal election coming up, but our message doesn't change. Growth and security for those programs is what we're after. That's what we'll use various means to advocate for, and that doesn't stop. We're now entering into a position where there could be a substantial lack of clarity about whether we're allowed to do certain things or not.

With the bureaucratic load on examining that, I refer back to my colleagues to go through the technical aspects of it. Certainly, for both our organisation, which is relatively well established, and for many smaller organisations, when people are just not sure, they won't go there. They won't talk about their issue, because they're very concerned what might happen to them. Those grey areas are really constricting and constraining. In our case we would say that a lot of our partner groups come from the most marginalised areas. Often, English is not a second language but it will be a fourth or fifth language. It's a daunting task for people to talk to the media or politicians, but people do it because they're very anxious about looking after their country.

That's an encapsulation of the kind of work we do throughout the year. Getting into areas of uncertainty—for instance, are we allowed to do that now and are our partners allowed to do it?

Ms McKinnon : I will tie off our submissions, with regard to section 4AA, and say that it's our position that this definition does not need to be narrow in order to be precise. It should be possible to avoid blanket carve outs and exceptions but still give certainty to charities. It's not an easy thing to do, it's incredibly nuanced, but it's possible. What Hands off our Charities asks for is a very clear test to apply to our activities within a clear, regulated time frame. We submit that six months before an election is adequate so that we're not unreasonably burdened by compliance requirements and to avoid the chilling effect on advocacy.

Mr Bundock-Livingston : Generally, we do not object to sections 302D and 302E, which establish the core foreign funding ban for political campaigners and third parties, in connection with electoral expenditure and electoral matters. However, 302F is problematic because it makes it an offence for a third party or political campaigner to receive and retain, after six weeks, a gift of any value from a foreign donor, even if that organisation has no knowledge that the gift is from a foreign donor, if the donor intends that gift to be used for electoral expenditure or electoral matter or if the organisation intends to use it for that purpose.

In effect, 302F requires a third party or a political campaigner to undertake due diligence on every donation that may be allocated or directed towards electoral expenditure. The organisation risks contravening this section if they do not undertake an acceptable action within six weeks. From our perspective, it's unclear why the exceptions to the offences in 302D and E, specifically the written affirmation, the appropriate donor information or reasonable steps to verify exceptions, have not been included in 302F. We'd also like to state that 302F is not consistent on our reading with the terms of section 302P which provides in the note that a person may not commit an offence if they obtain appropriate donor information and the terms of the explanatory memorandum, which have been discussed previously, which states that the offence applies to organisations that knowingly receive a gift from a foreign donor. And that's the amendment on page 130 of the explanatory memorandum.

CHAIR: If there are no further comments, I'll hand over to Mr Giles.

Mr GILES: Thanks all of you for your evidence today. I wonder if I should probably start with moving that we received the documents circulated as a submission, if that's the appropriate course of action.

Mr GILES: I'll move that way.

CHAIR: I'll second.

Mr GILES: Thanks very much. As I think you noted, Ms McKinnon, a lot of the matters that you've raised, we've had the opportunity to reverse in evidence today, so I won't trouble you with going over old ground. I might just start where we left off with the Human Rights Law Centre's comments about section 302F, which we have spent a bit of time on. I was very interested in the proposition that, on its terms, it's inconsistent with section 302P. Could I draw you out a bit on that.

Mr Bundock-Livingston : Sure, if you just give me one moment to get it.

Mr GILES: The knowing requirement, I imagine, is the issue.

Mr Bundock-Livingston : Yes. Seemingly, this goes back to the drafting of 302D and E which have made it specific that there are exceptions where knowledge, or an attempt to have knowledge, as to the status of a donor or where an organisation seeks that knowledge. One of the previous submissions, I think, suggested that maybe this was a drafting oversight but, whilst we think 302F in its current form isn't appropriate and could actually be removed from the legislation, amendments to align it with 302D and E would be more appropriate.

Mr GILES: They are two matters that I really wanted to get from the coalition or draw out more broadly in your evidence. One, which I don't think we've heard from previously, is your fifth recommendation which goes to the exclusion of staff time and related matters. Obviously, you represent a very large chunk of the Australian charitable sector. I want to understand how significant this issue is, accounting for the significance of the red tape burden, the compliance, to not have this matter attended to in the bill.

Ms McKinnon : I guess, in practice, I've been advising the Australian Conservation Foundation on compliance under the Commonwealth Electoral Act for five years now. We deal with this issue currently under the current act, which is that it's unclear what types of expenditure are captured by the definition. We may communicate a political matter under the current definition or, hypothetically under this new definition, of electoral matter and some costs are clear that should be accounted—for example, the cost of designing a flyer, a billboard or a pamphlet, and the costs of disseminating those. Our staff are employed by us year around and are employed for the purposes of pursuing ACF's charitable purposes, and a lot of the time that involves obtaining good environmental and climate change policies. It's unclear: are we supposed to try and calculate the sliver of their salary that goes towards the communication of those three things in the lead-up to the election? Likewise, with the mobile phones we issue them with and the tea bags they consume in our canteen—we have no clarity on that.

Mr GILES: But presumably the uncertainty over third-party activities—third party meaning anyone who is not you—around potentially changing the character of an activity to make it an electoral matter, must add a further challenge to this question of allocating staff time? Is that fair?

Ms McKinnon : Absolutely. It's just another layer of complexity.

CHAIR: Isn't it like a 'dominant purpose' test, though? Isn't that what the amendment is looking at?

Ms McKinnon : It does look at that. So then you have to ask yourself the question: what is the dominant purpose of the expenditure? If the dominant purpose of the expenditure on that salary is to create electoral matter or not, I still think—

CHAIR: You actually aren't then slicing it up, as you mentioned before, like a sliver. You won't be worrying about a sliver because you are just looking at the dominant purpose of the person's role as such.

Ms McKinnon : If that could be made clear, I think that would be really helpful.

CHAIR: You would support a dominant purpose test rather than, say, an apportionment?

Ms McKinnon : I would support a dominant purpose test with regard to very specifically listed items—salaries, phones, travel, premises and those sorts of things. I think we need clear guidance on exactly what could be captured.

CHAIR: I'm sorry to have interrupted.

Mr GILES: That's okay. That was not unhelpful. There are two issues here: what's in and how it becomes in. I guess it's that second point that I was raising. The present definitional arrangements mean that, whether it's a dominant purpose or not, the inherent character of some component of a staff member's activity may fall within the remit of the act simply by virtue of a media report or a political party changing its position. I guess that was the concern that I was trying to get to, tying these two issues together.

Ms McKinnon : Similarly, that dominant purpose test, when looking at a particular employee's salary, may only be able to be done in retrospect, so that is a complexity as well when you look at the capture time lines and also the reporting time lines under this act.

Mr GILES: Lastly, Ms McKinnon and the other people who provide legal advice—I think your colleague from Greenpeace is in that position—is it fair to say, going back to the definitional issue without working through the examples, that the consequence of uncertainty is for legal advice to advise charities to move away from public commentary on issues that are of concern to them?

Ms McKinnon : I'll be frank and say that when members of our alliance seek external legal advice or legal advice from in-house counsel—though most of them don't have the privilege of having in-house lawyers—it comes back in mostly the same form, which is: that piece of expenditure is likely to be an electoral matter; that piece is not likely to be. There is absolutely no certainty. People seek legal advice to try and—

CHAIR: But that's the nature of legal advice, though, isn't it? That's what lawyers always say. That's why we have a High Court—to deal with the matters that end up there sometimes.

Ms McKinnon : I think that certainly small organisations with finite resources look at that and think, 'It's too hard. We'll just steer clear of our issue based campaigning during election periods'—or even in the year leading up to the election—which takes those voices out of the debate at the time.

Mr GILES: To be clear, in relation to the chair's comment, my view of my responsibility as a lawmaker is to avoid us having to go to the High Court or send people off to the High Court.

CHAIR: That's why lawyers exist.

Ms McKinnon : I think it was a dig at lawyers, and I forgive him for that.

Mr GILES: Senator Waters and I join hands with you on that. What we are determined to do through this process is to give legal advisers—but, more particularly, charities and other not-for-profits—clarity over what is within and what is outside the regime, so thank you for your evidence today.

Senator WATERS: I want to take up on that very point. Can I particularly commend you, Mr Baalman and Ms McKinnon, for your clarity on these points. You've highlighted the levels of uncertainty—even the uncertainty is stuffed with uncertainty. My question to you is: will the level of uncertainty in the bill, as currently drafted, have a silencing effect on your issue based advocacy?

Ms Zomer : It's hard to speak for those of us who aren't here in the room, but, having been discussing this with our colleagues for over 12 months now, I'd say undoubtedly people are very concerned and undoubtedly there would be a chilling effect without this being clarified.

Ms Frost : I would agree with that, especially coordinating with many of our alliance members, who, as Elizabeth pointed out, are smaller organisations or less-resourced organisations who, as you've pointed out, don't have the privilege of having in-house counsel, let alone the funding to seek their own legal counsel externally. Several of our organisation members have told me that there's no way that they would take that risk.

Senator WATERS: What's the effect on democracy of not having the resources contributing to the public debate?

Ms Frost : It just means that they're being silenced. Our member organisations represent hundreds of thousands of Australians from all walks of life. Their purpose is to help pursue those charitable purposes, to give voices to those people. If you're silencing that you're silencing a big part of democracy.

Ms McKinnon : I could talk all day about the role of third parties in the civil society and a healthy democracy, but there's a reason why the third sector is called the third sector. The other sectors—that of government and business—have fundamentally different bottom lines to civil society. Governments and political parties have political objectives. That's why they exist. Companies have bottom-line motivations. Charities exist for the public good, for a charitable purpose. They are incredibly uniquely placed to add objectivity and information that can be trusted in the public realm, especially in the lead up to an election.

CHAIR: I put it to you that political parties exist for good also, actually. I probably disagree with you. Are you saying that political parties don't exist for good?

Ms McKinnon : I said they're motivated by political objectives.

CHAIR: I think political parties are motivated by good and by helping people. Are you saying there should be separate rules for those who participate in the political process through a political party who believe in good as opposed to those charities who participate in the political process also and are also motivated by good? Should there be two separate rules?

Ms McKinnon : Absolutely. I think that a political party absolutely needs stricter and more regulation under this act then the third sector, or charities. The reason for that is that when there's an election their motivation—their objective—is to get their representatives elected to a house of parliament.

Mr GILES: That's the view this parliament has adopted in passing the charities act and the electoral act.

Ms McKinnon : I believe so.

Ms Zomer : I would add to that, that ultimately only those who do get elected wind up being in a position to make policy decisions. Those of us in the third sector never actually have that power. So the threat risk of how we participate in the electoral process is inherently less.

Ms McKinnon : This act needs to address the sources of corruption in the parliamentary and electoral process in Australia. Those sources of corruption come from the people who end up in power, who end up being able to make those decisions, and those organisations are not charitable organisations.

CHAIR: You said before—off piste for a moment—you think there should be a cap on donations for political parties. That's correct, yes?

Ms McKinnon : That's not what we said. We said that this is a missed opportunity to look at how to really clean up and create for Australia a robust and world-class electoral act and political donations regime. There are a number of different areas you could look at. Donation caps is one of them.

CHAIR: But you would support a cap on political donations to political parties?

Ms Zomer : We're not in a position to make a comment on that as Hands Off Our Charities alliance. We did use it by way of example as a range of matters that this bill could have potentially looked at, but as Hands Of Our Charities we don't have a position on the question.

CHAIR: I was just wondering whether you think there should be a cap on money being given to charities, in that case, if you think there should be a cap on donations to political parties?

Ms McKinnon : I think that if those donations are used for electoral expenditure, as precisely defined, there is an argument for that, yes.

Senator WATERS: Perhaps we should put charities in charge of making our laws. We might actually get some public interest outcomes, Chair.

CHAIR: You're too cynical for me.

Senator WATERS: Long live idealism! Can I ask you to elaborate on that final point. It is also my view that this bill is a missed opportunity to fix the problems with our system. I think it disproportionately targets charities, which, you've elegantly outlined, have public interest goals and purposes, and it ignores the influence of big corporations, lobbyists and big business on our democracy. What's your legal view of whether there is now a disproportionate regulation on the charities and not-for-profit sector, given that this bill has ignored big business and corporates?

Ms McKinnon : I haven't turned my mind to the exact proportionality of it. We're of the view that it's a missed opportunity. We find it extraordinary that we're all sitting here engaging in good faith on how we should be treated under what is a Commonwealth electoral act to regulate elections in Australia. We're charitable organisations, so it seems rather odd. I think if you look at the work of Dr Tham from Melbourne university, he outlines a really good blueprint for how Australia can start heading in the direction of going to the heart of the real corruption at worst but also a significant skew of influence over Australia's elections. I don't think that these amendments do that.

Ms Zomer : I would add to that. Through this process, as we've been submitting to this committee on this bill at different points, a number of our members have made the point that as charities we are a subset of third parties who are already heavily regulated, so we have to comply by a whole range of requirements about what we do and how we do it that other types of third parties that participate in political debate aren't required to abide by. So in some senses it does seem disproportionate to be adding additional regulatory burdens to us when, if you look at other parts of the political sphere, you would find other actors who are spending money and making comment and are significantly less regulated.

Mr Bundock-Livingston : A specific example I would point to would be requirements to disclose donors who are over a certain threshold, even if their donations aren't used for electoral purposes. It's hard to see where that's a proportionate response to, say, foreign electoral funding issues. Going back to 302F, if the end effect of that is to require a charity to do due diligence on donations of any value, we'd put that that is a disproportionate response to the threat which that donation represents.

CHAIR: Disproportionate in terms of determining whether they're foreign or Australian? It's quite easy to determine whether someone is on the electoral roll and therefore an Australian citizen—you just go to the AEC website. I don't understand how that is a disproportionate burden. Could you explain how?

Mr Bundock-Livingston : There are a couple of different issues there. One is there is no threshold in 302F, so it's for any value amount. I think Professor Anne Twomey pointed out the example of collecting money in a bucket at, say, Bondi Beach, and you've got tourists giving you dollar coins. Are you then going to go through a due diligence process to establish which of those dollar coins was from a foreign donor or which of those funds received can be used for electoral purposes or not? That's probably one example. Going to the other part of your question about whether it's proportionate, there needs to be a threshold and an acknowledgement that if there is a well-reasoned attempt to establish the personality of that donor that should be sufficient, as opposed to the different steps which are required in 302D and 302E.

Senator WATERS: I might say that I think that Professor Twomey made the relevant point: how can you be influenced if you didn't even know the person was not an Australian citizen anyway, so the need for actual knowledge rather than constructive knowledge or reasonable knowledge. I think she made that point quite pertinently. Would you agree with that aspect as well?

Mr Bundock-Livingston : Yes, definitely.

Senator WATERS: I don't have any questions that won't take us on a completely different tangent with the two minutes we've got left.

CHAIR: In that case, thank you very much for your attendance today. If any responses are due on notice, could we please have them to the secretariat by close of play on Monday, please.

Proceedings suspended from 12:29 to 13:31