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Joint Standing Committee on Electoral Matters
05/10/2018

HELGEBY, Dr Stein, Deputy Secretary, Department of Finance

NICHOLAS, Mr Ian, Assistant Secretary, Department of Finance

PATEN, Ms Gabrielle, Assistant Commissioner, Disclosure, Assurance and Engagement, Australian Electoral Commission

ROGERS, Mr Tom, Electoral Commissioner, Australian Electoral Commission

CHAIR: Welcome. 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 will be recorded by Hansard and are being broadcast. 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 for that objection, and the committee will consider the matter. I will now invite you to make an opening statement. The committee will then proceed to questions. We have copies of your submission. Do you both wish to make an opening statement?

Mr Rogers : We don't.

Dr Helgeby : We don't.

Mr DICK: I'm very interested in the brand new amendments that, as far as I'm concerned, have come out of nowhere: 302CA and 314B. Who dreamt them up? This is the state versus federal issue.

Dr Helgeby : I might make some opening remarks about those. In considering those amendments to the bill, which you have in front of you, regard has been paid to previous recommendations of this committee. Those recommendations have gone to things like providing clarity. Over the course of a period of time, particularly the last 12 or so months, a number of developments have occurred where different jurisdictions have put in place arrangements in order to deal with their own state electoral matters. In the interests of clarity and of removing confusion, those amendments are there in order to clarify for an actor who might be affected by this how the provisions will operate and work. They're there for consistency and clarity, largely in response to the kinds of calls for clarity that have been coming through from this committee and submissions to the committee.

Mr DICK: That hasn't answered my question. In my time on this committee, since July 2016, this committee has never raised those as issues. I've never heard a witness raise those issues. I've never read them in written submissions to this committee. They have never been discussed. The bill we are dealing with has nothing to do with those issues. They deal with foreign donations. I'm confused as to their genesis. Who drafted them? Who gave the instruction to the department? Was it the government? The minister? This committee? Can you provide any advice about that?

Dr Helgeby : A government considers a lot of factors in bringing forward legislation. Some of those factors include the debate around the bill and the calls for clarity in particular, and also developments in the environment, which have included the fact that there have been other moving parts in electoral systems and arrangements.

Mr DICK: So the minister came up with these?

Dr Helgeby : All legislation is put forward by the government.

Mr DICK: You are not going to answer that question. Which attorneys-general and state governments have been consulted about this?

Dr Helgeby : The bill is out for comment. This inquiry is a process by which comment is being gathered. It has been made available to all members of the community, including, as a consequence—

Mr DICK: My question was specific: has there been any direct consultation with state AGs or governments?

Dr Helgeby : We haven't undertaken that on our part.

Mr DICK: So no?

Dr Helgeby : I'm saying that we, the Department of Finance, haven't undertaken that.

Mr DICK: Are you aware that any states have objections to these proposed amendments?

Dr Helgeby : We haven't seen anything come through to the Department of Finance that reflects that.

Mr DICK: Are you aware of the evidence given by Professor Twomey this morning which suggested that they may be in breach of the Constitution?

Dr Helgeby : I didn't see the specifics of that comment, but I would make a remark about that—that is, nothing in the amendments to this bill would override a state's power to make very specific arrangements for state elections. This is about the avoidance of confusion as it relates to the Commonwealth jurisdiction.

Mr DICK: But are you aware that, if these amendments were passed, candidates in Queensland for the federal election, for example, could be awarded sums of up to $10,000 each in donations and then that money could potentially be used for state election campaign purposes?

Dr Helgeby : There is nothing in this bill or these amendments that seeks to impact on state elections. This is about Commonwealth elections and Commonwealth electoral matters.

Mr DICK: That wasn't my question. Are you aware that that could happen if these amendments were passed?

Dr Helgeby : Could you please repeat the detail of your question.

Mr DICK: If these amendments were passed, is it your advice that a candidate running for office for any political party in Queensland, who raised sums of $10,000 in donations for federal election purposes, but where that wasn't clearly indicated, could then wash that money through for state election purposes?

Dr Helgeby : There is a distinction between Commonwealth and state electoral purposes. As I understand it, in the example you are describing, a state candidate is seeking to raise money for a Commonwealth election.

Mr DICK: No. If that money were given to a federal candidate or to the relevant party in Queensland or another state, could that money then be used for other purposes?

Dr Helgeby : The primary test is about electoral activity that affects Commonwealth matters.

Mr DICK: So it could be used for state purposes?

Dr Helgeby : There is nothing in here that seeks to reduce the powers of a state nor does it seek to eliminate the ability for a state to put in place arrangements as they relate to state electoral purposes. This is about Commonwealth electoral purposes.

Mr GILES: The question is the power or the ability of the state. It's the impact on an existing state law that is the issue.

Dr Helgeby : Again, our understanding of the bill as drafted is that it does not in any way impugn states' provisions. It goes to the question of Commonwealth provisions and it goes to the question of, if there is doubt about it, the relationship between state activities and Commonwealth activities.

Mr DICK: Do you believe that this stacks up constitutionally?

Dr Helgeby : I do. It is the view of governments—for a very long time—that they do not deliberately put forward legislation with a view that they understand it to be unconstitutional. Quite the contrary, governments of all persuasions, for many years, have put forward legislation in the view that it is constitutionally valid. At the end of the day, there is a distinction between the legislative arm of government, the executive arm of government and the High Court. At the end of the day, the ultimate judge of constitutionality is the High Court, but I'm not aware of any government that has put forward legislation with a view that it thinks it is unconstitutional.

Mr DICK: Not a very convincing answer. I'll yield back to you, Mr Chairman.

CHAIR: Thank you. Issues have been raised, from some of the witnesses today, about the examples in the explanatory memorandum where some of the scenarios have caused confusion. Will Finance be considering possible revisions to the explanatory memorandum taking into account the feedback of this process?

Dr Helgeby : Yes, we will. In light of the committee's work and in the light of the report, where it appears that some confusion has been caused that can be removed we'll seek to address those things.

Senator WATERS: Just to pick up on that final point, what sort of time frame will you work to to clarify that, given that we understand the government wants to bring this bill on in the first sitting day back?

Dr Helgeby : My understanding is that the committee is seeking answers by Monday from people who have taken questions on notice, so, on the back of that, I'm assuming that it is not a long time before the committee puts out its report. We will go through the evidence that has been provided today as quickly as we can. To the extent that we see anything there that could benefit from a bit of clarification the process of doing that is not a vastly complicated process.

Senator WATERS: The committee reports next Friday. The government, I understand, intends to bring the bill on the subsequent Monday. That's over a weekend. Is that when you're proposing revising the explanatory memorandum?

Dr Helgeby : What I'm describing is a process and a commitment by which we will go through the evidence, we will go through the report and where it seems necessary we will make those adjustments in the sake of clarification. Some people would say there is a long time between a Friday and a Monday.

Senator WATERS: Is it your understanding that the government might seek to delay bringing the bill on in the Senate while you're amending some very important interpretive documents?

Dr Helgeby : That's a matter for government. I can't presume what government will want to do. All I can do is say that we, as officials, will be going through the material and we will be going through it as expeditiously as possible and supporting the government's approach to introduction.

Senator WATERS: Has the department sought advice as to the constitutionality of the provisions pertaining to the Commonwealth with its impact on state donation rules?

Dr Helgeby : I might refer to the earlier response in a sense. It is normal practice, and has been for, as far as I'm aware, forever, that government satisfies itself about the legality and constitutionality of material before it puts it before the parliament. This is no different.

Senator WATERS: So advice has been sought as to the constitutionality of those particular provisions?

Dr Helgeby : What I'm saying is that in the course of development of legislation all of these things are considered. You have before you a draft bill and a draft estimates memorandum. Before they are properly presented, governments gets assurance about all of those things.

Senator WATERS: Would that assurance have been provided by departmental lawyers, or was external legal advice sought?

Dr Helgeby : It is normal practice to go to the Australian Government Solicitor for all of these sorts of things. In fact, I believe that we have actually published on AusTender information about when we sought that advice from AGS.

Senator WATERS: I'm not familiar with AusTender, forgive me.

Dr Helgeby : AusTender is the main web repository for tender notices and contract notices. If you go to that—it is called AusTender; it's on the Finance website—you can search by the Department of Finance and you will see all of the tenders that we as a department have let in recent times.

Senator WATERS: Would that cover where you've asked the AGS for advice as to constitutionality?

Dr Helgeby : My understanding is it's already published.

Senator WATERS: The advice itself?

Dr Helgeby : No, it's not about publishing the advice; it's about publishing the request.

Senator WATERS: Thank you. Can you give me the date that was made, just to make it faster for me to find?

Dr Helgeby : We'll try and get it while we're meeting.

Senator WATERS: Thank you for that. Can I take you to a particular provision of the explanatory memorandum which we have gone over quite a bit today with a number of witnesses. It pertains to the interpretation of 'electoral matters'. It seems there has been general welcome for that new definition, but it also seems that those explanatory memorandum examples have actually muddied the waters rather than clarified the definition. Can I draw your attention specifically to pages 13 and 14 of the supplementary explanatory memorandum, and to example 1 at the bottom of the page on page 13, and examples 2, 3 and 4 over the page. The issue that has arisen is where you've drawn the line, or where the drafters of this have drawn the line, between what is legitimate issue based advocacy and what is implicit comment on a political entity. Can you please explain how those examples are consistent with the assertion in the explanatory memorandum that issue based advocacy of a non-political nature is not captured by the definition of 'electoral matter'? It seems to me that those examples imply the opposite.

Dr Helgeby : I might go back to the basic definition. The basic definition is a three-part one. There has to be a dominant purpose at the time, and that dominant purpose is about influencing voters. So it is not a general commentary around the virtues of X, Y or Z. It is not a piece of opinion about those things. It is about influencing voters, and that has to be the dominant purpose. There has to be expenditure attached to it. It has to be at those times. You referred to pages 13 and 14, but there are actually quite a lot of examples on those pages.

Senator WATERS: Example 1 at the bottom of page 13 talks about the T-shirts about town planning. In particular, example 3 at the top of page 14 talks about the billboard opposing a racetrack.

Dr Helgeby : In the first example, the one on page 13, here there is not an issue which is an electoral issue. There is not an issue which is being contested in the electoral environment. There is just an issue that people have views about, so it falls on one side of the fence. Where is the racetrack one?

Senator WATERS: The racetrack one is over the page. Before we leave that first example, what seemed to me to make the difference in that example—please correct me if I am wrong, because I am very confused by it—is that there is a reference to the fact there's been no media coverage of the issue of town planning. That seems to me to be decisive in the statement that it's therefore less likely to be an electoral matter—because it's not in the media. How is it that you can have an external actor determine the character of what is and is not an electoral matter? How can that provide any certainty to not-for-profits and charities that are trying to comply with this definition?

Dr Helgeby : Thank you, I think that helps. Here 'There has been no media coverage' is actually simply taken to be an indicator of the fact that it is not a politically contested view in the electoral context. It's not about media; it's about whether or not there is evidence of a contest or that there is evidence of a partisan position—

Senator WATERS: You know, the media doesn't always cover issues even when there is a political context. We Greens are constantly trying to get issues up. So I think your measure there is perhaps a little off.

Dr Helgeby : But in one sense the word 'media' there may be distracting, because it's actually nothing to do with whether or not the media is involved; it's to do with whether or not this is contested in the political environment. I'm happy to—

Senator WATERS: That might be one of the examples you work on, over that busy weekend, because it's not just me that's been confused by that example.

Dr Helgeby : Yes. As to the billboards, it is very clear: this is before an election, and it is about something specifically to happen in an electoral context, and it is in a context where the candidates have well-defined views. So that very clearly meets those definitions. If it's expenditure related, it's expenditure. It is for the purposes of influencing voters, and that is its dominant purpose. So, in that sense, that example falls over on the 'likely to be', whereas the previous one stays on the other side.

Senator WATERS: Can I put to you an example that was given to us earlier by one of the witnesses, Mr Malcolm Baalman. His point was this. There has been a campaign on a particular issue—it doesn't matter what the issue was—and it has been on foot for 18 months. An election is called. A week into the election, one of the political parties says: 'Yes, we'll act on your issue,' and makes a commitment that it will—I've remembered now—list a particular medicine on the PBS. A week out from polling day, the other large political party says, 'We too will do the same,' at which point it becomes, effectively, no longer a political issue because they are both in agreement. Mr Baalman's question was: at what point was it an electoral matter? What about the preceding 18 months when nobody cared? What about that three-week period when only one of the major political parties had adopted it as their position? And what about that final week when they'd both adopted it? How on earth is that organisation meant to work out when it's an electoral matter?

Dr Helgeby : I might go into a bit of detail on this. I think the example he was using was about vaccination or something like that?

Senator WATERS: It was the listing of a medicine on the PBS.

Dr Helgeby : So say, 18 months before an election, a whole bunch of activity occurs around vaccination—the good of vaccination and all of these sorts of things. Fine. It's not captured by any of this. We get into an election period. A party has a view on vaccination. Fine. The issue is: during the election period, does someone undertake expenditure for the primary purpose of influencing voters? It is not about whether or not they had views which were pre-existing or formed over a very long period of time, or whether they've got materials produced 18 months ago that are still in the market. It is about whether they undertake activity in that time frame, for that purpose, and that is the dominant purpose, and it's spending. In that particular case, there wasn't anything I heard in there that said, 'Someone is spending something to influence voters in that election campaign.' All I heard—and there may have been implicit in that, but all I heard was: 'Someone who cared about vaccination before still cares about it now, and, by the way, now it is a matter that is being debated in the political process.'

Senator WATERS: Thank you for that explanation. I have a follow-up question. In your answer, you referred to the fact that it was now in an election period. Was there ever any discussion of, or have you ever turned your mind to, actually limiting that period to a defined period in relation to the election? Some of the charities groups have, for example, suggested it be in the six months prior to an election rather than at all times at any point in the electoral cycle. Was that ever under consideration? And can you shed any more light on that timing issue?

Dr Helgeby : I'd make a couple of observations. One is that, in our system, elections, while they are normally scheduled every three years, can occur at other time frames. So it is actually, in practice, quite difficult to define that. Let's say, as has happened from time to time, there is to be an early election, but it is unknown—

Senator WATERS: I don't think there will be.

Dr Helgeby : No, but it has happened in the past. I'm just using historical examples. So there's to be an early election and it's not known by anyone other than a couple of people. How do you define, if you like, a six-month period, a 12-month period or whatever, in relation to that? So the test here—

Senator WATERS: But, as to the proposal that you count it from the preceding election—say, two years and two months after the last election, for example, to capture that very issue—is thought given to that?

Dr Helgeby : In one sense, that's why the test is on the activity rather than on the time frame. It is on the fact that someone has undertaken expenditure for the purpose of influencing electors. They may not have known at what point in time that election would occur, but they undertook the expenditure to influence electors—and that was the dominant reason for why they did that. In order to ensure fair and equitable treatment over time and also across groups, it is better to stick to that activity test than to put in place anything which is a bit more arbitrary, which is effectively what a time frame test would do.

Senator WATERS: Can I take you to that dominant purpose test. Again, some of the charities earlier today suggested that their purpose is to change government policy; that their purpose is not necessarily to influence voters to change the government in order to get the policy changed—they just want the policy change. How do you measure that against the dominant purpose test?

Dr Helgeby : To start with, lobbying activities are an explicit carve-out. In 4AA; what's the exact section?

Senator WATERS: I'm aware of that, and that's been a welcome clarification. But their point—and perhaps I'm not articulating it very clearly—is that they might run public campaigns with the purpose of changing government policy. It may be that they do that through the vehicle of a public campaign but their dominant purpose is to change government policy or to change the law of the land—perhaps that's a better way of describing it.

Dr Helgeby : If the dominant purpose is advocate for a position which in their should be taken by one party or all parties—

Senator WATERS: Everyone.

Dr Helgeby : or everyone together, that doesn't fit within this. The influence has to be on electors or attempting to influence electors. The business of trying to influence political parties is not in scope.

Senator WATERS: What if you're trying to influence political parties via public pressure?

Dr Helgeby : If you are trying to influence electors and therefore, through them, to influence political parties—

Senator WATERS: If your purpose is to achieve the goal of changing the law, does it matter that you're seeking to do that through influencing the public? How does it fit with the dominant purpose test?

Dr Helgeby : If it is the dominant purpose to influence the electors to behave in a particular way and there is spending involved in order to do that, that would fall within scope. If it is simply to advocate for something and say, 'This is good and that's bad,' or 'Let's have more of this' or whatever, that's not captured.

Senator WATERS: If there was an advertising campaign saying, for example, 'We think the law should change to ban single-use plastics,' the dominant purpose is to change the law so that we don't have single-use plastics. But the fact is that it is being carried out through a public campaign. Where would that fit on your spectrum?

Dr Helgeby : Again, it's possible that that matter, even though it might be a matter of some import in the community, is not actually likely to be the subject of any electoral activity or of any reason to prefer or not prefer a candidate.

Senator WATERS: I don't know if I agree with that. We have a strong view on that and I would hope that other parties would also reveal what their stance is in the course of an election.

Dr Helgeby : But, again, it's not the fact that someone has revealed their stance; it is the attempting to influence electors favourably or unfavourably in relation to something. That is likely to be or is a matter of political contention. That's really the point at which—

Senator WATERS: Perhaps climate change is a better example. I am sorry to belabour the point but I really am seeking to understand what the examples mean and how the new definition would work. If it was an advertising campaign about having some climate laws, for example—which is clearly an issue in the election because there are some parties that have climate policies and some that don't have any—what would you say about the application of the dominant purpose test?

Dr Helgeby : Again, if it is simply advocacy and seeking to get a response from a political party or from more than one political party or whatever, then it is not captured. If, though, it is for the purposes of influencing electors so that they choose when they vote to go one way or the other and it is a politically contentious issue, then that would be captured.

Senator WATERS: Even if they're not saying which political party?

Dr Helgeby : They don't have to say which political party. It can sometimes be obvious, without stating something, that a view is held by one person and not by another person—and those sorts of things.

Senator WATERS: I have just one final question. Do you accept that that is quite unclear and that NGOs have said they find that so opaque that they will simply not advocate?

Dr Helgeby : I think it would be a misunderstanding of the legislation as drafted as to how it would apply and in particular how it would apply to advocacy. In our view, as drafted, the legislation doesn't go to advocacy; it goes to the influencing of voters.

Senator WATERS: Thank you.

CHAIR: Before I hand over to Mr Giles, I have one quick question. In relation to trusts, would it be easy to amend section 302P to add options for trusts, allowing a trust to provide an extract from their trustee or to allow the recipient to look up whether a trust has been registered with the charities commission? Do you see any potential issues with such additions to section 302P?

Dr Helgeby : My understanding is it would not be technically difficult to do that.

CHAIR: Excellent.

Mr GILES: Dr Helgeby, I should say that I share Senator Waters' confusion as to the application of this provision. I will take you to a couple of aspects of it. Can I clarify one aspect of your evidence? You referred to spending being a significant factor. I assume you meant spending on the part of the civil society actor and not spending on the part of the government, going to the dominant purpose test?

Dr Helgeby : We're talking about spending for the purpose of influencing voters.

Mr GILES: Yes. We're talking about spending on the part of the entity seeking to influence voters, not the spending by government being a factor going to the character—

Dr Helgeby : This is about disclosure on the part of—

Mr GILES: I think I now understand your evidence. The way I took your evidence earlier took me to a different place, but now I understand what you're saying. Hopefully the Hansard is clear on that. I just want to take you back to Senator Waters' question on the timing issue and how your evidence on how the dominant purpose test is to be applied in light of subsection E, which takes us directly to the issue of how soon a federal election is to be held. Obviously, we all understand there is, generally speaking, no certainty about the timing, but it is a factor in this bill.

Dr Helgeby : Yes. I could give an example. I think it would be difficult to say that it would be captured. It's on how soon a federal election is to be held after the creation or communication of the matter. Let's say an election is held this weekend and then the matter is created the following week. It is highly unlikely that an election would occur in a time frame which is relevant to the initial creation. If, however, that material created a week after one election is then used—and there is payment involved—for a political purpose close to the next election, then it's that use that is captured, not the initial creation.

Mr GILES: I'm not sure how that would be very useful by way of guidance to any entity trying to comply.

Dr Helgeby : I'll have another go at that. Let's say I produce some materials today and I use them now. Let's say there is no election for a period of time, but then, as I come inevitably and constitutionally closer to an election, I seek to reuse that material and I reuse that material in a way which involves payment, it's the reuse we're talking about, not the initial creation.

Mr GILES: I think that's two separate points. Perhaps, Mr Rogers, you might help me out on this. It's your job to enforce this. How can you? Can you?

Mr Rogers : I take on board the points about a new piece of law being complex until it's settled down. I'll pick up on what Senator Waters said before that the introduction of electoral matter in 4AA has created more certainty than the previous bill, which was a far broader application. I think that the critical thing here is that each of these issues will turn on the individual cases that apply to every single instance. I'm always cautious, whenever we give evidence, about providing some sort of generic principle that would be then used across the board because the application of funding and disclosure legislation, more broadly, is the most complex area of the Electoral Act in any case, and we need to be very careful with that. So, I think that when I read that I have a particular take on it. We're waiting to see what the final format of this is when it hits legislation before we actually then craft our final messaging in all the awareness campaigns, but I don't think I can add much more value at the moment.

Mr GILES: Would you be assisted in your role if legislation gave clearer guidance as to the temporal application of it?

Mr Rogers : Mr Giles, my role is always easier the clearer the legislation is, so I could certainly say that as a general principle; however, I'm also conscious of what's trying to be achieved here. My comment would be that, despite any existing cloudiness on this, it is a lot more usable than the previous version of the definitions.

Mr GILES: If I can be clear, that was certainly how I read it. But I've been concerned reading the EM—and I'm grateful that Finance have indicated they'll have another look at those terms, and that may provide some assistance. Perhaps one other issue I might put forward, just going back to the issue of the timing: it's my belief that in New Zealand they also don't have fixed terms and they have some provisions which seek to deal with the operative terms of similar provisions of, I think, their donations law—it may be some other aspect of their electoral law—which puts in place a timing mechanism from a certain number of months from the last possible date for the election or, alternatively, the formal election period. I think that is the case. At least, as a matter of principle, that would be something that would be open to this parliament, wouldn't it?

Dr Helgeby : I'm not close enough to the New Zealand example to be able to comment.

Mr Rogers : I'm not sure whether that's a provision or not. It may well be, Mr Giles, if you have that information.

Mr GILES: Perhaps the point I'd make is: it seems to be at least theoretically possible that we can provide some certainty, if the government were minded to do so, over the time period that is relevant to these provisions. Because it seems that we say the day after the election, 'Sure; that's fine,' but what about three weeks after the election, if the government suddenly hits a crisis? What about two years after the election? It just seems that in the absence of clear guidance from the regulator perhaps, or from the government, in terms of its expectations, this is an opportunity for clarification which is actually being lost. Perhaps that's a matter that, in having another look at the EM, Finance might have regard to. Obviously at one level it goes to policy decisions, but I think there might be some matters that you can assist us with.

Dr Helgeby : Deputy Chair, I've heard the comments that have been made and will consider them.

Mr GILES: Thank you very much. There's just one other matter for Finance that I wouldn't mind addressing. It follows on from Mr Dick's questions on this issue of the operation of this bill, were it to be enacted into law and state laws. You talked about clarification, and that means, as I understand it, clarification in light of the recent decision of the Queensland Supreme Court. Is that right?

Dr Helgeby : This is actually a broader issue. So, there are six states, two territories and the Commonwealth, each of which has the ability to set up their own arrangements. Some have chosen to do so and others have chosen not to do so. In the Federation, it is not uncommon for different jurisdictions to take often divergent paths in how they frame particular pieces of legislation which ostensibly are dealing with the same thing. This is about clarifying the relationship between any approach taken by a state or territory and the federal approach, and it deals only with federal matters. The states and territories remain entirely able to choose different paths, supplementary paths or whatever.

Mr DICK: Just on that, in section 302CA, it will grant immunity from state and territory laws that impose obligations in relation to the receipt and use of gifts, when they are required to be, or may be, used for the purpose of incurring Commonwealth electoral expenditure or creating or communicating a Commonwealth electoral matter. The proposed section 314AB will grant immunity from state and territory laws that impose obligations to disclose funds when the amount is to be, or may be, used for the authority or the receipt for the purposes of Commonwealth elections. So you can donate, and those funds, if you don't specify, can be used on state campaigning?

Dr Helgeby : There is nothing that the bill tries to do or does—

Mr DICK: Currently, Queensland law is that donations of $1,000 or above must be disclosed. If this bill is passed with these amendments, you will be able to make donations for federal purposes, and if you don't specify for federal purposes you bypass those state laws?

Dr Helgeby : The primary purpose of this is to deal with—

Mr DICK: Is the statement I made incorrect?

Dr Helgeby : I would have to go and have a closer look at the Queensland legislation and exactly how it works.

Mr DICK: Would you take that on notice, please?

Dr Helgeby : I will take that on notice.

Mr DICK: Just to confirm: you hadn't checked the state laws before this came through? You didn't match them up against that?

Dr Helgeby : No, that's not entirely right. You're asking a point of detail, and you offered that I could take it on notice. I will take it on notice, because you asked me a point of detail and I want to provide accurate detail.

Mr GILES: Perhaps another matter you might have regard to on that is what is being clarified?

Dr Helgeby : What is being clarified is how the federal system would treat donations that are for federal purposes or for mixed purposes. That is what is being clarified.

Mr DICK: Have you read Professor Twomey's submission?

Dr Helgeby : I have seen it; I can't say I've memorised it.

Mr DICK: It was only evidenced today. I'd like the officers to take on notice her last two pages, under the topic of 'Federalism', , if you could, given that we have such a tight time frame, to reflect on what she's done and confirm whether that is accurate or inaccurate. Because she makes a very, very strong point that, currently as they stand, the Queensland laws are paramount above Commonwealth laws. If these amendments go through, her precis, and you can read it, is that they will be bypassed with Commonwealth laws.

Dr Helgeby : I'll take that on notice. It's a very specific request.

Mr GILES: When you do that, clause 227 of the EM seems to make it pretty hard to argue that Professor Twomey isn't right. Back on this clarification point, I understand the broad principle but what event has led to this need for clarification now?

Dr Helgeby : The fact that we have a changing environment; we have got an environment where, even in the last 12 months or so, at least two jurisdictions have sought to do things that are different in this environment. You have to envisage in the Federation that it doesn't just start and stop with one jurisdiction moving. We have to consider how we have a consistent approach and how we have an understood approach that affects the Commonwealth jurisdiction when these other moving parts are moving.

Mr DICK: You will concede this is nothing to do with this committee? The two additional amendments were not part of the bipartisan report agreed in April. These are extra things that have come in to this committee, and we have not discussed these in any way, shape or form, nor taken evidence, advice or submissions. No-one has raised these as of concern to this committee; they might have to the government, but certainly not to this committee. I just find it extraordinary that we're dealing with a whole range of issues that the committee has methodically gone through in a bipartisan way and taken a lot of evidence on—and this committee has worked well—and all of a sudden these two amendments come through that no-one knows about and no-one can explain why they're there, apart from current vibe and current issues.

Dr Helgeby : I'll take it as a comment.

Mr GILES: Can you point me to any statement by the Special Minister of State or the minister for finance that refers to these provisions or concerns about the enactment by Victoria or Queensland of different donation and disclosure laws?

Dr Helgeby : I'll that one on notice as well; it's a very specific request.

Senator WATERS: I'm not too sure which body is best to answer these questions but I want to change tack a bit and go to the definition of electoral expenditure as it pertains to political parties. The definition in 287AB(3) is, to my mind, quite broad. It says:

In addition, any expenditure incurred by or with the authority of a political entity …

Blah, blah, blah—

is electoral expenditure …

It's on page 7 of the exposure draft. In any event, it's about political party expenditure. I just want to confirm whether or not there is a time period associated with that expenditure. I have a number of questions about that. Is there a time limit on when that expenditure is incurred for the purposes of, effectively, public funding?

Dr Helgeby : No.

Senator WATERS: So it's, at all times, at any point in the electoral cycle, not just when the writs are issued.

Dr Helgeby : Yes.

Senator WATERS: I think I know the answer to this question, but I want to be sure. Does it includes things like staff wages, travel, rent and that sort of thing? Is the test simply that it's expenditure incurred with the authority of a political entity?

Dr Helgeby : Yes; it's highly likely. It still has to meet those other tests.

Senator WATERS: Which other tests are they?

Dr Helgeby : It has to be for the purposes of influencing voters, for example.

Senator WATERS: So it's still subjected to that head definition, which is expenditure incurred for the:

Dominant purpose of creating or communicating electoral matter

Dr Helgeby : Yes.

Senator WATERS: On that point, one of the examples in the explanatory memo at the top of page 8, example 2, talks about staffing costs. Could you confirm, given that example, that something like a staffing cost for an employee of a political party—where the whole point is to get your people elected so you can effect change—will be covered under that definition?

Dr Helgeby : Yes. In this particular case, the cost of Andrew's employment is the full cost of his employment.

Senator WATERS: Assuming that he's engaged in creating whatever we just said, 'electoral matter'.

Dr Helgeby : That's right. And I might just might make a point that, as drafted, there's no concept of apportionment. The concept is dominant purpose rather than apportionment. It doesn't ask people to salami slice things. It asks people to say, 'The primary purpose, the dominant purpose, of this' is what it is.

Senator WATERS: So, for example, everyone's wages will be covered if they've been employed to work on the federal election campaign.

Dr Helgeby : Yes. We wouldn't say that 20 per cent of this person is counted one way and 40 per cent a different way.

Senator WATERS: Thank you for that clarification. I'd like a further point of clarification, and perhaps this is a question for you, Mr Rogers. In reaching the four per cent cap, does one have to show that one has—how do I phrase this without confusing myself? Can you accumulate the expenditure of the political party or do you need to say, 'In this particular seat, where we got more than four per cent, we spent this, this and this,' or can you just say, 'We reached more than four per cent in all of these seats and our total expenditure was' blah, if that makes sense?

Mr Rogers : I might take that one on notice, just to make sure I give you an accurate answer. It will be different depending on whether there's an independent candidate, how big the party is and whether it's got state branches or it's federated. As you know, Senator, sometimes a state party will authorise the payment of funds to the federal party and so on and so forth. So I might take that on notice to give you an accurate answer.

Senator WATERS: Thank you, I appreciate that and look forward to your response. Likewise, I have another extreme detail question. Where, for example, state parties of a federated federal party make contributions to that federal wing in order to run a federal campaign, are those contributions captured by the definition of electoral expenditure?

Mr Rogers : I might take that on notice as well so that I can give you an accurate response.

Senator WATERS: Thank you. One final question, commencement date: can you explain to me why that's changed? In the original draft it was going to be 1 July or post royal assent. From memory, it's now some complicated drafting whereby it's either on royal assent for part 2 in particular, which pertains to political parties, or six months after royal assent. Can you just explain what the policy rationale is for that change of commencement provision?

Dr Helgeby : There's a bit of history attached to that. When it was originally introduced in December 2017, there was quite a gap expected between the previous election and the next election. We are now running closer to the time of when the next election will occur. It's really to deal with that eventuality so that, if passed, these arrangements will be in place for the coming election.

Senator WATERS: So that's the intention—that they apply for the coming election?

Dr Helgeby : If it is passed, yes.

Senator WATERS: Can I just confirm that's the case, Chair.

CHAIR: That's my understanding. That's why we want to get it through.

Senator WATERS: Thank you.

CHAIR: That's why we're finishing at 3.30 pm! Thank you for your attendance here today. Please have your answers in response to the questions on notice in by close of business on Monday. Thank you to the secretariat, Hansard and the people who turn the lights on—everything, thank you very much.

Committee adjourned at 15 : 31