Dissenting report

Australian Greens
Many of the changes proposed by the Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020 (the Bill) are necessary technical improvements. However, in a triumph of big money over democracy, and despite an attempt at redrafting, the Bill undermines tougher State-based donation regulations, such as lower disclosure thresholds, donation caps, and prohibition of donations from sectors known to have a corrupting influence.
The Bill is also a missed opportunity to implement critical reforms to improve transparency and integrity measures associated with elections and campaign financing.
The Australian Greens also have concerns regarding:
The potential for increased flexibility in questions posed to voters to facilitate the introduction of Voter ID; and
Broad delegation of the responsibilities of Divisional Returning Officers.

Undermining State donation laws

Timely disclosure and low disclosure thresholds are essential to ensure that the public has clear line of sight between donors and political influence.
The provisions of the Bill seeking to replace the impugned s.302CA and 314B of the Commonwealth Electoral Act 1918 (the Act) are said to be designed to address the High Court’s decision in Spence v Commonwealth.1 However, as drafted, the provisions still allow parties to undermine State efforts to regulate the influence of donations through strong disclosure rules and banning donations.
In response to documented corruption risks, Queensland has introduced legislation to prevent donations from property developers and to require near to real-time disclosure of all political donations. Restrictions in other States also seek to deter corrupt behaviour and allow public scrutiny of donations. Such legislation should be supported, not undermined.
The Commonwealth disclosure scheme is weaker than the disclosure schemes in most States and Territories. Professor Joo-Cheong Tham has said that enacting the amendments in the Bill “will result in weaker regulation of political funding in Australia.” This sentiment was echoed in many other submissions.2
Several submissions discussed the fluid nature of campaign finances and influence within a political party which operates at local, State and Federal levels.3 Professor Anne Twomey and Giacomo Rotolo-Ross refer to the ‘laundering’ of political donations4, while Professor Joo-Cheong Tham describes the ‘hydraulics’ of intra-party political finances which allow money donated for Federal purposes to flow back to State branches without contravening the restrictions that would have applied to a direct donation at the State level.5 Such intra-party donations and transfers are not recorded in a systematic way, making them nearly impossible to track.6
Even where there is no direct transfer of funds, a State party or candidate could still feel the influence of a donation made for a Federal purpose from an otherwise prohibited donor.
The Committee report recommends a further amendment to require donations made ‘for Federal purposes’ to be deposited into a separate Federal account, quarantining the funds from State party finances. While such an amendment will go some way towards improving the transparency of transfers, it will not stem the flow of finances or influence.
The Greens have consistently advocated for national efforts to introduce rigorous, harmonised rules for disclosure and regulation of donations. Until consistent regimes are introduced, Federal laws should not undermine State approaches that seek to ensure accountability and transparency.
Repeal ss.302CA and 314B of the Commonwealth Electoral Act 1918.
The Bill misses an opportunity to strengthen transparency and integrity in relation to political donations and campaign financing. The Australian Greens continue to call for a range of reforms to provide a more rigorous and transparent political donation disclosure regime, including:
including membership fees and pay-for-access events in the definition of ‘gift’;
disclosure of all donations over $1,000 on an easy to search, public website in close to real time;
an aggregated cap on donations of $3,000 per parliamentary term;
a complete ban on donations from developers, banks, mining companies and the tobacco, liquor, gambling, defence and pharmaceutical industries to political parties, candidates and associated entities.
That the government implement the recommendations made by the Senate Select Committee Inquiry into the Political Influence of Donations.
That the government adopt the Commonwealth Electoral Amendment (Banning Dirty Donations) Bill 2020.

Questions to voters

We are supportive of proposed amendments to allow some flexibility in the way in which voters are asked questions to determine their eligibility. This amendment recognises that many voters have low literacy and minimises the risk that such voters are inappropriately ruled ineligible or subjected to an unnecessary administrative procedure because of the inflexibility of the eligibility questions.
However, removing the prescriptive nature of the questions must not give licence to any polling officer to require a voter to produce identification to satisfy the officer of their eligibility. As noted in the Australian Greens’ dissenting comments to the 2016 election review report, voter identification requirements have “serious implications for voter engagement for many groups of disadvantaged voters, including itinerant and indigenous voters as well as those escaping domestic violence.”
To ensure that the objective of greater flexibility is achieved without compromising voter engagement, we recommend that each of the relevant sections be amended to confirm that no identification can be required.
Amend provisions in the Bill regarding flexibility of eligibility questions to ensure voting officers cannot require a voter to produce any document to verify their name or address.

Delegation of DRO responsibilities

The Australian Greens acknowledge the significant workload of Divisional Returning Officers (DRO) during the polling and scrutiny periods, and the benefits of allowing this workload to be delegated. However, the proposed s.37 should be amended to clarify the extent of delegations and ensure that the responsibility for critical tasks cannot be outsourced.
Amend the proposed s.37 of the Act to:
reserve the power to declare the poll for a given division to the DRO or Assistant DRO of that division;
explicitly provide for scrutineers to seek a ruling on formality of a ballot from the relevant DRO or Assistant DRO to ensure consistency of rulings; and
require a register of delegations to be made available to the public.
Senator Larissa Waters

  • 1
    Spence v Queensland [2019] HCA 15; (2019) 367 ALR 587, 603–4 [55] (Kiefel CJ, Bell, Gageler and Keane JJ)
  • 2
    Submissions from Assoc Professor Luke Beck (Submission 4), Professor Graeme Orr (Submission 1), The Centre for Public Integrity (Submission 10), Mr Andrew Wilkie MP (Submission 11), The Australian Conservation Foundation (Submission 12), and the Human Rights Law Centre (Submission 20).
  • 3
    For example, submissions of ALP Queensland Branch (Submission 14), Professor Joo-Cheong Tham (Submission 2), and Assoc Professor Luke Beck (Submission 4).
  • 4
    Submission of Professor Twomey and G Rotolo-Ross (Submission 16), p. 3.
  • 5
    Submission of Professor Joo-Cheong Tham (Submission 2), p. 4.
  • 6
    Advice from the Parliamentary Library.

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