2.1
This chapter addresses proposed amendments to the Bill that regulate expenditure and registration. These matters in the original Bill were the subject of recommendations in Chapter 2 of the Committee’s April 2018 advisory report.
Expenditure covered by the Bill
Original Bill
2.2
The Bill introduced the term political expenditure, defined as expenditure for political purpose. Registration and disclosure of expenditure were dependent on the definitions of these terms.
2.3
Political expenditure was defined as expenditure for a political purpose.
2.4
Political purpose was, in short, defined as the public expression by any means of views on a political party, a candidate in an election, a member of the House of Senate, or an issue that is, or is likely to be, before electors in an election.
2.5
The Bill’s proposed definitions of ‘political purpose’ and ‘political expenditure’ raised concerns for submitters due to the breadth of the definitions, subjective nature of their interpretation, and potential confusion with the meaning of ‘political purpose’ in the Charities Act 2013.
2.6
The Committee was equally concerned by some evidence that indicated lack of understanding of the current provisions of the Electoral Act as they apply to third parties.
2.7
The Committee recommended that the introduction of the definition of ‘political purpose’ be reconsidered and the definition of ‘political expenditure’ be tightened to specify intent to:
recognise that there is a distinction between advocacy to government and political campaigning with an intent to influence voters; and
reduce the subjectivity from interpretation of activity under this section.
2.8
The Committee argued that a tightening of the definition of ‘political expenditure’ would clarify that educative, artistic, satirical or journalistic activities that are not intended to influence voting behaviour are not regulated by the Electoral Act. Academic opinion and information provided to parliamentary committees would also be excluded.
Proposed amendments
2.9
The Government has proposed to replace the definitions of ‘political purpose’ and ‘political expenditure’ with definitions of ‘electoral matter’ and ‘electoral expenditure’.
2.10
These definitions are more explicit about the expenditure that would be captured.
2.11
The definitions of electoral matter (s. 4AA) and electoral expenditure (s. 287AB) are at Appendix A.
2.12
The definitional changes are intended to explicitly cover expenditure designed to influence voting intentions and ensure that non-political, issues-based advocacy is not captured.
2.13
In direct response to the Committee’s recommendations the Government noted:
The definition does not capture general issue-based advocacy. There are also clear carve-outs for communications with parliamentary committees, parliamentarians, other Commonwealth officials, political parties or candidates for federal elected office. Carve outs also apply to private communications, news and editorial content and for satirical, academic, educative, and artistic purpose.
2.14
The draft supplementary explanatory memorandum provides the following context:
4AA(4) Matters to be taken into account in determining whether matter is electoral matter
24 To assist in interpreting subsection (1), subsection (4) sets out a non-exhaustive list of matters that must be considered in determining whether matter is electoral matter. Subsection (4) is not a deeming provision (by itself, one of the factors in subsection (4) does not determine whether the dominant purpose is to influence voting). Instead section 4AA must be considered in its entirety in determining whether matter is electoral matter.
25 These factors are not intended to be considered in a simple summative manner. The context of the communication determines the relevant weight of the factors in using them to interpret whether the dominant purpose of the communication, or intended communication is consistent with subsection (1).
26 Subsection (4) captures key elements of the context of the way electoral matter is intended to be communicated, or is communicated. Where the answer to a question in paragraphs (4)(a), (b), (c), (d) or (f) is yes, or to (e) is soon, then the matter is more likely to be electoral matter. These contextual elements include, but are not limited to:
a) the accessibility of communicated matter (paragraph (a));
— Where matter is communicated publicly, whether universally to the public or a section of the public, it is more likely to be electoral matter.
b) the source of communicated matter (paragraph (b));
— Where matter is communicated publicly by a political entity or political campaigner, it is more likely to be electoral matter.
c)the content of the communication (paragraph (c));
— Where matter contains an express or implicit comment on one of the categories mentioned in subsection (1), it is more likely to be electoral matter.
d)
the intended audience of the communication (paragraphs (d) and (e)); and
— Where the intended audience of a communication is electors, it is more likely to be electoral matter. In determining the intended audience of a communication, paragraphs (d) and (e) clarify that the temporal and spatial proximity of the communication’s audience to citizens acting in their capacity as electors is relevant. For example, where a communication targets adults entering a polling place on polling day, it is more likely to be electoral matter.
e) the audience’s consent (paragraph (f)).
— Where a recipient or intended recipient of a communication has not requested or otherwise invited the communication, that is, it is unsolicited, it is more likely to be electoral matter.
Evidence received
2.15
Most of the evidence received in relation to the definition considered it to be an improvement on the original Bill.
2.16
The Australian Major Performing Arts Group (AMPG) submitted:
We welcome the proposed amendment to remove the term ‘political purpose’ which was defined broadly with the term ‘electoral matters’ in so far that it effectively addresses our concern that the Bill in its previous form, had the potential to limit Charities’ capacity to advocate for their charitable purpose.
2.17
Philanthropy Australia noted:
Section 4AA clarifies that the vast majority of the issues based advocacy activities undertaken by Australian charities and funded by our Members will not be within the scope of the Act should the amended Bill be passed.
‘Dominant purpose of influencing the way electors vote’
2.18
The AMPG also welcomed the inclusion of the term ‘dominant purpose’ in the definition of electoral matter (4AA(5)(b)), and the exception related to matter for a satirical, academic, educative or artistic purpose.
2.19
Professor Anne Twomey agreed, noting:
From the point of view of universities, the exception in proposed s 4AA(5)(b) for communications ‘for a dominant purpose that is a satirical, academic, educative or artistic purpose’ should be effective in excluding their ordinary academic work from being caught by the Bill. The exceptions in proposed s 4AA(5)(d) and (f) for communications made to Commonwealth public officials and parliamentary committees are also important, as they prevent any expenditure related to the preparation of submissions to parliamentary committees or reports to government agencies on public policy issues being caught by the Bill.
2.20
While many submissions expressed strong support for the new core definitions (‘electoral matter’ and ‘electoral expenditure’), some submitters raised residual concerns about potential confusion, in situations where charities are not breaching the disqualifying purpose set out in the Charities Act, but may be commenting on policies of a political party as part of issue advocacy undertaken consistent with their charitable purpose.
2.21
The Human Rights Law Centre agreed that it may assist if the explanatory memorandum provided greater clarity that public advocacy directed at politicians and political entities may not be electoral matter if it is not for the dominant purpose of influencing voting in a federal election (for instance, if the dominant purpose is to secure policy outcomes).
2.22
The Law Council of Australia also noted the potential confusion with these definitions:
I can say that in reading the amendments and existing definitions, I am a practising solicitor and I read them from the point of view of how I would advise people as to what is in and what is out. I was concerned that it was confusing, which is why we've always talked about the need for clear guidance in relation to that.
Timing of expenditure
2.23
There was also confusion expressed about the timing of expenditure. There was a wide recognition among submissions that the new proposed definition of ‘electoral matter’ would fairly recognise the circumstances in which campaigns constitute attempts to influence how people vote in an election. In light of those amendments, there was reduced support for confining the foreign donations regime to an artificial time window, such as periods after the writs are issued for election.
2.24
The Department of Finance observed that the federal electoral system is predicated on allowance for early elections and the regime needs to operate across all electoral cycles:
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 … So [hypothetically] 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?
…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.
2.25
Given the scope for early elections, the potential for by-elections and the emergence over recent decades of the practice known as ‘continuous campaigning’, there is not a compelling case for fixing an arbitrary time during which it would be appropriate to turn off the entirety of the foreign donations regime. As the Department of Finance has noted, there could be an advantage to one side of politics if there were knowledge of plans for an early election and that side could commence campaigning under one set of rules, while other political actors who campaigned later might fall under a separate set of rules. This would be at tension with the Committee’s level playing field’ principle.
2.26
It was observed in other evidence that donations may be received during the entire period of the parliamentary term and placed in reserve for a future election campaign. Taking account of this practice, the Committee considers that the laws need to operate sensibly to regulate donations regardless of when they might be accumulated. Likewise the Committee considers that rules for disclosure of expenditure need to operate based on when expenditure actually occurs, rather than assuming that it always occurs close to the expiry date of the life of a parliament.
Apportionment of expenditure
2.27
The timing issue is also relevant to possible apportionment of expenditure. Submitters were concerned that expenditure which later became an issue for voters in an election may be partially captured by the definition. Apportionment could also be an issue where expenditure was used partially for electoral expenditure and partially for other purposes.
2.28
Mr Malcolm Baalman from the Public Health Association of Australia gave an example of expenditure on a campaign to fund a particular vaccination. During the course of the campaign a federal election was called; one major party adopted a policy of funding this vaccine, followed three weeks later by the other major party. Mr Baalman asked what portion, if any, of the campaign fund would be electoral expenditure under the proposed definition.
2.29
When asked about this example, Dr Stein Helgeby clarified that:
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.
2.30
In relation to apportionment of partial expenditure, Dr Helgeby expressed a view that the ‘dominant purpose’ test mitigates against the need for apportionment:
And I might just 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.
Examples in explanatory memorandum
2.31
Some of the issues discussed above appear to have been caused or exacerbated by the examples given in the explanatory memorandum. Witnesses argued that some examples appeared to extend the application of the definition, causing confusion about how these sections are to be interpreted. This was the subject of lengthy discussions at the Committee’s public hearing held on 5 October 2018.
2.32
Concerns were expressed that the examples in the supplementary explanatory memorandum introduced a degree of uncertainty into the definition:
…examples of express and implicit communications contained in the explanatory memorandum need modification. Express communications are those which explicitly seek to direct an elector how to vote. Policy comparison cards, for example, do not do this, and they should be regarded as implicit communications. However, the explanatory memorandum states that they are express communications. Further, what constitutes implicit communications—I know this has been the subject of discussions this morning—also needs further clarity and tightening to ensure that issues based advocacy isn't captured. As noted in the submission by the Human Rights Law Centre—this isn't in our submission—public advocacy that criticises politicians or parties, governments, oppositions, et cetera, is often, I would say, perhaps mostly undertaken for the dominant purpose of influencing the politicians, parties, governments and oppositions as opposed to actually influencing electors. In that case, it would not be an electoral matter, and section 4AA should make that distinction very clear, again to ensure that no issues based advocacy is captured.
2.33
In response to a question taken on notice, the Institute of Public Affairs suggested that other appropriate examples of implicit comment could include the following.
… slogans like ‘This election, say no to tax cuts for big banks’ or ‘This election, protect your investment property from new taxes’ are, in the current political environment, likely to be seen by a ‘reasonable voter’ as an implicit comment on the Coalition and Australian Labor Party respectively.
Committee comment
2.34
The Committee considers that the proposed definitions of ‘electoral matter’ and ‘electoral expenditure’ respond to its recommendations and balance the need for objective rules with ensuring the regulatory framework can be responsive to changing campaign methodology. Nonetheless, the Committee acknowledges the ambiguities introduced by the supplementary explanatory memorandum and considers that these ambiguities need to be clarified.
2.35
The Committee notes some concerns about the nature of activity that may be captured under the new definition and considers that the Government must release clear guidance for third parties captured by s. 314AEB and ensure that the Australian Electoral Commission and can advise third parties in this transition.
2.36
The Committee further notes that some submitters raised concerns about the proposed provisions applying whether or not the writs have been issued for an election. In accordance with amendments to the Electoral Act that came into force in March 2018 – the nature of modern election campaigning, alongside the uncertainty about the date of federal elections means that election campaigning occurs throughout the electoral cycle, and not just after the writs have been issued.
2.37
The Committee therefore supports the application of the proposed provisions extending beyond the period in which the writs have been issued for the election. The carve outs for general issue-based advocacy should adequately exclude general policy advocacy.
2.38
The Committee does note the points raised in the hearings about whether campaign materials prepared for purposes of issue-advocacy could become electoral matter because of events outside the control of an organisation that authored the materials. As stated repeatedly by the Committee, simplicity and certainty are core principles against which amendments to the Electoral Act must be framed. It must not be open to uncertain results because of actions by parties outside the control of an issue advocacy group, or because of post-facto events that could cause a retrospective effect in how previous campaign activities could be viewed
2.39
The Committee was broadly satisfied with key provisions in the revised amendments on their face, but considers that some examples in the explanatory memorandum – especially at pages 13 and 14 – were not framed well to illustrate how the definitions should operate in practice. The Committee notes evidence that the examples provided in the supplementary explanatory memorandum has created a degree of interpretive confusion. The supplementary explanatory memorandum must be clarified to ensure that it correctly expresses the intent of the legislation and provides certainty to all.
2.40
Particular areas of confusion are:
how the provisions would apply where advocacy group campaigns commence after parties have announced conflicting policy positions on a major issue (removing the suggestion that subsequent events or subsequent decisions by actors outside the control of an organisation could be relevant to the dominant purpose for which electoral matter was originally created);
how a commissioned policy research report may not be electoral matter, but separately derived products–such as flyers that campaign against or for the election of individual candidates or parties–may be electoral matter;
where implicit commentary would be considered support or opposition to a party or candidate, clarifying where it goes beyond issue advocacy in circumstances where the dominant purpose is to encourage a vote for or against a candidate or party;
when the creation of material that is not widely communicated by the creator should be captured (for example, creation of content for social media intended to be syndicated or otherwise widely ‘shared’ for a dominant purpose of influencing a vote for or against a candidate or party);
when unused material can appropriately be considered electoral expenditure (for example, the creation of alternative advertisements by a political party for testing with focus groups to choose the preferred advertisement for dissemination);
clarifying that an entity will not be an Associated Entity merely because it has objectives that coincide with those of a political party; and
the Law Council of Australia noted:
While the matters listed at proposed subsection 4AA(4) largely focus on matters which will show the dominant purpose of influencing voters, these issues may also apply to education, awareness raising, and encouraging debate. There are no matters included in this proposed subsection which assist in distinguishing a purpose of influencing from a purpose of educating, awareness raising or encouraging debate on a particular issue from the communication of electoral matter. Further clarity in this area is required.
2.41
The Committee recommends that the Government amend the explanatory memorandum to improve the clarity of the sections on Electoral Matter (4AA) and Electoral Expenditure (287AB).
Registration and disclosure
2.42
Requirements to register under the Bill are triggered by expenditure levels. Higher expenditure requires a different registration category, with greater disclosure requirements.
Original Bill
2.43
The Bill proposed requirements to register as a political campaigner or third party campaigner. Registration is triggered by expenditure levels.
2.44
Political campaigners were originally proposed to be persons or entities with expenditure of over $100,000 or more in the previously 3 financial years, or $50,000 or more, where that comprises 50 per cent of the person or entity’s allowable amount in a financial year.
2.45
Third party campaigners are those with expenditure of more than the ‘disclosure threshold’ ($13,800, indexed).
2.46
In its first report, the Committee agreed with the intent of the Bill to improve transparency of the electoral system by providing registration of actors seeking to influence voters.
2.47
The thresholds in the Bill caused a degree of concern amongst submitters that the thresholds for registration were set too low and created a level of obligation and penalty not commensurate with expenditure.
2.48
In view of its core principle of simplicity, the Committee recommended that instead of multiple registration classifications, a single Transparency Register be established and that expenditure thresholds for triggering increased reporting obligations be set at a level that could reasonably expected to have a significant impact on voter behaviour.
2.49
The Committee supported the continuance of s. 314AEB, which requires returns to be submitted for electoral expenditure over $10,000 (indexed)–widely known as ‘third party returns’. The Committee was concerned to note that many entities were not aware of the need to submit these returns.
Proposed amendments
2.50
The Government has proposed revised amendments to set the requirement to register as a ‘political campaigner’ to persons or entities who incur electoral expenditure of:
$500,000 or more over a current or three previous financial years (a significant increase from $100,000;
$100,000 or more during a current financial year where that comprises two-thirds or more of the person or entities’ revenue during the previous financial year (a sizeable increase from $50,000 and 50 per cent test).
2.51
The requirement to register is extended from 28 to 90 days.
2.52
The proposed amendments define a ‘third party’ as an entity that incurs electoral expenditure more than the disclosure threshold (currently $13 800) in a financial year. Third parties are included on the Transparency Register, are required to provide a return under s. 314AEB and are subject to other restrictions on foreign donations (see Chapter 3).
2.53
Section 287N establishes a single, publicly available, Transparency Register. It is proposed that the Register would contain:
the name of each person/entity registered as a political campaigner and the name of its financial controller;
the name of each associated entity, the name of its financial controller and the registered political party with which it is associated;
the name of any person or entity that has provided a return under section 314AEB (known as third-party returns);
each political entity (new definition,);
any determination, notice or return by the Electoral Commissioner relating to claims for electoral funding; and
any determination, notice or return by the Electoral Commissioner relating to election returns made under Part XX, Division 4 (disclosure of donations), Division 5 (disclosure of electoral expenditure) and Division 5A (annual returns by registered political parties and other persons).
2.54
New provisions permit the Electoral Commissioner to incorporate the Register of Political Parties into the Transparency Register.
2.55
Registered political parties and political campaigners would continue to be required to disclose individual donations over the disclosure threshold.
2.56
Extended provisions under s. 314AEB applying to third parties came into effect in March 2018. In response to evidence received by the Committee that the charity sector was generally unaware of these provisions, an amnesty has been provided in relation to any financial year that ends before the commencement of this item.
2.57
The Committee welcomes this statutory forgiveness section, because it avoids any concern that the AEC might focus on previous unintentional non-compliance and allows the AEC’s education and compliance efforts to be focussed on future risks around foreign donations. The amendment recognises that previous misunderstanding in the charitable sector has improved as a result of the earlier inquiry and the AEC is now better resourced to enhance future public awareness of obligations.
2.58
In response to the Committee’s recommendations the Government noted:
Registration processes are streamlined and simplified by the introduction of a single Transparency Register. The number of people and entities required to register is reduced through higher thresholds for political campaigners, and removal of registration requirements for third parties. However, any person or entity not required to register may choose to register voluntarily.
Disclosure obligations are made more commensurate with levels of expenditure. Disclosure obligations are made more commensurate with levels of expenditure. Disclosure obligations are reduced for third parties, who will no longer be required to report non-financial particulars. Independent audit requirements are removed.
Evidence received
2.59
The majority of submissions welcomed the simplified registration requirements, with higher thresholds for political campaigners.
2.60
Submitters to the inquiry questioned the need for political campaigners to disclose all donations–whether used for electoral expenditure or not–in the annual return. Ms Sarah Davies, from Philanthropy Australia, argued:
… only donations provided for the purposes of electoral expenditure should be required to be disclosed in returns to the AEC. As it stands, section 314AB would require that all donations above the disclosure threshold be disclosed by a political campaigner in their return, regardless of their purpose. We think this needs to be addressed.
2.61
Likewise in their written submission, Philanthropy Australia suggest that some philanthropists value privacy of their identity when they are giving amounts intended for charitable purposes that have no cross-over with electoral expenditure.
2.62
The Centre for Social Impact Swinburne suggested that it would be beyond the purpose of the disclosure regime to require charities that were also political campaigners to disclose all donors regardless of the nature of their gifts and how they were used:
This is an unreasonable requirement, which would breach the privacy of donors which have provided amounts that were not intended to be used for incurring electoral expenditure.
2.63
Professor Graeme Orr questioned the proposed powers granted to the Electoral Commissioner under s. 287O(5)-(6) to extend the information that may or must be included on the Transparency Register. He stated:
…is it fair that those people and entities on the Register will be exposed to liability for not correcting material on the Register (s 287P) if some of that information may be put on the Register by the AEC on its own volition and under its own regulation?
Committee comment
2.64
The Committee welcomes the introduction of the proposed Transparency Register in response to its previous recommendations, and the raising of registration thresholds to a level that would be considered to have a significant impact on voting intentions.
2.65
The Committee is satisfied that the proposed amendments meet its recommendations of April 2018 and considers that an appropriately implemented Transparency Register will provide improved transparency into the funding of electoral campaigning in Australia. We note that the revised amendments propose transitional arrangements for the AEC to automatically register associated entities and this will fundamentally reduce the regulatory burden for those entities during implementation.
2.66
The Committee reiterates its previous statement that the proposed Transparency Register should be simple, available online, easily analysed by members of the public and provide registrants with the benefit of greater support in understanding and meeting their reporting obligations.
2.67
Noting the concerns raised by Professor Orr, the Committee considers that the Electoral Commissioner’s powers to include more publishable information on the proposed Transparency Register by regulation is of concern, particularly as failure to provide information is subject to civil penalty. This may result in a situation where an organisation could be penalised for not providing information that it could not reasonably have been expected to know was required. The Committee considers that at the very least such a power requires greater parliamentary oversight. Moreover an immediate need for the power has not been identified and accordingly removing this mechanism from the proposed amendments would greatly alleviate unnecessary concerns in the charitable sector about the potential for unintended consequences.
2.68
The Committee notes that the power was only included as a contingency, rather than as an essential feature of the regime. Until future improvements are identified and scoped, it would be premature to judge whether expanded information sets proposed for the register should be more appropriately prescribed by primary legislation or in regulations.
2.69
The Committee agrees with the concerns expressed about the disclosure requirements for political campaigners that are also charities. It is understandable that some philanthropists may have legitimate concerns about getting unsolicited approaches for money if information is published on the register showing that they have given generously for altruistic purposes such as direct relief of poverty. There is no particular public interest in the electoral disclosure regime picking up information about donations that are not used in any way for electoral expenditure. Although this is unlikely to affect many organisations (witnesses agreed that few if any charities would spend enough to qualify as a political campaigner), the Committee considers that there should be an exception in the disclosure requirements of s. 314AC for donations that are used by a registered charity entirely for expenditure that is not electoral expenditure.
2.70
The Committee considers that limiting this exception to donations that are to be used entirely for a charitable purpose will allow for election transparency while still preventing unreasonable disclosure of charitable donors.
2.71
The Committee recommends that the proposed Transparency Register be published in a form that is easily searchable and analysed by the public.
2.72
The Committee recommends that the Electoral Commissioner not be given the authority to determine additional information for inclusion in the Transparency Register at this time and that JSCEM be consulted on future proposals to augment the register, after scoping has occurred on future proposals for improvements.
2.73
The Committee recommends that s. 314AC be amended to not require disclosure of donations to a political campaigner that is also a registered charity, when none of that donation is used on electoral expenditure.
Registration requirements–associated entities
2.74
Registration as an associated entity is currently required if an entity is controlled by a political party, operates solely or significantly to benefit one or more political parties or is a financial member or has voting rights in a political party.
Original Bill
2.75
The Bill proposed an extension to this definition that would allow an entity to be taken as an associated entity of one or more political parties if:
the entity, or an officer acting in her or his actual or apparent authority makes statements (either in public or private) that the entity is to operate to the benefit or detriment of one or more registered political parties; and/or
the entity’s expenditure is wholly or predominately political expenditure to promote or oppose (to the benefit of another political party) a registered political party and/or policies and/or candidate.
2.76
The proposed expansion to the definition of associated entity raised concerns for submitters due to:
the broad nature of the definition potentially creating political relationships contrary to the will of the entity or political party;
the uncertain, and potential subjective, nature of ‘intent’; and
the regulatory burden for the AEC.
2.77
Taking these concerns into consideration, the Committee also questioned how this provision would improve the transparency and simplicity of the electoral system and recommended that the existing definition of ‘associated entity’ be retained.
Proposed amendments
2.78
The proposed amendment to the Bill removes the previous proposed amendments. This would retain the definition of associated entity as already existing at s. 287(1)(a-f) of the Act, consistent with the Committee’s preferred approach to the definition.
Evidence received
2.79
The ACNC welcomed the proposed changes but further recommended that charities be exempt from registering as an associated entity. The ACNC was concerned that a charity could be captured if a:
…coincidence of common policies between a registered charity and a political party, on a matter related to a charitable purpose, resulted in the charity’s activities largely benefiting the political party.
2.80
The Australian Lawyers for Human Rights and GetUp submitted concerns that the existing associated entity provisions are too broad and do not meet the Parliament’s original intent of this provision. They both called for s. 287(H)(1)(a-f) to be narrowed so it is no longer open to ‘a wide variety of different and potentially conflicting interpretations.’
Committee comment
2.81
The Committee notes the concerns raised by some submitters about the potential interpretation of s. 287(H)(1)(a-f) (associated entities) but, given the Government has accepted the Committee’s recommendation to revert back to wording matching the existing definition in the Act, is of the view its preferred approach has been achieved.
2.82
It is also apparent that some of the concerns raised misconceive the requirement under 287H(1)(b), as it is not the requirement under this section that an organisation would be treated as an associated entity merely because of a coincidence of objectives with a political party. Rather the section applies the established historic test of whether an entity operates wholly, or to a significant extent, for the benefit of one or more registered political parties. It would assist if the explanatory memorandum could add words to this effect, in relation to amendment 39 (this amendment restores the original wording of this section). The Committee proposes this clarification be made, as part of Recommendation 1 in this report.
2.83
In the hearing there was discussion about whether it was possible or logical for an organisation to be an associated entity of more than one political party. The Chair queried whether two parties and a supporting organisation could potentially have an alignment of election campaign objectives (for instance where there is a formal coalition or an accord between parties). The National Director of GetUp, Mr Paul Oosting noted that there were no cases that he was aware of.
2.84
No other submissions presented about evidence either way on association between political campaigner and multiple parties. Given that no evidence has been presented that the existing section in the Act (that is the equivalent of 287H(1)(b)) has caused inappropriate outcomes, the Committee considers that it has not received compelling evidence to warrant a further recommendation at this time regarding this clause in the existing Act.
Registration of political parties
2.85
In its April 2018 Advisory Report, the Committee recommended that a process be established that, prior to each election, requires all political parties to reaffirm their registration or be subject to automatic deregistration.
2.86
The Committee made this recommendation in the interests of transparency and to ensure that the list of registered parties accurately reflects those parties actively contesting the election.
2.87
The Government has not responded to this recommendation stating that it ‘will be considered after the JSCEM hands down its final report on its inquiry into the 2016 election’.
2.88
While the Committee looks forward to the Government’s response on this matter, and does not wish to see this legislation held up by the lack of response to this recommendation, it notes that the Bill proposes that the Electoral Commissioner have the power to include the Register of Political Parties on the proposed Transparency Register.
2.89
Given this, and the expected early-mid 2019 election, the Committee reiterates the importance of its prior recommendation and urges the Government to establish a process by which parties must reaffirm their registration as a matter of priority.