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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Electoral Legislation Amendment
(Restoring Trust) Bill 2023
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Kate Chaney MP
Electoral Legislation Amendment (Restoring Trust) Bill 2023
OUTLINE
1. The election of more community independents on the crossbench in the 2022
Federal Election sent a signal that communities want more political choice.
2. Electoral matters have traditionally been seen through a political party lens that
enshrines party and incumbency advantages. Appendix A contains a list of
identified party and incumbency advantages that are built into our existing regulatory
framework.
3. Reforms are required to neutralise some of these advantages to ensure our political
process meets community expectations and not those of vested commercial and
political interests. These additional reforms are based on three pillars:
(a) improve transparency;
(b) reduce financial influence; and
(c) level the playing field.
4. This Bill amends the Commonwealth Electoral Act 1918 (Electoral Act) and related
legislation under the three pillars by introducing a number of measures including:
Improve Transparency
• lower the donation disclosure threshold from $16,300 to a fixed $1,000 (lower the
donation disclosure threshold to $1,000);
• require real-time disclosure of donations above the disclosure threshold of $1,000
by both the donor and recipient within 5 business days of the donation threshold
being exceeded (real-time disclosure);
• prohibit misleading or deceptive electoral or referendum matter in terms of the
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022 presented by Zali
Steggall OAM MP (truth in political advertising);
• broaden the definition of a gift (donation) to cover all monetary and in-kind
payments including fundraising dinners, cash for access 'business forums' and
other events, as well as membership fees that benefit a political entity or
candidate (broaden gift/donation definition to capture dark money);
• make funding disclosure meaningful and readily available on the Australian
Electoral Commission (AEC) Transparency Register by requiring disclosure of
receipts in separate categories including fundraising events, investment income,
membership fees and public funding reimbursement as well as requiring the
disclosure of the terms of loans (require meaningful funding disclosure);
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Reduce Financial Influence
• prohibit political donations from entities that inflict social harm for profit, such as
tobacco, gambling and liquor business entities (social harm donations);
• prohibit political donations from substantial Commonwealth government
contractors and bidders for Commonwealth government contracts (government
contractor donations);
• prohibit unions and various corporate entities from making a donation without
member/shareholder approval (union and corporate entity member approval);
Level the Playing Field
• prohibit government advertising from 2 years after an election until the next
election except in limited and legitimate circumstances, as determined by the
Independent Communications Committee (limit pre-election government
advertising);
• restore the independence of the postal vote process by preventing political parties
and candidates from using it to seek advantage and harvest data (ensure the
independence of the postal vote process);
• remove exemptions so that political parties and members of parliament are
required to comply with data protections in the Privacy Act 1988 (Cth) and political
parties are required to comply with the Spam Act 2003 (Cth) to prevent the
sending of unsolicited electronic messages such as on election day (political
parties to comply with data protection and spamming laws);
• establish an 'independent campaign entity' that upon registration will enable a
registered independent candidate to be treated the same way as a 'political party'
under the Electoral Act and related legislation, including access to the electoral
roll and financial disclosure timelines (an independent campaign entity to be
treated as a political party);
• require a candidate endorsed by a registered political party to be nominated by at
least 100 electors eligible to vote in the same electorate in the same way as for
an independent candidate (the nomination of political party candidates be the
same as for independent candidates).
5. The Bill builds on the work of Andrew Wilkie MP in the Commonwealth Electoral
Amendment (Cleaning up Political Donations) Bill 2022 and Zali Steggall OAM MP in
the Commonwealth Electoral Amendment (Stop the Lies) Bill 2022.
6. There are various other incumbency advantages that have been difficult to resolve
and are therefore not the subject of this Bill. These include clarifying or better
enforcing current rules governing both the public funding of pre-election
parliamentary communications and the limits on the ability of parliamentary and
electoral staff from working on the election of members of parliament.
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7. The time of tax deductibility of a donation to an independent candidate associated
with an Independent Campaign Entity should be from registration of the Independent
Campaign Entity so as to be treated the same as for a registered political party. This
is not covered in the Bill because Standing Order 197 requires that only a Minister
may initiate a proposal to impose, increase or decrease a tax or duty or change the
scope of any charge.
8. The Bill does not seek to implement donation caps, spending caps or public funding
changes. To reduce the likelihood of changes in these areas leading to less
competition in our political system, any changes to these areas need to be
implemented following, or in conjunction with, genuine reform in terms of this Bill, and
in a way to ensure that party and incumbency advantage is not further enshrined.
See my Additional Comments to the JSCEM Interim Report of June 2023.
9. In addition to these electoral law reforms, I support an expanded Lobbyist Register
and the publishing of ministerial diaries.
10. I also support reform for requiring political parties to adopt an accountable and
transparent corporate structure, rather than operating as unincorporated
associations. Political parties should not be permitted to receive tax-deductible
donations, nor tens of millions of dollars in public money, without subjecting
themselves to reasonable levels of scrutiny and transparency.
Constitutionality
11. Any electoral law reform must not violate the implied freedom of political
communication guaranteed under the Australian Constitution.
12. The High Court has ruled that restrictions on political donations are valid only if they
are compatible with representative democracy and they are reasonably appropriate
and adapted to their stated purpose (McCloy v New South Wales (2015)).
13. Equal participation in, and access to, the electoral sphere is relevant to the High
Court. The principle of a "level playing field" has been addressed together with
"political equality", which principles serve the purpose of equalising the electoral field.
14. The Bill addresses a number of aspects of electoral law reform to improve
transparency, reduce financial influence and level the playing field. The reforms
sought do not violate the implied freedom of political communication.
FINANCIAL IMPACT
The Bill will have no financial impact.
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NOTES ON SCHEDULES
SCHEDULE 1 - IMPROVE TRANSPARENCY
Part 1 - Lower the donation disclosure threshold to $1,000
The current disclosure threshold of $16,300 (as indexed) facilitates a system of 'dark
money' that is out of step with thresholds for disclosure set by states and territories. It is
time for transparency and community expectations to be met.
Part 1 of Schedule 1 lowers the donation disclosure threshold to a fixed $1,000.
Part 2 - Real-time disclosure for donations
Requiring real-time disclosure is a fundamental reform enabling voters to understand who
is donating to which party or candidate before they vote (and not after). It will bring the
federal system in line with nearly all state jurisdictions.
Part 2 of Schedule 1 requires disclosure in 'real-time' - within 5 business days by each of
the donor and recipient.
Additionally, this Part requires the AEC to publish any gift disclosure return lodged as soon
as reasonably practicable after the AEC receives the return.
Part 3 - Truth in political advertising
Truth in political advertising is an important integrity and transparency measure and
necessary component of electoral reform. Voters need to be able to trust information
presented as being factual in political advertising.
Part 3 of Schedule 1 prohibits misleading or deceptive electoral or referendum matter by
implementing amendments to the Electoral Act in terms of the Commonwealth Electoral
Amendment (Stop the Lies) Bill 2022 presented by Zali Steggall OAM MP.
Part 4 - Broaden definition of gift (donation)
In line with community expectations, dark money donations should be disclosed by
broadening the definition of "gift" in the Electoral Act.
By Part 4 of Schedule 1, all monetary and in-kind payments (beyond reasonable
consideration for a benefit) are to be treated as a gift/donation including fundraising
dinners, cash for access "business forums" and other events, as well as membership fees
that benefit a political entity or candidate. Any such payments greater than $1,000 will be
disclosable under the new disclosure threshold regime.
Part 5 - Require meaningful funding disclosure
The current reporting regime by political entities under the Electoral Act requires the
disclosure of donations (or gifts) above the disclosure threshold. Other sources of income
above the threshold all simply fall within an "other receipts" category. Donations below the
threshold are "undisclosed". With the lowering of the donation disclosure threshold, more
donations will be disclosed.
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The "other receipts" category is a 'catch-all' and opaque category often covering varied
sources of income including from events, investments, membership fees and public
funding. There is no transparency in relation to these often significant income sources.
Grattan Institute analysis of AEC data for the 2020/21 financial year revealed that almost
90% of private funding of the Coalition and Labor is made up of the "undisclosed" or "other
receipts" categories. Of the $63 million of Coalition private income, 29% was "other
receipts". Of the $47 million of Labor Party private income, 39% was "other receipts" (see
page 3 Grattan Institute submission to JSCEM - submission 367).
Reporting needs to be reformed to be meaningful, with such disclosures to be readily
available to the public on the AEC Transparency Register. Reporting of funding or
receipts should include categories capturing moneys received from:
(a) fundraising events;
(b) investments;
(c) membership or affiliation fees not otherwise reported as donations;
(d) public/government funding such as AEC public funding reimbursement;
(e) loans; and
(f) transfers between branches of political parties.
For each receipt within a category, sufficient detail upon the receipt needs to be provided
including date, amount and description for the receipt.
Political entities should disclose the terms and conditions of any loans made to such an
entity.
AEC should be funded to ensure the accessibility of all such data including an effective
search function.
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SCHEDULE 2 - REDUCE FINANCIAL INFLUENCE
Prohibited donation and member approval requirements
Social harm prohibited donations
The tobacco, gambling and liquor industries inflict social harm for profit. The justification
for these industries giving away shareholder funds appears to be to buy influence and
obtain a more favourable policy position from government.
These industries should not be able to influence policy by political donations where the
outcome sought is more social harm.
NSW bans political donations from these industries.
The Bill provides that social harm industries are prohibited from donating.
Government contractor prohibited donations
Probity dictates that donations should be prohibited from substantial government
contractors and government contract bidders. These parties should not be able to
influence policy or contracting decisions through political donations. This includes the big
four consulting firms (PWC, KPMG, EY and Deloitte) to which the federal government has
outsourced significant public service functions, with donations made back to the
government, creating a 'co-dependency' culture.
"Substantial government contractors" is defined to be a party that has received payments
from the Commonwealth government of more than $200,000 in the last 24 months.
A majority of OECD countries ban political donations from corporations. Of those who do
not, a number ban donations from corporations with government contracts and those
bidding for government contracts.
The Bill provides that substantial government contractors and government contract bidders
are prohibited from donating.
Union and corporate entity member approval requirements
Unions (registered unions) and large corporate entities (together member approval
entities) should be prohibited from donating until member approval by a simple majority (or
ordinary resolution) has been obtained. The organisational benefit being sought through
political donations should be justified to members of these entities.
The requirement for member approval will apply to all Australian registered corporations
under the Corporations Act 2001 (Cth) other than a small proprietary company. Generally
the board and shareholder or shareholders of a small proprietary company are closely
related and therefore member approval is not extended to such a company, which has
reduced financial reporting requirements.
The Bill provides that approval by a member approval entity will require a simple majority
(or ordinary resolution), with the approval featuring:
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(a) authorisation for the making of political donations up to a maximum amount;
(b) authorisation for the making of political donations to a particular person or entity up
to a maximum amount; and
(c) the approval being valid for 12 months from member approval.
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SCHEDULE 3 - LEVEL THE PLAYING FIELD
Part 1 - Pre-election government advertising
Expenditure of public moneys on government advertising is currently regulated by the
Public Governance Performance and Accountability Act 2013 (Cth).
The regulation is not working, as governments have consistently used taxpayer-funded
advertising for political advantage. Government advertising has a pronounced spike
before elections, often promoting the government's policies or performance. The Grattan
Institute Report "Depoliticising taxpayer-funded advertising" (October 2022, at page 17)
illustrates that government advertising has spiked before the last four federal elections,
with daily spending at about twice the average for each term in the three months before
each election.
Part 1 of Schedule 3 introduces a new part into the Electoral Act to prohibit government
advertising in a pre-election period starting 2 years after the polling day for a general
election except where the Independent Communications Committee determines that the
advertising is exempt because of a national emergency, a public health campaign with a
dominant purpose of a call-to-action, defence force recruiting or other compelling reason.
Part 2 - Restore the independence of the postal vote process
Part XV of the Electoral Act sets out the regime for postal voting.
Postal voting is an increasing feature of federal election, rising to 14.3% of votes cast in
2022 compared to 8.3% in 2019.
The postal vote process involves a written application in approved form to the Electoral
Commissioner. If the application for a postal vote that is received by the AEC is compliant,
the AEC send postal vote papers to the applicant. A ballot paper and postal vote
certificate need to be validly completed and be posted or delivered to the AEC.
The postal vote process has become both unfair and confusing to a number of voters as
political parties and candidates with sufficient resources have implemented application
form programs aimed to gain an advantage by seeking to influence a voter and harvest
that voter's data. The programs usually involve sending voters a postal vote application
form and a how to vote card at the same time. The application form invites voters to return
their postal vote application to the party or candidate for processing. The application is
then sent by the party or candidate to the AEC, which will then send the postal vote papers
to the applicant.
The application form sent by the party or candidate is often not the AEC form but a
reproduced version. The personal information on the application form received by the
party or candidate can be harvested to be used by that party or candidate for timely
communications when the applicant receives the voting forms, or at any time in the future.
The independence and integrity of the postal vote process needs to be protected. The
AEC bluntly states "The distribution and collection of PVA's (postal vote applications) by
candidates and parties creates eligibility confusion and privacy concerns amongst voters"
(see JSCEM submission 330 by AEC at page 8). Community concerns are reflected by
numerous complaints received by the AEC.
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On 16 April 2022, the AEC Commissioner, Tom Rogers, took the step of writing to all
registered political parties warning against distributing "potentially misleading" postal vote
applications to residents. He referred to reports of incorrect forms being distributed to
voters, the AEC's purple colour being used on some forms and voters being directed to
generically named websites en masse with the potential to mislead. In part, the AEC
Commissioner said " ... the use of colour and wording means someone who doesn't
examine the material in detail could mistake it for a piece of AEC communication" and "Our
message couldn't be clearer - vote in person if you can, apply for a postal vote through us
if you need one".
The Electoral Act should be amended to ensure the independence of the postal vote
process by requiring that:
(a) only the AEC produced postal vote application form can be used;
(b) the AEC application form can only be sent to a voter by the AEC or a party or
candidate where the voter makes such a request in writing; and
(c) the AEC application form must not be sent to the AEC on behalf of a voter by a
party or candidate.
Part 3 - Data protection and spamming laws
Privacy Act
The Privacy Act 1988 (Cth) is the principal piece of legislation governing data protection. It
was introduced to promote and protect the privacy of individuals and regulate how
Australian government agencies and "organisations" handle personal information in terms
of 13 "Australian Privacy Principles".
Registered political parties and political acts by members of parliament are currently
exempt from the operation of the Privacy Act as are small businesses with an annual
turnover of $3,000,000 or less. The legislated protections for an individual's personal
information, such as use and disclosure of such information, therefore do not apply.
The AEC has expressed concerns and recommended consideration of legislative reform to
mitigate the risk of data and privacy breach to better align with community expectations
(see JSCEM submission 330 by AEC at page 3). The AEC recommendation follows it
having received numerous complaints from electors about political parties having access
to their data and using it for political purposes. These complaints reinforce results from the
Office of Australian Information Commissioner (OAIC) "2020 Australian Community
Attitudes to Privacy Survey" showing 74% of the Australian public believe political parties
should be subject to the Privacy Act.
Consistent with community expectations, the Bill ensures that all political entities must
comply with data protections enshrined in the Privacy Act. It does this by removing the
exemption for political parties and members of parliament (sections 6C and 7C of the
Privacy Act) as well as providing that political entities are not small business operators
(section 6D). Political entities can continue to perform their functions but in a more
transparent, secure and privacy protective manner.
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Spam Act
The Spam Act 2003 (Cth) restricts spam (specifically commercial electronic messages)
with the aim to protect individuals from aggressive marketing strategies. It covers all
commercial electronic messages that are not otherwise exempt.
The major political parties have exempted themselves from the key operation of the Spam
Act by permitting registered political parties to send "designated commercial electronic
messages" along with government bodies, registered charities and educational institutions
(see the definition of "designated commercial electronic message" in section 4 and
Schedule 1 and see sections 16, 17 and 18 of the Spam Act). The exemption has not
been extended to other independent members or political candidates.
Individuals should be protected from unsolicited electronic messages from political parties
(such as election day text messages) and, where the Spam Act, allows electronic
messages to be sent, the requirements of the Spam Act should apply. This includes a
functional unsubscribe facility which allows the recipient to easily unsubscribe from
receiving further electronic messages.
The Spam Act should apply to political parties.
Part 4 - Independent Campaign Entity
A registered political party (see section 4 of the Electoral Act) has a number of advantages
under the Electoral Act and related legislation that are not available to an independent
candidate.
The Bill proposes to establish an Independent Campaign Entity that will be treated the
same way as a registered political party.
The registration process for an Independent Campaign Entity will require:
(a) the independent candidate to complete an application for registration and a statutory
declaration attesting to the candidate's intention to stand as a candidate at the next
election, nominating the electoral district or senate (where applicable); and
(b) written nomination by at least 100 electors in the relevant electoral district or state
(for senators) of a new candidate.
Registration of the Independent Campaign Entity can commence from 2 years after an
election until the next election.
The Independent Campaign Entity that is created upon registration will be treated the
same way as a registered political party for the matters below.
Electoral Roll
Upon request, an Independent Campaign Entity will be provided with both a hard and
electronic copy of the electoral roll ("habitation index") for the "Division" in which
associated independent candidate is contesting.
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Financial Disclosure timelines
The time of financial disclosures and deadlines under the Electoral Act be the same for an
Independent Campaign Entity as a registered political party.
Treatment under Do Not Call Register Act
The time from when an independent candidate is treated as being a "candidate" for the
purposes of an exemption from the Do Not Call Register Act (2006) (Cth) is to be from
registration of the Independent Campaign Entity, so as to be treated the same as for a
registered political party. This means an independent candidate can conduct fundraising
for electoral purposes from an earlier time, more aligned with registered political parties
and current independent members of parliament.
Part 5 - Nomination of Party Candidates
Reforms after the 2019 federal election aimed to reduce the proliferation of nominations
did not lead to fewer nominations at the 2022 federal election, with a record 1,203
candidates nominated for the House of Representatives at the 2022 federal election; an
increase from the 1,056 nominated in 2019.
The increase was driven by a handful of minor parties running many more candidates. A
number of these candidates appeared to have no local links.
A political party requires 1,500 members to register. Once it achieves this threshold the
requirement is simply to have one registered officer of the political party to sign the
nomination for a party-endorsed candidate. This 'loophole' was exploited at the 2022
federal election allowing well-funded minor parties to run close to a national ticket, with
candidates without any local links in many seats.
An independent candidate is required to be nominated by at least 100 electors eligible to
vote in the same electoral district or state (for senators).
Nomination privileges should be decoupled from party registration. The loophole should
be closed and any candidate (party or otherwise) be treated the same by requiring
nomination of at least 100 electors in the relevant electoral district.
"This shift would make the rules more democratic by incentivising grassroots political
organisation" (see JSCEM submission 265 by Ben Raue, adjunct associate lecturer in
government at University of Sydney).
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Electoral Legislation Amendment (Restoring Trust) Bill
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
1. This Bill amends the Commonwealth Electoral Act 1918 (Electoral Act) and related
legislation to improve transparency, reduce financial influence and level the playing
field by introducing a number of measures including:
Improve Transparency
• lower the donation disclosure threshold from $16,300 to a fixed $1,000 (lower the
donation disclosure threshold to $1,000);
• require real-time disclosure of donations above the disclosure threshold of $1,000
by both the donor and recipient within 5 business days of the donation threshold
being exceeded (real-time disclosure);
• prohibit misleading or deceptive electoral or referendum matter in terms of the
Commonwealth Electoral Amendment (Stop the Lies) Bill 2022 presented by Zali
Steggall OAM MP (truth in political advertising);
• broaden the definition of a gift (donation) to cover all monetary and in-kind
payments including fundraising dinners, cash for access 'business forums' and
other events, as well as membership fees that benefit a political entity or
candidate (broaden gift/donation definition to capture dark money);
• make funding disclosure meaningful and readily available on the Australian
Electoral Commission (AEC) Transparency Register by requiring disclosure of
receipts in separate categories including fundraising events, investment income,
membership fees and public funding reimbursement as well as requiring the
disclosure of the terms of loans (require meaningful funding disclosure);
Reduce Financial Influence
• prohibit political donations from entities that inflict social harm for profit, such as
tobacco, gambling and liquor business entities (social harm donations);
• prohibit political donations from substantial Commonwealth government
contractors and bidders for Commonwealth government contracts (government
contractor donations);
13
• prohibit unions and various corporate entities from making a donation without
member/shareholder approval (union and corporate entity member approval);
Level the Playing Field
• prohibit government advertising from 2 years after an election until the next
election except in limited and legitimate circumstances, as determined by the
Independent Communications Committee (limit pre-election government
advertising);
• restore the independence of the postal vote process by preventing political parties
and candidates from using it to seek advantage and harvest data (ensure the
independence of the postal vote process);
• remove exemptions so that political parties and members of parliament are
required to comply with data protections in the Privacy Act 1988 (Cth) and political
parties are required to comply with the Spam Act 2003 (Cth) to prevent the
sending of unsolicited electronic messages such as on election day (political
parties to comply with data protection and spamming laws);
• establish an 'independent campaign entity' that upon registration will enable a
registered independent candidate to be treated the same way as a 'political party'
under the Electoral Act and related legislation, including access to the electoral
roll and financial disclosure timelines (an independent campaign entity to be
treated as a political party); and
• require a candidate endorsed by a registered political party to be nominated by at
least 100 electors eligible to vote in the same electorate in the same way as for
an independent candidate (the nomination of political party candidates be the
same as for independent candidates).
Human rights implications
2. The amendments proposed in this Bill may engage the following rights under the
International Covenant on Civil and Political Rights (ICCPR):
• the right to freedom of expression (Part III, Article 19, Section 2); and
• the right to take part in public affairs (Part III, Article 25).
The right to freedom of expression
3. The right to freedom of expression is contained in Article 19 of the ICCPR. It
includes the 'freedom to seek, receive and impart information and ideas of all kinds,'
regardless of medium (Article 19(1), ICCPR).
4. This right may be engaged because the Bill seeks to limit freedom of expression by:
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(a) making unlawful the printing, publication or distribution of certain content, where
that content is electoral matter or referendum matter within the meaning of the
Electoral Act (truth in political advertising); and
(b) preventing donations from particular industries and parties from a social harm or
probity or governance perspective (social harm and probity restrictions); and
(c) otherwise, by the measures to improve transparency, reduce financial influence
or level the playing field.
5. As part of reform to improve transparency, the Bill is seeking to prohibit misleading or
deceptive electoral or referendum matter. Additionally, the Bill is seeking to prohibit
donations from tobacco, gambling and liquor business entities as well as substantial
Commonwealth government contractors and bidders for Commonwealth government
contracts.
6. The right to freedom of expression is not absolute and may be limited by law, to the
extent those limitations are necessary for the respect of the rights or reputations of
others (Article 19(3) ICCPR).
7. The truth in political advertising measures in the Bill only constrains the ability of a
person to disseminate electoral or referenda matter that contains a statement in
relation to a matter of fact that is misleading or deceptive to a material extent. It does
not otherwise impose restrictions on individuals expressing political views or
contributing to public disclosure on elections.
8. Prohibiting donations from tobacco, gambling and liquor business entities is a
limitation that is not incompatible with the right to freedom of expression. Each of
tobacco, gambling and liquor industries inflict social harm for profit.
9. The justification for tobacco, gambling and liquor industries giving away shareholder
funds appears to be to buy influence and obtain a more favourable policy position
from government.
10. Prohibiting donations from substantial Commonwealth government contractors and
bidders for Commonwealth government contracts is also not incompatible with the
right to freedom of expression. Probity dictates that donations be prohibited from
these contractors and bidders.
11. The Bill only constrains the ability of certain parties to donate where it could cause an
increase in social harm to Australians or potential financial harm to taxpayers. It
does not otherwise impose restrictions on individuals expressing political views or
contributing to public discourse on elections.
12. The limitations are reasonable, necessary and proportionate for the reasons set out
above.
The right to take part in public affairs
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13. The right to take part in public affairs is contained in Article 25 of the ICCPR. This
right provides that 'every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in Article 2 and without unreasonable restrictions, to
take part in the conduct of public affairs.' None of the distinctions mentioned in
Article 2 of the IPCC are relevant to the provisions of the Bill.
14. This right is closely related to the right to freedom of expression. The Bill only seeks
to limit the right to take part in public affairs, to the extent of making unlawful various
misleading or deceptive conduct relating to elections and referendums and
prohibiting certain parties from donating in circumstances where it could cause an
increase in social harm to Australians or potential financial harm to taxpayers. It
does not otherwise impose restrictions on individuals expressing political views or
contributing to public discourse on elections.
15. The limitations are necessary, reasonable and proportionate for the reasons set out
above.
Conclusion
This Bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate.
Kate Chaney MP
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APPENDIX A
List of party and incumbency advantages
creating barriers to entry for new participants
Party advantages include:
1. Public awareness/brand reinforced by national advertising.
2. Public funding reimbursement model acts as a resource guarantee and enables the
rollover of funding from election to election.
3. Existing infrastructure such as office space and equipment.
4. In any spending cap, the ability to shift costs from unwinnable/unlosable seats to
battleground seats.
5. Donor access to ministers/shadow ministers.
6. Tax deductibility of donations at any time.
7. Exemptions from data protection and spamming laws.
8. Party endorsed Senators using their communications/office budget in non-election
cycles to support the re-election of their House of Representative party colleagues.
9. Assets built over time in associated entities formed specifically to support the party.
10. When in government, the use of pre-election government advertising.
11. When in government, control over the election date with the opportunity to book
advertising space and use funding more strategically.
12. When in government, the opportunity to 'pork barrel' strategic seats by funding projects
in those electorates.
13. Public funding reimbursement to parties is not liable to tax, whereas this
reimbursement to independents may be taxable.
Incumbent politician advantages include:
1. Access to the electoral roll.
2. The use of resources for a parliamentarian to perform their role, including the
parliamentarian's salary, office, use of communications/office budget, printing and
travel allowances, and electorate and personal staff. Subject to certain limitations,
these resources may be used during an election campaign whilst also providing
financial security and mobility.
3. Public funding reimbursement model potentially enables the rollover of funding from
election to election.
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4. Tax deductibility of donations at any time.
5. Intervening in the postal vote process and data harvesting associated with requiring
postal voting applications to be sent to the incumbent.
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