Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ELECTORAL (GREATER FAIRNESS OF ELECTORAL PROCESSES)
AMENDMENT BILL 2007
EXPLANATORY MEMORANDUM
Circulated by authority of Senator Andrew Murray
(Australian Democrats Electoral Matters Spokesperson)
ELECTORAL (GREATER FAIRNESS OF ELECTORAL
PROCESSES) AMENDMENT ACT 2007
GENERAL OUTLINE
The purpose of the Electoral (Greater Fairness of Electoral Processes) Amendment Bill
2007 is to amend the Commonwealth Electoral Act 1918 (the Act) and the Referendum
(Machinery Provisions) Act 1984 (the Referendum Act).
This Bill is introduced to implement the Australian Democrats long-standing
commitment to improve political governance, political funding and disclosure rules and
the integrity of the electoral process in general.
In the Democrats' Minority Reports on the Joint Standing Committee on Electoral
Matters (JSCEM) Reports into the 1996, 1998, 2001 and 2004 elections, we drew
attention to voter discontent with politics, politicians and parliaments as revealed
through polls and the media.
The government and parliament have not addressed this discontent. Indeed, the passing
of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures)
Bill 2006 will reinforce this discontent. It was a bill that ran contrary to best practice
and to the historical and high regard that Australia has had in the pantheon of
representative democracies around the world.
Accordingly, the Greater Fairness Bill aims to address issues of legitimate public
disquiet and disrepute. The following are the proposed major amendment areas:
Schedule 1 - Political governance amendments
As political parties are vital to democratic participation and as they have access to
public funding, their very conduct is of great public concern. These amendments
propose:
1. an accountability regime for political parties - which includes a written and
publicly available constitution that must contain certain matters; protect the
equal rights of member and allow for regulatory oversight;
2. provisions for the scrutiny of political parties - whereby the Electoral
Commission (EC) has the discretion to undertake an investigation of complaints
lodged against parties for non-compliance with its constitution; and
3. processes for the selection of candidates - whereby parties can call on the
EC to conduct ballots for candidate selection.
Schedule 2 - Amendments relating to advertising
These stem from the advertising matters covered in Senator Murray's Charter of
Political Honesty Bill 2000, which seeks to address the growing public view that
politicians are dishonest and untrustworthy. The legislative solutions include:
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1. that inaccurate or misleading statements of fact in political advertising be
prohibited; and
2. that there be restrictions on government advertising during the caretaker period.
Schedule 3 - Amendments relating to electoral funding and disclosure
These amendments to the CEA represent the legislative expression of the Democrats'
long history of activism for greater accountability, transparency and disclosure in
political finances. They include:
1. setting reduced limits on donations;
2. ensuring the true identities of donors are disclosed;
3. prohibiting multiple donations to separate federal, state and territory divisions of
political parties;
4. prohibiting electoral campaign funding from media companies;
5. prohibiting foreign donations unless made by Australians living abroad or by
non-citizens resident in Australia; and
6. prohibiting donations with strings attached.
Schedule 4 - Electoral enrolment and other electoral matters
The proposed amendments in this schedule address the following:
1. The voting rights of prisoners - currently, any person serving a term of
imprisonment is not entitled to vote. The Democrats consider that although
prisoners are deprived of their liberty while serving time, they do remain
citizens. To disenfranchise them by removing their citizenship rights is to add an
extra judicial penalty. The amendment reflects this point of view by allowing all
prisoners to vote unless convicted of treason or unsound mind, or having this
right removed by a judge as part of a sentence.
2. The early closure of the electoral rolls - the Democrats believe that closing
the electoral rolls on the day the election writs are issued will disenfranchise
many voters, especially those who have turned 18 or need to change their
address. We therefore propose that the close of the rolls be 7 days after the date
of the writ.
3. Reduces the deposit amount required for candidates - for both Senate and
the House of Representatives.
4. Certain services not to be used - prohibits the use by political parties of
certain commonwealth facilities and services by certain classes of people for
party business.
Amendments to the Referendum (Machinery Provisions) Act 1984 essentially apply the
same changes this Bill makes to the Electoral Act to the Referendum Act.
FINANCIAL IMPACT
There is no direct financial impact on Government revenue from this Bill.
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NOTES ON CLAUSES
Clause 1 Short Title
This is a formal clause which provides for the Act, when it is enacted, to be cited as the
Electoral (Greater Fairness of Electoral Processes) Amendment Act 2007.
Clause 2 Commencement
This clause provides for the commencement of the Act on Royal Assent.
Clause 3 Schedules
This clause is the formal enabling provision for the Bill. The amendments proposed by
this Bill are in the schedules, but they have effect as a result of this clause.
Schedule 1 - Amendments relating to political governance
Item 1 states that a person includes a trading or financial corporation as per section 51
(xx) of the Constitution, or a person acting on behalf of such a body. This ensures that
the provisions cannot be avoided by individuals establishing corporations as a "cover"
for their own activities.
Item 2 repeals the definition of an eligible political party under subsection 123(1) of
the Act to that of a parliamentary party or one that satisfies minimum membership
requirements. It also must be established on the basis of a written constitution that
complies with minimum constitutional requirements.
Item 3 inserts after section 129 of the Act proposed new section 129A (1) to (8) which
sets out the procedures and conditions for minimum constitutional requirements that a
political party must meet to be eligible for registration.
Item 4 inserts at the end of the definition of reviewable decision in the Act, new
paragraph (f) which makes the discretion power available to the Electoral Commission
in 141C in Part XIA under item 5 reviewable by the Administrative Appeals Tribunal.
Item 5 inserts after Part XI of the Act concerning the registration of political parties,
new sections Part XIA and Part XIB
Part XIA covers the Scrutiny of registered political parties and includes the
following proposed sections:
· 141A states the object of this Part is to provide the Electoral Commission with
the wherewithal to scrutinise political parties, to investigate complaints, and to
provide penalties;
· 141B sets out when a person may make a complaint;
· 141C gives the Commission discretion not to investigate certain complaints;
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· 141D sets out how investigations are to proceed;
· 141E gives the Commission power to obtain information and documents;
· 141F covers the retention and disposal of documents obtained by the
Commission;
· 141G states the conditions whereby the Commission can make an application to
the Federal Court of Australia when a person fails to comply with a notice to
supply information;
· 141H sets out the processes whereby the Commission must inform a
complainant and a registered party officer of the reasons for not continuing an
investigation or of the particulars of an investigation's completion;
· 141I gives the Commission the power to examine witnesses under an oath or
affirmation; and
· 141J gives the Commission the power to enter premises of a political party and
to inspect any documents relevant to an investigation.
PART XIB covers the Selection of candidates by registered political parties through
the following proposed sections:
· 141K allows a political party to have the Commission conduct a ballot for the
selection of candidates to stand for elections; and
· 141L states that the Commission must issue a certificate when it has conducted
a ballot for candidate selection.
Schedule 2 - Amendments relating to advertising
Item 1 repeals the definition of what "publish" means under subsection 329(6) of the
Act.
Item 2 adds at the end of section 329 of the Act new subsections (7) to (14) which
prohibit the production of inaccurate or misleading electoral material; imposes penalties
for the same; states a possible defence for a person deemed to be in contravention; and
states the procedures for the Commission to follow when it is satisfied that an electoral
advertisement is misleading or inaccurate.
Item 3 inserts after section 334 of the Act dealing with the depiction of certain electoral
material, new section 334A which places restrictions on government advertising during
the caretaker period.
Schedule 3 - Amendments relating to electoral funding and disclosure
Item 1 at subsection 287(1) of the Act (definition of gift) inserts "and includes
payments made at fundraising and like events".
Item 2 inserts new section 297A after section 297 of the Act. This states that public
funding payments are not to be made unless the Commission is satisfied that the
constitution of the registered political party meets the requirements set out in 129A.
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Item 3 reduces the disclosure threshold for donations made to a candidate for personal
use from "$10,000 or less" and replaces with "less than $200" at subparagraph
304(5)(b)(ii) of the Act.
Item 4 reduces the disclosure threshold for donations made to a group from "$10,000 or
less" and replaces with "less than $1,000" at paragraph 304(5)(c) of the Act.
Item 5 repeals the note at subsection 304(5) concerning the indexation of dollar
amounts under section 321A of the Act.
Item 6 reduces the disclosure threshold to a person from "exceeds$10,000" and
replaces with "is equal to or exceeds $200" at paragraph 304(6)(b) of the Act.
Item 7 reduces the disclosure threshold to a group from "exceeds $10,000" and replaces
with "is equal to or exceeds $1,000" at paragraph 304(6)(c) of the Act.
Item 8 repeals the note at subsection 304(6) concerning indexation as per item 7.
Item 9 repeals subsections 305A(1), (1A), (2), (2A) and (3) concerning when a person
must provide a return to the Commission, and replaces them with new subsections (1)
and (2)
· Subsection (1)(a) states that a person who makes a donation during the
disclosure period of an election to a candidate, or (b) to any person or body
specified by the Commission by notice in the Gazette during the disclosure
period of an election, must submit a return to the Commission within 15 weeks
after polling day in an approved format; and
· Subsection (2)(a) states that a person need not lodge a return if the donation
value in (1)(a) was less than the amount set, or $200 if no amount is set; and (b)
if the total value in (1)(b) was less than the amount set, or $1,000 if no amount is
set.
Item 10 reduces the total value amount of a donation made to a political party from
"more than $10,000" to"1,500 or more" at subsection 305B(1) of the Act.
Item 11 repeals the note at subsection 305B(1) concerning indexation as per item 7.
Items 12 and 13 reduces the donation amount to a political party requiring disclosure at
subsection 305B(3A) of the Act. Where first mentioned from "more than $10,000" to
"1,500 or more", and second mentioned from, "exceeds $10,000" to "is equal to or
exceeds $1,000".
Item 14 repeals the note at subsection 305B(3A) regarding indexation as per item 7.
Item 15 inserts new section 305C after section 305B of the Act concerning gifts to
political parties. The new proposed section will prohibit a person or corporation
donating more than $100,000 in any one financial year.
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Item 16 repeals subsections 306(1) and (2) of the Act concerning the value of certain
gifts not to be received and substitutes new subsections (1) and (2):
· Subsection (1) makes it unlawful for a political party to receive a donation
which is equal to or exceeds $1,000 without full and transparent disclosure,
which is a reduction from the current threshold amount of $10,000; and
· Subsection (2)(a) makes it unlawful for a candidate to receive a donation that
exceeds $200 or (b) for a group to receive a donation that exceeds $1,000
without fall and transparent disclosure.
Item 17 inserts after subsection 306(2A) of the Act proposed subsection (2AA)
prohibits multiple donations ie the value amount of a donation is to be the total amount
of all donations made to the party as a whole, whether to national, State and Territory
branches of a party.
Item 18 adds at the end of section 306 regarding certain gifts not to be received,
proposed subsection 6 making it unlawful for branches of registered political parties or
party representatives to receive gifts valuing more than $10,000 by a person or a
company holding a contract with any government.
Items 19 to 22 reduces value amounts at subsections 306A(1) and 306A(2) of the Act
from "more than $10,000" and replaces with $1,500 or more", and repeals the
associated notes concerning indexation for the same sections.
Item 23 inserts new section 306AA after section 306A of the Act, which will prohibit
political parties, or persons acting on their behalf, to receive gifts, donations or property
from media companies.
Items 24 and 25 reduces the value amount under paragraph 306B(a) of the Act from
"exceeds $10,000" and replaces with "is equal to or exceeds $1,000", and repeals
section 306B (note 3) concerning indexation.
Item 26 inserts after section 306B of the Act the following new sections:
· section 306C which prohibits foreign donations to all political parties;
· section 306D requiring forfeiture of a donation if there is any doubt about its
origins;
· sections 306E and 306F making it lawful for non-citizens resident in Australia
and for Australian citizens living overseas to donate; and
· section 306G which prohibits any quid pro quo donations being made.
Items 27 and 28 reduces the value amount at subsection 311A(2) of the Act from
"$10,000 or less" and replaces with "less than $1,500", and repeals the associated note.
Item 29 inserts at the end of subsection 314AB(2) concerning annual returns by
political parties a new requirement paragraph (d) that requires a party to also include
the total amount expended for electioneering from when the election is called until the
closing of the polls.
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Items 30 and 31 omits "more than $10,000" and replaces with "$1,500 or more" at
subsection 314AC(1)of the Act and repeals the associated indexation note.
Items 32 and 33 omits "$10,000 or less" and replaces with "less than $1,500" at
314AC(2) and repeals the associated indexation note.
Item 34 inserts at the end of section 314AC of the Act new subsections (4) and (5).
These state that when a gift or an amount specified in subsection (1) is made out of
trust, foundation or club funds, a declaration of interest form must be completed and
included by the political party as part of its annual return; and that if a declaration is not
made as per above, the gift is to be forfeited to the Commonwealth.
Items 35 and 36 omits "more than $10,000" and substitutes "$1,500 r more" at
subsection 314AE(1) and repeals the associated indexation note.
Item 37 repeals subsection 314AG(3) concerning returns regulations and substitutes a
new subsection stating that a party must provide:
· (a) the total amount of donations received;
· (b) individual donations that exceed the threshold;
· (c) a total aggregate of donations received that are below the threshold; and
· (d) the total amount of public funding received.
Item 38 at subsection 315(1) of the Act, dealing with offences for failing to lodge
returns, inserts the following words after `return': "which meets all of the requirements
of this Act".
Item 39 inserts after section 316 of the Act, dealing with investigations, a new section
316B that allows the Commission to refer matters for investigation to the Australian
Tax Office or the Australian Securities and Investment Commission.
Item 40 repeals section 321A of the Act that allows for donation threshold amounts to
be indexed against the Consumer Price Index.
Schedule 4 - Amendments relating to enrolment and other electoral
matters
Item 1 repeals subsection 93(8AA) of the Act that disallows any person serving a term
of imprisonment the right to vote. The proposed new subsection will restore this right
unless:
(a) the person has had his/her right to vote removed by a judge; or
(b) the person is of unsound mind; or
(c) has been convicted of treason.
Items 2 to 4 omits "the day of the writ" and replaces with "the day of the close of the
Rolls at:
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· paragraph 94A(4)(a) of the Act concerning voter enrolments from outside
Australia;
· subsection 95(4) concerning the enrolments of eligible spouse and children of
overseas voters; and
· subsection 96(4) concerning the enrolment of itinerate persons.
Item 5 repeals section 99B of the Act concerning the application for enrolment from
those about to become Australian citizens.
Item 6 omits "the date of the writ or writs for the election" and replaces with "the day
on which the Rolls for the election close" at subsection 102(2A) of the Act.
Item 7 repeals subsections 102(4), (4AA) and (4AB) of the Act concerning claims
made by persons under section 101 (compulsory enrolment and transfer) actions on
receipt of claims for those.
Item 8 omits "8pm on the day of the writ" and replaces with "the close of the Rolls" at
subsection 118(5) of the Act concerning the determination of objections to enrolments
by Divisional Returning Officers.
Item 9 repeals section 155 of the Act concerning closure of the Rolls from 3 days after
the date of the writ to 7 days.
Item 10 omits $1,000 and replaces with $700 at paragraph 170(3)(a) for the sum to be
deposited when nominating a candidate for the Senate.
Item 11 omits $500 and replaces with $350 at paragraph 170(3)(b) for the sum to be
deposited when nominating a candidate for the House.
Item 12 inserts after section 306A of the Act new section 306AB which makes it an
offence for a political party to receive certain services, including Commonwealth
vehicles and offices, office equipment, travel entitlements and the use of any of these
for fund raising. It also sets out the class of persons not to be involved in the receipt of
such services and imposes a penalty of 50 penalty units for non-compliance.
This item also inserts new subsection 306AC(1) making it unlawful for public servants
to use Commonwealth facilities to support a political party. Subsection 306AC(2)
provides a defence if the person is employed by a Senator or Member and is carrying
out work for the purpose of re-election. A penalty of 50 penalty units for non-
compliance is also imposed here.
Items 13 and 14 increases the penalties for bribery offences at subsections 326(1) and
(2) of the Act from a $5,000 fine or 2 years imprisonment, or both, to 120 penalty units
or 2 years imprisonment, or both.
Item 15 repeals section 394 of the Act which disallows a state referendum or vote to be
held on polling day.
Referendum (Machinery Provisions) Act 1984
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Items 16 to 20 propose amendments to the Referendum Act that reflect those relevant
changes proposed above for the Electoral Act.
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