October 2020 newsletter
Electoral Regulation Research Network Contents
3 Director’s Message 4 Electoral News 7 Event Reports 8 Forthcoming Events 9 Publications
10 Case Notes The Australian Institute for Progress Ltd v The Electoral Commission of Queensland Johnston v The Greens NSW Incorporated Petersen v Nolan Fry v Victorian Electoral Commission Matthew Harris, State Director of the National Party of Australia – Victoria v Victorian Electoral Commission ERRN Director’s Message: October 2020
There seems to have been a temporal Webinars have also been held on: When this newsletter published, two of breach between the time I wrote my last the five fortnightly lectures would have newsletter message in May and this one. ■ ‘Constitutional Government During a occurred: one on open list proportional Back in May, the country was in a collective Panel’(a panel comprising myself and representation system and another on lock-down but with strong signs of my Melbourne Law School colleagues, the impact of distant and online election emerging out of it. Writing in early October, Professor Michael Crommelin AO and campaigning on political freedoms. The Victoria has experienced a second wave of Professor Cheryl Saunders AO) other three will respectively address COVID-19 infections resulting in another ■ ‘Elections and COVID-19’ by Michael the impact of changes in campaign lock-down that appears to be coming to an Maley; practices on the funding of election end. Thankfully, the rest of the country has ■ ‘Elections in the COVID-19 Pandemic: campaigns and political parties; Special been spared such hardship. Lessons from the Eden-Monaro Voting Arrangements; and ‘Open Data’ in by-election’ by Australian Electoral elections. Welcome then to the COVID-19 normal Commissioner, Tom Rogers, and where the only certainty is uncertainty, the Australian Labor Party National Let me conclude by recording my deep only foothold of stability is grasping that Secretary, Paul Erickson; and gratitude to those who continue to much is unstable. contribute to ERRN in this pandemic, in ■ ‘Is a virtual Parliament desirable and particular, the ERRN convenors and editors, workable?’ by President of the Senate, As with all others in the community, Kaori Kano, the ERRN Administrator, Senator Scott Ryan and Professor Anne ERRN has had to adapt to this context. speakers and participants and ERRN’s Twomey, Sydney University. Its activities have been refocused to funders (the New South Wales Electoral contribute to understanding the novel Forthcoming web events include: Commission, Victorian Electoral and complex challenges posed by the Commission and Melbourne Law School). pandemic to the regulation of elections. ■ A roundtable of electoral These are truly challenging times for Two important working papers have been commissioners including Australian all of us and our families. With time at a published in this respect, one on Electoral Electoral Commissioner, Tom Rogers, particularly premium, I have been moved at Management under COVID—19 by Michael and Victorian Electoral Commissioner, how many continue to volunteer their time Maley and another on Remote Voting under Warwick Gately; to ERRN – thank you! COVID-19 by Dr Narelle Miragliotta (see our ■ A workshop on ‘Interference and ‘publications’ section inside). Distortion at Australian Elections’; and Professor Joo-Cheong Tham, Melbourne Law School ■ A webinar on ‘Remote Democracy?: A With face-to-face seminars no longer Comparative Perspective on Voting in possible, ERRN events were organized Pandemics and Beyond’. through different media. As noted in my previous message, video-recordings The last event reminds us how particularly were made by Professor Anne Twomey, crucial comparative and international University of Sydney on ‘Government perspectives are in this pandemic. I am Accountability and Virtual Parliament’ delighted then to advise that ERRN is a and by Dr Stephen Mills, University of sponsor of the Asia & the Pacific Online Sydney, on ‘Parliament at a time of virus’. Lecture Series on Elections initiated by Since that message, there have also been the International Institute for Democracy video-recordings by Professor Graeme Orr, and Electoral Assistance (IDEA), an University of Queensland on ‘Elections in intergovernmental organization that works a Time of Contagion’ and Professor John to support and strengthen democratic Kane, Griffith University on ‘COVID-19 and institutions and processes around the the US Election’ (see our ‘events’ below). world, to develop sustainable, effective and legitimate democracies.
Electoral Regulation Research Network newsletter - October 2020 3 Electoral News
News April-October 2020
arithmetic, and the NT’s Chief Minister, who COMMONWEALTH noted significant under-enrollment issues NEW SOUTH WALES that may be warping figures. In October, the Deputy Prime Minister Michael McCormack indicated the Government would support the retention of a second Territory seat.
JSCEM juggled this consideration of Territory seats with two other inquiries: one into all aspects of the 2019 federal election — public hearings were held in September Electors in Eden-Monaro turned out in early and submissions closed on the 20th of The NSW Audit Office is in the middle of an July, in person and via the post, to vote for that month; another into amendments to investigation into funding arrangements of a replacement for the long-serving Mike the Electoral Act, including clarification on the state’s integrity and oversight bodies, Kelly, who announced his retirement due how federal, state and territory disclosure including the Independent Commission to ill health in April. Despite coronavirus regimes should interact, in light of Spence v Against Corruption and the NSW Electoral fears the vast majority of electors voted Queensland (see Case Notes from October Commission. The audit came in response to in person — 43% on polling day; 42% via 2019 Newsletter) The latter was cause revelations of critical shortfalls in funding pre-poll. Still, applications for postal votes for some controversy, with minor party for the NSWEC, covered in our May 2020 were up 127% on the figures from the 2019 MPs claiming the amendment, which has Newsletter. The audit remains underway as general election. Kristy McBain retained the bipartisan support, would effectively help of writing. seat for Labor with 50.85% of the final vote. the major parties circumvent tough new Another by-election, for the Queensland donation laws introduced at the state level Meanwhile, the state is in the midst of seat of Groom, was triggered after the over the last few years. a lower house redistribution. Election resignation of John McVeigh for family analysts predict fairly significant change reasons. The poll has been scheduled for The AEC was also in the spotlight, with to seats in suburban Sydney, as well 28th November. the Australian National Audit Office as the creation of a new seat. Public publishing its review of the Electoral submissions closed in July; by November, Northern Territory representation in Commission’s administration of political the Redistribution Panel will hand down its the Federal Parliament was another key finance disclosures in mid September. draft determinations, with new boundaries issue over the last six months. A report The audit found the Commission was only to be in place for the 2023 state election. from the Parliamentary Library published partially effective in that role, with limited in July projected the NT would lose a use of its own data to cross-reference Finally, the date of Saturday 4th of House of Representatives seat in the disclosures and hunt down non-compliant September 2021 has been fixed for local next redistribution, due to the Territory’s entities, almost no scrutiny of third-party government elections. Local elections population falling below quota. Territory disclosures, and a relatively soft approach had been due in September of this year, representatives from both sides of to breaches of the rules. The AEC has but they were held over to 2021 due to the political divide spoke out against rejected the overall finding, but accepted coronavirus fears (see previous newsletter). the change, and Senators Farrell and many of the specific recommendations to The postponement will shorten the term McCarthy introduced an amendment tighten their regulation of political finance. of councillors elected next year, with the to the Electoral Act proposing a floor of subsequent election still scheduled two House seats for the Territory. The for 2024. Joint Standing Committee on Electoral Matters convened an inquiry into the Bill. Notable submissions came from the AEC, confirming the Parliamentary Library’s
Electoral Regulation Research Network newsletter - October 2020 4 to well-resourced candidates, as costly VICTORIA direct mail would become one of the only SOUTH AUSTRALIA avenues for communicating directly with electors, outside social media. Some carve-outs for campaigning were put in place in early September, to allow for leafleting and delivery of campaign posters, and by the end of the month city-wide restrictions had been taken down a step — however face-to-face voter outreach was still all but impossible. All elections were It was branch-staking-galore in Victoria held by postal ballot only — a change for July saw the Marshall Government the last six months, with major revelations some metropolitan councils. Votes must introduce sweeping electoral changes, about membership impropriety in Victorian be returned by the 28th of October; a including a switch to optional preferential Labor and the Victorian Liberal Party, summary of results will appear in our next voting for the state’s Legislative Assembly, each implicating state and federal MPs, newsletter. bans on corflutes on public roads and a big published by Nine-Fairfax. Some Labor- expansion of pre-polling. The measures related allegations have been referred to a Finally, also in September, the Victorian came in response to recommendations joint-probe by the state Ombudsman and divisions of the Liberal and National parties from the state’s electoral commission IBAC, and the state branch of the ALP is took the VEC to court over rulings on following the 2018 State Election. The Bill is now subject to a federal intervention. On public financing of elections. The parties currently before the Parliament. the Liberal Party side, key organisational- had an agreement splitting public funding wing figures resigned following the between them in several regions — one the The reforms came on top of a redistribution revelations, and Assistant Treasurer, VEC decided it could not, by law, recognise of the state’s electoral boundaries, Michael Sukkar, along with Kevin Andrews, when dolling out public funds after the 2018 rendered controversial due to last year’s invited the federal Department of Finance state election. The case is in its early stages. tussle over the ‘fairness provision’ in the to investigate any possible misuse of tax- state’s Constitution (see the last two payer-funded staff. newsletters). The removal of the provision QUEENSLAND last year has meant this redistribution In September, the Victorian Parliament’s is likely to weaken the position of the Electoral Matters Committee released its governing Liberal Party ahead of the report on the 2018 state election. If found 2022 election. In August, the Electoral enrollments (96.6% of potential electors) Boundaries Commission published its were strong that year, thanks in part to draft report. Feedback was due by mid- the 2017 Marriage Law Postal Survey; September, with final boundaries to be that turnout (90.2%), by contrast, was at gazetted in November. its lowest since 1945; and that informal voting for the Lower House (5.8%) and Upper House (4%) was higher than the State elections were scheduled to go ahead VEC’s targets. The Committee called late October. In August, Queensland’s for new initiatives to engage young and electoral commission released a statement linguistically diverse electors; greater of intent setting out how it intends to plan transparency around security of pre- for running the poll under the threat of poll ballots; and stronger efforts to find COVID-19, including wider provision of accessible early voting centres. To the pre-poll and postal voting options. Early disappointment of some Committee voting is set to open on the 19th of October; members, the report stopped short of polling day is Saturday the 31st of October. recommending the abolition of group Labor has little wiggle-room this election — voting tickets, suggesting instead that a net loss of two seats would see them lose a dedicated inquiry consider the voting their majority in the Parliament — however system for the Upper House. It will, reliable state-wide polls have not been however, take up the issue of social media published since July. Full results will follow influence on elections as its next subject in our April newsletter. of inquiry. Submissions for that inquiry Earlier, in June, a parliamentary inquiry closed at the end of September, with public into the ECQ’s handling of local government hearings to follow later this year. elections in March (see previous newsletter) Meanwhile, local government elections published its report. It found the scheduled for late October went ahead, Commission bungled the count process on despite unprecedented challenges, election night, in part because it had not including the extension of the Stage Four set up adequate systems after abandoning lockdown measures to cover the most a new data management system in of the campaigning period, rendering 2018. However the report made no many common forms of electioneering recommendations, noting that the issues impossible. Some critics suggested this had been identified and fixed. handed something of an unfair advantage
Electoral Regulation Research Network newsletter - October 2020 5 Meanwhile there has been precious-little The truth-in-political-advertising provisions WESTERN AUSTRALIA movement on long-mooted electoral are particularly significant. They empower reforms in Tasmania, despite claims a the Electoral Commissioner to prevent the major review of the Electoral Act, calling for dissemination of misleading statements — donations reform, was actually completed or even compel a retraction — and impose in December 2019. Nine months later, in fines for non-compliance. However, the September, when asked in state parliament powers will only cover content that requires if the government was sitting on the Review a formal authorisation, leaving a fair gap report, Premier Gutwein said electoral for scare campaigns of the ‘Death Taxes’ reform was not receiving any consideration or ‘Mediscare’ variety. What is more, the during the COVID-19 pandemic. This has not rules will not take effect until after this In June, the McGowan Government stopped other parties calling for reform, month’s election, with the next Territory introduced legislation to ban foreign with Labor putting forward a private government to work out with the Electoral donations to political parties. As of writing, member’s Bill proposing real(ish)-time Commission how to implement the laws. the Bill had passed the Lower House and disclosure of by all donors giving $1000 was before an Upper House committee, or more (cumulatively or in one donation) due to report back in November, meaning as well as caps on candidate and party NORTHERN TERRITORY the ban may not have a large impact on the spending for the Legislative Assembly ($1 next WA election, due in March 2021. million for parties; $100,000 for individual candidates). Meanwhile, elections for the City of Perth were held up before the campaign officially began, with a stoush over candidate ACT eligibility delaying the ballot draw in early September. The Electoral Commission deemed two nominees ineligible over technicalities of leases they held inside the Territorians voted in Legislative Assembly council area — something that had been elections in August. The Gunner Labor a major focus of a special inquiry into the Government was returned with 14 out City of Perth, which found sham leases of 25 seats. The Territory Alliance, the had been used to ensure the eligibility of fledgling new party founded by former some former councillors, amongst other Chief Minister and MLA for Blain, Terry Mills, things. The Perth election has thrown up The ACT’s Legislative Assembly elections had a particularly bad election, gaining other regulatory complications, including were in full swing at time of writing. no seats at all, and losing Mills’ seat to the matter of Lord Mayoral candidate and Early voting commenced on the 28th of Labor. A good chunk of the vote came via Seven West Media commentator Basil September, and was scheduled to run postal ballots. During the count, Labor Zempilas using his media positions to for three weeks. The long voting period lodged a formal complaint with the NT campaign. was one of several provisions made to Electoral Commission that some postal accommodate pandemic concerns, with ballots seemed to have been posted after the Electoral Commission predicting the close of polling booths on election TASMANIA 50-80% of voters would attend the polls day. As the count stretched on, Michael before polling day on the 17th of October. It Gunner suggested changes to postal voting is also likely to be one of the first Australian would need to be considered by the next elections in which most electors vote government. electronically, rather than with pencil and paper. A change of government under the It was also the first Territory election run ACT’s Hare-Clark system would require on new donation disclosure rules. While that the Liberals win two ‘hinge’ seats, or not quite ‘real-time’, donations data for one, with the other won by a sympathetic the 2019-2020 financial year was released cross-bencher. ahead of polling day. It showed Labor August saw Tasmania hold elections for received over three times as many donor two of the state’s upper house seats. The In the days before the dissolution of the dollars as their main rivals, the Country elections saw major party candidates take Legislative Assembly, the ACT Government Liberal Party, and 2.8 times the Territory over from independents, with Labor’s finally introduced long-mooted electoral Alliance total. Total donations were well Bastian Seidel triumphant in Huon and reforms. Included in the Bill was the down on previous form, prior to donations the Liberal Party’s Jo Palmer elected with creation of a new offence of misleading reform. a lead of just 250 votes in Rosevears. This electoral advertising; bans donations brings the proportion of Upper House seats from property developers or their held by parties, rather than independents, associates; and a seven-day deadline on up to a majority for the first time ever — a disclosing donations over $1000. A Greens significant change for Tasmanian politics. amendment to also ban donations from gambling companies and add donation caps was defeated.
Electoral Regulation Research Network newsletter - October 2020 6 Event reports
ERRN Webinar ERRN Webinar ERRN/International IDEA Online ‘COVID-19 and the US election’ ‘Elections in the COVID-19 Pandemic: Lecture 30 April 2020 Lessons from the Eden-Monaro By- ‘Open List Proportional Representation Election’ System: The Good, the Bad & the Ugly’ In this webinar, Prof John Kane of Griffith 26 August 2020 30 September 2020 University speculated on the likely or possible impact of the pandemic crisis In this recorded seminar, we heard from The open-list proportional representation on the upcoming November elections by AEC Commissioner Tom Rogers and ALP (OLPR) system, as opposed to the closed- looking at both the advantages Trump National Secretary Paul Erickson about the list version, allows voters to pick their possesses and the challenges he faces. challenges of election management and favourite candidate from the party list while While prediction is unsafe — indeed, who campaigning under pandemic conditions. retaining proportionality of the election could have foreseen the President himself Both reflect on the experience of the results. In the Asia & the Pacific region, this contracting the virus — Prof Kane argued Eden-Monaro By-Election and draw out system is used in Fiji, Indonesia and Sri it is possible to clarify both what is at stake lessons for future elections. This event Lanka, to name a few. In lecture #1 of the and how things were playing out early in was co-hosted by the Electoral Regulation International IDEA lecture series on Asia & the campaign. Research Network and the Gilbert + Tobin the Pacific, elections expert Alan Wall took Centre of Public Law at the University of us through the upsides, downsides and Watch the full webinar here. New South Wales. unintended consequences of this system.
Melbourne Law School COVID-19 and Watch the full webinar here. Visit the International IDEA YouTube Law Expert Panel series channel for a recording, ‘Constitutional Government During a ERRN Webinar Pandemic’ ‘Is a Virtual Parliament Desirable and ERRN/International IDEA Online Lecture 9 June 2020 Workable?’ 30 September 2020 ‘How does distant & online election For this webinar, Professor Adrienne Stone campaigning affect political freedoms?’ and a panel of legal experts discussed how Parliaments are central to Australia’s 14 October 2020 Australia’s constitutional arrangements democracy – they are key to democratic have responded to the challenges of representation, law-making and The need for physical distancing during Covid-19, and the new ways forward. accountability. But how are they to properly this COVID-19 pandemic has raised the This online event was the first webinar function in the COVID-19 pandemic where need for innovative campaign methods in Melbourne Law School’s twice-weekly there are severe public health restrictions to be developed by election contestants series on Law and Covid-19. The discussion and substantial increases in executive because conventional methods such as was moderated by Professor Adrienne power? Is a virtual Parliament the answer rallies, public meetings, etc. are prohibited Stone, featuring: Professor Michael to this difficulty? What are its strengths in some jurisdictions. Distant and online Crommelin, Professor Joo-Cheong Tham, and limitations? Is a virtual Parliament campaigning may be seen as restrictive Professor Emeritus Cheryl Saunders. workable? Senate President Scott Ryan to both contestants and voters alike due took up these questions drawing upon his to physical and technological barriers Watch the full webinar here. experience organising a virtual sitting of that appear. In this second lecture in the the Senate whilst Professor Anne Twomey International IDEA lecture series on Asia & provided commentary. This event is the Pacific, Associate Professor Tom Daly co-hosted by the Electoral Regulation spoke about COVID restrictions the political Research Network, Gilbert + Tobin Centre freedoms. of Public Law, and Melbourne School of Government. Visit the International IDEA YouTube channel for a recording,
Electoral Regulation Research Network newsletter - October 2020 7 Forthcoming events: ERRN/International IDEA Online ERRN Webinar Lecture ‘Elections under COVID-19 in Australia: an ERRN/International IDEA Online ‘How does innovative unconventional update on recent experiences and lessons Lecture campaign practices affect the funding of for the future’ ‘Special Voting Arrangements (SVAs): election campaigns & political parties?’ Thursday 26th November Between the Convenience of Voting & Wednesday 11th November Integrity of Elections’ Speakers: Tom Rogers (AEC) and Warwick Wednesday 28th October Speaker: Joo-Cheong Tham Gately (VEC)
Speaker: Therese Pearce-Laanela Time TBC. This webinar will explore the responses to the Covid-19 challenge adopted at recent Time TBC. Keep up to date with these ERRN/International IDEA Online electoral processes in Australia, and seek International IDEA events here. Lecture to identify the longer term implications of ‘Open Data in Elections: Why is it needed work practices which Australian election Thursday 29th October 5pm (WST) and what can be done to make more administrators have been forced by the progress? pandemic to adopt. Time TBC. ERRN Webinar Wednesday 25th October ‘Remote Democracy?: A Comparative ERRN & Stretton Institute for Public Perspective on Voting in Pandemics and Speaker: Peter Wolf Policy Webinar Beyond’ ‘Interference and Distortion at Australian Speakers: Prof Ben Reilly (UWA) and Dr Time TBC. Elections’ Lachlan Umbers (UWA) December (date TBA)
Chair: Assoc/Prof Martin Drum (University This event will feature two papers from of Notre Dame Australia) researchers at the University of Adelaide: one by Prof Lisa Hill on ‘Truth in Election Advertising’; another by Tim Legrand and Melissa Dowling on ‘Disinformation During Election Campaigns’.
Keep up with details via the ERRN events page.
Electoral Regulation Research Network newsletter - October 2020 8 Publications
Matteo Bonotti and Paul Strangio (eds), A Paul Kildea, ‘The constitutional role of Graeme Orr and Andrew Geddis, ‘Islands in Century of Compulsory Voting in Australia: electoral management bodies: the case the storm? Responses to foreign electoral Genesis, Impact and Future, Palgrave of the Australian Electoral Commission’, interference in Australia and New Zealand’, Macmillan, 2020. Federal Law Review, September 2020. Election Law Journal, September 2020.
Christopher Cooper, ‘Impartiality and Anthoula Malkopoulou and Lisa Hill, ‘The For inclusion in November’s newsletter, public sector employees’ online political politics of voter presence’, International send your publications through to our activity: evidence from three Australian Political Science Review, June 2020. newsletter editor, James Murphy: elections’, Acta Politica, September 2020. [email protected] Yee-Fui Ng, ‘Political Advisers in the Anika Gauja, Marian Sawer and Marian Executive Branch’ in Rudy B Andeweg, Simms (eds), Morrison’s Miracle: The 2019 Robert Elgie, Ludger Helms, Juliet Kaarbo, Australian Federal Election, ANU Press, 2020. and Ferdinand Müller-Rommel (eds), The Oxford Handbook of Political Executives Hideo Ishima, ‘How electoral reform alters (Oxford University Press, 2020) 501-524. legislative speech: Evidence from the parliament of Victoria, Australia 1992-2017’, Yee-Fui Ng, Maria O’Sullivan, Moira Electoral Studies, vol. 67, October 2020. Paterson and Normann Witzleb, ‘Revitalising Public Law in a Technological Toby James, ‘New development: running Era: Rights, Transparency and elections during a pandemic’, Public Money Administrative Justice’ (2020) 43(3) UNSW and Management, June 2020. Law Journal 43(3) 1041-77.
Democratic Audit of Australia Working Papers:
The Electoral Regulation Research Network regulation from academics, electoral Working Paper 72 was established in 2012 with the aim of commission officials, parliamentarians, Remote Voting under COVID-19 fostering exchange and discussion amongst party officials and others interested in this academics, electoral commissions and field. Dr. Narelle Miragliotta (Department of other interested groups on research Politics and International Relations, relating to electoral regulation. To this end, Working Paper 71 Monash University) the Network together with the Democratic Election Management under COVID-19 Audit of Australia will be publishing a series September 2020 of working papers – often called ‘discussion Michael Maley (Electoral process specialist, papers’ – to help foster discussion about formerly Australian Electoral Commission) all aspects of electoral regulation. These working papers will be posted on the May 2020 Network’s website and circulated to members of the Network. They will also be posted on the Democratic Audit of Australia’s website. We welcome papers written on all aspects relating to electoral
Electoral Regulation Research Network newsletter - October 2020 9 Case Notes
The Australian Institute for Progress Ltd v The AIP sought declarations from the The issue of whether the making of a gift The Electoral Commission of Queensland Supreme Court, including that ‘a gift to or engages the prohibition in s 275 was said The Australian Institute for Progress (“AIP”) for the benefit of a Third Party for that Third to be fact-specific. The matter being fact- is a think tank based in Queensland. The Party to pursue its activities, including in specific, the declarations sought by the AIP AIP’s funding sources include some property relation to political communications or lacked utility, and it would be inappropriate developers who are ‘prohibited donors’ for concerning an election for the Legislative to grant them, or even declarations which the purposes of the Electoral Act 1992 (Qld). Assembly’, is not within the meaning of the referred to the AIP rather than any ‘Third expression “political donation” in the Act. Party’. Changes to the Electoral Act 1992 (Qld) in 2018 made it unlawful for a ‘prohibited The Court refused to grant a declaration, Johnston v The Greens NSW Incorporated donor’ to make a ‘political donation’ as as the relief sought did not accord with the In May 2018 The Greens NSW, in seeking defined in the Act. It is also unlawful for principles governing the circumstances to field candidates in a forthcoming a person to accept a ‘political donation’ in which the Court will grant declaratory election for the Legislative Council, held that was made (wholly or in part) by or relief. This was because the question a preselection process. The third person on behalf of a ‘prohibited donor’. The was essentially hypothetical and the on the ticket adopted as a result of that legislation aims to minimise the corruption declaration sought was highly dependent process was Mr Jeremy Buckingham. and undue influence that political on fact-specific circumstances not before On 20 December 2018 he resigned his donations from property developers have the court, such as the purpose of the membership of The Greens NSW. As a the potential to cause at both a State and particular donor and the particular gift. result, it was necessary to adopt a process local government level. which would produce an alternative The Court did, however, decide an issue of candidate. The question was whether he statutory interpretation in dispute between In February 2020, the AIP wrote to the should simply be replaced by the person the AIP and the ECQ. The Court found that Electoral Commission of Queensland (ECQ) in position number four, or whether there the word ‘campaign’ in the definition of advised that it intended to participate should be a recount of the pre-selection ‘electoral expenditure’ may describe the in the State election later that year by ballot. The party adopted the former campaign of a third party or a group of advocating for a particular political party position. and conducting political research. It sought third parties whose organised activities clarification as to whether it was legal to are aimed at achieving the election of a The applicant, Daryl Lindsay Johnston, accept donations from ‘prohibited donors’ if political party or a candidate or the defeat considered that to be the wrong approach it conducted such activities. In response to of a political party or candidate at an under the party’s Constitution. He and this, the ECQ advised that it considered the election. another member of the party commenced AIP to be a ‘third party’ within the meaning proceedings in the Equity Division on The Court held that whether or not a gift of the Electoral Act 1992 (Qld) and confirmed 1 March 2019. The trial judge, Robb J, falls within the definition of ‘political that was not lawful for prohibited donors made an order dismissing the plaintiffs’ donation’ in s 274(1)(b) depends on the to make gifts to other entities which incur summons. circumstances in which the gift was made. electoral expenditure. The ECQ requested It depends on the purpose of the particular further information from the AIP so it could On 31 May 2020 Mr Johnston filed a donor and the particular gift: was it ‘to consider appropriate action. summons seeking leave to appeal from enable’ the entity to incur expenditure ‘for the judgments and orders in the Equity The AIP challenged that ruling by the ECQ. the purposes of a campaign for an election’ Division. Following this, there had been AIP executive director Graham Young for the Legislative Assembly? settlement negotiations which had resulted claimed that the ruling threatened the in The Greens NSW making an offer to settle advocacy of charities and not for profits, the matter on the basis that the applicant many of whom received donations from discontinue the application for leave to philanthropic property developers. appeal and agree to pay an amount in full settlement of the costs of the proceedings.
Electoral Regulation Research Network newsletter - October 2020 10 The applicant’s position was that he The Court also found that the mere fact Matthew Harris, State Director of the accepted the offer, but there was an issue that Ms Nolan was a MP and a Minister who National Party of Australia – Victoria v as to whether the offer bound all the active was seeking re-election in the same seat Victorian Electoral Commission parties in the Court. in which Dr Petersen was a candidate did The Liberal and National parties have not give rise to a duty of care not to harm applied to the Supreme Court to overturn The Court held that it would not hear the Dr Petersen in the course of the election the VEC’s decision on the distribution of appeal, with the likelihood that further campaign. public funding. costs would be incurred by the parties, until any issues regarding the agreement Fry v Victorian Electoral Commission The VEC distributes public funding to to settle have been resolved. Accordingly, A hearing in the Victorian Civil and registered political parties, based on the the Court vacated the date for hearing the Administrative Tribunal (VCAT) finalised number of votes they obtain. Since the 2010 application for leave to appeal. a matter that began when Mr John Fry, State election, the Liberal and National a candidate in the 2016 Whittlesea City parties have fielded joint tickets in three Petersen v Nolan Council election, applied to the Municipal Upper House regions. The VEC has paid Dr Petersen claimed damages against Electoral Tribunal (MET) for an inquiry two-thirds of the public funding for these Ms Nolan for misfeasance in public office into the election, disputing the election elections to the Liberal Party and one-third and/or negligence. Dr Petersen and Ms of Mr Norman Kelly because Mr Kelly to The Nationals. The Electoral Legislation Nolan were both candidates at the 2012 had allegedly misled and deceived the Amendment Act 2018 (Vic) made substantial Queensland State election with Dr Petersen voters, breaching section 55A of the changes to public funding provisions. After contesting the seat of Ipswich as an Local Government Act 1989 (Vic). The MET the 2018 State election, the VEC provided all independent candidate and Ms Nolan, as dismissed the application on 9 February the public funding for the three regions to the sitting member, contesting the same 2017. On 6 May 2019, Mr Fry applied to VCAT the Liberal Party, which received nearly all seat as the endorsed Labor candidate. Dr for a review of the MET’s decision. VCAT the first-preference votes for the Coalition Petersen alleged that Ms Nolan caused granted an extension of time for Mr Fry to in these regions. The VEC informed the Ipswich City Council to seize Dr Petersen’s lodge his application. parties that the Liberal Party would not be election signs and have her fined and by able to transfer one-third of the funding doing so intentionally aimed to cause On 20 March 2020 the Governor assented to The Nationals, as this would constitute harm to Dr Petersen. Dr Petersen made a to the Local Government (Whittlesea a political donation, and donations were series of allegations in the statement of City Council) Act 2020, which dismissed capped at $4,000. claim against Ms Nolan as to the conduct Whittlesea City Council, installed she alleged Ms Nolan engaged in that was administrators and deferred the Council’s The case was heard on 14 September 2020. alleged to be dishonest and misleading in next general election to October 2024. After The central question considered at the relation to Dr Petersen’s election signs. corresponding with Mr Fry, who confirmed hearing was whether a transfer from the his case should continue, the Victorian Liberals to the Nationals would be a gift Dr Petersen also pleaded that Ms Nolan Electoral Commission (VEC) then applied (and thus caught by the $4,000 donation owed her a duty of care in her capacity as to VCAT for Mr Fry’s application to be cap) or would be “consideration” for the the member for Ipswich and a Minister of summarily dismissed under section 75(1) two parties forming a composite group. the Government not to harm Dr Petersen. of the Victorian Civil and Administrative Tribunal Act 1998 because the application Justice Richards reserved her decision. The primary judge held that, Ms Nolan’s had become misconceived and lacked in alleged actions did not disclose an exercise of substance. The VEC also sought cost orders some power or authority which Ms Nolan had for costs incurred since its correspondence by virtue of the offices she held. The primary about the passage of the Act dismissing the judge found that that the pleading did not Council. disclose any basis to support that a Member of Parliament or a Minister owed a duty of On 18 August 2020 VCAT Deputy President care of the type pleaded to Dr Petersen. Lambrick made orders for the application to be dismissed and made no award The Court of Appeal affirmed the decision for costs. Deputy President Lambrick of the primary judge. The Court held that concluded that the application had become the tort of misfeasance in public office misconceived as a result of the dismissal involves an act done in the exercise by the of the Council; VCAT could not declare public officer of some power or authority Mr Fry elected to an office that no longer that exists by virtue of the office the existed, nor could it create an extraordinary public officer holds. On the basis of the vacancy in an elected council that no longer existing law, there is not that connection existed. between Ms Nolan’s then public office as a Member of Parliament and a Minister and her communication with the Council. Any complaint by Ms Nolan to the Council was not an exercise of her authority or power by virtue of being the sitting member or a Minister.
Electoral Regulation Research Network newsletter - October 2020 11 Contact Us
Electoral Regulation Research Network
Melbourne Law School The University of Melbourne, VIC 3010 E [email protected] W www.law.unimelb.edu.au/errn
ERRN Convenors & Editors: VIC: ACT Professor Brian Costar, Swinburne University Dr Peter Brent, Swinburne University Dr Yee-Fui Ng, Monash University Dr Dominique Dalla-Pozza, ANU College of Law Dr Zim Nwokora, Deakin University Michael Maley, Electoral Process Specialist Dr Paul Thornton-Smith, Victorian Electoral Commission Dr Damon Muller, Parliamentary Library WA: NSW: Dr Martin Drum, University of Notre Dame Rachel McCallum, NSW Electoral Commission Professor Alan Fenna, Curtin University Dr Paul Kildea, University of New South Wales Justin Harbord, WA Electoral Commission Professor Rodney Smith, University of Sydney Professor Sarah Murray, University of Western Australia
QLD: Working Papers Editor Dr Tracey Arklay, Griffith University Associate Professor Aaron Martin, University of Melbourne
SA/NT: Newsletter Editor Professor Lisa Hill, University of South Australia Dr James Murphy, Swinburne University Dr Jonathon Louth, Flinders University Dr Michaela Spencer, Charles Darwin University Legal Editor Dr Yee-Fui Ng, Monash University TAS: Professor Richard Eccelston, University of Tasmania
Electoral Regulation Research Network newsletter - October 2020 12