October 2018 newsletter

Electoral Regulation Research Network Contents

3 Director’s Message 4 Electoral News 11 Forthcoming Events 12 Event Report 14 Event Recordings 15 Research 16 Working Papers 16 Recent Publications

17 Case Notes Re Gallagher Electoral Commission of Queensland v Awabdy [2018] QSC 33 Mubarak v Australian Electoral Commission [2018] FCA 1089 Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516 Director’s Message

In this message, I am delighted to draw As with all of ERRN activities, these particular depend upon a democratic ethos attention to two new ERRN initiatives. The two initiatives would not have come – a sharing of democratic values as well first is the development of an Australian about without effective collaboration. as the willingness to act to advance these Electoral Law Library to be hosted by The Australian Electoral Law Library values and, if necessary, to defend them. In AustLII. Commencement of this project involves collaboration between electoral small yet significant ways, ERRN contributes followed a scoping study undertaken by Dr commissions, the Gilbert + Tobin Centre of to sustaining and deepening ’s Paul Kildea (Gilbert + Tobin Centre of Public Public Law at University of New South Wales democratic ethos. Law, University of New South Wales). On the and AustLII; the success of the ‘Regulation of basis of this report (including strong support Australian Elections’ came about through for such a database), the ERRN Governance the combined enthusiasm of academics Board commissioned the development and electoral commissions for the course. Professor Joo-Cheong Tham, of the Australian Electoral Law Library. As Melbourne Law School the report by Paul in this newsletter says These initiatives, along with other ERRN ‘(t)he online database will be hosted by activities, contribute to Australia’s AustLII and will provide free, open access to democracy in a narrow and broad sense. electoral law decisions by Australian courts It is a paradox of democracy that its and tribunals, and to legislation, journal processes seek to shape regulation as well articles and other materials’ – it ‘promises as being constituted by it. The latter clearly to be a valuable resource for electoral implies the need for deep knowledge of the commission officials, academic researchers institutional mechanisms of democracy not and the general public’. only for their effective operation but also in terms of envisioning democratic progress. The other initiative, foreshadowed in So it is that ERRN initiatives directly my previous message, is the course on contributes to building and maintaining ‘Regulation of Elections’ which aimed to expertise essential to the democratic provide an introductory course to electoral enterprise. commission staff on the research and scholarship on the regulation of Australian The more diffuse way in which ERRN elections through presentations by leading activities contribute to democracy stems experts. Over two days in July, more than from the basic fact that democracies are 30 senior officials from all of the electoral founded upon community – a profound commissions participated in an exciting sense of shared values, shared lives and forum of learning and discussion with shared destinies. While there is clearly a leading experts from across the country significant degree of spontaneity in the providing presentations on key topics on creation and sustenance of community, it the regulation of Australian elections (see is equally clear that community needs to report on page 15) be cultivated. Democratic communities in

Electoral Regulation Research Network newsletter - October 2018 3 Electoral News

Electoral News

extensively on the Electoral Legislation of electoral matter feeds into this new Amendment (Electoral Funding and definition, and is based on intent to influence Disclosure Reform) Bill 2017 (Cwth). The Bill the way electors vote in a federal election, was first introduced in December 2017 and including by promoting or opposing parties, has proposed the most significant changes candidates, groups, or parliamentarians. of federal election funding laws for more than a decade. The Bill was then referred Transparency register and disclosure to the Commonwealth JSCEM in December obligations 2017, with the committee issuing an advisory b) Registration processes are streamlined report on 9 April 2018; recommendations and simplified by the introduction of a from the advisory report were discussed in single Transparency Register. The number Leadership challenges and new the April 2018 ERRN newsletter. prime minister of people and entities required to register On 20 September 2018, the Bill was once is reduced through higher thresholds In August 2018, then Home Affairs Minister again referred to the Commonwealth for political campaigners, and removal Peter Dutton challenged then Prime JSCEM by the Special Minister of State, with of registration requirements for third Minister Malcolm Turnbull for the leadership the JSCEM asked to examine proposed parties. However, any person or entity not of the Liberal Party, due to dissatisfaction amendments to the Bill arising from the required to register may choose to register from the party’s conservative wing about JSCEM’s April 2018 advisory report. As voluntarily. policy direction. Turnbull defeated Dutton part of the inquiry process, the JSCEM in a leadership ballot, but internal tensions c) Disclosure obligations are made more released an exposure draft of Government continued to mount after the vote and the commensurate with levels of expenditure. amendments to the Electoral Legislation party ultimately voted in favour of holding Disclosure obligations are reduced for third Amendment (Electoral Funding and a second ballot. Turnbull chose not to parties, who will no longer be required Disclosure Reform) Bill 2017, and a mapping be a candidate. In the second vote, then to report non-financial particulars. document showing key amendments Treasurer Scott Morrison emerged as a Independent audit requirements are addressing recommendations of the compromise candidate, defeating Dutton removed. JSCEM’s April 2018 report. According to the and then Foreign Minister Julie Bishop to revised explanatory memorandum for the become leader of the Liberal Party and d) The threshold for Political Campaigners Bill, the “amendments seek to reduce the Australia’s 30th prime minister. is increased to cover those who incur Bill’s regulatory burden while ensuring the electoral expenditure of $500,000 or more Turnbull resigned from Parliament on 31 Bill is still effective at achieving its goal of in the current or past three financial years August 2018. The Wentworth by-election is ensuring that only those with a meaningful (or where they spend more than $100,000 scheduled for 20 October 2018. Dutton was connection to Australia are able to influence on electoral expenditure and electoral subsequently reappointed to the Home Australian politics and elections through expenditure was at least two-thirds of Affairs’ Portfolio on 28 August 2018. Bishop political donations”. A summary of JSCEM’s revenue in the previous year). resigned from the Foreign Affairs Portfolio key recommendations, and proposed on 26 August 2018. responding amendments, follows; Associated entities Political expenditure e) New elements of the definition of Further amendments to political associated entity are removed, and donations Bill a) Amendments replace the definition of transitional arrangements introduced for political expenditure with a new definition automatic associated entity registration The April 2018 ERRN newsletter reported – electoral expenditure. The definition to reduce the regulatory burden

Electoral Regulation Research Network newsletter - October 2018 4 experienced by associated entities during On 15 October JSCEM released its Political actors that exclusively focus on implementation. second advisory report on the Electoral State and territory elections will not benefit Legislation (Electoral Funding and from this immunity”. Foreign donations Disclosure Reform) Bill 2017. The report made 12 recommendations, including A definition of foreign donor is added to a recommendation from the majority July 2018 House of the Bill. Whereas the Bill bans political Coalition committee “that proposed Representatives by-elections campaigners from receiving gifts from sections 302CA and 314B are amended to The so-called “Super Saturday” of by- foreign donors and foreign bank accounts, ensure that Commonwealth laws would not elections for the federal Divisions of , the draft amendments only ban gifts apply to money that is directed towards non- Braddon, Fremantle, Longman and Mayo from foreign donors. While third parties federal campaigns (including state, territory was held on 24 July 2018 following the are prohibited from financing electoral and local government campaigns)”. Labor parliamentary eligibility crisis which was campaigning with foreign money, they no and the Greens both issued dissenting covered extensively in the media and longer need to keep foreign funds for their reports to the recommendation. Labor reported in the 2017 ERRN newsletters and other activities in separate bank accounts. noted that it did not support “interference case notes. The by-elections were trigged by The amendments remove the need with state and territory laws, properly made, the High Court ruling against then Senator for statutory declarations and simplify which have put in place caps on political Katy Gallagher on 9 May 2018, leading four obligations with respect to foreign donations and bans on particular donors, other MPs in the same situation announced donations to: like property developers”. The Greens also their parliamentary resignations later that said the Bill was day. The by-elections were called by the a) Prohibit the giving and knowing receipt Speaker on 24 May 2018. The results were as of all gifts from foreign donors, where “a missed opportunity to overhaul follows; the donor intends the gift to be used for Australian electoral laws to deliver electoral expenditure and apply penalties a stronger democracy...Under the 1. The by-election for the federal Division of to donors who make prohibited gifts or false proposed Bill, businesses can continue Perth took place on Saturday 28 July 2018, or misleading statements to recipients; to buy political influence, including following the resignation of incumbent through the use of international Labor MP Tim Hammond. Hammond’s b) Require donors to affirm to political funding. This Bill purports to clamp resignation was for family reasons and was campaigners, political parties and down on foreign donations when in not linked to the parliamentary eligibility candidates that they are not foreign for reality it attacks the charity sector, crisis. Labor’s Patrick Gorman retained the gifts between $1,000 and the disclosure at the same time as it opens the door seat. threshold ($13,800 in 2018-19), for instance for more donations to flow into big a check box on a donation form; and political parties by circumventing 2. The by-election for the federal Division of state-based limitations in political Mayo took place on Saturday 28 July 2018, c) Require all covered recipients to verify donations from industries with a following the resignation of incumbent that donors are not foreign for gifts above history of buying political influence for Centre Alliance MP . the disclosure threshold ($13,800) (a menu private profit”. Sharkie retained the seat with an increased of alternative forms of proof is listed, to help margin. recipients check a donor’s status). Prior to the tabling of the second advisory report commentators broadly welcomed 3. The by-election for the federal Division 11. Aggregation of donations is generally the revised amendments. However, several of Longman took place on Saturday 28 July removed and anti-avoidance rules are commentators also critiqued the proposed 2018, following the resignation of incumbent included in the amendments. Anti- “state immunity” amendments. Professor Labor MP Susan Lamb. Lamb retained the avoidance rules address the movement of Anne Twomey’s submission to the inquiry seat with an increased margin. foreign funds between organisations. As noted that “the reason that caps are placed part of the anti-avoidance rules the Electoral on donations at the state level and some 4. The by-election for the federal Division Commissioner can require an organisation jurisdictions and the reason for banning of Fremantle took place on Saturday 28 that is part of a scheme to report as a particular types of donors was to ensure July 2018, following the resignation of political campaigner or associated entity, or the integrity of the electoral system...It’s incumbent Labor MP Josh Wilson. Wilson can order that people stop a scheme or not not really a matter for the Commonwealth comfortably retained the seat. The Coalition participate in it. to interfere in relation to those matters. did not field a candidate in the by-election, Allowing a way of avoiding the system, focusing instead on the Public funding simply by just telling property developers or state by-election for Darling Range held on whoever else, ‘Don’t put conditions on your 23 July 2018. To assist with the cash flow of independent donation, so that we can just happily use candidates and smaller parties after an 5. The by-election for the federal Division them as we like at the state level without election, amendments provide for the of Braddon took place on Saturday 28 July having to comply with our own laws,’ automatic payment of the first $10,000 of 2018, following the resignation of incumbent seems to me to be singularly inappropriate public election funding to eligible claimants. Labor MP Justine Keay. Keay retained the and potentially also unconstitutional”. seat. Other amendments include reduced In addition, in his submission Professor penalties including the removal of Joo-Cheong Tham, ERRN Director, argued imprisonment for some offences, and that sections 302 and 314 of the Bill would Wentworth by-election “create a dual system of regulation that approximately $60 in funding to assist A by-election for the federal Division of is likely to benefit major players and the Australian Electoral Commission to Wentworth is scheduled for 20 October disadvantage lesser ones. The immunity implement the Bill and provide public and was triggered by the resignation of granted by these sections will apply to education and awareness about the former Prime Minister Malcolm Turnbull. political actors that engage both in federal scheme. Results will be reported in the April 2019 elections and state and territory elections. ERRN newsletter. An opinion poll by Voter

Electoral Regulation Research Network newsletter - October 2018 5 Choice research conducted on 13 October, the committee is conducting a review of Division of Nicholls (VIC); replaces Murray which sampled 736 voters in the Sydney cyber manipulation of elections, specifically seat, placed independent Kerryn Phelps on considering: Division of Spence (SA); replaces Wakefield 55.4 per cent of the two-candidate preferred In addition, the Division of Port Adelaide vote, ahead of the Liberals’ Dave Sharma. a) The extent to which social media bots was abolished. The Coalition needs to retain the seat to may have targeted Australian voters and keep the Coalition government’s one-seat political discourse in the past; majority in parliament. b) The likely sources of social media manipulation within Australia and Other Commonwealth JSCEM internationally; inquiries c) Ways to address the spread of deliberately The Commonwealth JSCEM has completed false news online during elections; and one other inquiry since the April 2018 ERRN newsletter and is currently working on two d) Measures to improve the media literacy of others. Australian voters.

“Excluded: The impact of section 44 on Submissions closed on 8 August 2018 and Australian democracy” was tabled in the committee has advised that it will hold Wagga Wagga by-election parliament on 13 May 2018. The report public hearings. made four recommendations; A by-election in the NSW Division of Wagga Finally, the JSCEM is also conducting an Wagga was held on 8 September 2018 1. The committee recommended that the inquiry into the Commonwealth Electoral following the resignation of Daryl Maguire Australian Government prepare a proposed Amendment (Lowering Voting Age and after admitting to the NSW ICAC that he referendum question to either repeal Increasing Voter Participation) Bill 2018. The sought payment for facilitating a property sections 44 and 45 of the Constitution, or Bill was referred to the committee by the deal. Independent candidate Joe McGirr insert into sections 44 and 45 the words: Senate on 26 June 2018. The Bill proposes won the by-election, representing the ‘Until the Parliament otherwise provides…’ to lower the minimum (non-compulsory) first time the Liberal Party had lost Wagga voting age in Australian federal elections Wagga since 1957. 2. If the referendum passes, the committee and referenda from 18 to 16 years; allow 14 further recommended that the Australian and 15 year olds to be added to the electoral Government further engages with the roll in preparation for their eligibility to vote Electoral Funding Act 2018 Australian community to determine at 16 years of age; provide for 16 and 17 year On 20 May 2018, the NSW Parliament passed contemporary expectations of standards in olds to be included in the certified list of the Electoral Funding Act 2018 (the NSW order to address all matters of qualification voters (but not to be given a penalty notice Act). The NSW Act replaces the Election and disqualification for Parliament if they do not vote); and provide that an Funding, Expenditure and Disclosures Act through legislation under section 34 of the eligible voter, who is not yet on the electoral 1981. Constitution. roll or enrolled at their correct address, is able to cast a provisional vote on election The scheme came into effect on 1 July 3. In the event that a referendum does not day. The committee held a day of public 2018. According to the NSW Electoral proceed or does not pass, the committee hearings on 6 September 2018 in Melbourne, Commission’s website, the “new laws recommended that the Australian and is scheduled to table its final report on 8 provide for more frequent disclosure of Government consider strategies to mitigate December 2018. political donations and aim to simplify the impact of section 44. processes for electoral participants in state and local government elections in New 4. The committee recommended that the Federal redistributions South Wales”. The new rules will apply to Government consider the implications of participants at the 2019 NSW State election. this report in the context of the upcoming Redistributions for South Australia, and the ACT were formalised in by-elections. The objects of this Act are as follows: July 2018 following the commencement of The report also recommended a number of the redistribution of electoral boundaries (a) To establish a fair and transparent practical strategies to mitigate the impact in 2017. As a result of population change, electoral funding, expenditure and of section 44 if constitutional change is Victoria and the ACT have gained an extra disclosure scheme, not pursued. These include online self- seat, while South Australia has lost a assessment tools, additional education seat. These changes will take effect at the (b) To facilitate public awareness of political and support for candidates, formalising the expected 2019 federal election. donations, parliamentary referral process, and working with foreign governments to streamline The new divisions are (c) To help prevent corruption and undue citizenship renunciations. influence in the government of the State or Division of Bean (ACT); new seat in local Government, The Commonwealth JSCEM is also Division of Clark (TAS); replaces Denison continuing its inquiry into the 2016 federal (d) To provide for the effective administration of public funding of elections, recognising election and matters related thereto. As Division of Cooper (VIC); replaces Batman noted in previous ERRN newsletters, the the importance of the appropriate use of committee has tabled three interim reports Division of Fraser (VIC); new seat public revenue for that purpose, as part of the inquiry process; the first on authorisation of campaign material, the Division of Monash (VIC); replaces McMillan (e) To promote compliance by parties, second on political donations and the elected members, candidates, groups, third on AEC modernisation. At present, Division of Macnamara (VIC); replaces agents, third-party campaigners and Melbourne Ports donors with the requirements of the

Electoral Regulation Research Network newsletter - October 2018 6 electoral funding, expenditure and appropriate. staffing entitlements, otherwise known as disclosure scheme. the ‘Red Shirts’ report. On 28 March 2018 3. Whether adequate opportunity for the Council agree to three broad terms Key changes to NSW political donations scrutineering of the iVote system is provided of reference, with the third requiring the scheme include: to candidates and political parties. Privileges Committee to inquire into and report, in relation to those current and 1. Pre-election disclosures of reportable 4. What improvements to the iVote system former Members of the Legislative Council political donations before NSW state would be appropriate before its use at the named in paragraphs 45 to 50 of the elections; 2019 State General Election. Ombudsman’s report, on the following — 2. Half-yearly disclosures of all other In other iVote matters, in May 2018 Scytl won a. Whether any Members are in contempt political donations; a $1.9 million contract to upgrade the NSW of Parliament in relation to the Code of Electoral Commission’s iVote application. Conduct in the Members of Parliament 3. Annual disclosures of electoral According to IT publication Computerword, (Register of Interests) Act 1978; expenditure; the “refresh project will include enhancing iVote’s security, through improving voter 4. Annual disclosures of reportable political b. Whether any fine should be imposed verification as well as generally upgrading donations made by major political donors; and the amount to be imposed pursuant the application’s security”. to section 9 of the Members of Parliament 5. Regulation of associated entities; (Register of Interests) Act 1978; Inquiry into the impact of 6. New rules for who is responsible expenditure caps for local c. Whether the conduct of any current or for making disclosures and managing government election campaigns former Members constitutes any other form campaign finances; and of contempt of Parliament and if so, what The NSW JSCEM is conducting an inquiry sanction, if any, should be imposed; 7. New duties for parties and their senior into the impact of expenditure caps for office holders. local government elections. The inquiry The report found that “the conduct of the was referred to the committee on 15 members in question does not constitute It has been reported that a coalition of August 2018 and requires the committee a contempt of parliament, even though six unions led by Unions NSW has filed to inquire into and report on the impact of in some cases the conduct was not up to a “High Court challenge to the laws, the expenditure caps for local government the standard expected from members of which dramatically curtail the amount of election campaigns on local government parliament”. money third-party campaigners such as areas and wards with different populations, trade unions can spend in the six months with particular reference to: before an election, including on television New political finance regime / and radio campaigns”. Speaking to The a) Whether the current expenditure caps are electoral processes for Victoria Guardian, Professor Anne Twomey said adequate; As discussed in the April 2018 ERRN the new laws “significantly reduce the newsletter, the Electoral Legislation capacity of third-party campaigners to be b) Whether the number of enrolled electors Amendment Bill 2018 passed the Victorian heard” during an election campaign and it in a ward or local government area is the Parliament on 26 July 2018, with new laws may be “difficult” for the NSW government best method to calculate expenditure caps; being phased in from 1 August 2018 by way to justify the changes. Subscribers to the and of the Electoral Legislation Amendment Act ERRN newsletter will also recall that Unions 2018 (VIC). The Act introduces a political c) Whether the current divisions around the NSW successfully challenged in 2013 a donations and disclosure scheme for number of enrolled electors on which the prohibition on associations or corporations Victoria; previously, Victoria ‘piggybacked’ expenditure cap is calculated are adequate. making a political donation to a state or on Commonwealth legislation. local election in NSW. Submissions closed on the 14 September The VEC has established a funding and and the committee is continuing its disclosure department to administer the investigations. iVote new scheme. Following on from the NSW JSCEM’s report into the 2015 NSW state election, as The new scheme has political donations reported in the April 2018 ERRN newsletter, and public funding components. They are; in late 2017 the NSW Electoral Commission engaged Mr Roger Wilkins AO to undertake Political donations an inquiry concerning its iVote internet and telephone voting system. Mr Wilkins - Cap on political donations and new consulted a panel of experts on security, disclosure and reporting scheme. From auditing and scrutineering issues, including 25 November 2018 there will be a cap on Mr Antony Green AO, Mr Alastair MacGibbon, donations of $4,000 from the same source and Professor Rodney Smith. His report was (individual or organisation) to any political due to be completed by May 2018. party, while single donations above $1,000 will need to be disclosed within 21 days The terms of reference were: Legislative Council ‘Red Shirts’ by both recipients and donors. Donations inquiry made to a candidate will count towards the 1. Whether the security of the iVote system cap for their political party. is appropriate and sufficient. In August the Parliament of Victoria’s Legislative Council Privileges Committee The following forms of payments are not 2. Whether the transparency and tabled its report on the inquiry into matters included in the cap: provisions for auditing the iVote system are relating to the misuse of electorate office

Electoral Regulation Research Network newsletter - October 2018 7 • Donations made by candidates to of administrative and process-related of Victorian electors will vote early. From their own campaigns. changes for Victorian state elections. These 4pm on Election Day, election offices will include changes to; establish a secure zone for the processing – • Small donations of $50 or less, not counting – of early votes until 6pm. All ensuring donors are not subject to 1. Postal voting Home District early votes will be counted on the cap by making donations at party election night. meetings or events. From 1 August 2018 registered political parties, candidates and persons other than • Volunteer labour, which will continue the VEC will no longer be able to distribute Parliament of Victoria’s Electoral to be excluded from the definition of postal vote applications as part of their Matters Committee a ‘gift’. campaign materials to constituents. The The Parliament of Victoria’s Electoral change is designed to protect voters Matters Committee tabled its report Political parties, third-party campaigners from mistaking political materials for for the inquiry into civics and electoral and associated entities will also now need to communications from the VEC. provide an annual return every 12 months. participation in Parliament in August 2018. The VEC will provide political parties with The committee was required to examine: details of those who have successfully Banned donations 1. Electoral and civics education, the applied for postal ballots. This change Victorian Electoral Commission’s (VEC’s) Beginning on 1 August 2018 foreign will allow these voters to be supplied with community engagement programs and donations and anonymous donations above campaign materials they otherwise would other best practice approaches used $1,000 will be banned. Banned donations have received upon entering voting centres. by the VEC, other Australian electoral will be forfeited to the state. Penalties for The Act contains several protections to commissions, the United Kingdom and New contravention of these laws include fines of ensure details of voters are not misused by Zealand, to ensure that Victorian citizens up to $48,357, two years imprisonment, or political parties. are adequately informed and able to both. The new Act will allow for processing (but participate effectively in elections; Further, all fundraising will be subject to not counting) of postal votes in restricted 2. Strategies to reduce informal voting at a new anti-avoidance offence, intended areas to begin ten hours before close of Victorian state elections which are not to stop a person/s entering into a scheme voting on election day. This change will related to the voting system; to circumvent the new laws. A scheme allow more votes to be counted on election of this nature may include the deliberate night. All postal votes are being processed 3. How the VEC employs and trains casual abuse of donations under $50 or a series of at the VEC’s Central Processing Centre at staff for Victorian state elections. This anonymous donations of slightly less than the Melbourne Showgrounds for the 2018 should involve discussion about methods $1,000. Victorian state election; previously, postal to attract people to join the VEC’s casual votes were processed at election offices. staffing roster for Victorian elections, the Committee should also examine the Public funding of elections 2. Political signage roles and responsibilities of the VEC’s Victoria’s formula for public funding of From 1 August 2018 notices or signs relating casual election staff in light of changing campaigns will be amended to provide to an election (including campaign posters, technological and societal demands; and additional funding for political parties’ bunting or corflutes) will not be permitted operating expenditure. The funding will 4. Strategies to increase electoral within 100 metres of voting centres. The make up for the shortfall in funding for participation amongst community groups prohibition does not apply to items such as political expenditure resulting from the cap that traditionally experience barriers to clothing being worn, pens or stickers. How- on donations. electoral participation, such as Victorians to-vote cards and VEC materials will still be aged 18 to 24, Victorians from multicultural permitted. Under the new scheme, worth $45 million backgrounds, as well as Victorians who have each term, parties will be awarded $6 for The Act permits a candidate or political recently become Australian citizens and each Legislative Assembly vote and $3 for party to display two signs or notices (not are not familiar with Australia’s electoral every Legislative Council vote. exceeding 600mm x 900mm) at designated system. voting centres. Administrative funding The committee made 36 recommendations 3. Electronic voting for improving civics and electoral From 1 August 2018 the Victorian Electoral participation in Victoria, including that Commission (VEC) will be required to The Act allows the VEC use technology the VEC investigate introducing a parallel pay administrative funding to registered available to it to provide electronic voting election program alongside its Passport political parties with Parliamentary services to electors who are blind or have to Democracy program for Victorian state representation and independent elected low vision, have vision motor impairment or elections, modelled on Canada’s CIVIX members. The funding is designed to have insufficient literacy skills. The VEC may Student Vote program. Recommendations assist MPs with the administrative costs of also approve a computer program or system were also made to the Parliament of adhering to the new framework. Payments to enable electronic voting and electronic Victoria to investigate a Student Guide will begin at $200,000 for the first member assisted voting if the VEC is satisfied that program for public tours, a Legislative with $70,000 for the second member and the criteria specified in subsection (2) of the Paige program modelled on the Ontario $35,000 for every subsequent member, 2018 ACT apply. Legislative Assembly program, and a capped at forty-five members. The funding range of administrative and process cannot be used for political expenditure in 4. Early voting recommendations designed to assist the election campaigns. VEC with its recruitment processes for Early votes will also be processed early at the VEC’s Senior Election Official pool and the 2018 Victorian state election, given the Electoral administration changes election casual staff. VEC has forecast that as many as 45 percent The 2018 Act also introduced a range

Electoral Regulation Research Network newsletter - October 2018 8 Darling Range by-election 2018. Ballot material is being delivered from 8 October 2018 and polling closes on 30 A by-election for the Western Australian October 2018. Legislative Assembly seat of Darling Range was held on 23 June 2018 following the The elections are the first to take place resignation of former Labor Party member following recent updates to the Local turned independent Barry Urban on 8 May Government (General) Regulations 2015 2018. Urban resigned after concerns were (TAS). The regulatory changes reflect issues raised about his academic history and his that arose during the Targeted Review of wearing an overseas police service medal he the Local Government Act 1993, as reported had not been awarded. Urban was referred in the April 2018 ERRN newsletter, as well New Electoral Commissioner to the Parliament of Western Australia’s as to simplify some aspects of electoral advertising. Pat Vidgen PSM was appointed Electoral procedures and privileges committee, which recommended his expulsion from the Commissioner of Queensland on 7 As of 1 August 2018, the Local Government Legislative Assembly. The seat was won by September 2018. Act 1993 (TAS) requires councils to the Liberal Party’s Alyssa Hayden. have a gifts and donations register. The Pat has held a number of senior executive amendments to the Regulations provide positions during a career in the Queensland details of what is to be included by Public Sector which spans more than 28 councilors when providing notice to the years. Prior to his appointment with the relevant general manager about a gift or Commission, Pat played a crucial role donation received. in the successful delivery of the 2018 Gold Coast Commonwealth Games, Gifts and donations can include an item; a having worked as the General Manager of service; a loan of money; loan of property; Strategic Engagement. He has extensive or any other benefit. A gift or donation experience representing Queensland on valued at $50 or more is required to be Commonwealth and State Government disclosed. Currently, local government boards and committees, including the election candidates who are not current national counterterrorism committee. In Elections ACT Annual Report 2017/2018 councilors are not required to disclose gifts announcing his appointment as Electoral and donations received. Commissioner, Attorney-General Yvette Elections ACT tabled its Annual Report D’Ath told State Parliament Pat was “well The gift and donations registers are not 2017/2018 in September 2018. The known as a person of integrity”. currently required to be made public. Commission noted that it will continue However, councils should publish the “its work investigating a limited electronic register on the council’s website to provide voting option for electors who are transparency. overseas through engagement with other jurisdictions and the Australian Cyber Security Centre (ACSC). The Commission Electoral changes intends to report back to the Assembly on this matter during the forward reporting The Regulations have been amended as period. Elections ACT also intends to follows: commence work on implementing • $16,000 is the expenditure limit for strategies to foster an increase in electronic electoral spending in the 2018-19 voting in the ACT as part of the ongoing financial year, for candidates for Local government elections planning for the 2020 elections”. Clarence City, Glenorchy City, In addition, the Commission will continue City, Kingborough and Launceston Local government elections for South City councils, based on a significant Australia will be held during October implementation of the recommendations made by the ACT Auditor General in the number of rateable properties in these and November 2018. These will be municipalities. conducted by the Electoral Commission performance audit report into the conduct of South Australia. The elections will of the 2016 ACT election. • $10,000 is the expenditure limit for be for 637 councillor positions and 52 electoral spending in the 2018-19 mayoral positions in 67 metropolitan financial year, for candidates in all and regional councils. Voting closes other municipal areas. on 9 November 2018 and results will be made available progressively on 10 • The Regulations no longer provide November 2018. a separate amount for candidates running as mayor or deputy mayor.

• Removal of the limits on the size and number of posters. Candidates will need to comply with the relevant council planning scheme and other Tasmanian local government state legislation. elections Local government elections are being held • Removal of the time or space limits across in September and October in relation to newspaper or television advertising. Candidates are, however, Electoral Regulation Research Network newsletter - October 2018 9 subject to the expenditure limit. years, by the payment to each registered political party and to each Further, as a result of amendments to unendorsed candidate of $8 (to be the Local Government Act 1993 that indexed) per first preference vote were proclaimed on 1 August 2018, received by that candidate, provided paid advertising on the internet is now that the candidate received at least captured within the definition of electoral 4% of the formal first preference votes advertising. Candidates will need to include in the electorate which that candidate any paid advertising of this type in their sought to represent. electoral returns to the Tasmanian Electoral Commission. • The availability of public funding to Political donations inquiry each registered political party and to each unendorsed candidate should The Northern Territory Government Typeform breach depend on that party or candidate established a broad based inquiry in In June 2018 the Tasmanian Electoral electing to participate in the public December 2016 to investigate and report on Commission issued a press release about funding of an election. options for political funding and donations a data breach involving some elector data. reform in the Northern Territory. The The Tasmanian Electoral Commission “was • Donations to registered political Commissioner was Hon John Mansfield AO informed by the Barcelona-based company parties and to individual candidates QC. Typeform, that an unknown third party should be capped at $5000 or $10 000 per year (to be indexed). Donations had gained access to one of their servers The inquiry published its final report in to registered political parties and to and downloaded certain information. June 2018. Commissioner Mansfield made individual candidates for election Typeform online forms have been used on several key recommendations; the TEC website since 2015 for some of its should be reported to the Northern election services”. The breach “involved • The Northern Territory should Territory Electoral Commission an unknown attacker downloading a introduce a cap on electoral regularly, and be disclosed by the backup file. The breach was identified by expenditure in elections, calculated by NTEC on its website as soon as the Typeform company on 27 June 2018, an allowance of $40 000 per endorsed practicable on receipt of the report. with the vulnerability closed down within candidate in the cases of registered • There is no need to change the half an hour of detection. Typeform’s full political parties, and fixed at $40 000 definition of ‘associated entity’ in the investigation of the breach identified that for each unendorsed candidate (to be Act. In other relatively minor respects data collected through five forms on the indexed). the level of anonymous donations or TEC website had been stolen”. • The cap should apply to each political the definition of donations in kind may The Electoral Commission contacted party and to each individual candidate be simplified as recommended. electors who used these services to inform which or who elects to participate in The Commissioner also made adverse them of the breach and apologised for the the public funding of the election. findings against Foundation 51, which the breach. • The electoral process should be report confirmed as an associated entity of partly publically funded in election the Country Liberal Party.

Electoral Regulation Research Network newsletter - October 2018 10 Forthcoming Events

ERRN (VIC) Seminar: “Who’s ERRN (SA) Workshop: ERRN (NSW) Seminar: How in the Room? Access and Homelessness and Electoral Australians Vote Now: Participation Challenges and Opportunities Influence in Australian Politics and How to Regulate” 5 November 2018 29 November 2018 Macquarie Room, NSW Parliament House 30 October 2018 Presenters: Prof. Lisa Hill and Dr Jonathon Louth Presenters: Kate Griffiths and George Rennie Flinders at Victoria Square

Room 920, Melbourne Law School ERRN (ACT) Seminar: The Centenary of the Commonwealth ERRN (WA) Seminar: Early voting Electoral Act 1918 and its effects on elections. 19 November 2018 1 November 2018 Presenters: Peter Brent, Stephen Mills and Brien Hallett Co-hosted with Constitution Centre of WA

Presenters: Dr Martin Drum, and Dr Narelle Miragliotta. Chair : David Kerslake

Image credit: Lining up to vote in Brisbane, 1937, State Library of Queensland (Flickr)

Electoral Regulation Research Network newsletter - October 2018 11 Event Reports

Workshop on Human Rights and politics under authoritarianism; and (c) Presenter: Dr Victoria Shineman (University Political Participation under religion and authoritarianism. of Pittsburgh) Authoritarianism Felon disenfranchisement laws restrict “Convenience voting in Victoria” the voting rights of more than 6 million 21 September 2018 US Citizens. Beyond the effects on voter 3 September 2018 turnout and electoral outcomes, how do Convenor: Dr Zim Nwokora (Deakin these laws affect individual-level attitudes University) Parliament House and behaviors? This paper presents the results from two field experiments Australasian Study of Parliament Group On Friday, September 21, Deakin University embedded within panel surveys conducted presentation for the ERRN Research before and after statewide elections in hosted a workshop entitled “Kinder, Collaboration Initiative Gentler and Smarter Autocracies? Human Ohio and Virginia. The survey population Rights and Political Participation under Presenters: Dr Matthew Laing and Dr is composed of US citizens with felony Authoritarianism,” co-sponsored by the Narelle Miragliotta (Monash University) convictions who were once disenfranchised, Alfred Deakin Institute and the Electoral but are now either eligible to vote, or to have Regulation Research Network. Motivating The explosion in the number of electors their voting rights restored. Experimental the workshop was the observation that casting their votes early at Victorian treatments provide varying assistance with what has conventionally been described elections since the 2000s (and in Australia the restoration of voting rights, as well as as “autocracy” or “authoritarianism” is more generally) has raised important assistance with voter registration among re-appearing around the world, but in questions about the practical and normative those whose rights have already been unusual guises. The keynote lecture for implications of convenient forms of voting. restored. In comparison to a placebo group the workshop, by Prof. John Keane of the Dr Matthew Laing and Dr Narelle Miragliotta who received no information about voting University of Sydney, emphasised this shared the findings from their broad rights, subjects who received treatments point. As Prof. Keane explained, the “New ranging study, conducted in conjunction about the restoration of voting rights Despotisms” are not crude and totalitarian. with Paul Thornton-Smith from the VEC, demonstrated stronger trust in government Rather, they are led by sophisticated elites exploring how convenience voting in and the criminal justice system, and an who see the value of elections and popular Victoria is perceived and experienced from increased willingness to cooperate with law support; avoid violence where possible; the perspective of the main stakeholders. enforcement. Treatments also generated and consciously legalise their activities. increases in political information and The regimes in countries such as China, Iran ERRN (VIC) Seminar: “Restoring efficacy. As a whole, the results suggest and Russia exemplify this new despotism. Rights, Restoring Trust: that reversing disenfranchisement causes Though these regimes are more open Evidence that Reversing Felon citizens to increase their pro-democratic than classic dictatorships, there seems Disenfranchisement Penalties attitudes and behaviors - all of which are no clear or likely path to fully-fledged Increases Both Trust and predictors of reduced recidivism. democracy. Worryingly, Prof. Keane also Cooperation with Government” Victoria Shineman is an Assistant Professor sees evidence of democratic decline in the in the Political Science Department at West and with it the risk, and in some ways 2 August 2018 the University of Pittsburgh. She earned already the reality, of modern despotism. her PhD from New York University, and The three panels following Prof. Keane’s was a Postdoctoral Research Associate lecture explored (a) governance under Room 920, Melbourne Law at Princeton University. Her research authoritarianism; (b) elections and party School

Electoral Regulation Research Network newsletter - October 2018 12 focuses on electoral policies which affect 31 July 2018 and Cabinet. She is a graduate of the the costs and incentives to participate, Australian Institute of Company Directors ranging from systems that encourage and holds a Masters and Bachelor of Law Presenters: Dr Victoria Shineman voting (like compulsory voting) to those (Honours) and Bachelor of Arts. Suzie has (University of Pittsburgh), Professor Lisa that discourage or disenfranchise (like led effective transformational change in Hill, Professor Alex Reilly (Law, University of felon disenfranchisement and other forms major legislative reform, enterprise risk of voter suppression). Shineman studies Adelaide) management and procurement reform the primary effect of these systems on in high profile Government agencies, voter turnout, as well as the second- ERRN (VIC) Seminar: “The engaging stakeholders at a range of levels order (downstream) effects of electoral ‘nation’s strictest donations to achieve change. Suzie has private, public systems on mass behavior, including laws’? Proposed reforms to and academic sector legal, policy and political information, trust, efficacy, and Victorian political finance laws” operational experience in Australia and polarization. Shineman is a BITSS Catalyst internationally. with the Berkeley Initiative for Transparency 7 June 2018 in the Social Sciences, and a member Joo-Cheong Tham is a Professor at of Evidence in Governance and Politics Melbourne Law School. He is one of (EGAP). She teaches courses in public Room 920, Melbourne Law School Australia’s leading experts on political opinion, voting behavior, and experimental funding with his publications including research, and supervises research among Presenters: Ms Suzie Thoraval, Dr Paul Money and Politics: The Democracy We undergraduate and PhD students. She Thornton-Smith and Professor Joo-Cheong Can’t Afford (2010, UNSW Press) and key also teaches units on research ethics, Tham reports for the New South Wales Electoral transparency, and reproducibility. Commission on the regulation of political finance and lobbying. He also specializes In July 2018, the Parliament of Victoria in the regulation of precarious work and ERRN (SA) seminar: passed the Electoral Legislation has undertaken considerable research Implications and Effects of Amendment Bill 2018 (VIC). The Bill into counter-terrorism laws. Joo-Cheong Prisoner Disenfranchisement regulates Victorian political funding in regularly speaks at public forums and has five ways: caps on ‘political donations’; presented lectures at the Commonwealth, obligations to disclose these donations; South Australian and Victorian Parliaments. a ban on ‘foreign’ ‘political donations’; He has also given evidence to parliamentary increases in public funding of parties and inquiries into labour migration, terrorism candidates; and new compliance measures. laws and political finance laws. Joo- This seminar addressed complex detail of Cheong’s presentation will be based on the Bill and assessed its impact upon the his analysis of the Electoral Legislation health of Victorian democracy. Amendment Bill 2018 (VIC) available at: http://insidestory.org.au/it-depends-what- Dr Victoria Shineman presenting at ERRN seminar Suzie Thoraval is the Director, Funding you-mean-by-political-donations. and Disclosure Implementation at the Victorian Electoral Commission. Her most (co-hosting with PLPPRU, recent previous role was as the Chief Risk University of Adelaide) Officer at the Department of Premier

ERRN “Regulation of Australian Elections” course

17 and 18 July 2018 In July 2018 the Electoral Regulation Research Network offered a two-day course on ‘Regulation of Australian Elections’. The aim was to provide an introductory course toelectoral commission staff on the research and scholarship on the regulation of Australian elections through presentations by leading experts. The course ran on 17 and 18 July 2018 at the Melbourne Law School. Approximately 30 participants discussed topics including Australian constitutional frameworks, the Australian party system, voting rights, electoral participation, voting engagement, forms of voting, political finance and electoral commissions. Participants enjoyed a highly engaging The inaugural ERRN course class photo (July 2018) two day program and the opportunity to network with colleagues and practioners from Victoria and elsewhere in Australia.

Electoral Regulation Research Network newsletter - October 2018 13 Event ReportsRecordings

Recordings of recent ERRN • ERRN (VIC) Seminar: Restoring events are now available on the Rights, Restoring Trust: Evidence that website. Reversing Felon Disenfranchisement Penalties Increases Both Trust and Cooperation with Government presented by Dr Victoria Shineman (University of Pittsburgh) on 2 August • ERRN (VIC) Seminar: “The ‘nation’s 2018 at Melbourne Law School strictest donations laws’? Proposed Listen now reforms to Victorian political finance laws” presented by Ms Suzie • Polis Keynote: The New 21st Century Thoraval, Dr Paul Thornton-Smith Despotisms presented by Professor and Professor Joo-Cheong Tham on John Keane (University of Sydney) on 7 June 2018 at Melbourne Law School 21 September 2018 at Deakin University Listen now Watch now

Collaboration with McDougall Trust

Since 2016 the ERRN has collaborated with the McDougall Trust, a UK-based independent charity promoting public understanding of electoral democracy. The Trust will fund video recording of ERRN events that provide comparative perspectives on electoral democracy. Two of these videos are already available online: Political Corruption Elections and Beyond Perspectives from Indonesia and Australia, and A Comparative Analysis of the Deliberative Quality of Televised Election Debates in Europe.

Electoral Regulation Research Network newsletter - October 2018 14 Research

ERRN Research Collaboration Initiative

A Review of Convenience Voting groups perceive the challenges associated authorities stressed the multifaceted in Victoria - final report with the expansion of convenience voting logistical challenges that the expansion differently. Voters showed awareness of of convenience voting presents for the The ERRN Research Collaboration Initiative the possible security risks associated with integrity and efficiency of the electoral report, a Review of Convenience Voting newer forms of convenience voting but trust process. Their concerns centred on the in Victoria by Matthew Laing and Narelle that electoral authorities will manage and management of these complex processes. Miragliotta (Monash University) and Paul mitigate these hazards. Voters gave priority Authorities emphasized the importance of Thornton-Smith (Victorian Electoral to a flexible voting experience. Legislators efficiently and safely enhancing the voter Commission), was released in October 2018. expressed concern that convenience voting experience and the electoral process more limited their opportunities to engage with generally. The project used a mixed method research voters during the election campaign period, design to explore how voters, legislators especially early in-person voting. Many The report found, unsurprisingly, that and electoral commissions perceive the also gave voice to fears that convenience the stakeholders’ construction of the challenges presented by the extension voting will erode democratic engagement. challenges that convenience voting can give ofPublications convenience voting – both in terms of Legislators had a more cautious outlook rise to was consistent with their particular its growing use among electors and the towards convenience voting, placing relationship to the electoral process. Yet liberalisation of its forms. a higher value on the security of the leaving aside these differences, all agree that a paradigmatic shift in voting is The findings of the report suggest that these ballot over voter convenience. Electoral ultimately underway.

New ERRN initiatives

New electoral law database to be a valuable resource for electoral currently only available in hard copy and/or launching in 2019 commission officials, academic researchers not accessible on AustLII. and the general public. Earlier this year the ERRN Governance Board The development of the database is being approved funding for the development The electoral law database will be launched overseen by Dr Paul Kildea of UNSW Law of an electoral law database. The online in early 2019. It will initially bring together School. Please direct any questions to him database will be hosted by AustLII and court and tribunal decisions and other at [email protected]. will provide free, open access to electoral materials that are currently available in law decisions by Australian courts and digital format on AustLII. Users will be tribunals, and to legislation, journal articles able to organise decisions by jurisdiction and other materials. This major initiative and by court/tribunal, and the plan is for involves collaboration between electoral the database to be easily searchable. The commissions, the Gilbert + Tobin Centre of database may later be expanded to include Public Law at UNSW and AustLII. It promises decisions and other materials that are

Electoral Regulation Research Network newsletter - October 2018 15 Publications

Working Papers

The Electoral Regulation Research Network Australia’s website. We welcome papers August 2018 was established in 2012 with the aim of written on all aspects relating to electoral fostering exchange and discussion amongst regulation from academics, electoral The first elections in the colony of New academics, electoral commissions and commission officials, parliamentarians, South Wales were held between 15 June other interested groups on research party officials and others interested in this and 3 July 1843. These elections (albeit relating to electoral regulation. To this end, field. with a very limited franchise) saw the birth the Network together with the Democratic of democracy in Australia. This short paper Audit of Australia will be publishing a series highlights some of the most interesting of working papers – often called ‘discussion Working Paper 47 aspects of that first election. papers’ – to help foster discussion about 175 years of Voting: The all aspects of electoral regulation. These 175th Anniversary of the First working papers will be posted on the Parliamentary Election of 1843 Network’s website and circulated to members of the Network. They will also Sean Darragh, New South Wales Electoral be posted on the Democratic Audit of Commission

Recent Publications

“Australia’s growing democracy The rise of political advisors in Adopting a comparative approach, the gap” the Westminster system book analyses the rise in the power and significance of political advisors in the Westminster jurisdictions of the United Joo-Cheong Tham, ERRN Yee-Fui Ng, ERRN Legal Editor Kingdom, Australia, New Zealand and Director Canada. It shows the fundamental shift of July 2018 the locus of power from the neutral public 2 October 2018 Political advisors have risen in significance service to highly political and partisan Writing for Inside Story, Joo-Cheong in Westminster countries, and have been ministerial advisors. Tracing the divergent Tham discusses the disenfranchisement increasingly thrust into the limelight by paths for legal and political regulation of of permanent residents and temporary headline scandals and through their political advisors, Yee-Fui Ng illuminates visa holders as an affront to democratic characterisation in various television the tensions that they pose within the principles; he argues that it is “not series. This increased prominence has Westminster system in terms of the media/ recognised as such only makes it more led to greater scrutiny of their role and politics and faction/opposition interfaces. egregious”. influence. This book demonstrates that Providing insights for those researching the introduction of political advisors into or engaged in politics and public the structure of the executive has led to administration, this work will interest the erosion of the Westminster doctrine of scholars and students of politics and public ministerial responsibility. law, policy and administration.

Electoral Regulation Research Network newsletter - October 2018 16 Case Notes

Re Gallagher Keane, Nettle and Gordon JJ) held that the a lower declaration limit on donations constitutional imperative is engaged when intended for federal elections, based on The issue before the High Court, sitting as the foreign law must operate irremediably section 109 of the constitution that provides: the Court of Disputed Returns, was whether to prevent an Australian citizen from ‘When a law of a state is inconsistent with a Senator Katy Gallagher was incapable participation in representative government; law of the Commonwealth, the latter shall of being chosen as a senator at the 2016 and that person must have taken all steps prevail, and the former shall, to the extent federal election by reason of s 44(i) of the reasonably required by the foreign law and of the inconsistency, be invalid’. Constitution. within his or her power to free himself or herself of the foreign nationality. The issue in this case is thus whether a law Gallagher was sworn in as a senator for the of the State of Queensland that requires the Australian Capital Territory on 26 March The Court held that British law did not agent of a registered political party under 2015, filling a vacancy left by the resignation irremediably prevent Senator Gallagher the Electoral Act 1992 (Qld) to give a return to of Senator Kate Lundy. Following from participation in representative a State agency that must include particulars nomination on 31 May 2016, Gallagher was government. The procedure provided for of gifts from any person or organisation returned as a senator for the ACT after the by British law for renunciation of British that exceed $1,000 is inconsistent with a double dissolution election held on 2 July citizenship was not onerous, and the issue law of the Commonwealth that requires the 2016. Gallagher was born in Australia in 1970 for Senator Gallagher was only ever the agent of a registered political party under and has been an Australian citizen from timing of the registration. the Commonwealth Electoral Act 1918 (Cth) birth. Unbeknown to Gallagher, at the time (“Commonwealth Act”) to furnish a return of her birth she had acquired the status of a to a Commonwealth agency that must citizen of the United Kingdom and colonies include particulars of sums received from by descent. any person or organisation that exceed Electoral Commission of $13,500. On 20 April 2016, having become aware that Queensland v Awabdy [2018] there was a possibility of her having British QSC 33 Jackson J held that sections 290 and citizenship, Gallagher applied to renounce 291 of the Electoral Act 1992 (Qld) are not The Electoral Commission of Queensland her British citizenship by submitting inconsistent with sections 314AB and 314AC took legal action against the LNP to force the prescribed form and accompanying of the Electoral Act 1918 (Cth) within the it to release details of about $100,000 in documents to the UK Home Office. Her meaning of section 109 of the Constitution. renunciation was not registered by the donations for the party’s federal candidates, UK Home Office until 16 August 2016. The which the LNP argued did not fall under the The judge held that ss 290 and 291 as the law Court was asked whether she was under state’s reporting rules. of the State and ss 314AC and 314AC as the the disability of s 44(i) of the Constitution by law of the Commonwealth have different but The former Newman government had remaining a British citizen at the time of her overlapping subject matters, but nothing raised the donation declaration threshold nomination and her subsequent election. in that subject matter or the operation of from $1000 to $12,400 in 2012, arguing it was the laws supports a negative implication necessary to match the federal thresholds, The Court (Kiefel CJ, Bell, Keane, Nettle, and in the operation of ss 314AB and 314AC, to but the Palaszczuk government changed it Gordon JJ, Gageler J, Edelman J) held that exclude a State law requiring disclosure of back to $1000 in 2015. Gallagher was not eligible to be chosen by gifts made for the Commonwealth electoral reason of s 44(i), and consequently there was purpose. When ss 314AB and 314AC operate, a vacancy in the representation of the ACT In 2015, Jarrod Bleijie tabled Crown Law advice he received in 2013 when he was they do not do so by reference to disclosure which should be filled by a special count of of gifts made for that purpose. the ballots. The joint judges (Kiefel CJ, Bell, the attorney-general, which cast doubt on whether Queensland law could impose

Electoral Regulation Research Network newsletter - October 2018 17 Mubarak v Australian Electoral was on 5 July 2018. By reason of the enough media coverage to understand Commission [2018] FCA 1089 operation of s 175 of the Commonwealth what they stand for. These reasons, plus Electoral Act, the relevant cut-off date and my first point, were the factors I considered The applicant, Mr Kim Mubarak, was time for nominations was 12 o’clock at noon when I took what I believe is a basic right to aggrieved by the failure of the respondents on 5 July 2018. choose whether to vote or not. to include his name on the ballot paper for the then forthcoming by-election in the Mubarak argued that s 172(2) applied, 3) I believe abstinence, when abstaining in Division of Perth on 28 July 2018. which provided that no nomination shall numbers, can be an effective democratic be rejected by reason of any formal defect tool, especially when a minimum of 50% of The Commonwealth Electoral Act sets out in or error in the nomination if the officer to voters (for example) is required for a result. Pt XIV a number of requirements governing whom the nomination is made is satisfied At the very least there should be a choice. nominations of persons for election as that the provisions of sections 166, 167, 170 members of the House of Representatives. and 171 had been substantially complied 4) I believe that if the AEC wants people to This includes section 166, that provides that, with. vote than politicians need to behave more unless at the time of nomination the person appropriately. The schoolyard tactics on the is a sitting independent in the previous Barker J dismissed Mubarak’s application. Parliament floor in question time and the Parliament, or has filed the appropriate He held that the failure to obtain the 100 fact that ‘politicians’ distance themselves nomination form and set out their name, signatures is neither a defect nor an error in from their own profession by constantly place of residence and occupation, and the nomination. Rather it is a failure to satisfy reassuring people that they are not going to obtained the signatures of not less than a mandatory requirement in the nominating “play politics” is a case in point’. 100 electors entitled to vote at the election process. The judge held that the signatures Section 245(14) provides that: for which the candidate is nominated, their requirement can only be substantially complied with if the 100 number is reached. nomination cannot be accepted. Another Without limiting the circumstances requirement is section 170, which provides that may constitute a valid and that the nomination paper for the House of sufficient reason for not voting, the Representatives election is to be given to the Commonwealth Director of fact that an elector believes it to be Australian Electoral Officer or the Divisional Public Prosecutions v Easton part of his or her religious duty to Returning Officer after the issue of the writ [2018] NSWSC 1516 abstain from voting constitutes a valid for the election and before “the hour of and sufficient reason for the failure of nomination”, together with a deposit in the Voting is compulsory at the Australian the elector to vote. sum of $1,000 (either in legal tender or in a federal level. Failure to vote without a “valid cheque drawn by a bank or other financial and sufficient reason” is an offence under s The Divisional Returning Officer was not institution on itself). 245(15) of the Commonwealth Electoral Act satisfied that Mr Easton’s failure to vote was 1918 (Cth). Mr Easton did not vote in the 2016 for a valid and sufficient reason. Mubarak made an initial attempt to federal election. He provided the following finalise his nomination on 4 July 2018. reasons for not voting: The issue raised in this case is whether He received advice from the Australian adherence by an elector to a moral but non- Electoral Commission that he was 38 ‘1) The fact that Australia prides itself on religious belief system that requires him elector signatures short. The next day, being a ‘free democracy’ and yet that it is a not to vote is capable, as a matter of law, of 5 July 2018, he attempted to overcome ‘criminal offence’ not to vote is an oxymoron constituting a “valid and sufficient reason” the deficiency and provided additional that impinges on my most basic right to for failing to do so. electors’ names and signatures and paid choose for myself. the nomination deposit of $1,000. He says The judge held that a devout but non- he was subsequently advised that he was 2) On 2 July 2016 I watched the election religious objection to voting was not a four electors’ signatures short of the 100 unfold as I had done in the weeks leading “valid and sufficient” reason for not voting, required and so his nomination was not up. It was around 5pm when I decided not and thus not an exception to compulsory accepted. to attend the polling booth for the following voting. The judge found that words “without reasons: the Greens remained too radical, limiting” do no more than bring into the On 15 June 2018, the Speaker of the House and neither Labor or the Coalition convinced possible meaning of “valid and sufficient of Representatives issued a writ for the by- me that they could provide a stable reason” one specific example of what can election in the Division of Perth with polling government, especially given the revolving amount to a valid and sufficient reason for to take place on Saturday, 28 July 2018. The door of prime ministers we have had in the purposes of s 245(15B), namely, religious writ specified that the close of nominations recent years. And independents do not get duty.

Electoral Regulation Research Network newsletter - October 2018 18 Contact Us

Electoral Regulation Research Network Newsletter Team

Melbourne Law School Nathaniel Reader

The University of Melbourne Newsletter Editor

VIC 3010 Yee-Fui Ng E [email protected] Legal Editor W www.law.unimelb.edu.au/errn

Amy Johannes

Designer

Electoral Regulation Research Network newsletter - October 2018 19