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 Australia’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 Perth, 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