April 2018 newsletter Electoral Regulation Research Network Contents 3 Director’s Message 4 Electoral News 11 Forthcoming Events 12 Events Report 15 Working Papers 15 Recent Publications 17 Case Notes Dual Citizenship Cases: Re Canavan, Re Ludlam, Re Waters, Re Roberts [No 2], Re Joyce, Re Nash [2017] HCA 45 Re Nash [No 2] [2017] HCA 52 Alley v Gillespie S190/2017 Re Lambie Re Kakoschke-Moore Re Feeney Re Gallagher Moonee Valley City Council Myrnong Ward election. Victorian Electoral Commission v Municipal Electoral Tribunal and Rose Mary Iser [2017] VSC 791 Manningham City Council Koonung Ward election. Victorian Electoral Commission v Municipal Electoral Tribunal Z485/2017 Director’s Message 2018 will see an exciting suite of the Queensland chapter will be hosting The WA ERRN Convenors, Sarah Murray, activities organized by the Electoral a workshop addressing the theme, Justin Harbord, Alan Fenna and Martin Regulation Research Network. A ‘Informed citizens: Are Institutions Drum, should be thanked here for their number of seminars will be devoted to addressing the knowledge gap?’; and sterling efforts in making the 2017 topical issues. The Tasmanian chapter the South Australian chapter will be workshop an outstanding success. has already organized a seminar on the hosting an American expert on prisoner recent Tasmanian elections and so has disenfranchisement who will compare Last but not least, there are, of course, the Victorian chapter on the Electoral the Australian and US experiences in this the ERRN biannual newsletters. The Legislation Amendment (Electoral area. In addition, ERRN is coordinating label ‘newsletter’ possibly undersells Funding and Disclosure Reform) Bill the update of the main global database the contribution being made here. 2017 (Cth), a Bill that seeks to regulate on political finance laws, International The first ERRN newsletter, published ‘foreign’ political donations and third IDEA’s Political Finance Database, in in December 2012, was 16 pages long parties. Later in the year, the Western relation to countries in Oceania region; whereas the present one is more Australian chapter will host an event on and will be working with the Melbourne than 30 pages. There is no doubt the continuing saga of disqualifications School of Government and the Human that these newsletters provide the due to section 44 of the Commonwealth Rights Legal Centre on a project on most comprehensive catalogue of Constitution and the Tasmanian chapter ‘Democracy and Migration’. contemporary developments relating on electoral reform for the State. to Australian electoral regulation. A new ERRN initiative will also be Special credit goes to the newsletter Other events will focus on broader organized in 2018: a two-day course team: Nathaniel Reader, the Newsletter trends. The South Australian chapter on ‘Regulation of Elections’. The aim Editor; Yee-Fui Ng, the Legal Editor; and will be organizing a seminar on is to provide an introductory course Amy Johannes, the Newsletter Designer electoral inclusion and exclusion of to electoral commission staff on and ERRN Administrator. indigenous communities; the New the research and scholarship on the South Wales, Victorian chapters and regulation of Australian elections Western Australian chapters will host through presentations by leading presentations on the ERRN Research experts. Topics covered will include: the Professor Joo-Cheong Tham, Collaboration Initiative projects Australian constitutional framework of Melbourne Law School examining changes in the forms of elections; the Australian party system; voting; the New South Wales chapter Voting Rights; Compulsory Voting; Forms and Australian Capital Territory chapter of Voting; Voter Engagement; Electoral will respectively organize seminars Boundaries; Media in Elections; Political on electoral integrity and the use of Finance; and Electoral Commissions. information technology in elections. Alongside these events is the ERRN A notable feature of the 2018 ERRN Working Paper Series (edited by Dr activities are several projects aimed Aaron Martin). A number of papers at deepening our understanding of will be published this year from the Australian electoral regulation through presentations made at the 2017 ERRN a comparative perspective. The Biennial Workshop with the first one Victorian chapter will be co-sponsoring by Australian Electoral Commissioner, a workshop on ‘Elections and Tom Rogers, on ‘The High Court and the Authoritarianism’ with the Deakin Polis; AEC’ having been published in January. Electoral Regulation Research Network newsletter - April 2018 3 Electoral News Electoral News ii. an Australian citizen or JSCEM’s broader inquiry into donations and Commonwealth elector; disclosure; and e) prohibits other regulated political actors e) penalties for non-compliance should be from using donations from foreign sources increased to fund reportable political expenditure; In the explanatory memorandum for the f) limits public election funding to Bill, the Australian Government argues that demonstrated electoral spending; the Bill is necessary to protect the integrity of Australia’s electoral system; g) modernises the enforcement and Electoral Legislation compliance regime for political finance “However, Australia’s regulatory Amendment (Electoral Funding regulation; and approach to political finance has not kept pace with international and and Disclosure Reform) Bill 2017 h) enables the Electoral Commissioner to (Cwth) domestic developments. Election prescribe certain matters by legislative campaigning has radically changed In December 2017 the federal Government instrument. through the professionalisation of tabled the Electoral Legislation Amendment politics and the proliferation of media As reported in the April 2017 ERRN (Electoral Funding and Disclosure Reform) advertising. New political actors newsletter, the Bill follows previous Bill 2017 (Cwth) in Parliament. This Bill neither endorse candidates nor seek investigations by the Commonwealth proposes the most significant changes of to form government, yet actively Joint Standing Committee on Electoral federal election funding laws for more than seek to influence the outcome of Matters (JSCEM) into political donations, a decade. In summary, the Bill: elections. While a positive indicator of particularly in its second interim report the strength of Australian civil society on the inquiry into the conduct of the 2016 a) establishes public registers for key non- and civic engagement, these new federal election: Foreign Donations. In party political actors; actors lack the public accountabilities that interim report the JSCEM made the of more traditional actors, such b) enhances the current financial disclosure following recommendations: as registered political parties or scheme in the Commonwealth Electoral Act parliamentarians. Internationally, 1918 (the Electoral Act) by requiring non- a) donation reform should be aligned with media reports increasingly document financial particulars, such as senior staff Australia’s sovereign interests; foreign attempts to influence elections and discretionary government benefits, to b) donation reform should be transparent, around the world. This is problematic, be reported; clear, consistent and enforceable; because the real and perceived c) prohibits donations from foreign integrity and fairness of elections c) donations from foreign citizens and governments and state-owned enterprises is critical to peaceful democratic foreign entities to political parties and their being used to finance public debate; government”. associated entities and third parties should d) requires wholly political actors to verify There has been considerable media and be banned; that donations over $250 come from: public commentary about the Bill. Actors in the not-for-profit sector have raised d) an extension of the foreign ban to prevent i. an organisation incorporated in concerns about the impact the reforms ‘channelling’ should be considered as part Australia, or with its head office or principal contained in the BIll will have on charities. of place of activity in Australia; or Specifically, the Bill has come under fire Electoral Regulation Research Network newsletter - April 2018 4 from many in the sector with fears it could of the role of non-government organisations • establish various penalties for non- have a ‘chilling effect’ on advocacy and and charities in engaging in issue based compliance with the scheme. impose an onerous level of red-tape on advocacy”. Greens Senator Lee Rhiannon charities - the Benevolent Society told the “said the majority report did not support The Bill’s Explanatory Memorandum notes Commonwealth JSCEM that the Bill is “too the party’s amendment to not include that the Bill vague to be meaningful and enforceable”. non-partisan issue based advocacy in the “intends to illuminate the nature and extent At present, legislative changes in September definition of political expenditure”. of activities undertaken by persons acting 2017 mean that charities are now legally on behalf of foreign actors in Australian defined as a “third party” – the equivalent political and governmental processes. The of an election campaigning organisation – if Resignation of Senator Sam scheme established by the Act is intended they engage in “public expression of views Dastyari to provide transparency and oversight on an issue that is, or is likely to be, before On 12 December 2017, former Senator of the many and varied ways in which electors in an