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 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 . 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 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 and so has disenfranchisement who will compare Last but not least, there are, of course, the Victorian chapter on the Electoral 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 than 30 pages. There is no doubt the continuing saga of disqualifications School of 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 ‘ 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; ; the 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 argues that demonstrated electoral spending; the Bill is necessary to protect the integrity of ’s ; 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 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 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 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 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 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 election”. Further, a survey announced he would be foreign actors seek to exercise influence conducted by Pro Bono Australia asked resigning from the Senate prior to the 2018 over Australian political and governmental how respondents how concerned they parliamentary year; he formally submitted systems and processes, including the views were about the “disclosure and regulatory his resignation to the President of the of the Australia public on such matters”. obligations of the draft bill, 79 per cent said Senate on 25 January 2018, a decision which they were concerned, with the majority of drew some criticism as it allowed him to The Bill establishes several exemptions those (53 per cent) either “very concerned” continue earning his Senator’s salary for from the registration requirements for or “extremely concerned”. These points over a month before his official resignation. activities undertaken on behalf of foreign were raised during the Commonwealth principals. The key exemptions which may Dastyari’s resignation followed multiple JSCEM’s inquiry into the Bill, where several apply to companies are those relating to reports, as covered in the April 2017 and inquiry participants, including ERRN commercial or business pursuits, including; Director Professor Joo-Cheong Tham October 2017 ERRN newsletters, about his (along with the Law Council of Australia links with the and • employee subsidiary exemption; and Professor Anne Twomey, amongst high profile Chinese-Australian business others), critiqued the term ‘political Huang Xiangmo, as well as his interventions • commercial interests exemption; purpose’ and noted the definition may in debates about the South-China capture non‐political activities. Beyond Sea. In December, Ross Babbage, former • humanitarian aid or assistance; this, there was some support for the Bill’s former head of strategic analysis at the • legal advice or representation; provisions establishing a registration Office of National Assessments, “described scheme for political campaigners, actors Dastyari as an ‘agent of influence’ and part • reporting news or current affairs; and organisations. of China’s aim to build local support for its policy positions around the world”. • acting in accordance with a religion; The Bill was referred to the Commonwealth and JSCEM in December 2017, with the committee issuing an advisory report on Foreign Influence Transparency • diplomatic, consular or other 9 April 2018. The Committee received 102 Scheme Bill 2017 (Cwth) privileges or immunities apply in submissions from the charity sector. In The Foreign Influence Transparency relation to the activity. its report, the Committee acknowledges Scheme Bill 2017 (Cwth) was introduced the concerns raised and proposes 15 in Parliament in December 2017 along According to the federal Government, the recommended amendments. For most with the Foreign Influence Transparency scheme does not prohibit the involvement charities, the two key recommendations are Scheme (Charges Imposition) Bill 2017 of foreign actors in Australia’s political that the Commonwealth Government: (Cwth). It establishes the Foreign Influence and governmental processes. Rather, it Transparency Scheme to: simply imposes a requirement that, when a) reconsiders introducing the term a person is undertaking activities on behalf “political purpose” into the Commonwealth • require registration by certain persons of a foreign actor, “this is made transparent Electoral Act 1918 (Electoral Act), due to undertaking certain activities on to the decision-maker and the Australian potential confusion with the Charities Act behalf of a foreign principal; public, so that they are able to accurately 2013 in which the term has a divergent assess the interests being brought to bear”. meaning; and • require registrants to disclose information about the nature of their Like the Electoral Donations amendment, b) amends the definition of “political relationship with the foreign principal there has been considerable public expenditure” to define the type of and activities undertaken pursuant to discussion about the Foreign Influence expenditure which constitutes expenditure that relationship; Bill and the combined effect of the Bill undertaken to influence voters to take and the Electoral Legislation Amendment specific action as voters, so as not to capture • place additional disclosure (Electoral Funding and Disclosure Reform) non-political issue advocacy. requirements on registrants during Bill 2017 (Cwth) on charitable entities. As elections and other voting periods; ERRN readers will know, the Bill follows Following the report’s publication, Labor a comprehensive review of Australia’s called on the government to make charities • establish a register of scheme counter-intelligence law led by former exempt from the Bill. Charities have also information and provide for certain Attorney-General ; the Bill claimed there is still a lack of clarity around information to be made publicly is thus designed to stop interference in the legislation, and called for the Bill to be available; Australia’s democratic institutions, and also withdrawn and redrafted. Echoing these follows the controversies around former • provide the secretary with powers to concerns, the Greens issued a minority Labor Senator Sam Dastyari’s aired in 2017 obtain information and documents; report dissenting from the JSCEM’s full and early 2018. As noted by Williams, a and report, to highlight the party’s differences journalist reporting for the not-for-profit with the JSCEM regarding “the critical issue

Electoral Regulation Research Network newsletter - April 2018 5 sector, “the government’s suite of foreign Cambridge Analytica (d) any related matters. interference laws – which were introduced with the aim of cracking down on foreign In March, the New York Times, working The committee only received one influence in Australia – have come under with The Observer of London and The submission from Professor George attack from civil society organisations Guardian, obtained a cache of documents Williams AO, University of NSW. The across the political spectrum”. Critics note from “Cambridge Analytica, the data firm report noted that the Senate’s requested that if passed, the scheme would make principally owned by the right-wing donor reporting date provided insufficient time see Australia stifle civil society and join Robert Mercer and responsibile for the “to gather evidence and only resulted in the ranks of countries such a Russia and Trump 2016 campaign’s voter strategy. The one submission... the committee does not Egypt which prohibit foreign donations to documents “proved that the firm, where intend to present a rushed report on such charitable organisations. the former Trump aide Stephen K. Bannon a significant constitutional issue. Rather, was a board member, used data improperly the Committee intends to focus on its other The Bill was referred to the the obtained from Facebook to build voter related Section 44 inquiry, which has a Parliamentary Joint Committee on profiles. The news put Cambridge under later reporting date”. Accordingly, evidence Intelligence and Security for review by Prime investigation and thrust Facebook into a from the report will be included in the Minister Malcom Turnbull on 7 December crisis of public trust”. committee’s inquiry into Section 44 of the 2017. Submissions were open until midday Australian Constitution, which is currently 22 January 2018. While the Committee has Since the revelations there have been taking evidence. indicated that it will report on the Scheme reports that Australian political parties by February 2018, the committee has yet to may have attempted to utilise Cambridge In terms of ongoing inquiries, the committee table its report. Analytica’s services. While Labor and the continues to investigate the 2016 federal Liberal Party have denied this, it is known election and matters related thereto. The that the company registered an Australian committee has issued three interim reports; Ministerial staffing, code of office in Maroubra in 2015, and that in 2017, the first interim report: Authorisation, conduct and resignation of senior representatives from Cambridge second interim report: Foreign donations, Analytica came to Australia to address a and third interim report: AEC Modernisation. On 22 February 2018 Barnaby Joyce resigned data-driven advertising conference and The inquiry continues. as Depuity Prime Minister following ongoing met with , who was then the On 28 November 2017, the Prime Minister fallout from his relationship with a staffer, minister responsible for cybersecurity. referred matters relating to Section 44 of the Vicki Campion. Some politicians, such as Senator , have said that Cambridge Constitution for inquiry and report. To date Subsequent to the scandal, on 15 February Analytica should not be involved in the committee has received 70 submissions 2018 Prime Minister Australian politics. and is currently conducting public hearings. announced changes to the ministerial code of On 18 October 2017, the Committee conduct. The code - Australian Government; Commonwealth JSCEM - other resolved to inquire into and report upon the Statement of Ministerial Standards - at 2.24 inquiries Australian Electoral Commission’s Annual now specifically prohibits Ministers from Report 2016-17. having sexual relations with their staff. In It has been a busy six months for the authorising these changes, Prime Minister Commonwealth JSCEM as it continues work Turnbull noted that “Ministers should also on three separate, ongoing inquiries. Federal electoral redistribution recognise that they must lead by example – As reported in the October 2017 ERRN values should be lived. So as you will see I In terms of recent completed inquiries, newsletter, the AEC commenced electoral have today added to these standards a very alongside the Advisory report on the redistributions for , the Australian clear and unequivocal provision: Ministers, Electoral Legislation Amendment (Electoral Capital Territory, , regardless of whether they are married or Funding and Disclosure Reform) Bill 2017 and Queensland in September 2017. The single, must not engage in sexual relations (Cwth), in February 2018 the committee October 2017 ERRN newsletter reported with their staff. Doing so will constitute a released its final report on the inquiry into on Tasmania’s and Queensland’s boundary breach of the code. While this new standard decisions made by the Court of Disputed reviews. is very specific, Ministers should be acutely Returns. The terms of reference, received in December 2017, required the committee aware of the context in which I am making Victoria is undergoing a “redistribution this change and the need for them always to consider the implications of recent decisions by the Court of Disputed Returns because the number of members of the to behave in their personal relations with House of Representatives it is entitled to others, and especially their staff, the staff of concerning section 44 of the Constitution on questions referred by the Parliament under has increased from 37 to 38 as a result of other Ministers or members of the Australian a determination made by the Electoral Public Service, with integrity and respect”. section 376 of the Commonwealth Electoral Act 1918, with particular reference to: Commissioner on Thursday 31 August 2017”. Reports have suggested that the The changes have met with some criticism. new seat, which is likely to be located in Barnaby Joyce said the new code goes (a) the decisions in connection with the Melbourne’s north west, will favour Labor too far and should not meddle in people’s disqualification of former Senators Bob Day at the next federal election. Further, the personal lives. Others, including key and Rodney Culleton; ACT is undergoing a redistribution because lawyers in workplace relations law, suggest (b) a regime for disclosing information the number of members of the House that imposing a code from the ‘top down’ relating to aspects other than section of Representatives it is entitled to “has is inappropriate and that any attempt to 44(i), for which the Parliament has already increased from two to three as a result of regulate workplace behaviour, even in provided; a determination made by the Electoral Parliament, should be consultative. Commissioner on Thursday 31 August (c) the form such a process might take and 2017”. Overall, as reported by the Australian how it could be implemented; and Financial Review, the “latest redistribution of federal electorates in Victoria and the ACT

Electoral Regulation Research Network newsletter - April 2018 6 has likely handed Labor four new seats at spark resignations. As reported in the a British subject. Alexander won the by- the next election, effectively wiping out the ERRN Case Notes, the High Court, sitting election. ’s majority in Parliament”. as the Court of Disputed Returns upon references from the Senate and the House South Australia is undergoing a of Representatives, unanimously held that redistribution because the number of , , Senator members of the House of Representatives Malcolm Roberts, the Hon Barnaby Joyce it is entitled to “has decreased from 11 to MP and Senator the Hon was 10 as a result of a determination made by ‘a subject or a citizen … of a foreign power’ the Electoral Commissioner on Thursday at the time of their nominations for the 31 August 2017. The AEC has proposed 2016 federal election, and were therefore abolishing the seat of Port Adelaide, held by incapable of being chosen or of sitting as Labor MP Mark Butler”. a senator or a member of the House of Representatives by reason of s 44(i) of the The AEC’s website provides further Constitution. information about the redistribution Salim Mehajer electoral fraud process and current status. As documented in the ERRN Case Notes, conviction the High Court is also expected to rule on In April 2018 former Auburn Deputy Mayor Australian Electoral Senator ’s eligibility to sit Salim Mehajer was found guilty of electoral Commission – procurement as a Senator. It is expected that Gallagher fraud. Local Court magistrate Beverley audit will also be disqualified as the government Schurr “found the property developer and told the court that Gallagher “ignored former Auburn deputy mayor engaged in a The final report for the Australian Auditor the possibility her bid to renounce UK joint criminal enterprise with his sister Fatima General’s (ANAO’s) audit of the ‘Australian citizenship could take 74 days or longer by to rig the September 2012 local government Electoral Commission’s Procurement posting her application close to a deadline election, which catapulted him into public of Services for the Conduct of the 2016 for candidates to nominate for election”. office”. Fatima Mehajer, who also ran for Federal Election’ was released in January election to Auburn Council at the 2012 poll, 2018. The objective of “this audit was to News reports suggest that the total cost of was due to stand trial with her brother in assess whether the AEC appropriately the by-elections caused by the s44 scandal June 2017. She pleaded “guilty on the first established and managed the contracts for could exceed $20 million. day of the trial to 77 counts of giving false the transportation of ballot papers and the or misleading information to the scanning system for the 2016 federal Further, the High Court, sitting as the Electoral Commission. Her sentencing was election. To form a conclusion against the Court of Disputed Returns, has decided a delayed until after the conclusion of her audit objective, the ANAO adopted the matter referred to it by the Senate over the brother’s trial on more than 100 counts of following high-level audit criteria: eligibility of two South Australian senate nominees, Skye Kakoschke-Moore and electoral fraud”. • Did the procurement processes Timothy Storer who were third and fourth demonstrably achieve value for in the Team order of senate NSW JSCEM - inquiry into money? candidates for the 2016 federal election. preference counting in local On 24 January 2018 the Court held that the government elections • Were key risks to the security and vacancy left by “Kakoshcke-Moore should integrity of ballot papers, and of ballot be filled by a special count of the votes cast In November 2017 the NSW JSCEM tabled its paper data, addressed? on 2 July 2016; that Kakoschke-Moore’s final report for the inquiry into preference renunciation of her British citizenship in counting at NSW local government elections. • Did the AEC obtain adequate assurance December 2017 does not render her capable The terms of reference required the of the service deliverables and of the of now being chosen to fill the vacancy; and committee to examine the current system effectiveness of risk treatments?” that Storer should not be excluded from the of ‘random selection’ in the counting of preferences in local government elections, The Audit found that although the “AEC special count”. whether this system delivers fair results in all could rule out any large-scale vote cases for candidates, whether there are any tampering, it did not conduct a statistically Batman Division by-election alternative methods of ballot counting which valid audit to demonstrate the data integrity would produce more accurate preference of the election and could not account for A by-election for the Australian House of flows, and any other related matter. all the ballot papers”. The report follows Representatives seat of Batman was held on 17 March 2018. The by-election was called substantive legislative changes affecting’s The committee received 23 submissions as a result of the resignation on 1 February the AEC’s operations in May 2016 introducing and made 10 recommendations, including 2018 of , the incumbent above-the-line preference voting, and the one that the NSW Government introduce backbench MP. system’s wholesale introduction before the the weighted inclusive Gregory method Labor’s won the by-election. July 2016 federal election. In the report, the to conduct future local government AEC noted the Senate voting changes ‘were elections. The report as made a number the most significant reforms to Australia’s Bennelong Division by-election of recommendations to increase the electoral system in 30 years’. The AEC also transparency of the electoral system and A by-election for the Australian House of committed to further strengthening its improve the scrutineering process; and Representatives seat of Bennelong was held procurement processes. recommendations to remove inconsistencies on 16 December 2017. The by-election was between the local and state electoral called as a result of the resignation of John systems. Dual citizenship Alexander, the incumbent Liberal Party MP, Section 44 of the Australian Constitution on 11 November 2017, when he was unable continues to claim political careers and to produce proof that his father was not

Electoral Regulation Research Network newsletter - April 2018 7 by establishing a consistent formula for participate effectively in elections; determining councillor numbers and having councils unsubdivided or comprise • strategies to reduce informal voting at uniform councillor numbers per ward, and Victorian state elections which are not increasing participation, formal voting and related to the voting system; fairness in council elections by adopting a • how the VEC employs and trains casual consistent voting method for all elections staff for Victorian state elections, (attendance, postal or electronic)”. this should involve discussion about The Bill is currently before the House. methods to attract people to join the VEC’s casual staffing roster for Proposed political donations Victorian elections, the Committee reforms Victorian Ombudsman - report should also examine the roles and to Parliament on Legislative responsibilities of the VEC’s casual As reported in the October 2017 ERRN Council referral election staff in light of changing newsletter, Victoria is set to introduce a suite In March 2018 the Victorian Ombudsman technological and societal demands; of political donations laws in 2018, although released its report on a matter referred and the timing of the amendments remains to it by the Victorian Legislative Council. unclear given legislation has not been • strategies to increase electoral The referral involved allegations that introduced in Parliament. In September participation amongst community ALP Members of the Victorian Parliament 2017 Premier Daniel Andrews announced groups that traditionally experience misused members’ staff budget the proposed changes including; barriers to electoral participation, entitlements, against the provisions of such as Victorians aged 18 to 24, the Parliament of Victoria’s Members • “capping donations at $4,000 Victorians from multicultural Guide. The background of the “referral over a four-year parliamentary backgrounds, as well as Victorians involved allegations, widely reported in term, completely eliminating large who have recently become Australian the media and reported in the April 2017 donations to political parties, citizens and are not familiar with ERRN newsletter, that parliamentary funds associated entities, and third party Australia’s electoral system. campaigners; had been misused to partially fund the Australian Labor Party’s Community Action The committee received 25 submissions • reducing the disclosure limit from Network campaign for the 2014 Victorian and is currently finalising its report. $13,500 to $1,000 per financial year; state election. Electorate Officers were allegedly involved in training and recruiting The Victorian Government also tabled its • a system of real-time disclosure of direct volunteer campaigners for door response to the committee’s final report donations to be administered by the to door canvassing, telephoning voters into electronic voting on 2 November Victorian Electoral Commission; and and other campaign activities”. These 2017. While the government supported the allegations were also referred to Victoria committee’s recommendation to introduce • banning foreign donations”. Police in 2015 but no action was taken in a system of remote voting for Victorian As noted by the ERRN’s Legal Editor, Dr relation to the referral. state elections, the government supported Yee-Fui Ng, RMIT University, “the caps on “referring remote electronic voting to COAG The report of Victorian Ombudsman, donations will level the playing field and to consider the development of a national Deborah Glass, into the election funding reduce the risk of corruption in the state’s approach”. rorts found that former Victorian Labor . It will prevent rich donors Treasurer John Lenders was the architect of from exerting greater influence over an ‘artifice’ to redirect at least $388,000 of Northcote by-election politicians than those who lack the means taxpayer funds directed to elect Labor. Ms to do so. Parties will no longer be able to A by-election for the seat of Northcote in Glass welcomed the ALP’s offer to repay the rely on these wealthy donors to fund their the Victorian Legislative Assembly was held funds but said the “misuse of public funds” election campaigns”. on 18 November 2017. The by-election was identified by her report risks worsening the triggered by the death of Australian Labor already dismal public trust in politicians”. Party MP Fiona Richardson on 23 August Local Government Electoral Bill 2017. The seat was won by the Greens 2018 (Vic) Electoral Matters Committee candidate , who became the In February 2018 the Local Government Bill first female Aboriginal MP in the Victorian The Electoral Matters Committee continues 2018 (Vic) was introduced in the Victorian Parliament as a result of the victory. its inquiry into civics and electoral Parliament. The Bill is the first step in the participation at Victorian state elections. Andrews Government Ministerial Statement The committee was asked to specifically of local government reform, and follows examine and report to Parliament by the publication of discussion paper in August 2018 on; 2015 - which received 384 submissions - a Directions Paper in 2016 and the final • electoral and civics education, the consultation process which involved Victorian Electoral Commission’s circulating the Bill to stakeholders in (VEC’s) community engagement December 2017. programs and other best practice approaches used by the VEC, other The Bill aims to achieve 10 key changes Australian electoral commissions, the to Victoria’s local government system, United Kingdom and New Zealand, including changes to electoral processes Queensland state election to ensure that Victorian citizens are involving “consistency for council The 2017 Queensland state election was adequately informed and able to representative structure...will be improved held on 25 November 2017 to elect all 93

Electoral Regulation Research Network newsletter - April 2018 8 members of the Legislative Assembly of the CCC initiated “Operation Belcarra to Queensland the CCC noted that the Bill goes Queensland. Labor’s Premier Annastacia determine whether candidates committed further than its recommendations in the Palaszczuk won a second term in offences under the Local Government Operation Belcarra report by including state government, and were challenged by Electoral Act 2011 (QLD) that could constitute elections in addition to local government the Liberal National opposition, led by corrupt conduct and to examine practices elections. Opposition Leader Tim Nicholls and minor that may give rise to actual or perceived parties One Nation, Katter’s Australian corruption or otherwise undermine Further, on 23 April the Economics and Party and the Greens. public confidence in the integrity of local Governance Committee, a portfolio government, with a view to identifying committee of the , The election was the first following strategies or reforms to help prevent or tabled its report on the Bill. A previous substantial electoral reforms in Queensland decrease corruption risks and increase version of the Bill was introduced into the covered in previous ERRN newsletters, public confidence”. Tabled in 2017, the 55th Parliament on 12 October 2017, and including the abolishment of optional Belcarra Report made 31 recommendations referred to the former Legal Affairs and preferential voting and the introduction “to improve equity, transparency, integrity Community Safety Committee (LACSC). of four-year fixed parliamentary terms and accountability in Queensland local The former LACSC had not completed its (although this does not come into effect government elections and decision- inquiry into the 2017 version of the Bill until 2020). The number of seats in the making”, including that political donations when the Parliament was dissolved on 29 Legislative Assembly increased from 89 to from property developers be banned for October 2017. During its examination of the 93; Labor won a net seven seats while the Queensland local government elections. Bill, the committee received 43 submissions Liberal National Opposition lost a net three and conducted a number of hearings and seats. Overall, Labor won 48 seats, Katter’s The Local Government Electoral briefings. The committee made three Australian Party three seats, the Liberal (Implementing Belcarra) and Other recommendations, including that the Bill be National Party 39 seats, ’s Legislation Amendment Bill 2017 (QLD) was passed. One Nation one seat, the Greens one seat, reintroduced in March 2018 having lapsed and other candidates one seat. in October due to the Queensland state election. According to the explanatory Queensland Ministerial Turnout was 87.5 percent, a fall of 2.4 points notes the policy objective of the Bill is to Guidelines compared to the 2015 Queensland state implement certain recommendations of the In March 2018 Premier Annastacia election. There was also an increase in the CCC’s report Operation Belcarra: A blueprint Palaszczuk amended Queensland’s informal rate to 4.3 percent, compared to for integrity and addressing corruption risk Ministerial Handbook to ban the use 2.1 at the 2015 Queensland state election; in local government (the Belcarra Report) of messaging apps such as WhatsApp, this can be attributed to the voting system to: Facebook Messenger, Facetime and Wickr. change to compulsory preferential voting The amendment follows reports covered in from optional preferential voting. As noted • reinforce integrity and minimise the October 2017 newsletter about Minister by Beaumont, the informal rate was below corruption risk that political Mark Bailey’s use of a private email account Queensland’s informal rate (4.7 percent) at donations from property developers to conduct some government business. the 2016 federal election. has potential to cause at both a state and local government level; Operation Belcarra - CCC Resignation of Queensland • improve transparency and charges Electoral Commissioner accountability in state and local A third Queensland mayor has been charged government; and In February Walter van der Merwe, by the CCC in relation to the proceedings Queensland Electoral Commissioner, • strengthen the legislative of Operation Belcarra - as reported in the resigned from his role. Mr van der Merwe requirements that regulate how a October 2017 ERRN newsletter, former resigned two days after being issued a show councillor must deal with a real or Ipswich Mayor Paul Pisasale and sacked cause notice from Queensland Attorney- perceived conflict of interest or a Fraser Coast Regional Council Mayor General Yvette D’Ath, who said she became material personal interest. Chris Loft were also charged with various aware of claims about his behaviour which offences following Operation Belcarra. In could have been in breach of the Electoral The headline provision of the Bill amends March 2018 Logan Mayor Mark Smith was Act. state and local government electoral charged and would face two counts of legislation to prohibit political donations perjury, one of official corruption and one Mr Dermot Tiernan is the Acting Queensland by property developers to candidates, of failing to correct his register of interests. Electoral Commissioner. groups of candidates, third parties, political Smith has not stood down from his position parties, councillors and Members of State and has indicated he will strongly contest all Operation Belcarra - Local Parliament. The Bill makes unlawful: charges. Government Electoral (Implementing Belcarra) and • the making and acceptance of political Other Legislation Amendment donations made by or on behalf of Bill 2017 prohibited donors and As reported in previous ERRN newsletters, • for prohibited donors (or others on in March 2016 the Queensland CCC received their behalf) to solicit other persons to numerous complaints about the conduct make political donations. of candidates in the 2016 local government elections for the Gold Coast City Council, The Bill adopts the New South Wales Moreton Bay Regional Council, Ipswich City scheme provisions in this area. Council and Council. In response The Bill has generated considerable to these allegations, in September 2016 discussion. In a submission to Parliament of

Electoral Regulation Research Network newsletter - April 2018 9 South Australian state election issues. Once identified, the party is then Legislative Council elections able to focus on them to win their vote”. The 2018 South Australian state election Elections for the new Legislative Council was held on 17 March 2018. All 47 seats in Divisions of Prosser and Hobart will be held the House of Assembly or lower house, on 5 May 2018. whose members were elected at the 2014 election, and 11 of 22 seats in the Legislative Council or upper house, last filled at the 2010 election, were contested. The Opposition Liberal Party led by Steven Marshall defeated ’s Labor Party. Nick Xenophon’s new SA Best party unsuccessfully sought to obtain the balance of power. The Liberal Party won 25 seats, Labor 19 seats and Independents three seats. Cottesloe by-election A by-election for the electoral district of Voter turnout was 91.00 percent, a slight Cottesloe in Western Australia was held decrease of 0.94 percent compared to Casual vacancy on 17 March 2018. The by-election was the 2014 South Australian state election. triggered by the resignation of the Liberal A casual vacancy to the fill the seat left Informal voting was 4.10 percent, an Party member, Colin Barnett, on 5 February vacant by the passing of former MLA Steve increase of 1 percent compared to the 2014 2018. Liberal candidate David Honey won Doszpot was held on 11 December 2017. South Australian state election. the election. Candice Burch was elected. Former Senator Nick Xenophon announced he would be leaving the Senate in October Inquiry into Electoral Act and 2017 to contest the seat of Hartley at the 2016 ACT election 2018 South Australian state election, under On 15 December 2016, the Legislative the banner of SA Best, the state-based party Assembly for the ACT passed the following of the Nick Xenophon Team. The party failed resolution: to have any lower house candidates elected, however it succeeded in securing two upper “That: house seats. 1) a select committee be established Big data and the 2018 South to review the operation of the 2016 ACT Australian state election election and the Electoral Act and other relevant legislation and in regards Big data is making its way into Australian Tasmanian state election to election-related matters, and make politics, with the South Australian Liberal recommendations on: Party becoming the first Australian political The 2018 Tasmanian state election was held party to use i360, a well-known software a) lowering the voting age; on 3 March 2018 to elect all 25 members voter program from the US. According to of the Tasmanian House of Assembly. The some news reports, i360 “was used by b) improving donation rules and donation four-year incumbent Liberal government, the Liberal Party in its recent successful reporting timeframes; led by Premier , won a second campaign in the state of South Australia consecutive term. It defeated the Labor c) increasing voter participation in elections and is under consideration by the party’s Party, led by Opposition Leader Rebecca and encouraging political activity; and other state branches and also nationally”. White, and the Greens, led by Cassy The Liberal’s director in South Australia, d) any other relevant matter. O’Connor. The Network also Sascha Meldrum, told local media the Party competed in a state election for the first had “embraced modern technology in The committee tabled its report time but did not win any seats. campaigning”. i360 aggregates data from in November 2017 and made 23 different sources, and its algorithm then Turnout was 92.89 percent, down 2.1 recommendations, including maintaining “identifies voters who are yet to make up percent compared to the 2014 Tasmanian the voting age at 18, banning political their minds. In a marginal electorate of state election. Informal voting 4.86 percent, donations from property developers, 25,000 voters, i360 was reportedly able to very slightly increased 0.11 points compared including civics education in the Year 11 identify 1,000 voters who have yet to make a to the 2014 Tasmanian state election. and 12 curricula, as well as allowing pre-poll decision and understand their ‘hot button’ voting without excuse.

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 - April 2018 10 Forthcoming Events

ERRN (SA) seminar: Implications ERRN (WA) Seminar: ERRN (OLD) Seminar: Informed and Effects of Prisoner Convenience Voting citizens: Are Institutions Disenfranchisement addressing the knowledge gap? (co-hosting with PLPPRU, July 2018 University of Adelaide) September 2018 Presenters: Narelle Miragliotta and Martin Presenters: Dr Jackie Laughland- July 2018 Drum Booy, Dr Zareh Ghazarian, Tracey Arklay and other experts on voting Presenters: Dr Victoria Shineman ERRN (VIC) Seminar with Victoria awareness and democratic participation (University of Pittsburgh), Professor Lisa Shineman2 August 2018 Hill, Professor Alex Reilly (Law, University of Adelaide) Presenter: Dr Victoria Shineman (University of Pittsburgh)

Image credit: Election 2010 - Duffy Primary School, Basil Dewhurst, Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0), Flickr

Electoral Regulation Research Network newsletter - April 2018 11 Event Reports

ERRN (VIC) Seminar: The state of policymaking. A key interest for Dr Laing 2018, ABC’s election analyst Antony Green is the health of western – spoke on the issues, personalities and convenience voting in Victoria particularly the disengagement of people electorates that will determine who leads in the political process, the quality and the state. 19 April 2018 diversity of people seeking political office, Presenters: Dr Matthew Laing and Dr and the rise of populism. His views on these Narelle Miragliotta topics have been published/broadcast in the Australian media. The explosion in the number of electors casting their votes early at Victorian Dr Narelle Miragliotta is a senior lecturer in elections since the 2000s (and in Australia the Department of Politics and International more generally) has raised important Relations at . Her current questions about the practical and research interest and publications have normative implications of convenience focused on political parties, elections, and forms of voting. In this presentation, we electoral systems. share our findings from our broad ranging Antony Green study into convenience voting in Victoria are, conducted in conjunction with Paul Thornton-Smith from the Victorian Electoral Commission. Specifically, ERRN (VIC) Seminar: The we explore how convenience voting is Electoral Legislation perceived and experienced from the perspective of the main stakeholders: Amendment (Electoral parties, electoral officials and voters. Our Funding and Disclosure findings reveal that while convenience Reform) Bill 2017 (Cth): voting generates different opportunities and challenges for stakeholders, there is Dr Matthew Laing presenting at ERRN seminar Dealing with foreign broad, even if somewhat skeptical support, interference or stifling for its continuing use and even its further charities? expansion. ERRN (TAS) Seminar: Tasmania votes 2018: Key issues and Dr Matthew Laing is a political scientist 13 February 2018 specializing in issues of leadership and likely outcomes with Antony policy. He is a lecturer in political leadership Green Presenter: Professor Joo-Cheong Tham, with a particular background in United ERRN Director States politics, political leadership, and 28 February 2018 The seminar explained the complex detail policymaking in democratic systems. His of the Bill and provide a principles-based work and publications have focused on Presenters: Antony Green and Professor evaluation. It concluded that while certain leadership in political parties and in policy Richard Eccleston aspects of the Bill are welcome, much of it processes, as well as leadership capacity is over-broad and unjustified - especially building in a range of contexts, particularly Ahead of the Tasmanian election on 3 March the restrictions relating to non-allowable Electoral Regulation Research Network newsletter - April 2018 12 donors other than foreign governments. the last years, she has been teaching and • The Senate, preferences and minor The seminar was based on Joo-Cheong’s researching in Germany, France, the United party representation submission to the Commonwealth JSCEM’s States, the Czech , Portugal, Italy, William Bowe, Election Analyst and inquiry into the Bill. and Canada. She graduated as a lawyer and Editor of The Poll Bludger worked at the Department of Constitutional Joo-Cheong Tham is a Professor at Law in the Hungarian Ministry of Justice, • Fixing the Upper House – why and how? Melbourne Law School. He is one of and in the Hungarian National Election Antony Green, Australian Broadcasting Australia’s leading experts on political Office. She obtained her PhD degree in Corporation funding with his publications including constitutional law at ELTE in 2013 with her • Voting below the line in the Senate Money and Politics: The Democracy We thesis on the fundamental right attributes Kevin Bonham, Psephologis Can’t Afford (2010, UNSW Press) and key and restrictions of the right to vote that was reports for the New South Wales Electoral published in Hungarian (HVGOrac, 2014). • Stephen Smith (chair) Commission on the regulation of political Currently she is working on a comparative finance and lobbying. He also specializes constitutional law project on open justice, Session 2: Judicial Review of Elections: in the regulation of precarious work and seeking the answer on how the courts Australian and Comparative Perspectives has undertaken considerable research should answer the challenges of the 21st into counterterrorism laws. JooCheong century in a constitutional way. • The High Court and the AEC –Day, and regularly speaks at public forums and has Culleton and beyond. presented lectures at the Commonwealth, Tom Rogers/Paul Pirani, Australian South Australian and Victorian Parliaments. The 5th Biennial Electoral Electoral Commission He has also given evidence to parliamentary Regulation Research Network inquiries into labour migration, terrorism workshop • Candidate (Dis)qualification: a way laws and political finance laws. through the thicket? The University Club of Western Graeme Orr, Australia • Judicial Review of Elections in Asia 9–10 November 2017 Po Jen Yap, University of Hong Kong • Sarah Murray (chair) ‘The Times They are a Changin’ Session 3: Changes to Voting and The Workshop covered a range of issues in Campaigning in Australia electoral regulation and brought together electoral commission officials and law and • How do political parties respond to academics. This year there changing forms of voting? Professor Joo-Cheong Tham and Dr Eszter Bodnar were sessions on: Maria Taflaga, ANU

• Changes to Voting in Australia • Stakeholder perceptions of the ERRN (VIC) Seminar: The role of challenges and possibilities of the European Court of Human • Funding of Political Parties convenience voting Narelle Miragliotta, Monash University Rights in the protection of the • Key Electoral Issues/Reforms • Electronic voting in NSW and WA: the right to free elections • Psephology and the Australian implications Electoral Scene 27 November 2017 Rodney Smith, University of • Judicial Review of Elections • Campaigning, Elections and Social Presenter: Dr Eszter Bodnár • Electoral Agency Challenges Media Peter Chen, Sydney University The aim of this presentation was to give an • Overseas Involvement in Domestic overview of the practice of the European • Martin Drum (chair) Court of Human Rights and evaluate the Politics level of protection it provides to the right The workshop was being convened by the Session 4: Colin Hughes: In Memoriam to free and fair elections. It examined Western Australian ERRN convenors; Sarah Professor Graeme Orr which factors explain the Court’s reserved Murray ([email protected]); Justin Session 5: The Funding of Political Parties approach towards election-related cases Harbord ([email protected]); and proposed an argument to justify a more Alan Fenna; ([email protected]. activist approach by the Court. • Of aliens, money and politics: Should au); Martin Drum ([email protected]. foreign political donations be banned? Dr Eszter Bodnár is a Kathleen Fitzpatrick au). Joo-Cheong Tham, Melbourne Law School Visiting Fellow with the ARC Laureate The ERRN website also contains the Project in Comparative Constitutional Law. a transcript of a speech presented by • The Commonwealth Parliament’s Her research interest is in comparative Professor Graeme Orr at the 2017 ERRN constitutional law, international human recent enquiry into political donations: Biennial Workshop held at the University of submissions and outcomes rights, and European constitutional law. Western Australia Club in Perth in November She has been an assistant professor at the Martin Drum, University of Notre 2017, entitled ‘In Memoriam Professor Colin Dame Australia Faculty of Law of University Eötvös Loránd A Hughes: A Queensland perspective’. (ELTE) in Budapest, Hungary since 2013. • Political Donations - an Insider’s She is also a faculty member in the Master Session 1: Psephology and the Australian Perspective from the Outside of Electoral Policy and Administration Electoral Scene Stephen Smith, University of Western program of Scoula Sant’Anna, Pisa. In Electoral Regulation Research Network newsletter - April 2018 13 Australia • Brendan O’Connor, University of embrace deliberative democracy as a key Sydney (US Studies Centre) part of the MAV Future of Local Government • The challenges of enforcing compliance program. Alison Byrne, NSW Electoral • Alan Fenna (chair) Commission Simon Breheny is the Director of Policy of the Institute of Public Affairs and chairman • Justin Harbord (chair) ERRN (VIC) and Victorian of the International Young Democrat Union Parliamentary Library Seminar: and a regular media commentator on policy Session 6: Panel Discussion – The Times Deliberative Democracy in Local and politics in Australia. Simon holds a are they a Changin’? Government Bachelor of Arts/Bachelor of Laws from the What are the key electoral issues facing University of Melbourne. Australia? What reforms do we require? 1 November 2017 Presenters: Iain Walker, John Hennessy ERRN (SA) Seminar: Elections, • Bill Johnston MLA, Minister for and Simon Breheny Referenda and Surveys: Electoral Affairs Exploring the Challenges of the Faced with a trend of declining public Same-Sex Marriage Postal Vote • Scott Ryan MP, Special Minister of engagement, local government bodies in State Australia and around the world have been turning to deliberative democracy as a 31 October 2017 • Lee Rhiannon MP, Greens Electoral way of enhancing citizen participation and Spokesperson Presenters: Prof John Williams, Prof Lisa the legitimacy of government. Typically, a Hill, Dr Jonathon Louth, Prof David Bamford, • Michael Maley (chair) group of citizen’s are randomly selected to Dr Mikhail Balaev be briefed and make recommendations on Session 7: Panel Discussion – Electoral an important matter of . Recent Prof John Williams (University of Adelaide) Commissioner Roundtable – Current examples in Victoria include the People’s presented on constitutional consideration. Issues Panel in the City of Melbourne, which Prof Lisa Hill (University of Adelaide) and considered the Council’s 10-year financial Dr Jonathon Louth (Flinders University) What’s the biggest challenge facing your plan, and the Citizens’ Jury in the City of presented on democratic legitimacy agency over the next 10 years? Greater Geelong, which recommended a and electoral behaviour; Prof David change to the electoral structure. Bamford (Flinders University) presented • Warwick Gately, Victorian Electoral on electoral law; and Dr Mikhail Balaev Commissioner Are such forms of deliberative democracy (Flinders University) presented on survey/ likely to supplement or subvert quantitative methodology. • David Kerslake, WA Electoral representative local government? Three Commissioner speakers will provide different perspectives • Alicia Wright, NZ Electoral on this issue. Commissioner Iain Walker is the Director of the • Lisa Hill (chair) new Democracy Foundation in Australia, which aims to pursue a fundamental change Session 8: Panel Discussion – The in democracy to ensure that citizens trust US Election Takeaways: Overseas government decision making. Iain holds a Involvement in Domestic Politics Masters in Public Policy from the and a Bachelor of Business from • , University of Western UTS. Australia ERRN (SA) Seminar: Elections, Referenda and John Hennessy is a Sector Development Surveys: Exploring the Challenges of the Same-Sex • Mark Beeson, University of Western Manager with the Municipal Association of Marriage Postal Vote Australia Victoria (MAV), which supports councils to

Event recordings

Audio and Video recordings of recent ERRN events are now available on the website:

• ERRN (VIC) Seminar: The state of • ERRN (TAS) and Institute for the Presented by Dr Eszter Bodnár convenience voting in Victoria. Study of Social Change Seminar: on 27 November 2017. Listen now Presented by Dr Matthew Laing Tasmania votes 2018: Key issues and Dr Narelle Miragliotta and likely outcomes with Antony on 19 April 2018. Listen now Green. Presented by Antony Green • ERRN (VIC) and Victorian Parliamentary and Professor Richard Eccleston Library Seminar: Deliberative on 28 February 2018. Watch now Democracy in Local Government. • ERRN (VIC) Seminar: The Electoral Presented by Iain Walker, John Legislation Amendment (Electoral Hennessy, Simon Breheny and David Funding and Disclosure Reform) Bill • ERRN (VIC) Seminar: The role of Morris, MP (Chair) on 1 November 2017 2017 (Cth). Presented by Professor Joo- the European Court of Human Listen now Cheong Tham on 13 February 2018. Rights in the protection of Watch now the right to free elections.

Electoral Regulation Research Network newsletter - April 2018 14 Publications

Working Papers

The Electoral Regulation Research Network Network’s website and circulated to Working Paper 46 was established in 2012 with the aim of members of the Network. They will also fostering exchange and discussion amongst be posted on the Democratic Audit of academics, electoral commissions and Australia’s website. We welcome papers ‘The High Court and the AEC’ other interested groups on research written on all aspects relating to electoral relating to electoral regulation. To this end, regulation from academics, electoral Tom Rogers (Electoral Commissioner, the Network together with the Democratic commission officials, parliamentarians, Australian Electoral Commission) Audit of Australia will be publishing a series party officials and others interested in this of working papers – often called ‘discussion field. January 2018 papers’ – to help foster discussion about This paper focuses on the interaction all aspects of electoral regulation. These between the AEC and the High Court and its working papers will be posted on the effects on electoral administration.

Recent Publications

‘Double Disillusion’: Analysing the 2016 contest. The book covers the context, Australian ministerial staff are now very 2016 Australian Federal Election’ key battles and issues in the campaign, important players in our democracy, but and reports and analyses the results in ministers and advisers are weakly regulated detail. It provides an evaluation of the within our system. The law has lagged ANU Press, April 2018 role of political actors such as the parties, behind, but now is the time for reform, independents, the media, interest groups argues Yee-Fui. Anika Gauja, Peter Chen, Jennifer Curtin and GetUp!, and examines election debate and Juliet Pietsch in the online space. Experts from a range of policy fields provide an analysis of election The Rise of Political Advisors in This book provides a comprehensive issues ranging from the economy and the Westminster System analysis of the 2016 Australian federal industrial relations to social policy, the London: Routledge, 2018 election. Won by the Liberal–National environment, and gender and sexuality. Coalition by the slimmest of margins, Each of the chapters is written on the basis Yee-Fui Ng the result created a climate of political of in‑depth and original research, providing uncertainty that threatened the new insights into this important political Political advisors have risen in significance government’s lower house majority. While event. in Westminster countries, and have been the campaign might have lacked the theatre increasingly thrust into the limelight by of previous elections, it provides significant headline scandals and through their insights into the contemporary political “The Barnaby Joyce affair characterisation in various television and policy challenges facing Australian highlights Australia’s weak series. This increased prominence has democracy and society today. regulation of ministerial led to greater scrutiny of their role and staffers” influence. This book demonstrates that In this, the 16th edited collection of the introduction of political advisors into

Australian election studies, 41 contributors the structure of the executive has led to The Conversation from a range of disciplines bring an the erosion of the Westminster doctrine of unprecedented depth of expertise to the ministerial responsibility. Yee-Fui Ng

Electoral Regulation Research Network newsletter - April 2018 15 Less Money, Fewer Donations: will reduce the total number and value ‘The Challenges of Money The Impact of New South Wales of political donations to the parties and Politics in the Asia-Pacific’ Political Finance Laws on Private second, that the 2010 legislation, which Funding of Political Parties imposed caps on political donations and election spending, and substantially Australian Journal of Asian Law, Australian Journal of Public increased public funding, would be the Volume 18, No. 2, 2017 Administration, April 2018 most significant of the four Acts in terms of • Introduction to the Australian Journal impact due to its scope and depth. Malcolm Anderson Joo-Cheong Tham of Asian Law Theme on ‘Money Politics Zim Nwokora Anika Gauja Stephen Mills in the Asia-Pacific: Challenges and Narelle Miragliotta Solutions’ - Joo-Cheong Tham ‘Between Law and Convention: The role of money in politics has been a Ministerial Advisers in • Political Corruption in Philippine concern internationally with strong calls the Australian System of Elections: Money Politics through for stricter regulation of such funds. In Responsible Government’ the Pork Barrel System - Neri Javier Australia, this has resulted in a shift from Colmenares laissez-faire to increased regulation. Yet, Ruth Barney (ed), Papers on Parliament No • Financing Politics in Malaysia: there has been little research into the 68, , Australia: Department of the Reforming the System - Edmund impact of this shift. To address this gap, Senate, 2017: 117-31. Terence Gomez, Joseph Tong this article examines the impact of four Yee-Fui Ng New South Wales political finance laws • Drivers of Electoral and Institutional enacted from 2008 to 2012, which reflect the Money Politics in Papua New Guinea - emergent regulatory approach. Focusing Lesley Clark, Grant W Walton on the total number and value of political ‘Ministerial Advisers and the donations made to New South Wales Australian Constitution’ • Money Politics in a More Democratic political parties, it assesses the effects of Indonesia: An Overview - Denny the four Acts individually, as well as their University of Western Australia Law Review, Indrayana overall impact, to test the assumption of 2017, 42(1): 1-29. legal effectiveness. It finds strong support for two key expectations resulting from Yee-Fui Ng the assumption: first, the raft of legislation

Image credit: At the Polling Booths 1940, State Library of WA, Flickr

Electoral Regulation Research Network newsletter - April 2018 16 Case Notes

Dual Citizenship Cases: Re that provision, namely that an Australian of her nomination, Water was ineligible to Canavan, Re Ludlam, Re citizen not be prevented from participation be chosen. Waters, Re Roberts [No 2], Re in representative government where it can Joyce, Re Nash [2017] HCA 45 be demonstrated that he or she took all Canavan steps reasonably required by foreign law to was born in Australia, and his renounce his or her citizenship of a foreign only link to Italy was through his maternal The High Court, sitting as the Court of power. This is because this construction grandparents, who were naturalised as Disputed Returns upon references from the adheres closely to the ordinary and natural Australian citizens in the 1950s, at which Senate and the House of Representatives, meaning of the language of s 44(i), and point, under Italian law, they ceased to be unanimously held that Scott Ludlam, accords with the views of a majority of the Italian citizens. After Canavan’s mother Larissa Waters, Senator Malcolm Roberts, decision in (1992) 176 CLR 77. the Hon Barnaby Joyce MP and Senator told him on 18 July 2017 he may have been registered as an Italian citizen in 2006, after the Hon Fiona Nash was ‘a subject or a Ludlam citizen … of a foreign power’ at the time she had applied for Italian citizenship, he of their nominations for the 2016 federal Ludlam was born in New Zealand in 1970, contacted the Italian consulate and was told election, and were therefore incapable of at which time he became a New Zealand that he had been registered as an ‘Italian being chosen or of sitting as a senator or a citizen by birth. He and his family moved citizen abroad’ in 2006. He then took steps member of the House of Representatives by to Australia in 1978. The Court received to renounce his Italian citizenship, which reason of s 44(i) of the Constitution. a report from a New Zealand barrister, took effect on 8 August 2017. which stated that New Zealand law made Section 44(i) of the Constitution states that: him a citizen at birth, and that he may only A report by two Italian lawyers submitted lose his citizenship by renouncing it or by to the Court stated that Canavan’s status Any person who is under any ministerial order, and the naturalisation as an Italian citizen would depend not on acknowledgment of allegiance, ceremony did not constitute renouncement. his mother’s application but his maternal obedience, or adherence to a foreign Consequently, Ludlam still held NZ grandmother’s, because at the time of his power, or is a subject or a citizen or citizenship at the time of his nomination and mother’s birth, his grandmother had not entitled to the rights or privileges of a was thus incapable of being chosen. yet renounced her Italian citizenship, and, subject or a citizen of a foreign power following a 1983 Italian Constitutional shall be incapable of being chosen or Waters Court decision, Canavan became an Italian of sitting as a senator or a member of citizen ‘retroactively’ through the maternal the House of Representatives. Waters was born in Canada in 1977 to line, which was not broken by his mother’s two Australian parents. She became marriage to an Australian. Nonetheless, The central legal issue raised by each of the an Australian citizen by descent and a the report also stated that registration as references is the construction of the phrase Canadian citizen by reason of the place of a citizen is a ‘separate and more rigorous ‘is a subject or a citizen ... of a foreign power’ her birth. Waters’ parents, together with process’, and that Canavan’s mother’s in s 44(i) of the Constitution. Waters, moved to Australia when she was application for registration was made 11 months old. The Court received a report in her own interest: the registration of The Court took a literalistic approach, and by a practising Canadian lawyer which Canavan and his siblings occurred at the held that section 44(i) should be interpreted indicated that Canadian law at the time of consulate’s initiative. Registration is distinct based on its ordinary textual meaning, Waters’s birth was that a person born in from a declaration of Italian citizenship, subject only to the implicit qualification Canada is a natural-born Canadian citizen, and further administrative steps must be in s 44(i) that the foreign law conferring and that that status could only be affected taken to activate the ‘potential’ right of foreign citizenship must be consistent with by renunciation. Consequently, at the time citizenship, which Canavan had not sought. the constitutional imperative underlying Electoral Regulation Research Network newsletter - April 2018 17 The Court held that this evidence could Nick Xenophon was born in South Australia vacancy should be filled by a special count not establish that Canavan was a citizen of on 29 January 1959. At the time of his birth, of the ballot papers. The candidate by the Italy, and the report suggested he was not: he became an Australian citizen, and a special count to be entitled to be elected consequently, the Court held that Canavan citizen of the United Kingdom and Colonies in place of Nash was to be Hollie Hughes. was not disqualified by virtue of section by descent. He acquired that latter status The Attorney-General sought an order that 44(i). because his father was born in Cyprus Hughes be declared duly elected for that when it was a British colony, and his father place. Joyce thereby became a British subject and later a citizen of the United Kingdom and Colonies. However, the High Court unanimously held Barnaby Joyce was born in Australia in He passed that status to Senator Xenophon that Hughes was ineligible to be declared 1967 to an Australian mother and a New when he was born, and Senator Xenophon elected, because she took a part-time Zealander father, who in 1978 became a subsequently became a British Overseas position in the Administrative Appeals naturalised Australian citizen, which Joyce Citizen by force of section 26 of the British Tribunals (an ‘office of profit under the understood meant that at that point his Nationality Act 1981 (UK). Crown’) during the 15 months that ineligible father had become solely an Australian dual citizen Fiona Nash purported to take citizen. After reports that he might be a The Court held that British Overseas her spot in the Senate. dual citizen, in August 2017 Joyce met with Citizen (BOC) status is a residuary form of the New Zealand High Commissioner, who nationality, differing from full citizenship Section 44(iv) of the Constitution states that: stated that he was a citizen of New Zealand in two significant ways. First, BOC status Any person who holds any office of by descent. The Court held that Joyce was does not include the right of abode in the profit under the Crown, or any pension a citizen of New Zealand up and until his UK, a central characteristic of a ‘national’ payable during the pleasure of the renunciation, and his citizenship by descent under international law, which means Crown out of any of the revenues of did not depend on registration or any other Xenophon cannot enter the UK without the Commonwealth shall be incapable formality. Joyce’s father’s renunciation satisfying the requirements of immigration of being chosen or of sitting as a operated prospectively and only in relation control. Second, it does not require a senator or a member of the House of to his own status: it did not affect Joyce’s pledge of loyalty to the United Kingdom Representatives. status. Consequently, Joyce was ineligible or its monarch. The Court thus held that to be chosen as a member of the House of Xenophon was neither a subject nor citizen There was no doubt that an appointment Representative of the UK nor entitled to the rights and to the AAT constituted an ‘office of profit privileges of a subject or citizen of the UK, under the Crown’. The major issue was Roberts and was thus validly elected. However, this whether holding that disqualifying office Roberts was born in India to a Welsh father was moot as Xenophon had resigned from during the discrete period between 1 July and Australian mother in 1955, registered in federal Parliament to run for a seat in the and 27 October 2017 was enough to render the High Commissioner’s Record of Citizens South Australian parliament, but did not Hughes ‘incapable of being chosen’ as a of the United Kingdom and Colonies, and succeed in being elected. senator in the election at which Nash had later moved to Australia and was naturalised been returned. in 1974. Keane J in Re Roberts [2017] HCA Outcome The Court held that the position held by 39 found that Roberts was a citizen of the The Court thus held that Ludlam, Waters, Hughes rendered her ‘incapable of being United Kingdom by descent at the time of Roberts, Joyce and Nash were disqualified chosen’ under s 44(iv). The Court ruled his nomination for election as a senator, by reason of s 44(i). Neither Canavan nor that it is the Electoral Act 1918 (Cth) which and that Roberts knew there was a real and Xenophon was found to be a citizen of a establishes the structure by which the substantial prospect that prior to May 1974 foreign power, or entitled to the rights or choice by the people is to be made and the he had been and remained a UK citizen, privileges of a citizen of a foreign power, processes established by the Act do not end which ceased only on his renunciation in within the meaning of s 44(i), and therefore with polling. They are brought to an end December 2016. Consequently, Roberts was neither was disqualified. ineligible to be chosen. only with the declaration of the result of the In the matters of Nash, Roberts, Waters and election and of the names of the candidates Nash Ludlam, the Court ordered that the Senate elected and they are not completed when vacancies created by their ineligibility an unqualified candidate is returned. Fiona Nash was born in New South Wales would be resolved by a special count of on 6 May 1965. At the time of her birth, she The Court dismissed the summons by the the ballots, meaning that, in each case, became an Australian citizen and a citizen Attorney-General to Hughes. This prompted votes cast ‘above the line’ in favour of each of the United Kingdom and Colonies by a further recount by the AEC, and a further candidate’s party will be counted in favour descent. She acquired that latter status summons from the Attorney-General to the of the next candidate on that party’s list. In because her father was born in Scotland next in line, , who was declared the matter of Joyce, it was common ground as a British subject and he subsequently duly elected. between the parties that a by-election became a citizen of the United Kingdom and must be held to elect the member of New Colonies. The Court held that because Nash England. A by-election was held in for the was born outside the UK to a father who was Alley v Gillespie S190/2017 seat of New England in December 2017 and a UK citizen otherwise than by descent, she Barnaby Joyce was re-elected. became a UK citizen by descent at birth; in Since 30 August 2016 the defendant, David 1973 she acquired the right of abode and, Gillespie, has sat as a Member of the House of following the 1983 change, she became Re Nash [No 2] [2017] HCA 52 Representatives. On 7 July 2017 the plaintiff, a British citizen. Consequently, she was Peter Alley, commenced proceedings in the incapable of being chosen by reason of s High Court under the Common Informers As Fiona Nash was disqualified due to s 44(i) 44(i). (Parliamentary Disqualifications) Act 1975 of the Constitution, there was a vacancy in (Cth) (‘the Common Informers Act’), claiming the representation of New South Wales in Xenophon that the defendant was liable to pay the Senate. The High Court ruled that the

Electoral Regulation Research Network newsletter - April 2018 18 penalties under s 3(1) of that Act because Representatives, unless it resolves to refer within the meaning of s 44(iv), and that he was declared by the Constitution to be the matter to the Court of Disputed Returns. Martin was therefore not incapable of being incapable of sitting as a Member of the This answer to Question 1 is determined by chosen or of sitting as a senator by reason of House of Representatives. The basis of the sections 46 and 47, and their relation to s 44 s 44(iv) of the Constitution. claim is that the defendant is disqualified of the Constitution. under s 44(v) of the Constitution due to The joint judgment (Kiefel CJ, Bell, Gageler, having an indirect pecuniary interest in an Section 46 provides that: Keane, Nettle and Gordon JJ) found that the agreement with the public service of the disqualification in s 44(iv) had two distinct Until the Parliament otherwise Commonwealth. aspects. First, the provision operates provides, any person declared by this to disqualify ‘any person who holds any The alleged pecuniary interest stemmed Constitution to be incapable of sitting office of profit to which that person has from Gillespie being a majority shareholder [in Parliament] shall, for every day on been appointed at the will of the executive of a company whose premises was leased in which he so sits, be liable to pay the government of the Commonwealth or of return for rent indirectly to Australia Post. sum of one hundred pounds to any a State’. Second, a person who holds an Gillespie contended that Australia Post is person who sues for it in any court of office of profit to which that person has not a corporate entity that is not a part of the competent jurisdiction’ been appointed at the will of the executive public service of the Commonwealth. He government of the Commonwealth or of a The judges held that Parliament has also challenged the High Court’s power to State will be disqualified ‘if the continued ‘otherwise provided’ by the enactment of impose the penalties under the Common holding of that office or continued profiting the Common Informers Act, which mirrors Informers Act, on the basis that the Court from holding that office is dependent on the liability requirements of section 46. only has such power in respect of a the will of the executive government of the Member of the House of Representatives Section 47 provides that: Commonwealth or of a State’. once a determination has been made that the Member in question is not qualified Until the Parliament otherwise The joint judgment held that the first aspect to sit. Gillespie contended that such a provides, any question respecting did not apply to Mr Martin, as the offices of determination can be made only by the the qualification of a senator mayor and councillor ‘are offices to which House of Representatives, under section or of a member of the House of officeholders are elected’. Mr Martin’s 47 of the Constitution, or by the Court of Representatives, or respecting eligibility thus turned on the second aspect Disputed Returns, upon a reference to it by a vacancy in either House of the of the operation of s 44(iv). The Court held the House of Representatives under section Parliament, and any question of a that the statutory provisions of the Local 376 of the Commonwealth Electoral Act 1918 disputed election to either House, Government Act did not confer on the (Cth). The House had not referred to the shall be determined by the House in executive government of Tasmania effective Court of Disputed Returns any question as which the question arises. control over the holding of or profiting from to Gillespie’s qualification to be a Member the office of mayor or of councillor, and s of the House of Representatives, nor has the The judges noted that Parliament has 44(iv) was therefore not engaged. House made a determination itself. otherwise provided for this through section 376 of the Electoral Act 1918 (Cth), which Re Kakoschke-Moore On 29 September 2017 Bell J referred the enables, but does not require, the House to following questions to the Full Court under refer questions of qualification for election section 18 of the Act 1903 (Cth): to the Court of Disputed Returns. Skye Kakoschke-Moore and Timothy Storer who were third and fourth in the • Can and should the High Court decide Nick Xenophon Team (NXT) order of senate whether the defendant was a person Re Lambie candidates for the 2016 federal election. declared by the Constitution to be Kakoschke-Moore was returned as a incapable of sitting as a Member of On 11 December 2017, Nettle J, sitting as the senator for the State of South Australia after the House of Representatives for the Court of Disputed Returns, found that Jacqui the election. Upon subsequently becoming Common purposes of section 3 of the Lambie was disqualified by reason of s 44(i). aware that she held United Kingdom Informers Act ? His Honour ordered that a special count citizenship by descent, Kakoschke-Moore submitted her resignation as a senator. On • If the answer to question 1 is yes, is be conducted to determine the candidate 30 November 2017 she renounced her United it the policy of the law that the High entitled to be elected in her place. Kingdom citizenship, with that renunciation Court should not issue subpoenas in Following Lambie’s resignation, the issue taking effect on 6 December 2017. this proceeding directed to a forensic arose of the eligibility of Steven Martin purpose of assisting the plaintiff in who, following a special count of the ballot On 24 January 2018, Nettle J declared his attempt to demonstrate that the papers, was chosen to fill Lambie’s Senate that Kakoschke-Moore was incapable defendant was a person declared by vacancy. At the time of his nomination for of being chosen or sitting by reason of s the Constitution to be incapable of the Senate, Martin was Mayor and councillor 44(i). The issue arose of how to determine sitting as a Member of the House of of Devonport, which gave him a statutory the candidate to be elected in her place. Representatives for the purposes of s 3 entitlement to be paid a substantial annual Timothy Storer had been nominated as the of the Common Informers Act? allowance by the Council. This gave rise to a fourth of the four NXT candidates at the election, but was not returned as a senator. The Court unanimously answered Question possible disqualification under s 44(iv), the Storer remained a member of the NXT until 1 ‘no’, and consequently it was not necessary prohibition on holding an ‘office of profit 3 November 2017, when he was purportedly to answer Question 2. under the Crown’. The issue was whether Martin was incapable of being chosen or of expelled as a member. He then formally The joint judges (Kiefel CJ, Bell, Keane sitting as a senator due to section 44(iv). resigned as a member on 6 November 2017. and Edelman JJ) held that whether the In a unanimous judgment, the High Court defendant is incapable of sitting as an MP is The Court unanimously held that the offices held that because Kakoschke-Moore was a question to be determined by the House of of mayor and of councillor held by Martin were not offices of profit ‘under the Crown’ incapable of being chosen at the election Electoral Regulation Research Network newsletter - April 2018 19 held on 2 July 2016, she was incapable there was a possibility of her having British Rose Iser, a candidate for Myrnong Ward, of being chosen by the special count, citizenship, Gallagher applied to renounce applied to the MET for the election to be the purpose of which is to complete that her British citizenship by submitting declared void on the basis that Benjamin electoral process. the prescribed form and accompanying Smits, another unsuccessful candidate, documents to the UK Home Office. Her was ineligible to nominate, because he was The Court found that the vacancy left by renunciation was not registered by the not qualified to be enrolled at his enrolled Kakoshcke-Moore should be filled by a UK Home Office until 16 August 2016. The address. The MET refined the nature of Iser’s special count of the votes cast on 2 July Court was asked whether she was under submission, and found that Smits was not 2016. The judges held that Storer should the disability of s 44(i) of the Constitution by eligible to nominate as a candidate because not be excluded from the special count, remaining a British citizen at the time of her he was not enrolled in the Myrnong Ward. as there was nothing requiring an elected nomination and her subsequent election. person to remain affiliated with the party The Electoral Commissioner was not that endorsed them before the election. The Gallagher submitted that by no later than satisfied that the MET had correctly Court held that the voters who cast their 6 May 2016, she had taken every step that, interpreted and applied the relevant votes above the line for NXT at the July 2016 as a matter of British law, was sufficient sections of the Local Government Act 1989 election must be taken to have intended for her renunciation to be effective. As (the Act), and applied to VCAT to review that their votes should, if sufficient, elect this date was prior to writs being issued or the MET decision. VCAT upheld the MET Storer. nominations closing, it was argued that decision. the ‘constitutional imperative’ from Re Canavan (that an Australian citizen not be Considering the significant consequences Re Feeney irremediably prevented by foreign law from for the conduct of local government This case concerned a referral to the High participation in representative government) elections, the VEC applied to the Supreme Court sitting as the Court of Disputed was engaged. Alternatively, it was argued Court for permission to appeal VCAT’s Returns in respect of David Feeney, the that if British law required Senator Gallagher decision. The appeal was heard by Justice (former) Labor member for Batman. to take the further steps of providing the Garde, who delivered his judgment on 21 Feeney’s father was born in Northern additional document requested by the December 2017. Ireland, raising the issue of whether he British Secretary, these were not steps that Justice Garde found that there were three was a dual British citizen, and therefore were reasonably required by British law. main issues in the case: disqualified under s 44(i) of the Constitution. The Attorney-General submitted that under • Was Smits entitled to be enrolled on Mr Feeney failed to provide documentation the Court’s reasoning in Re Canavan, ‘the the register of electors at his enrolled evidencing his renunciation of British exception is not engaged by foreign laws address in Mirams Street, Ascot Vale? citizenship. After his case had been referred that make renunciation difficult, but only by to the Court, Mr Feeney resigned on 1 foreign laws that make it impossible, or not Smits had been enrolled at Mirams February 2018. reasonably possible, to renounce foreign Street since 2014, but lived on Mt citizenship’. Alexander Road (without updating On 23 February 2018, Kiefel CJ, sitting as his enrolment) before returning to the Court of Disputed Returns, made orders The High Court has yet to hand down its Mirams Street on 30 July 2016, less that Feeney’s place had become vacant by judgment in the matter. than a month before entitlement reason of s 44(i), and should be filled by a date on 26 August. Iser argued that by-election for the election of the Member Cases arising from 2016 the timing of his return made him for Batman. The by-election was held on Victorian local government ineligible to be enrolled at Mirams 17 March 2018 and was won by Labor’s Ged elections Road (and therefore to nominate as Kearney. a candidate), because the Electoral Two cases discussed in the October 2107 Act 2002 provides that a person must newsletter were concluded in November- live at an address for a month before Re Gallagher December 2017. In both cases, the Municipal being eligible to enrol for that address. The issue before the High Court, sitting as Electoral Tribunal (MET) first overturned However, Justice Garde found that Mr the Court of Disputed Returns, was whether a council election result following an Smits was enrolled for Mirams Road Senator Katy Gallagher was incapable application from an unsuccessful candidate, throughout the period 2014-2016, of being chosen as a senator at the 2016 and the Victorian Electoral Commission and so was entitled to nominate as a federal election by reason of s 44(i) of the (VEC) then applied for review of the MET’s candidate. Constitution. decision. The Supreme Court in one case, and the Victorian Civil and Administrative • Are the entries on the register of Gallagher was sworn in as a senator for the Tribunal (VCAT) in the other, have overturned electors conclusive? Australian Capital Territory on 26 March the MET’s decisions, restoring the original 2015, filling a vacancy left by the resignation result of the election. The outcome has Justice Garde observed that in State of Senator . Following clarified the qualifications of candidates election cases, the Court of Disputed nomination on 31 May 2016, Gallagher was and grounds on which election results can Returns must not inquire into the returned as a senator for the ACT after the be challenged. correctness of any electoral roll or the election held on 2 July register of electors, and concluded 2016. Gallagher was born in Australia in 1970 that the roll for the 2016 Myrnong Ward and has been an Australian citizen from Moonee Valley City Council Myrnong Ward election. election (which included Smits) was birth. Unbeknown to Gallagher, at the time conclusive. of her birth she had acquired the status of a Victorian Electoral Commission citizen of the United Kingdom and colonies v Municipal Electoral Tribunal • Can a candidate nominate for election by descent. and Rose Mary Iser [2017] VSC for a ward other than the one in which 791 the candidate resides? On 20 April 2016, having become aware that

Electoral Regulation Research Network newsletter - April 2018 20 Justice Garde found that that the Local outcome of the election was affected in it could never have been intended that Government Act clearly provided that that the election could not be said to have the notice was meant to give a detailed a candidate was entitled to stand for resulted in a free and fair election of the and comprehensive description of the full any ward in the municipal district, not candidates preferred by the majority of enrolment application process to every just the ward in which the candidate voters. Consequently, the MET declared the category of voter. What the notice did was lived. election void and ordered a further election to inform every category of voter how they for Koonung Ward. could apply to enrol, and as such the notice Therefore, Justice Garde overturned the fulfilled the requirements of the Act. There MET decision, finding that Smits was Believing that the notice complied with was no evidence from the enrolment period legitimately enrolled at the Mirams Street the Act and did not actively mislead any of any individual being misinformed by the address for the 2016 Moonee Valley City person, the VEC applied to VCAT for review council about enrolment. Council election, and was entitled to stand of the MET’s decision. On 27 November 2017 as a candidate for any ward in that election. the Deputy President of VCAT set aside the MET’s decision.

Manningham City Council The Deputy President first dealt with the Koonung Ward election. scope of the decision. Yee contended Victorian Electoral Commission that VCAT should declare the election v Municipal Electoral Tribunal void for the other two wards in the City of Z485/2017 Manningham, arguing that, as a candidate Stella Yee, a candidate for Koonung Ward in the City of Manningham, she was eligible in the Manningham City Council elections, to make such an application. However, the applied to the MET for the election to be Deputy President disallowed this change, declared void on the basis that the Council pointing out that the election under review had not properly informed non-citizen was solely that for Koonung Ward. owner occupiers of their eligibility to apply The Deputy President then analysed each to be enrolled in the election. The MET found element of the VEC’s notice, concluding that the VEC’s statutory notice of entitlement that the notice complied in every respect (which appeared in the Manningham Leader with the Act and provided residents and and in ) had failed to properly inform, ratepayers with the information they or may have actively misled, non-citizen needed concerning enrolment. The Deputy resident ratepayers as to their eligibility to President observed that the amount of be enrolled to vote, that such voters were information required to be covered in effectively prevented from voting, and the notice was potentially vast, and that that on the balance of probabilities the

Image credit: Voting, Amanda Wood, Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0), Flickr

Electoral Regulation Research Network newsletter - April 2018 21 Contact Us

Electoral Regulation Research Network Newsletter Team

Melbourne Law School Nathaniel Reader

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