May 2021 newsletter

Electoral Regulation Research Network Contents

3 Director’s Message 4 Electoral News 7 Event Reports 8 Forthcoming Events 9 Publications

10 Case Notes The Australian Institute for Progress Ltd v The Electoral Commission of Johnston v The Greens NSW Incorporated Petersen v Nolan Fry v Victorian Electoral Commission Matthew Harris, State Director of the National Party of – v Victorian Electoral Commission ERRN Director’s Message: May 2021

A year ago when I was writing my message As the events indicate, ERRN activities ERRN will also continue to provide key for the first ERRN newsletter for 2020, deal with a mix of contemporary electoral research resources. The Electoral Law Victoria was in the middle of its first lock- events and broader developments and Library hosted by AUSTLii continues to down; the 2020 plan for ERRN activities, challenges for Australia’s democracy. provide legal resources on Australian devised in pre-pandemic days, was Forthcoming events show a similar electoral law. The working paper abandoned and I can say with all honesty character. The Western Australian chapter series will continue with a forthcoming that I was not certain whether ERRN will be having a seminar on early voting paper on regulating truth in political would be in a position to organize its usual in the 2021 Western Australian State advertisements. Early this year, ERRN number of activities. As it turned out, the Elections whilst the Victorian chapter will released an important report by Dr Yee-Fui and dedication of the ERRN organise an event on the 2021 Victorian Ng (Monash University) on Regulating convenors shone through and ERRN held 10 local government elections. Broader Money in Democracy: Australia’s Political events online, a number of them securing issues being tackled by ERRN seminars Finance Laws Across The Federation - the unprecedented levels of attendance. include: the female gender cap amongst report is the most complete overview of candidates for federal seats (Queensland contemporary Australian political finance The 2020 experience has contributed to chapter); political finance (Tasmanian laws to date. And of course, there is the ERRN striking a steady beat in 2021. As I chapter); reform of the Commonwealth ERRN newsletters which are one of its kind write this message, four highly successful House of Representatives (ACT chapter); in providing comprehensive coverage of (online) events have already been held: voting according to age cohorts (Victorian electoral law developments and cases. the Western Australian chapter has held chapter); and understanding and reducing two events, one on the recent Western informal voting (South Australian chapter). Professor Joo-Cheong Tham, Australian State Elections and another (in Melbourne Law School conjunction with the Australia and New There will also be international Zealand School of Government) on the perspectives examined. The ACT chapter struggle for integrity with money in politics; will hold an event examining primary the Queensland chapter has held a seminar elections in Australia and the . on ‘Data-Driven Campaigning, Electoral I will be leading a project that will provide Regulation & Australian Democracy’ based a study of digital campaigning and political on a book by Dr Glenn Kefford (University finance in the Asia and the Pacific region, of Queensland); and a seminar has also be a project undertaken in collaboration with held by the South Australian chapter on the International Institute for Democracy ‘Towards a Workable Legal Regime for Truth and Electoral Assistance (International in Political Advertising’. IDEA), an intergovernmental organisation dedicated to promoting sustainable democracy.

Electoral Regulation Research Network newsletter - May 2021 3 Electoral News

News April-October 2020

In other news, the Joint Standing COMMONWEALTH Committee on Electoral Matters published its report on the 2019 Federal Election. It noted that 2019 saw the most complete electoral roll and best turnout in the history of the nation. It also called for significant electoral reforms, including optional preferential voting and robson rotation for elections, expanded voter-ID requirements, and tighter limits on early voting. JSCEM has since moved In December 2020, electors in the on to inquiries into the administration of Early voting for the Upper By- Queensland seat of Groom attended the elections during emergencies (such as a Election was underway at time of writing. polls to vote for a replacement for the global pandemic) (due to report in July) and The election, triggered by the resignation former Minister John into the operation of the Commonwealth’s of Nationals MP Michael Johnson, saw a McVeigh, who resigned to care for his ill foreign donations ban (to report end of this crowded field of candidates: the Greens, wife. The Liberal-Nationals retained the month). One Nation, the Liberal Democrats, the seat, with Garth Hamilton comfortably Shooters, Fishers and Farmers Party, Labor elected. Also in December, the question Finally, the Australian Electoral and the Nationals all nominated, alongside of representation in Commission was busy at time of writing three independents. Polling Day is the 22nd the lower house — flagged last newsletter with an investigation into the many and of May. — was resolved, with the Government various social media accounts of Andrew legislating to keep the Territory’s two seats. Laming, Liberal MHR for Bowman. In Earlier, in October, the state’s Joint Seat numbers in other states were also March, reported that Standing Committee on Electoral under review, by way of redistributions. Laming had set up dozens of Matters published its report on the March saw publication of draft plans for accounts, some masquerading as news conduct of the 2019 state election. It and Victoria. In the case pages and community groups, to promote recommended a shortening of the early of the former, the Liberal seat of Stirling was political content. If found to be in breach voting period and the exemption of travel set for abolition, with significant changes to of authorisation rules, it would be the and accommodation from campaign Christian Porter’s seat of Pearce. In Victoria, first application of stronger penalties expenditure caps, amongst many smaller there will be some small suburb-swaps established by reforms passed after the recommendations. It steered away from that could umake for closer contests next 2016 election. proposals for a short-form Legislative election, but the biggest changes were to Council ballot, which would have given the surf coast seat of Corangamite, to be electors voting above-the-line a simplified renamed Tucker, and shifted to be more ballot paper; and from the expansion of centred on Geelong, while a new seat, the iVote online voting system. It also Hawke, will be created to cover suburbs on recommended the state’s status quo the western fringe of Melbourne. continue for third-party expenditure caps, and went in the opposite direction to the federal JSCEM with regards to voter ID, recommending that no ID be required to vote in NSW elections.

Electoral Regulation Research Network newsletter - May 2021 4 JSCEM also joined the chorus of voices Meanwhile, the state parliament’s electoral back to the incumbent, Margaret Strelow, calling for additional funding for the matters committee has been carrying but an investigation by the Councillor New South Wales Electoral Commission out an inquiry into the influence of social Conduct Tribunal found her guilty of (reported on last newsletter). In March media. Hearings, which included evidence misconduct, resulting in her resignation it emerged that funding levels would from major platforms, like Facebook, that November. Under Queensland’s rules, be headed in the other direction, with focused on disinformation and the the mayoralty defaulted to the runner- the Government planning $4.45 million possibility of introducing truth in political up from the original elections — one in cuts to the electoral commission advertising laws. Chris “Pineapple” Hooper, an anti-Adani over the next four years. Cuts were also activist and self-described ‘ratbag’. Alas planned for the Independent Commission This came as the parliament considered Pineapple’s reign never quite materialised: against Corruption ($3.4 million), the a reform to ban preference harvesting by the state government retrospectively Law Enforcement Conduct Commission way of a bill presented by Reason MLC, amended council election laws to provide ($3.3 million), the NSW Ombudsman Fiona Patten. The Bill would prohibit any for a by-election. Pineapple contested ($3.4 million) and the NSW Audit Office one person being paid by multiple parties the subsequent by-election but lost ($375,000). or candidates to coordinate group ticket handsomely to sitting councillor Tony preferences. The legislative council passed Williams. Finally, the Electoral Districts a first of the bill in November 2020, Redistribution Panel published its draft despite the objections of the “preference electoral boundaries for the state last whisperer” himself, Glenn Druery. November. The safe Labor seat of Lakemba in Sydney’s inner south-west, currently held by frontbencher Jihad QUEENSLAND Dib, was set for the chopping block, while a new seat, Leppington, was proposed for the outer south-west. Several other seats grew closer in terms of two-party-preferred margins. Public hearings were held in late April. In December the Marshall Government quietly withdrew its proposed lobbying laws, going ‘back to the drawing board’ VICTORIA Our last newsletter coincided with early after several elements of the legislation ran voting for the Queensland state elections. into constitutional and practical problems. The subsequent result was a Labor victory, The government was also deprived of its the Palaszczuk Government gaining four parliamentary majority, after an expenses seats. Labor did lose one seat: that of scandal resulted in Fraser Ellis, MLA for Jackie Trad, former treasurer and deputy Narungga, resigning from the Liberal Party. premier, who lost South to the Ellis was charged by the state’s ICAC with Greens. LNP leader Deb Frecklington 23 counts of deception and 78 fraudulent resigned in the aftermath of the elections, claims relating to travel expenses. Fraser As noted in our last newsletter, Victoria the party replacing her with David Crisafulli. was one of several members investigated held elections for 26 local governments During the campaign, Frecklington had by ICAC for misuse of the Parliamentary in October 2020. Beyond the complexities been referred to election regulators by her Country Members Accommodation of running an election in the midst of own party for allegedly raising campaign Allowance the last 12 months. He was also Melbourne’s stage four lockdown, the polls funds from property developers. the second MP to quit the Liberals for the were attended by several controversies crossbench in the last year, joining Sam that ultimately required the intervention Indeed, the ban on developer donations Duluk, who was sacked from the party of the constabulary. In the City of Yarra, was the centre of a another battle — this room in February after being charged police were called the ballot count time between mining magnate Clive with assaulting a fellow parliamentarian after scrutineers objected, vigorously, Palmer and the Queensland Electoral at the start of last year. Finally, the radical to the enforcement of 1.5 m social Commission over whether the former redistribution of seats for the Legislative distancing, which some felt hampered the should be categorised as a developer, and Assembly, noted last newsletter, were transparency of the count. In neighbouring thus prohibited from making donations. finalised in November. Some of the more Moreland, fraud squad detectives arrested The government has repeatedly claimed consequential changes proposed in a Labor-aligned councillor over allegations he should be, and the QEC has referred the the draft report — driven in part by the of vote tampering. This came after a VEC question to the Supreme Court for a ruling. abolition of the must debated ‘fairness investigation discovered 104 Moreland See our case notes section for details. provision’ of the SA constitution (see our electors appeared to vote twice. The last three years of newsletters!) — were Finally, one last thread to Queensland’s councillor was subsequently released, subsequently undone in the final plan. 2020 Council Elections were resolved in pending further inquiries by police, and Still, there are some major changes still on February this year with the conclusion of by the Victorian Civil and Administrative the books, especially to some inner-city the Rockhampton Mayoral By-Elections. Tribunal. See this edition’s Case Notes for Adelaide seats, with complex and multi- The original elections almost a year prior more. directional partisan implications. had handed the Rockhampton mayoralty

Electoral Regulation Research Network newsletter - May 2021 5 The election fell before the adoption that these errors did not badly affect any WESTERN AUSTRALIA of long-mooted reforms to political final results.The Electoral Commission donations. As noted in previous published its own report to the Assembly newsletters, a major review of the Electoral on the conduct of the election in late April. Act had been underway for much of the last Amongst other things, it recommended term of government. Some reforms were some tightening of regulations, including legislated in 2019, including the removal steps to prevent political parties using their of ’s election-day reporting federal divisions to circumvent expenditure blackout, but the second volume of the caps, and expressed concerns about its review report, focused on donations, was non-partisan reputation when it came to not released for some time. In February, implementing recently passed truth-in- The state election in March 2021 produced it was finally published, the government political-advertising laws. a landslide for incumbent Mark McGowen, committing to a major overhaul, including Labor winning 13 seats, with 69.7% of the a significant lowering disclosure thresholds two-party-preferred vote. The Liberals on donations, more timely disclosures, NORTHERN TERRITORY were reduced to just two seats, their and a ban on foreign donations. However, leader, Zak Kirkup, losing his seat, and the changes had not been legislated by the party losing official Opposition status the time the parliament was dissolved, to the Nationals. Labor also won a rare meaning the 2021 election proceeds on the majority in WA’s malapportioned upper old, murkier rules. house. Indeed, the Upper House produced several other notable results. Where the The elections also showcased some of Greens won 6.8 percent primary votes but Tasmania’s more idiosyncratic electoral lost three seats, the Legalise Cannabis regulations. Under the state’s Electoral Act, WA Party won two seats, having polled candidates are prohibited from depicting In March, the NT Electoral Commission around 2 percent of the primary vote in any image of their opponents without published its report on compliance with their respective regions, and the Daylight the latter’s consent. This rule tripped the state’s new donation disclosure rules. Savings Party won a seat from an incredible up the Labor Party, which ran campaign While it found broad compliance from both 98 primary votes — thanks to the assistance advertisements featuring the back of a bald parties and associated entities, it did note of aforementioned preference harvester, head, which was found to be sufficiently some teething problems, with inadequate Glenn Druery. The Daylight Savings Party evocative of the bald-headed Premier disclosures and record-keeping hampering will represent some of the areas with the Gutwein to be a breach of the Act. Labor efforts to enforce the new rules. It also weakest support for Daylight Savings, at was required to remove the ads from raised the discrepancy in how the new least according to referendums on the Facebook. regime treat third-party campaigners issue held in 1975, 1985, 1992 and 2009. versus candidates. Where the latter now The result has prompted fresh calls for face spending caps of $40,000 per election, reform to the group voting system in WA, ACT third-party groups have no limit whatever. with the premier reportedly asking the The report notes that this leaves the door state’s Attorney-General to consider broad open for caps to be circumvented. The electoral reform. Gunner Government was yet to respond at time of writing.

TASMANIA

The ACT election was in full swing at time of writing last newsletter. Despite losing two seats, the result was a Labor victory, the Greens winning four seats, and the pair continuing in government for a third term. It was the first Australian Tasmanians had just returned from the election to see a majority cast their ballot polls for a state election at time of writing. electronically. In February this year, the Premier Peter Gutwien called the snap poll Legislative Assembly began its inquiry into in March after his government was reduced the conduct of the election, with e-voting a to minority status with the defection of Sue major focus. The counting code was the Hickey from the Liberal Party. The elections source of particular controversy, with a coincided with three periodic upper house report by cybersecurity expert Dr Vanessa elections — for Derwent, Mersey and Teague and mathematician Andrew Windermere. The result was X. Conway determined a range of small errors occurred in the electronic count, concluding it was essentially ‘good luck’

Electoral Regulation Research Network newsletter - May 2021 6 Event reports

ERRN/Stretton Institute/Melbourne ERRN/MSoG/Stretton Institute ERRN WA/ANZOG Webinar School of Government Webinar Webinar ‘The struggle to regulate integrity: money ‘Foreign interference in Australian ‘Towards a workable legal regime for and politics’ elections’ truth in political advertising’ 21 April 2021 2 December 2020 18 March 2021 No one stands for office or enters the public This webinar brought together Professor This Stretton Institute webinar, co-hosted sector promising to undermine integrity, Lisa Hill, Associate Professor Tim Legrand with the Electoral Regulation Research engage in corruption or turn a blind eye to and Dr Melissa-Ellen Dowling to discuss the Network and the Melbourne School wrongdoing - and yet, somehow, scandals threats posed to democratic legitimacy of Government, addressed a serious at the intersection of money, power and and functioning by attempted interference impediment to the democratic ideal of politics are everywhere. in domestic elections by foreign entities. It ‘full, free and fair elections’ in Australia and was then argued that Australia’s processes comparable settings, namely the use of For the many integrity bodies charged with of public engagement are relatively resilient dishonest advertising and disinformation at promoting pro-integrity behaviour and/or due to hybrid analogue-digital processes, election time. regulating its opposite, the usual difficulties which inadvertently safeguard our electoral of speaking truth to power as a regulator system from malign influence. However, The problem of disinformation and are compounded when the highest levels research findings also indicate that several non-transparent campaigning practices of politics or the bureaucracy are your duty modes of participation remain vulnerable that subvert democratic – and especially holders. at the preference formation and agenda- electoral – processes is a growing one; it What can we all learn from the struggle to setting stages of policy development. This has been significantly compounded by regulate ‘hot potato’ issues like political poses a risk to: (1) social cohesion, and (2) the proliferation of social media and other donations? How do those in charge of the integrity of policy outputs. Dowling online forms of political communication. enforcing painfully crafted rules negotiate and Legrand offered a ground-breaking South Australia has shown itself to be a the traps and pitfalls of their role? assessment framework for this threat leader in the fight to address the problem of truth in political advertising by being the which is transferable to other democratic This webinar was presented in partnership first state in Australia to have this kind of systems internationally. with The Australia and New Zealand School law. Based on s.113 of the S.A. Electoral Act of Government (ANZSOG) and the National Watch the full webinar here. 1985 –with our own refinements – we are Regulators Community of Practice. working towards a legal regime suitable for ERRN WA/John Curtin Institute of adoption in other jurisdictions in Australia A full recording will be available on the Public Policy Webinar and elsewhere. ERRN website. ‘The WA State Election’ This webinar first explores the character 12 March 2021 and effect of disinformation campaigns at election time, after which we canvas Western Australia went to the polls on 13 attempts to regulate them in a range of March. This panel, held on election-eve, established democracies. We then reflect discussed several big questions thrown on potential legal remedies that are not up by the campaign. What impact did the only likely to be effective but publicly ‘concession’ of the Liberal Opposition Leader acceptable and capable of withstanding have? How significant is the Legislative constitutional challenge. Council? What might ‘total control’ mean and should we be worried about it? Watch the full webinar here. A full recording will be available on the ERRN website.

Electoral Regulation Research Network newsletter - May 2021 7 Forthcoming events: demons”. While there have been numerous process in the USA. The opportunity they enquiries and investigations into data- provide to involve party supporters more NSW Electoral Commission Webinar driven campaigning across the globe, our deeply in shaping election outcomes has ‘Election Funding and Disclosure understanding of the way political parties sometimes been viewed favourably in Webinar’ collect and use data and what voters think countries where public disengagement of these practices is extremely limited. In from politics has been seen as a problem. Tuesday 11 May this presentation, Glenn Kefford draws Speaker: TBC on his original research from his recent And yet, in the USA, primary elections are Time: 6:00-7:30pm (AEST) book on data-driven campaigning to increasingly being identified as a major Register here. provide answers to both questions and factor underpinning a dysfunctional polarisation of, or even “sectarianism” This webinar is part of a series being run by demonstrate that there is a significant in, political discourse. This is reflected NSWEC in the lead up to local government disconnect between current campaign in the invention of a new verb - “to be elections in September. This session will practices and Australian voter attitudes primaried” - which describes the potential focus on campaign finance and disclosure towards these practices. fate of incumbent representatives who face requirements for the upcoming poll. While Glenn’s book presentation will be challenges from activists if their political the sessions are pitched at prospective accompanied by the comments of: stances have not adhered sufficiently to a candidates, it may be of interest to ERRN Prof. Juliet Pietsch, Griffith University typically more extreme (left or right) world members following and researching Prof. Graeme Orr, University of Queensland view. campaign finance. Tegan Cohen, PhD Candidate at Queensland University of Technology What then, can be learned from recent ERRN QLD Event US experience? Would primary elections, ‘Date-driven campaigning, electoral Chair: Dr. Ferran Martinez i Coma, ERRN if adopted elsewhere, eventually lead regulation & Australian democracy’ Queensland chapter organizer, Griffith to similar consequences? Or are the Tuesday 18 May University pathologies seen in the US unique to Speaker: Dr Glenn Kefford (UQ) that country, such that primary elections 6:00-8:00pm (AEST) ACT ERRN Webinar held elsewhere could be expected to be Register here. ‘Primary elections in the USA and beneficial to democratic participation? Australia If we are to believe many prominent Keep up with details via the ERRN events Thursday 20 May commentators, data-driven campaigning page. Speaker: Emeritus Prof. John Hart, Prof. and microtargeting are said to not only Anika Gauja, Dr Jill Sheppard be changing election campaigns, but 4:00-5:00pm (AEST) democracy itself. Christopher Wylie, the Register here. Cambridge Analytica whistleblower, told the Guardian, “We exploited Facebook Primary elections, in which voters are given to harvest millions of people’s profiles. the opportunity to determine who will be And built models to exploit what we a party’s candidate at a general election, knew about them and target their inner are a long-standing feature of the electoral

Electoral Regulation Research Network newsletter - May 2021 8 Publications

Ferran Martínez I Coma and Inacio Yee-Fui Ng, 2021. Report for Electoral Yee-Fui Ng & Stephen Gray, 2021. ‘Wars, Lago, ‘”Sacrificial lambs” or candidate Regulation Research Network, ‘Regulating Pandemics and Emergencies: What can mimicking? Gender-based nomination Money in Democracy: Australia’s Political History Tell us about Executive Power and strategies in elections’, Party Politics, Finance Laws across the Federation’ Surveillance in Times of Crisis?’ University of [Published online 17 March 2021: https://law.unimelb.edu.au/centres/errn/ New South Wales Law Journal 44(1): 227-66. https://journals.sagepub.com/doi/ research/research-projects/regulating- full/10.1177/1354068821998235]. money-in-democracy. Marian Sawer, 2021. ‘The concept of the level playing field: assessing fairness in Paul Kildea, ‘The Constitutional Role of Yee-Fui Ng & Chris Draffen, 2020. ‘Foreign electoral competition’, Australian Journal Electoral Management Bodies: The Case of Influence Registration Schemes in Australia of Public Administration 80(1): 29-45. the Australian Electoral Commission’ (2020) and the United States: The Scope, Risks and 48 Federal Law Review 469-482. Limitations of Transparency’ University of For inclusion in November’s newsletter, New South Wales Law Journal 43(4): 1101- send your publications through to our Paul Kildea, AJ Brown and Jacob Deem, 36. newsletter editor, James Murphy: ‘When Should the People Decide?: Public [email protected] Support for Direct Democracy in Australia’ Yee-Fui Ng, 2020. ‘Regulating the (2020) Parliamentary Affairs [Published Influencers: The Evolution of Lobbying online 10 August 2020: http://dx.doi. Regulation in Australia’ Adelaide Law org/10.1093/pa/gsaa019]. Review 41(2): 507-543.

Working Papers:

The Electoral Regulation Research Network academics, electoral commission officials, Working Paper 73 was established in 2012 with the aim of parliamentarians, party officials and others How Does Digital Campaigning Affect the fostering exchange and discussion amongst interested in this field. Problems of Political Finance? academics, electoral commissions and other interested groups on research Working Paper 74 Prof Joo-Cheong Tham relating to electoral regulation. To this Foreign Interference and Australian December 2020 end, the Network will be publishing a Electoral Security in the Digital Era series of working papers – often called ‘discussion papers’ – to help foster Dr. Melissa-Ellen Dowling discussion about all aspects of electoral regulation. These working papers will May 2021 be posted on the Network’s website and circulated to members of the Network. We welcome papers written on all aspects relating to electoral regulation from

Electoral Regulation Research Network newsletter - May 2021 9 Case Notes

Electoral Commissioner of Australian If, due to the discontinuance of this On 25 May 2015, Palmer Leisure Electoral Commission v Anning proceeding, our client will be precluded submitted to the Gold Coast City Council The Australian Electoral Commissioner from bringing a fresh proceeding in a development application in respect of (“AEC”) commenced proceedings against relation to the same alleged conduct, some land. The proposed development Mr William Fraser Anning contending that we will file an affidavit as you suggested had a commercial connotation. Since Mr Anning as agent for Fraser Anning’s and request that this be [sic] proceeding then, Palmer Leisure has on two occasions Conservative National Party failed to make be discontinued with a right of in 2018 submitted notices of change to disclosures to the AEC required under reinstatement within 6 years of the that development application, but the Part XX of the Commonwealth Electoral Act alleged contravention. application itself has not been approved, 1918 (Cth) (the “Act”) in contravention of s and there is no evidence of any other The Federal Court of Australia (“FCA”) 314AB(1) of the Act. relevant planning application made by or refused to give its advice to the AEC on behalf of the corporation. In November 2020 the AEC informed the regarding instituting proceedings against Court that the respondent was residing Mr Anning. The FCA found that it was not In those circumstances, the Electoral overseas, and as a result the respondent a matter for the FCA to provide an advice Commission maintained that Palmer could not be located and the solicitors or advisory opinions to any party about Leisure was a corporation engaged in were unable to effect service of the any matter relating to the proceeding a business that regularly involved the originating application and affidavit. instituted in the Court or in relation to making of relevant planning applications the future or prospective proceeding that connected with residential or commercial In light of this, the AEC applied to might be instituted. development of land, and that the ultimate discontinue the proceedings with leave purpose of these applications was the sale of the Court, with a right of reinstatement Electoral Commission of Queensland v or lease of the land for profit. of the proceeding within 6 years of the Palmer Leisure Australia Pty Ltd alleged contravention on 21 October 2019. On 2 December 2020 the Electoral Palmer Leisure, whilst maintaining the The Court made an order on 16 February Commission of Queensland filed an proposition that it would succeed in 2021 to discontinue the proceedings. originating application seeking a defeating the application on the basis declaration that the respondent, Palmer that the word “regularly” should not be The solicitors of the AEC wrote to the court Leisure Australia Pty Ltd (“Palmer tortured into having a meaning that is asking: Leisure”) was, during the relevant period, far from obvious, denied that this form a property developer within the meaning of proceedings was suitable for dealing “Could you please confirm whether of section 273(2) of the Electoral Act 1992 with the issues raised. It pointed out the AEC will be permitted to file (Qld). that the basis on which the Electoral fresh proceedings in relation to the Commission resisted an apparently obvious same alleged contravention of Mr During that relevant period, Palmer interpretation places particular emphasis William Fraser Anning (so long as Leisure made six gifts to Clive Palmer’s upon the concept of a corporation being those proceedings are competently United . If Palmer Leisure “engaged in a business”. As a result, the instituted) within 6 years of the alleged Australia was a property developer, it question as to whether Palmer Leisure is a contravention. Relevantly, could you would be deemed to be a prohibited donor “property developer” is one that involved please confirm that the discontinuance within the meaning of the Act. a mixture of fact and law. That form of of this proceeding will not preclude our proceedings was not suited to that type of client from bringing a fresh proceeding in enquiry. Palmer Leisure therefore sought relation to the same alleged conduct of Mr Anning.

Electoral Regulation Research Network newsletter - May 2021 10 from the Court, pursuant to r 14 of the further emails to the respondent at that ■ specifying that the document is taken Uniform Civil Procedure Rules, an order that email address and made further attempts to to have been served on the happening the proceeding continue as if started by contact him by telephone and post. Despite of a specified event or at the end of a claim, and subsequent orders as to the filing the AEC making multiple communications specified time. of a statement of claim and defence. with him by letter, mobile phone and The judge was satisfied that the email, the respondent has not provided the respondent was refusing to accept service The Court made the following orders: disclosures required by the Electoral Act or of the originating application and, as a responded to the AEC’s requests. ■ Pursuant to r 14 of the Uniform Civil result, it was not practicable to serve Procedure Rules, the proceeding On 14 August 2020, the AEC sent a letter to the respondent personally. The judge continue as if started by claim; the respondent at his residential address was satisfied on the evidence that the ■ The Electoral Commission of stating that, if he continued to not comply respondent resided at the address, used Queensland is to file a statement of with his obligations under the Electoral the email address; and used the mobile claim within 14 days; and Act, the AEC may seek the imposition of a phone number provided to the AEC. He was satisfied that service by mailing and ■ Palmer Leisure Australia Pty Ltd is civil penalty. hand delivering the originating application to file a defence to the statement of to that address, and by notifying the claim and counterclaim (if any) within In an affidavit, Mr Woodward, a process respondent of service by text message 28 days after the day the statement of server, deposed that he delivered claim is served. the letter of 14 August 2020 to the to the above mobile phone number and respondent’s address and spoke to a email address, would in all probability Australian Electoral Commission v James woman named Yvonne at the address. Mr be effective to bring knowledge of the In 7 December 2020, the AEC filed an Woodward asked whether the respondent proceeding to the respondent. originating application alleging that the lived at the address, to which Yvonne respondent, as a candidate for the House replied that he was not in. Mr Woodward The judge made the Order under rule of Representatives in the 2019 Federal asked whether Yvonne lived at the address 10.24 of the Federal Court Rules 2011 election, failed to make disclosures to and whether she was authorised to accept that personal service of the originating the AEC required under Part XX of the documents on behalf of the respondent, application addressed to the respondent Commonwealth Electoral Act 1918 (Cth) to which Yvonne replied “I can pass it onto be dispensed with and service of the (“Electoral Act”) in contravention of ss him”. Having received no reply to the letter originating application and supporting 304 and 309 of the Electoral Act. The dated 14 August 2020, the AEC issued affidavit on the respondent be effected by: Commissioner sought civil penalties proceedings and engaged Mr Woodward to ■ posting the documents by ordinary effect personal service of the originating against the respondent in respect of the mail addressed to the respondent: contraventions. application on the respondent. Mr Woodward was not able to effect personal ■ by sending a text message addressed The respondent, Christopher Ronald service despite multiple attempts and to the respondent on his mobile James, nominated himself as a candidate confirmation from a neighbour that the number and an email message stating for the House of Representatives in the 2019 respondent resided at that address. that the message has been sent in Federal election by an AEC Nomination accordance with orders made by the Form dated 23 April 2019. In that form, he On 20 January 2021, Mr Woodward called Federal Court of Australia and that disclosed his residential address, e-mail the respondent’s mobile phone number an originating application addressed address and mobile number. The Federal and spoke to him. The respondent to him has been sent by mail and has election occurred on 18 May 2019. confirmed that he resided at the South been left at the address and that the Oakleigh address but said he was “not proceeding has been listed for a case From 6 June 2019, the AEC sent letters to interested in accepting service” of the management hearing at 9.15am on the respondent at the residential address originating application and “will not make Friday 12 March 2021; and stated in his AEC Nomination Form himself available”. The respondent also ■ by placing the documents in an regarding his nomination for the House of said that “the matter was being handled envelope addressed to the respondent Representatives and his requirement to by his legal team due to the fraud and and handing the envelope to a person comply with various obligations under the corruption of the electoral commission”. apparently over the age of 16 years Electoral Act, to which he never responded. apparently residing at the address or, Further letters were sent on 20 June 2019, Rule 10.24 of Federal Court Rules 2011 in the event that no such person is in 22 August 2019 and 17 September 2019. provides as follows: attendance, by placing the envelope in the letter box at the address. On 14 January 2020, the AEC had a If it is not practicable to serve a document ■ Personal service of the originating on a person in a way required by these conversation with the respondent by application on the respondent will be Rules, a party may apply to the Court telephone using the mobile phone number deemed to be effected 7 days after the without notice for an order: stated in his AEC Nomination Form. documents have been posted. Following that conversation, the AEC sent the respondent an email, using the email ■ substituting another method of address stated in his AEC Nomination Form, service; or attaching the letters previously sent to the ■ specifying that, instead of being respondent. The respondent replied to that served, certain steps be taken to bring email notifying the AEC that he had not the document to the attention of the been able to access the attachments to the person; or AEC’s email. From that date, the AEC sent

Electoral Regulation Research Network newsletter - May 2021 11 Electoral Commissioner of Australian The entitlement to vote is determined by s public funding for the three regions (some Electoral Commission v Wharton 128 of the Electoral Act 1992 (ACT). The effect $750,000) to the Liberal Party, which The AEC brought proceedings in respect of of s 128(1) and (2) is that a person who is 18 received nearly all the first-preference votes an alleged breach of ss 304 and 309 of the years old on the day of the poll and “enrolled for the Coalition in these regions. The VEC Commonwealth Electoral Act 1918 (Cth) by for an electorate” is entitled to vote at an informed the parties that the Liberal Party the respondent, Wayne Morris Wharton. The election for the electorate. That means that would not be able to transfer one-third proceeding was filed in October 2020. Since the entitlement to vote is dependent upon of the funding to The Nationals, as this then, on numerous occasions, a process enrolment, which in turn is dependent upon would constitute a political donation, and server engaged by the solicitors for the the entitlement to be enrolled under s 72. donations were capped at $4,000. Commissioner endeavoured to affect service Because the plaintiff was not entitled to be The Liberal and National parties applied on the respondent at an address which, on enrolled for any ACT electorate he was not, to the Supreme Court to overturn the the evidence, is one which can comfortably under s 128, entitled to vote in relation to any VEC’s decision. The case was heard on 14 be concluded as the respondent’s residential such electorate. September 2020. The central question address. Endeavours had also been made Innes v Electoral Commission of considered at the hearing was whether a to contact him via a mobile telephone Queensland (No 1) transfer of some $250,000 from the Liberals number. That mobile telephone number is to The Nationals would be a gift within the one which has, in the past, been a channel of On 21 August 2020, the Court of Disputed terms of the Electoral Act 2002 (Vic) (and communication between the Commissioner Returns heard Mr Innes’ application, thus caught by the $4,000 donation cap) or and the respondent. It had not been possible disputing the election of Mr Jamieson would be “consideration” for the two parties to affect personal service on the respondent. as Mayor of the Sunshine Coast Regional Council on 28 March 2020. Just days after forming a composite group. The judge held that he was satisfied that the hearing, on 24 August 2020, Mr Innes Justice Richards concluded that a payment it is not practical, in terms of r 10.24 of decided to apply to re-open the matter. by the Liberal Party to The Nationals the Federal Court Rules 2011 (Cth), to He so advised the respondents and the would be a payment made for adequate affect personal service of the originating intervenor. He filed his application to consideration in money’s worth and application and supporting documents re-open on 31 August 2020, together with would not constitute a ‘political donation’ on the respondent in a way required by supporting material. within Part 12 of the Electoral Act. The the rules and it was apt to make provision consideration was the fact that under of substituted service, in terms of the The judge dismissed the application. the 2018 Coalition agreement, The orders sought by the Commissioner in the He held that the interests of justice are Nationals agreed to joint tickets with interlocutory application. not served by the Court re-opening the hearing for Mr Innes’ purposes. He the lead candidate in each region being McConell v ACT found that the ECQ behaved fairly in its a Liberal, forgoing first preference votes for their own candidates. The one-third The plaintiff is a resident of the Jervis Bay approach to this matter, and that Mr Innes’ payment to the Nationals had been a Territory. He is on the Commonwealth complaints were unfounded. settled part of the Coalition arrangements electoral roll. He wanted to vote in the Matthew Harris, State Director of the since 2010. Although the Coalition 2020 ACT general election. He has sought National Party of Australia – Victoria agreement was not an enforceable declarations that he is qualified to vote in and Sam McQuestin, State Director contract and the consideration given that election and entitled to be enrolled on of the Liberal Party of Australia by The Nationals did not have an exact the ACT electoral roll. (Victorian Division) v Victorian Electoral monetary value, Justice Richards was The judge found that the plaintiff was Commission satisfied that the consideration was not qualified to vote in that election and On 14 October 2020, Justice Richards gave adequate consideration for the proposed not entitled to be enrolled on the ACT her judgment in a case relating to the payment. Justice Richards rejected the electoral roll. As a consequence, his claim distribution of public funding for the 2018 VEC’s concern that such a finding would for declarations were dismissed. Victorian State election. weaken the effectiveness of Part 12 of the Electoral Act. Following self-government, the first and The VEC distributes public funding to second elections for the ACT Legislative registered political parties, based on The outcome was that the Liberal Party Assembly were carried out in accordance the number of votes they obtain. Since was able to transfer one-third of its public with the Australian Capital Territory the 2010 State election, the Liberal and funding for the three regions to The (Electoral) Act 1988 (Cth). That Act National parties have fielded joint tickets Nationals. expressly excluded persons living in the in three Upper House regions. The VEC has The case has clarified an important aspect JBT from the electoral roll used for the paid two-thirds of the public funding for of Victoria’s public funding and donations purposes of ACT elections: s 9(2)(a). It also these elections to the Liberal Party and scheme. made clear that, for the purposes of that one-third to The Nationals. The Electoral Act, the Division under the Commonwealth Legislation Amendment Act 2018 (Vic) made Electoral Act 1918 (Cth) that included the substantial changes to public funding JBT was to be taken as not including that provisions. After the 2018 State election, territory: s 6. the VEC provided nearly all the Coalition’s

Electoral Regulation Research Network newsletter - May 2021 12 Matters arising from the 2020 local On 5 November 2021, the VEC applied to government elections VCAT for the election to be declared void. The provisions for legal challenges to The 17 candidates for the ward are listed local government elections changed as the respondents to the application. in 2020. Before 2020, persons wishing There have been several directions to challenge an election could apply to hearings, and the VEC has submitted the Municipal Electoral Tribunal, which evidence. sat in the Magistrates’ Court of Victoria The VCAT application has been proceeding and decisions could be reviewed by the in parallel with a separate criminal Victorian Civil and Administrative Tribunal investigation by Victoria Police and the (VCAT). Under the Local Government Local Government Inspectorate. Act 2020 (Vic), VCAT now has original jurisdiction to hear these applications The alleged interference in the election directly. Within 14 days of the declaration is a critical integrity issue. It is potentially of the result of an election, a candidate for the most serious election offence since the that election, 10 persons entitled to vote VEC began conducting local government at that election, or the VEC, may apply elections in 1995 to VCAT for a review of the declaration of the result of an election. VCAT has wide Loddon Shire Council applications powers in conducting a review, including There have been three applications the power to declare an election void, to regarding the Loddon Shire Council declare that any person declared elected election, one by Mr Kenneth Pattinson (an was not duly elected, and to dismiss or unsuccessful candidate for Boort Ward), uphold an application in whole or in part. one by Mr Reginald Holt (an unsuccessful candidate for Wedderburn Ward), and the There were nine applications to VCAT third by 14 voters for Wedderburn Ward. after the October 2020 local government These applications cover similar matters, elections, relating to elections for five and are being heard together by consent of councils. Seven applications were made the parties. The applications relate to the by candidates, one by 14 persons entitled conduct of councillors, including the then- to vote at an election, and one by the VEC. mayor, during the election period, and to Applications related to two fields: the statements in election campaign material VEC’s conduct of the election (for example, published by or on behalf of the successful an alleged lack of an opportunity for a candidates. The elections themselves have candidate to request a recount in the not been directly impugned, and the VEC election for Colac Otway Shire Council); has primarily participated as a ‘friend of and the behaviour of other participants the tribunal’. in the election (for example, electoral Defamation case, Banyule City Council material distributed by a community group in the election for Bayside City In a separate matter, former Banyule Council’s Dendy Ward). councillor Jenny Mulholland and her son David Mulholland Junior sued former Five applications have been withdrawn, mayor and State MP Craig Langdon for leaving four applications still live, as defamation in relation to statements in detailed below. an election leaflet, ‘The Banyule Eye’. The plaintiffs alleged that Mr Langdon was Moreland City Council, North-West Ward responsible for creating and distributing This application arose out of suspected the leaflet. Proceedings in the County interference with the election. On 3 Court have in part related to difficulties in November 2020, the VEC announced obtaining evidentiary materials from Mr that it had discovered what appeared Langdon. to be intentional postal vote tampering. Reconciliation procedures by election staff uncovered a high incidence of multiple returns in North-West Ward. Subsequent checking identified several hundred suspicious returned declarations which did not appear to have been completed by the voter.

The Electoral Commissioner, Warwick Gately, stated that he would lodge an application with VCAT into the election as soon as the result was declared.

Electoral Regulation Research Network newsletter - May 2021 13 Contact Us

Electoral Regulation Research Network

Melbourne Law School The University of Melbourne, VIC 3010 E [email protected] W www.law.unimelb.edu.au/errn

ERRN Convenors & Editors: VIC: ACT Professor Brian Costar, Swinburne University Dr Peter Brent, Swinburne University Dr Yee-Fui Ng, Monash University Michael Maley, Electoral Process Specialist Dr Zim Nwokora, Deakin University Dr Damon Muller, Parliamentary Library Dr Paul Thornton-Smith, Victorian Electoral Commission Jill Sheppard, Australian National University WA: NSW: Dr Martin Drum, University of Notre Dame Rachel McCallum, NSW Electoral Commission Professor Alan Fenna, Curtin University Dr Paul Kildea, University of New South Wales Justin Harbord, WA Electoral Commission Professor Rodney Smith, University of Sydney Professor Sarah Murray, University of Western Australia

QLD: Working Papers Editor Dr Ferran Martinez i Coma, Griffith University Associate Professor Aaron Martin, University of Melbourne

SA/NT: Newsletter Editor Professor Lisa Hill, University of South Australia Dr James Murphy, Swinburne University Dr Jonathon Louth, Flinders University Dr Michaela Spencer, Charles Darwin University Legal Editor Dr Yee-Fui Ng, Monash University TAS: Professor Richard Eccelston, University of Tasmania

Electoral Regulation Research Network newsletter - May 2021 14