October 2019 newsletter Electoral Regulation Research Network Contents 3 Director’s Message 4 Electoral News 7 Forthcoming Events 8 Event Reports 9 Publications 13 Case Notes Spence v State of Queensland Palmer v Australian Electoral Commission [2019] HCA 24 Setka v Carroll [VSC 571 Yates v Frydenberg De Santis v Staley and Victorian Electoral Commission Director’s Message There is a diversity of electoral systems the workshop, I was struck firstly how, countries where the level of knowledge is worldwide. Each electoral system has despite all these differences, there is low. A critical example here is Australia’s its distinctive peculiarities – Australia a common moral vocabulary when it largest neighbour, Indonesia, with ERRN is no different. It is among a dozen came to understanding and evaluating having held a number of events on or so countries that have an effective elections, much of which loosely comes Indonesian elections. compulsory voting system; its preferential under the rubric of free and fair elections. system is very much unique. The challenges commonly experienced by Second, embrace the unfamiliar. The these two countries were also apparent usual comparator countries are Canada, Such diversity is not necessarily a with three specifically noteworthy: United Kingdom and the United States. problem from the perspective of political participation and representation This focus on the Anglo-Saxon sphere democratic government. As High Court by marginalised communities; ‘fake news’ (which curiously often omits New Justice Dawson recognized in McGinty v and digital campaigning; and money in Zealand) is manifestly narrow. And it is Western Australia, ‘(t)here are hundreds politics. not clearly a focus that will necessarily be of electoral systems in existence today productive of the most insight; it is moot by which a form of representative The other event is the upcoming ERRN whether a comparison between Australia government might be achieved’. The UN Biennial Workshop which is being and the United States as opposed to one Human Rights Committee has similarly superbly organised by Professor Lisa Hill between Australia and India will generate observed in relation to Article 25 of and Dr Jonathon Louth. Separately by more advances in knowledge. Cultural the International Covenant of Civil and design, the workshop will examine the familiarity can sometimes hinder the Political Rights which requires ‘genuine topics arising from the Delhi workshop pursuit of knowledge. An important task periodic elections . guaranteeing the with a focus on Australia. Its central theme for ERRN will be to extend comparative free expression of the will of the electors’ will be the inclusion of marginalised research beyond the comfort zone of the that it ‘does not impose any particular communities with dedicated sessions Anglo-Saxon countries. electoral system’. on voting and homelessness; supporting those with intellectual disabilities; Professor Joo-Cheong Tham, Such diversity makes the task of dealing with the challenges of remote Melbourne Law School comparison inherently difficult. Indeed, communities; and importantly, enhancing some might conclude that there is very participation by Indigenous communities. little utility in comparative studies of Alongside there is a separate session on electoral regulation. ‘‘Big Money, Social Media and Elections: Disinformation, Interference and Two events in ERRN’s suite of activities Distortion’. In all these sessions, speakers have provided a counter-point to such will be drawing upon international a perspective. The first was the August experience whilst being firmly grounded workshop organized by the Melbourne in the Australian context. School of Government in New Delhi, India on ‘The Future of Electoral Democracy This message is obviously not the place in India and Australia’, the proceedings to provide a systematic approach on of which have been published jointly comparing the regulation of elections by ERRN and the School of Government of different countries. Two precepts are, (see page ??0. The differences between however, worth emphasising. First, seek Australia and India are obvious to understand. A basic task is to gain a and significant not least in terms of sound understanding of the countries scale; ethnic, cultural and religious being compared. Here ERRN can play an heterogeneity; and level of economic important role especially in providing development. Yet having participated in resources on the electoral systems of Electoral Regulation Research Network newsletter - October 2019 3 Electoral News Electoral News There were also a number of electoral donation was attributed to multiple regulation controversies during the ‘straw donors’ at a Labor fundraising campaign. In the Victoria, Chinese- dinner. The hearings, still on-going, have language signs in the colour-scheme of already claimed NSW general secretary, the AEC, advising electors that a formal Kaila Murnain, who was suspended vote required a ‘1’ next to the Liberal from her role following her testimony candidate, are now subject of a legal to the Commission, claiming she was challenge — see this edition’s Case Notes. instructed by a party lawyer to cover up The AEC also investigated a large number the donation. of campaign ads, including 109 social media ads, finding 28 to be in breach The NSW Liberals also seemed to fall foul This year’s federal election on the of the Electoral Act. Some platforms of the state’s developer donations ban, 18th of May produced an upset victory were more co-operative with those with a (significantly smaller) donation for the Coalition. Where all the major investigations than others: Facebook, from property developer Ming Shang polls, including a Nine-Galaxy exit poll previously resistant, was applauded by at a 2015 fundraiser for the then- conducted on the day, had predicted a the AEC for its compliance through the parliamentary secretary for planning, Labor win, the final result saw them suffer 2019 campaign, while emails revealed John Sidoti, being ‘forfeited’ by the party a net loss of one seat, while the Coalition Google dragged the chain in responding last month. won a majority with 77 seats. Twelve seats to requests for information. This and Earlier, in August, the ICAC began a public changed hands overall: Labor gained more is expected to be covered by the inquiry into the regulation of lobbying, Corangamite (Vic), Dunkley (Vic) and Joint Standing Committee on Electoral access and influence in New South Wales. Gilmore (NSW); the Coalition, Bass (Tas), Matters in its inquiry into the 2019 Over forty submissions to the inquiry, Braddon (Tas), Chisolm (Vic; from Liberal- Federal Election, begun in July, with including from friends of the ERRN, are turned-independent Julia Banks), Lindsay submissions still open at time of writing. now available online. A key discussion (NSW), Herbert (QLD), Longman (QLD) The Committee is due to report at the end paper circulated by the Commission, and Wentworth (NSW). Indi (Vic) remained of July 2020. independent, and Warringah (NSW) also by our very own Joo-Cheong Tham and opted for an independent, unseating Yee-Fui Ng, can be found in this edition’s former Prime Minister, Tony Abbott. Publications section. During the campaign, an unusually Meanwhile, following some concern large number of candidates were dis- about potential coding flaws in the state’s endorsed or resigned as candidates, ten online voting system, the NSW Electoral after the close of nominations. Many of Commission published the full iVote these campaign casualties came after source code for public inspection in July. controversial social media posts were un-earthed, but a number of candidates also managed to encounter citizenship problems, despite all the recent attention on Section 44 of the Constitution. After the Hearings for a high-profile ICAC election, Treasurer Josh Frydenberg, had investigation into donations to NSW his eligibility challenged on citizenship Labor took place through September. grounds — that case is on-going. The Investigators alleged that an illegal election result also led to at least two $100,000 donation was made to Labor parties formally de-registering: Cory in 2015 by Huang Xiangmo, a property Bernardi’s Australian Conservatives and developer and billionaire with links to the Rise Up Australia. Chinese Communist Party. They alleged Electoral Regulation Research Network newsletter - October 2019 4 rousing electors from their slumber, and promised to investigate how the error occurred, but appeared to stop short of supporting a ban on the practice. South Australia also achieved a national- first since our last newsletter: in September, former deputy mayor of the City of Marion, Luke Hutchison, pleaded guilty to two counts of publishing election material without a name or In June the Victorian Parliament’s Our last edition noted an up-coming address affixed. This was, according to Electoral Matters Committee commenced court challenge to the State counsel for the South Australian Electoral its inquiry into the 2018 State Election, Government’s ban on developer Commission, the first time a prosecution with submissions closing in August. donations. Shortly after publication in has been brought over anonymous At writing, hearings were yet to be April, the High Court upheld the ban leafletting anywhere in Australia. scheduled. A final report is due by June — see this edition’s Case Notes for details. 2020. In July, it emerged that the LNP would allow developers to