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169. Australian Electoral Commission

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169. Australian Electoral Commission AEC SUBMISSION 169 c) Electoral Gommissioner Mr KaiSwoboda InquirySecretary JointStanding Committee on ElectoralMatters ParliamentHouse CANBERRAACT 2600 DearMr Swoboda Inquiry by the Joint StandingCommittee on ElectoralMatters (JSCEM) into the 2007Federal Election. The AustralianElectoral Commission's (AEC) Submission to the Inquiryis enclosed. This Submissiondiscusses, among other things;close of roll provisions,strategies to lift enrolment,proof of identityfor enrolmentand provisionalvoting, the continuingincrease in declarationvoting, postal voting, ordinarypre-poll voting in the homedivision, electronic interaction with the electoralsystem, and legal issues arising from the 2007 election. On 12 March2008 the Senatereferred certain matters relating to fundingand disclosureto the JSCEMfor inquiryand report.The AEC'sobservations in relationto thosematters are set out at AttachmentA. Yourssincerely lanCampbell 20 June2008 West Block Offices POBox 6172 Tel 02 627t 4780 www.aec.gov.au QueenVictoria Terrace Kingston AcI 2604 Fax02 6277 4554 ABN21 l_33285 851 ParkesACT 2600 AttachmentA On 12 March2008, the Senateagreed to thefollowing resolution: l. That the followingmatters be referredto the Joint StandingCommittee on ElectoralMatters for inquiryand report: All aspects of the 2007 Federal election and matters related thereto,with particular reference to: a. the level of donations, income and expenditure received by political parties, associatedentities and third parties at recent local, state and federalelections; b. the extent to whichpolitical fundraising and expenditureby third parties is conductedin concertwith registeredpolitical parties; the take up, by whomand by what groups,of currentprovisions for tax deductibilityfor political donationsas well as other groups with tax deductibility that involve themselves in the political processwithout disclosingthat tax deductiblefunds are being used; d. the provisions of the Act that relate to disclosure and the activitiesof associatedentities, and thirdparties not coveredby the disclosureprovisions; e. the appropriatenessof currentlevels of public fundingprovided politicalparties federalelections; for and candidates'freecontesting f. the availabilityand efficacy of time' provided to political parties in relation to federal elections in print and electronic mediaat local, stateand nationallevels; g. the public funding of candidateswhose eligibilityis questionable before, during and after an election with the view to ensuring public confidencein the public fundingsystem; h. the relationship between public funding and campaign expenditure;and i. the harmonisationof stateand federallaws that relate to political donations,gifts and expenditure. 2. That in conductingthe review the committeeundertake hearings in all capital citiesand majorregional centres and call for submissions. The AEC has not includedany submissionson the matterscovered by items 1(a)to (i)of the aboveresolution for thefollowing reasons. Item 1(a) refersto donationsto localand stateelections. Such mattersare not covered by the CommonwealthElectoral Act 1918 (ElectoralAct). The ElectoralAct does not coverany donationsmade that relateto candidatesin electionsother than federalelections. This positionis made clear by the requirementsof subsection304(5) which exclude from the existingdisclosure regimegifts made to a candidatethat are not used"solely or substantially''fol the purposesof a federal election.Further, the annual disclosureof expenditurein PartXX of the ElectoralAct is on an annualfinancial year basis and not an electionbasis. The informationand returnsfor the periodthat incfudedthe November2007 election will thereforeonly arisefor the period endingon 30 June2008 for the 2007/08financial year. The time periodfor the disclosureto the AEC of incomeand expenditureby registeredpolitical partiesfor the 2007108financial year does not arise for 16 weeksafter the end of the financialyear (see subsection314A8(1)). The time periodfor the disclosureto the AEC of expenditureincurred by associatedentities for the 2007108financial year does not arise for 16 weeks after the end of the financialyear (see subsection 314AEA(1)). The time period for the disclosure to the AEC of expenditureincurred by third partiesfor the 2007108financial year does not arise tor 20 weeks after the end of the financialyear (see subsection314AEB(3)). The AECalso notes that the candidates'returns for the November2007 election have been receivedin accordancewith section 309 of the ElectoralAct (15 weeksafter polling day - see subsections309(2) and (3)). However,subsection 309(1) specificallyexcludes from these electionreturns electoral expenditure incurred during the electionperiod by registeredpolitical parties. Accordingly,as none of the abovetime periodsfor the lodgingof returnsby the above entitiesand personshave elapsed,the AEC has no returnsor informationin its possessionon donations,income and expenditurefor registeredpolitical parties that relateto the November2007 election. Item 1(b) refersto third partiesand the incurringof expenditure.Again becausethe disclosureperiod in subsection314AEB(3) of the ElectoralAct has not expired,the AEC has no informationin its possessionthat would enableit to respondto the Committee. Item 1(c) refersto the tax deductabilityof donations. The laws relatingto incometax are not administeredby the AEC. Accordingly,the AEC is unable to provideany input or commentson thisissue. Item 1(d)the AEC is not clearabout the scopeof this itemand what other activitiesof associatedentities and thirdparties are withinthe purviewof the Committee.The AEC notesthat the presentprovisions contained in sections 314AEA and 314AEBdirectly link the disclosureregime to federalelections and therebyensures that such provisionsfall withinthe Commonwealth's constitutionalpowers. The expenditurethat relatesto activitiesthat can reasonablybe connectedwith a federalelection are currentlycovered by theseprovisions. ftem1(e) refers to electionfunding payable under section 299 of the Electoral Act. The currentlevels of electionfunding have been set by section294 and indexedby section321 of the ElectoralAct since1995. The originalpolicy behindelection funding was set out in the secondreading speech of the then Special Minister of State for the CommonwealthElectoral Legislation AmendmentBitt 1983(see Houseof RepresentativeHansard 2 November 1983page 2215). That policyhad severalaspects including creating a equal opportunityfor all partiesand candidatesto presenttheir policiesto the electorateand to decreasethe dependenceon privatedonations with the associatedrisks of possiblecorruption. Given the increasingreliance that all candidatesand political parties have placed on the receipt of private donations(despite the availabilityof electionfunding), it is not clearto the AEC what,if any,changes to the levelof thatfunding would be "appropriate" and what,if any, levelof publicfunding would be necessaryto achievethe abovepolicy outcomes. Item 1(f) refersto the availabilityof "freetime" on mediaoutlets. This issue appearsto have been dealt with in 1992by the High Court in the case of AustratianCapital Television Pty Ltd v Commonwealth(1992) 177 CLR 106. fn this case the High Court held that those provisionsof the Political Broadcastsand PoliticalDisclosures Act 1991that providedfor free air time were in breachof the Constitution In particular,the Courtfound that those provisionsdealing with free air time amountedto the acquisitionof property otherwisethan on justterms. ftem 1(g)refers to unqualifiedcandidates (see section 44 of the Constitution) candidateswho might have stoodfor an electionand the entitlementto be paid electionfunding. The AEC repeatsthat it has receivedexternal legal advicethat confirmsthat thereis no powerfor the AEC to take any actionto recoverelection funding where a personwas acceptedas a candidateunder the CommonwealthElectoral Act 1918.The reasonfor this is thatthere is no legalbasis to considerthat a "candidate"for the purposesof the paymentof electionfunding is only a candidateif they are legallycapable of being elected.The factthat as a resultof a challenge,an electionmay be declared "absolutelyvoid" is not the sameas sayingthat an electiondid not take place for any purposeor thatthe unqualifiedperson was not a candidate.Support for this view comesfrom the HighCourt decision in Sykesv Clearly(1992) 176CLR77. Item 1(h) refersto the relationshipbetween election funding and campaign expenditurerelating to the November2007 election. As indicatedabove, the AEC is yet to receivethe returnsfrom the registeredpolitical parties under section314AC and thereforehas no informationin its possessionon this matter. Item 1(i) refers to harmonisationof State and federal laws that relate to politicaldonations, gifts and expenditure.Such a harmonisationof laws is stronglysupported by the AEC to both removeany loopholesin the current reportingregimes and to createsome consistency in the reportingobligations that are placedon the keyplayers in the politicalprocess. AUSTRALIAN ELECTORAL COMMISSION SUBMISSION TO THE INQUIRY BY THE JOINT STANDING COMMITTEE ON ELECTORAL MATTERS INTO THE 2007 FEDERAL ELECTION 20 June 2008 1. INTRODUCTION.................................................................................4 2. ENROLMENT .....................................................................................6 2.1 Background .........................................................................................6 2.2 Close of rolls .......................................................................................6
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