2014

THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY

ELECTORAL AMENDMENT BILL 2014 (No 2)

EXPLANATORY STATEMENT

Presented by
Simon Corbell MLA
Attorney-General

ELECTORAL AMENDMENT BILL 2014 (No 2)
Overview of the Bill
The Electoral Amendment Bill 2014 (No 2)(the Bill) amends the Electoral Act 1992 (the Act) in response to recommendations made by the Select Committee on Amendments to the Electoral Act 1992 in its report Voting matters (June 2014) and by the Electoral Commission in its Report to the ACT Legislative Assembly: Proposed changes to the Electoral Act 1992 (September 2014).   
The amendments are intended to result in clearer electoral regulation, including less onerous reporting responsibilities, without diminishing the accountability of parties and electoral candidates. 
Background
On 20 March 2014 the ACT Legislative Assembly established the Select Committee to enquire into a number of matters relating to the Act, including implications of the High Court decision in Unions NSW & Ors v NSW and the Commission’s Report on the ACT Legislative Assembly Election 2012.  
The Government tabled its responses to Voting Matters and the Report to the ACT Legislative Assembly on 27 November 2014. This Bill implements the legislative aspects of the Government responses to these two reports.
Human Rights implications
This Bill engages a number of human rights protected under the Human Rights Act 2004, including:
•	the right to privacy and reputation (s 12);
•	the right to freedom of expression (s16); and
•	the right to take part in public life (s 17).
Right to privacy and reputation 
Section 12 of the Human Rights Act states:
Everyone has the right—
(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b) not to have his or her reputation unlawfully attacked.
This Bill strengthens the protections under this section by limiting the existing provisions that allow publication of an individual’s home address.
Any limits on limits on the right to privacy are restricted to the inspection of records about individual’s details at the Electoral Commission Offices during business hours. 
This is an important limitation –ensuring transparency in relation to donations of over $1,000 is an important element of protecting the electoral system from corruption and undue influence. The ability to inspect details of donors also ensures that there is no confusion about the identity of donors. 
Right to freedom of expression
Section 16 (2) of the Human Rights Act provides that:
Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.
There is also an implied right under the Constitution of freedom of political expression.
It could be argued that the amendments reducing the caps on electoral expenditure further limit this right. 
In the 2013 case of Unions NSW v New South Wales ([2013] HCA 58 (18December 2013)), the High Court applied the test established in the case of Lange of whether a provision impermissibly burdens the freedom of political communication. The two limbs of that test ask whether the impugned decision effectively burdens that freedom, either in its terms, operations or effect; and if so, whether the provision is reasonably appropriate to serve a legitimate end in a manner that is compatible with the maintenance of the prescribed system of representative Government.
Section 28 of the Human Rights Act provides that a right might be subject only to reasonable limitations that can be demonstrably justified in a free and democratic society. 
The electoral expenditure caps might be said to limit the right to freedom of expression by limiting the amount that can be spent on electoral campaigns, thereby limiting the ability of candidates to communicate their electoral platform.
As the Standing Committee noted in its report, regulating for electoral matters is a matter of balancing often competing goals, one of which is protecting the freedom to participate in the election process. This must however, be balanced against a system that balances equality between the candidates and mitigates against corruption and undue influence through the expenditure of large amounts.
The amendments in this Bill are part of a triangulated approach to ensuring a transparent and accountable electoral system. Capping the amounts that can be expended on election campaigns together with an increase in public funding and robust reporting requirements are a balanced approach to maintain the rights of candidates, campaigners and voters.
The Government’s view is that any limitation on the right to freedom of expression is proportionate and necessary to support the integrity of our electoral system.
Right to take part in public life (s 17)
Section 17 of the Human Rights Act provides that:
Every citizen has the right, and is to have the opportunity, to –
a) take part in the conduct of public affairs, directly or through freely chosen representatives; and
b) vote and be elected at periodic elections, that guarantee the free expression of the will of the electors; and
c) have access, on general terms of equality, for appointment to the public service and public office.
As noted in the Explanatory statement to the Electoral Amendment Bill 2012, this Bill may both limit and promote this right. The caps on electoral expenditure may disadvantage some candidates by limiting how much they spend on promoting their campaign.
On the other hand, by disaggregating associated entities, removing restrictions on sources of electoral campaign donations and lifting the caps on donations, this Bill promotes the ability of individuals and organisations to support the democratic electoral process. 
By capping the electoral expenditure at $40,000 for individuals, there is now a more level playing field for candidates, regardless of the resources they have at their disposal.
Summary of amendments
The amendments made in this Bill include amendments to:
•	Campaign finance matters, including expenditure caps and donations;
•	Reporting requirements; 
•	Treatment of electoral matter published through social media; and
•	Counting of votes to ascertain the result of a poll.
The Bill also makes a number of minor, technical amendments.

CLAUSE NOTES
Clause 1 	Name of Act
This clause is a formal provision that sets out the name of the Act.

Clause 2	Commencement
This clause is a formal provision that provides for the commencement of the Act.

Clause 3 	Legislation amended
This clause states that this Act amends the Electoral Act 1992.

Clause 4 	Offences against Act–application of Criminal Code etc
Section 3A, note 1
This clause removes references to offences under division 14.2A which the Bill omits.

Clause 5 	Definitions for pt 14
Section 198, new definition of Australian government body
This section inserts a new definition of Australian government body for part 14 at section 198 to include government agencies in the definition.  This is a technical amendment that supports the amendment that excludes Australian government bodies from the definition of third-party campaigner.

Clause 6	Section 198, definition of party grouping, paragraphs (c) and (d)
This clause omits reference to the term “associated entity” of a party or MLA for a party in the definition of “party grouping” in section 198 of the Act.

Clause 7	Section 198, definition of third-party campaigner, paragraph (a)
This clause replaces the reference in the definition to “more than $1,000” with “$1,000 or more”.  This is consistent with other sections in the Act which refer to “$1,000 or more.”

Clause 8	Section 198, definition of third-party campaigner, paragraph (b) (i)
This clause clarifies that an associated entity (defined in section 198 of the Act) is excluded from the definition of third-party campaigner.

Clause 9	Section 198, definition of third-party campaigner, paragraph (b) (iv)
This clause substitutes reference to a government agency with an Australian government body and clarifies that an Australian government body is excluded from the definition of a third-party campaigner.

Clause 10	Disclosure periods
		Section 201 (2), definition of disclosure day,
		paragraph (c)
To address an anomaly of the Act, the reference to section 220 in the definition of ‘disclosure day’ in relation to third party campaigners in section 201(2)(c) is removed.

Clause 11	Appointed agents
	New section 203 (2A)
This provision automatically cancels a previous reporting agent’s appointment where a new reporting agent is appointed under section 203.

Clause 12	Registers of reporting agents
		Section 205 (4), new note
This section inserts a reference to the provision mentioned in clause 11 above.

Clause 13	ACT election accounts
		Division 14.2A
This clause removes all requirements relating to an ‘ACT election account’ in the Act as while entities listed under section 205A will still be required to account for receipt and expenditure of electoral funds, it is not appropriate to legislate for mechanisms by which this is done.

Clause 14	Meaning of expenditure cap–div 14.2B
		Section 205D (a)
This section amends the expenditure cap to be calculated on the basis of $40,000 per candidate for an election held in 2016, indexed annually.  

For a party contesting all 17 seats prior to the increase in the size of the Assembly to 25 members, the current total expenditure cap with a cap per candidate of $60,000 would be $1,063,010 in 2014 terms.

With the increase to 25 members (5 members returned from 5 electorates), the current expenditure cap of $60,000 per candidate contesting all seats would be $1,563,250 plus indexation, a significant increase  in the electoral cap amount.

For a party contesting all 25 seats, the total expenditure cap with a cap per candidate of $40,000 would amount to $1,000,000.

An expenditure cap of $40,000 per candidate was recommended by the Select Committee on Amendments to the Electoral Act 1992 in its report Voting Matters.

Clause 15	New section 205D (2) and (3)
This is a transitional provision between commencement and the date by which the Electoral Commissioner must declare the expenditure cap for the 2016 election.

Clause 16	Section 205G heading
This clause substitutes the heading in section 205G with a new heading which includes reference to associated entities.

Clause 17	Section 205G (1) (a)
This clause substitutes existing section 205G(1)(a) with a new section 205(1)(a) and (aa). The revised section applies the expenditure cap to associated entities, whether they are associated entities of parties or MLAs.

Clause 18	New section 205G (4) (a) to (c)
This clause inserts new section 205G(4)(a) and (b)  to clarify that expenders who are non-party MLAs, associated entities, non-party candidate groupings are people from who the commissioner may recover an amount for exceeding the expenditure cap under section 205G.

Clause 19	Limit on electoral expenditure – third party campaigner acting in concert with others
		Section 205H
This clause omits section 205H which prohibits a third party campaigner acting ‘in concert with’ another person to incur electoral expenditure that is more than the expenditure cap for the third party campaigner as this provision may be invalid.

Clause 20	Division 14.2C heading
This clause substitutes a new heading for division 14.2C.

Division 14.2C	Limit on payments within parties

Clause 21	Sections 205I and 205J
This clause omits sections 205I and 205J relating to gifts and other payments. This removes the limit on gifts and other payments, however these must still be reported under the Act.

Clause 22	Limit on payments within parties
		Section 205K (2)
This clause omits reference to the ACT election account as the requirements relating to an ACT election account are being omitted by clause 13 above.

The words “pay into the ACT election account for the party” are substituted with the word “receive”.

Clause 23	Entitlement to funds
		Section 207 (2) (a)
The Act currently provides the prescribed amount payable for each eligible vote received in an election is ‘200 cents’. 

This clause amends this section to increase this amount to $8.00 per eligible vote. This amendment increases public funding for ACT elections. 

Clause 24	New section 207 (8) and (9) 
This clause includes transitional provisions to deal with the possibility that an election may be held before the next scheduled election in October 2016 by providing  that the election fund provisions apply until 30 June 2016.

Clause 25	Payments for administrative expenditure not to be used for electoral expenditure
		Section 215G(1)
To provide clarity, section 215G (1) is amended to refer to ‘local government election’ rather than ‘local election’. 

The clause also omits reference to the ACT election account as the requirements relating to an ACT election account are omitted by clause 13 above.

Clause 26	Section 215G (2)
This section is amended to remove the words ‘deposited or’ to clarify that the penalty amount is based on the amount used. This is a technical amendment.

Clause 27	Definitions – div 14.4
		Section 216, new definition of anonymous gift
An anomaly exists in relation to the definition of a ‘small anonymous gift’. This section removes the concept of ‘small anonymous gift’ from the Act and changes the reference to ‘anonymous gifts’, with the result that anonymous gifts of up to $1,000 each may be received to a total of $25,000 in a financial year.

Clause 28	Section 216, definition of small anonymous gift
An anomaly exists in relation to the definition of a ‘small anonymous gift’. This section removes the concept of ‘small anonymous gift’ from the Act, and other amendments to the Act change references to ‘anonymous gifts’, with the result that anonymous gifts of up to $1,000 each may be received to a total of $25,000 in a financial year.

Clause 29	Records and regular disclosure of gifts
		Section 216A (1) (b)
This clause substitutes existing section 216A(1)(b) with new sections 216A(1)(b) and (1)(ba) to remove the link between associated entities and non-party MLAs but still ensure that associated entities are still caught by the provision.

Clause 30	Section 216A (2)
This clause amends section 216A (2) to ensure that free facilities use is not included in the definition of gift for the purposes of financial disclosure.

Clause 31	Section 216A (2)(c) and (d)
This clause is a consequential amendment following removal of ‘small anonymous gift’ from the Act.

Clause 32	Section 216A(4), except note
This clause amends the Act to require quarterly reporting, with more frequent reporting for the two quarters leading up to an election. This amendment is in response to recommendation 6 of the Select Committee which found that the existing reporting requirements were overly onerous.

Clause 33	Section 216A (6), new definition of free facilities use
This clause defines ‘free facilities use’ for the purpose of excluding free use of facilities for a routine meeting from reporting requirements relating to gifts.

Clause 34	Section 216A (6), definition of relevant period, paragraph (a)
This amendment makes references to ‘associated entity’ more consistent.

Clause 35	Disclosure of gifts by third party campaigners Section 220 (3) (c) and (d)
This clause is a consequential amendment following removal of ‘small anonymous gift’ from the Act.

Clause 36	Section 222 heading
This clause substitutes a new heading to better reflect the substance of the section.

Clause 37	Section 222 (3)
This amendment omits redundant language and makes references to ‘associated entity’ more consistent.

Clause 38	Section 222 (3) 
This clause is a consequential amendment following removal of ‘small anonymous gift’ from the Act.

Clause 39 	Section 222 (3)
This clause is a consequential amendment following removal of ‘small anonymous gift’ from the Act.

Clause 40	Section 222 (4)
This clause is a consequential amendment following removal of ‘small anonymous gift’ from the Act.

Clause 41	Section 222 (4) and (7)
This clause is a consequential amendment following removal of ‘small anonymous gift’ from the Act.

Clause 42	Returns of electoral expenditure Section 224 (2)
This clause amends the responsibilities for returns or electoral expenditure consistent with amendments relating to reporting agents.

Clause 43	New section 224 (2A)
This clause inserts a section requiring associated entities to provide a return on electoral expenditure within 60 days after polling day, as is required for other entities.

Clause 44	Section 224 (3)
This amendment amends the section to be consistent with the term ‘reporting agents’.

Clause 45 	Annual returns by parties and MLAs Section 230 (1)
This clause extends the deadline for submission of annual returns from 31 July to 31 August. This follows recommendation 20 in the Electoral Commission’s report to address concerns that a 31 July deadline required returns to be prepared before audited statements or bank statements were available. Extending the date to 31 August will still allow the electorate to be aware of disclosures prior to an election while allowing obligated parties to include more accurate and verified information.

Clause 46	Section 230 (4) (c)
The clause amends reporting requirements in relation to debts to require all debts outstanding at the end of the financial year, including disputed debts, to be disclosed. This amendment responds to recommendation 14 in the Electoral Commission’s report.

Clause 47	Section 230 (5)
This amendment clarifies that gifts given to MLAs in their capacity as a Minister are to be treated as gifts for the purposes of the campaign finance reform provisions of the Electoral Act. This amendment responds to recommendation 11 in the Electoral Commission’s report.

Clause 48	Section 230 (5), example 2
This clause amends the example to be consistent with the amendment in clause 47.

Clause 49	Section 231B heading
This amendment omits redundant language and makes references to ‘associated entities’ more consistent.

Clause 50	Section 231B (1)
Consistent with clause 42, this clause extends the deadline for submission of annual returns from 31 July to 31 August for associated entities. 

Clause 51	Amounts received Section 232 (2)
This clause makes reporting requirements consistent. This amendment responds to recommendation 15 in the Electoral Commission’s report.

Clause 52	Section 232 (3) (c)
This clause removes a redundant provision relating to exemptions for amounts of less than $250.

Clause 53	Section 232 (4)
This clause sets out the requirements for reporting free facilities use in annual returns. 

Clause 54	Copies of returns to be available for public inspection 
		New section 243 (5) 
This clause provides that the Electoral Commissioner must not publish details of an individual donor’s address, other than a postcode of an individual’s home address or post office box details.

This is consistent with amendments to section 243A (3) in clause 53 below. 

Clause 55	Section 243A heading
This clause amends the section heading to better reflect the content of the clause.

243A	Commissioner must publish certain information given under s 216A

Clause 56	New section 243A (3)
This clause provides that the ACT Electoral Commissioner must not publish details of an individual donor’s address, other than a postcode of an individual’s home address or post office box details. The note provides that an individual’s private address details may, on request be inspected at the commissioner’s office during ordinary business hours.

Clause 57	New section 293A
This clause exempts private unpaid commentary on social media from authorisation requirements. This amendment reflects changes in technology and addresses the difficulties of enforcing existing requirements in this area. It implements recommendation 13 of Voting matters.

Clause 58	Ascertaining result of poll 
		Schedule 4, clause 7 (3) (c)
This is a technical amendment relating to counting of votes of 2 or more successful candidates who obtained a quota at the earliest count and have the same surplus. This is consistent with recommendation 7 in the Electoral Commission’s report.

Clause 59 - Schedule 4, clause 7 (4) (a)
This clause replaces the reference to clause 3 (c) (ii) with a reference to clause 3 (c) (ii) (B). 

Clause 60 - Schedule 4, clause 8 (2)
This is a technical amendment relating to counting of votes where 2 or more candidates are tied and a decision is required to identify which tied candidate is to be next excluded. This is consistent with recommendation 8 in the Electoral Commission’s report.

Clause 61 -	Schedule 4, clause 8 (3) (a)
This is a consequential amendment replacing the reference to clause 8 (2) (b) with a reference to clause 8 (2) (c).

Clause 62	Dictionary, note 2
This clause inserts the word ‘individual’ into note 2 which refers to terms defined in the Legislation Act. This Bill inserts a number of clauses which refer to an ‘individual’.

Clause 63	Dictionary, definition of ACT election account
This clause omits the definition of ‘ACT election account’ consistent with the removal of all requirements relating to an ‘ACT election account’ from the Act.

Clause 64 – Dictionary, new definitions
A new definition of Australian government body is inserted to align with section 198.  

A new definition of anonymous gift is inserted for division 14.4 (Gifts and certain loans—records and disclosure). 

Clause 65 - Dictionary, definition of small anonymous gift
This clause omits the term ‘small anonymous gift’ from the dictionary, consistent with its removal from the Act.