29 October, 2020
The Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020 makes a collection of unrelated amendments to the Commonwealth Electoral Act. Hidden beneath the innocuous title of miscellaneous measures—well, really calling them miscellaneous says it all—is an effort to override something serious. It's an effort to override state and territory legislation to make political donations less transparent, directly against the wishes of the Australian people.
It's telling that after the minister introduced this—I can only describe it as a rubbish bill—and the shadow minister supported it, the only people speaking on this insulting legislation to the Australian people and to our democracy is the crossbench members. If you ever wonder why we are Independent, this issue and this type of legislation is exactly why.
In Australia, if you donate anything less than $14,300 there are almost no disclosure requirements at the federal level. This bill could have addressed that. Indeed, over time there have been numerous bills presented by the crossbench before the other place, and in this place, that have sought to do that. But, rather than address the lack of transparency of political donations, this bill seeks to override the more stringent state and territory legislation, seeking to do just that.
Let's be honest about what's going on here: the government and the opposition need this bill because the current clause, which the government introduced in the last sitting of parliament, section 302CA, was deemed unconstitutional by the High Court last year. The section relates to how federal political finance laws for political donations interact with state and territory laws. In 2019, the High Court in Spence v State of Queensland, ruled by majority, held that section 302CA of the Commonwealth Electoral Act was invalid for going beyond the limits of Commonwealth legislative power conferred by sections 51 of the Constitution. Clause 302CA had been worded carefully to ensure that it was up to parties—of course we would be trusting the parties—to determine whether a donation would be used for federal or state purposes; therefore, trying to get around the prohibitions that exist at state level. If deemed destined for federal level, then Commonwealth reporting requirements would apply. This meant that it's to the advantage of major parties, as Commonwealth legislation sets a much, much lower bar than the legislation in all state and territories bar Tasmania. This is deplorable.
In recent years, states and territories have moved to level the playing field and increase transparency around disclosure of political donations, especially from property developers, mining companies and liquor and gambling groups. But, since the High Court ruling last year, the law has operated such that both federal and state law operate at the same time. Therefore, where some donations may not be captured at a federal level, they are at state and territory level. This is a good thing, as they are then beholden to the state and territory reporting laws. This bill dangerously seeks to override that.
The bill is carefully worded in response to the ruling of the High Court to make sure that donations to federal parties will not be subject to the strict reporting requirements of states and territories. I would rather see the removal of the unconstitutional section 302CA and section 314B of the Commonwealth Electoral Act rather than rewarding that. That would have been if the government had been actually intent on improving transparency around donations. But, no, it is trying to get around any kind of accounting or transparency. What's interesting is that it's supported by the opposition, by Labor, because there are obviously also a lot of questions around transparency when it comes to union donations. What we desperately need is an even playing field.
If we had a scheme between state and federal donation regimes that operated together as one scheme, that would be common sense. So state branches of political parties would have to disclose their donations according to the rules in their jurisdiction. But, in the absence of strong donation laws at the Commonwealth level, the only way to ensure that state branches don't use technicalities and loopholes to hide their donations are the state disclosure regimes. We're not talking or advocating here on the crossbench for something that maybe stands outside of what's been recommended by most Australians or by the appropriate bodies. This is recommended by the integrity experts in submissions to the inquiry on this bill, including the Human Rights Law Centre and the Centre for Public Integrity. In their submission, the Centre for Public Integrity said:
The Commonwealth Government should be strengthening our electoral laws, not weakening them. The Commonwealth should look to the precedence set in Australian states on the regulation of money in politics.
The Human Rights Law Centre said:
The free flow of money into Australia’s political system threatens the integrity of our democracy. Major political donations are designed to have political influence. Big donations may give donors extra access to politicians or, as put by the High Court, establish the donor as a politician's "client".
These are the words of the High Court. Further:
Occasionally, political donations may lead to quid pro quo corruption.
Again, these are the words of the highest court in Australia.
What proposed new sections 302CA and 314B are trying to do is get around that ruling of High Court and destroy the efficiency of the state disclosure regimes. It's highly disappointing that this legislation has the support of both sides of the House. But it does not have the support of the crossbench. States are the only jurisdictions that are doing something about at least prohibiting donations and reforming political donations at this stage. The need for transparency and accountability in the funding of our political parties is imperative, but, because it goes to them, it's the very reason why they are united in supporting this. When we talk of political donations, we are talking of political donations from the private sector, from the unions, across the board.
Look at decisions made by parties when they are in government. I would have to say, under the current government, the decisions to build new coal-fired power stations and coalmines and to open up gas fields and spruik a gas-led recovery are decisions that don't make sense where commercial rates are not being paid. The Leppington land sale has to be an example that is so prominent in our mind. We need to know where the imperative for this is coming from. Is it ideology? Is it maybe to win seats? Or is it to line the pockets of those making the decisions or that will benefit from the decisions? The reality is that, without strong laws on disclosures of political donations, we won't know why the government continues to make uneconomic decisions that go against the interest of so many sectors.
States are doing their bit to clean up politics. We have certainly seen a lot of headlines from state politics over the years where corruption has been caught and there is an integrity commission to enable the proper investigation of corruption allegations. But, here, instead of trying to improve our status and increase the trust of the Australian people in our democracy, the government has gone around the Constitution to subvert those laws at the state level and is now sharpening its response and trying to get around the High Court decision.
It's clear that we desperately need an integrity commission to keep an eye on dodgy deals and dodgy spending of public money. The government in this place continues to delay implementing such a body. I thank the member for Indi for moving to establish an Australian federal integrity commission and a code of conduct for members in this place, and I urge the government and the opposition to bring that bill on for debate as soon as possible.
Regular surveys show that 80 per cent of the Australian people support the establishment of a federal corruption watchdog. The reality is that a federal integrity commission would provide a forum for investigation and inquiry, an opportunity for wrongdoers to be exposed and for those wrongly accused to be exonerated. All sides of politics claim to support the need for a federal integrity commission, but the Australian people have seen no action. The government promised to establish an integrity commission over two years ago but has repeatedly delayed and prioritised other legislation. If the opposition, Labor, are so strong on this commitment, I call on them to make very clear that they support the model put out by the member for Indi and supported by the crossbench or at the very least come up and explain what the elements are they don't like about that model. But let's be clear: you can't say you stand for anticorruption and integrity but not get behind the legislation that is before this House.
Of course we also need a bit of truth in political advertising. The Commonwealth Electoral Act that is amended by this legislation is also where the governance of political advertising is found. Amazingly, truth in political advertising is not protected under any Australian law. The Australian consumer law against misleading and deceptive conduct relates only to trade and commerce. The Electoral Act only makes it a crime to mislead or deceive an elector about how to mark their ballot paper. Not even the advertising standards board will review political advertising. Civil action can be taken only where the content is defamatory, and while it may be impractical to have every poster, social media post and broadcast ad reviewed for truth we must regulate for a minimum standard of truth in political advertising.
South Australia has had a prohibition on misleading or deceptive statements in electoral campaigns since 1985. This year, the ACT Legislative Assembly passed a very similar law. Polling by The Australia Institute shows that nine in 10 Australians support legislation for truth in political advertising. It is certainly time for the Commonwealth government to look seriously at the need for political honesty, and it is certainly time for the opposition to get behind it. But, instead of that type of legislation, we have this kind of miscellaneous legislation.
It so clear that, with the advent of technology that supports the creation of deep fakes and so much fake news, we absolutely need to have some legislation on truth in political advertising as well as so much more legislation around political donation laws. The ability to alter and distort images, videos or voices to portray a candidate as doing or saying something they have never done or said has already been used overseas by both domestic and foreign actors. The Australian Competition and Consumer Commission considered the threat of deep fakes in their recent digital platform review. Similarly, the threat of deep fakes is a concern of the review of the Joint Standing Committee on Electoral Matters of the 2019 election.
Australia has a chance to be a world leader in legislating against the use of deep fakes, so I urge the government to think about the real issues we have to protect democracy and to increase transparency, rather than putting up this kind of miscellaneous legislation that seeks to undermine democracy and get around rulings of the High Court. I won't be supporting this bill in its current form, as it seeks to weaken protections against undue influence at a time when Australians need those protections strengthened.