23 November 2021
I rise to speak on the Electoral Legislation Amendment (Political Campaigners) Bill 2021. Let's be clear what this bill does: the bill reduces the thresholds for electoral expenditure that can be incurred by an individual or organisation before they are required to register as a political campaigner. The bill would change the thresholds at which a third-party campaigner becomes a political campaigner from $100,000 on electoral matters being spent in any one of the previous three financial years—down from $500,000; spending the disclosure threshold, currently $14,500, on electoral expenditure in that financial year—down from $100,000; and spending at least one-third of the revenue during the previous financial year—down from two-thirds—on electoral expenditure.
According to the government, the amendments are intended to enhance public confidence in Australia's political process by aligning transparency requirements for political actors who seek to influence the outcome of an election to more closely resemble those for political parties, candidates and members of the Australian parliament. However, what they don't say is that the groups of people that are most likely to be impacted by this are charities and small political players and community organisations just starting to get off the ground. For these groups the changes represent a significant shift in compliance activities, and, more importantly, they're retrospective. The irony is that, in many discussions around federal integrity commissions, one of the biggest sticking points is retrospectivity—that one should not be able to look at government behaviour retrospectively. Yet here we are with amendments in legislation seeking to retrospectively change the rules for small community organisations.
What does it mean—the shift to political campaigner? Changing from a third party campaigner to a political campaigner means that you must disclose your donors. That is a good thing; I don't have any issue with disclosure—if only disclosure rules were fairly applied, from Independents to major political parties and all involved; if only we didn't have such major gaps in our political donations system that enabled millions in political donations to the major parties to go unreported and unaccounted for. Political campaigners have annual reporting obligations in relation to donations received, debts, and total income and expenditure that are essentially the same as for political parties. Political campaigners will also have restrictions on receiving donations from foreign donors, which are, again, essentially identical to restrictions on political parties. Again, I find the hypocrisy just staggering when I think of the debate we've had in relation to blind trusts in this place and the disclosure of where donations and financial support has come from. Finally, political campaigners also need to disclose all foreign donations and ensure that any money received is not from a foreign national.
The change in classification will have a chilling effect on the charities sector in their ability to engage with the political process as a third party campaigner. It's misleading. They will be defined as a 'political campaigner', and that category misleadingly defines independent, issue based advocacy, which the charity sector needs to do to take good care and try to advance policy on the issue they represent. It is now going to be misleadingly interpreted as advocacy that is political, or partisan campaigning. It also subjects organisations to rigorous administrative and reporting requirements and harsh penalties, similar to those of political parties, even when an organisation's advocacy is issue based and nonpartisan. So small charities who are already feeling the brunt of lockdown and COVID, who have really reduced revenue, may now find themselves hit with a retrospective legislation that will ask them to go back and incur significant compliance costs, to go back and look at a campaign that they may have run in the last two years. How that is of benefit is beyond me.
The consequences of this move are perhaps best summed up in the following statement from People with Disability Australia: 'If this bill were passed and we were to risk being labelled a political campaigner, we would feel significantly restricted in the level and kind of advocacy we could engage in, in key moments.' That is People with Disability Australia. This is not political. This is arguing and advocating on behalf of issues.
There is a push from the charities sector to change the name of this grouping from 'political campaigner' to 'large third party'. This shift would be more representative of the charities sector. By law, charities are permitted to advocate for their charitable purpose but are not permitted to be politically partisan. At this point I want to point out that incurring electoral expenditure does not mean that an organisation has spent money on partisan activities. However, classifying organisations as political campaigners, which is what the bill does—this is what the government is seeking to do—gives the false impression that they are political. It exposes them to reputational and regulatory risk. Laws should be made on the basis of how charities advocate, not on how much they spend. The net result will be that charities will do less advocacy to avoid spending over the threshold. As stated by Edwina MacDonald, the deputy CEO of ACOSS: 'We regularly see community and social services organisations that struggle to understand what rules apply to them and what it means for their critical systemic advocacy work.' This confusion and the lack of resources to work through the complex regulatory framework can result in community groups shying away from doing systemic advocacy altogether. This bill will make this risk much worse. So, as a result, you will have a less-informed conversation on issues and on policy, and that is a weakening of democracy.
The amendments that have been brought on by the minister at the eleventh hour I can only see as a cynical attack on community groups that are rising around Australia, tired of the dysfunction and the poor level of politics coming out of major parties. These amendments are absolutely deliberately targeting community groups that are shaking up the status quo. These groups, the 'voices of' groups, are community led movements aiming to support representatives that actually represent the views of their communities. They've become fed up with state political parties and the domination of the duopoly that we have at the moment.
Significantly, with these amendments, the government is expanding the circumstances in which a person or entity is required to register as a political campaigner or associated entity and to provide a return to the AEC in relation to the financial year prior to their registration. This would mean all donors from that year would need to be disclosed, as would total expenditure for that year. I don't object to an increase in transparency of funding in politics. We need much, much stronger laws around clearing up transparency. But I do have to wonder at the lack of consultation that has been taken in the approach to these amendments and their last-minute introduction to the House. The raft of organisations that this will capture remains to be seen, but imposing retrospective reporting requirements on many relatively immature bodies is a grave concern.
The additional compliance and administration costs may also impact on independent 'voices of' groups aspiring to establish themselves and others in the charity sector. Reducing the threshold means that legal and administrative costs for the smaller entity will rise as they seek to manage their ability to comply with the new legislation. The lower threshold poses a very real risk of reducing participation in the democratic process by smaller groups for fear of legal repercussions. Increasing compliance costs is a key tool for those in power to reduce competition for those aspiring to challenge the status quo. That, I have no doubt, is what we're seeing today.
The penalties are significant. Not registering as a political campaigner within 90 days of meeting the threshold will incur a civil penalty. Groups will need to be more careful about their expenditure under this new model, whereas previously they would have needed to be a significant size to breach the $500,000 limit. An amount of $100,000 is not significant in today's political landscape. Let's put that into perspective for a moment, especially when we have major players like the United Australia Party planning to spend in excess of $80 million. The ALP and the Liberal and National parties are spending over $20 million each, but we're not seeing laws or regulations being introduced to clean that up. We're not seeing anything introduced to in any way curb the spending by the UAP or the misleading information that they are bombarding Australian voters with. An attack that will make it harder for small players and charities is what the government is choosing to spend its time on. It's a move designed to reduce the influence of smaller players.
On vague definitions, it's so frustrating to have these pieces of legislation that will impact on so many lives come before the House when they are badly drafted. They are vague. The definitions matter. Precision in the wording matters in legislation. These pieces of legislation are badly drafted. The definition of 'electoral matter' is vague. The definition of 'electoral expenditure' is within the act. 'Electoral matter' is defined as:
… matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote in … (a federal election) …
'Electoral expenditure' is defined as:
… expenditure incurred for the dominant purpose of creating or communicating electoral matter …
So who will benefit? Lawyers and experts in the field might be adept at navigating the lines drawn by these definitions, but smaller community groups and charities may not have the expertise to interpret these provisions, and thus their compliance costs will increase.
The fact that this bill is being applied retrospectively means that those who were careful to stay under the $500,000 cap in previous years may now have to go back and register as political campaigners and complete the relevant disclosures for the past three financial years if they had spent over $100,000. This is an unnecessary burden, and it's an example of moving the goalposts after the fact. If this were done fairly across a number of areas, I might understand, but I can't help but be cynical and think that it is always about keeping others out of the status quo. It is about maintaining the status quo. It is about preventing competition.
This bill before us does provide for some increase in transparency of money in politics. However, the last-minute introduction of the amendments which deliberately target emerging community groups speaks to a political motivation by the government. Targeting charities with legitimate policy concerns and turning them into political campaigners is underhanded and an attempt by the government to reduce scrutiny. It will weaken participation in our democracy, reserving the ability to participate only for those in the major parties with established administrative and legal resources to comply with the legislation. The bill shows the desperation of those in power to preserve the status quo that they benefit from.
Rather than introducing this bill and its last-minute amendments, in the time that is left for this parliament the government should look at the multitude of other recommendations to increase the transparency of the system. We could reduce donation disclosure thresholds; we could increase the timeliness of donation disclosure and fairly apply it, from Independents to parties; we could prohibit misleading and deceptive advertising, as I asked the Prime Minister about in question time today; and we could establish a federal integrity commission with teeth, with real powers and certainly with retrospective powers. It's clear that the government has no real desire to increase transparency—only a desire to maintain the status quo.
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