The Morrison government has introduced legislation that will lift the membership threshold for registering a federal political party from 500 to 1,500.
The legislation will not require parties with current parliamentary representation to meet the new requirement. All other parties will have three months after the legislation is passed to convince the Australian Electoral Commission (AEC) that they meet the new membership requirement to retain registration.
There are currently 10 registered parties represented in the Commonwealth Parliament, with an eleventh about to be added with former Liberal Craig Kelly announced this week as the parliamentary leader of the United Australia Party. Kelly’s signing means the UAP no longer needs to meet membership requirement, in the same way the party was able to rely on former One Nation Senator Brian Burston for registration in 2016.
That leaves more than 40 parties needing to triple the list of names they provide to the AEC to retain registration.
The legislation will create a surge of work for the AEC. There is usually an increase in new parties seeking registrations ahead of an election, but the administrative load on the AEC will be much greater to check the increased membership bona fides of 40 re-registering parties.
The announcement of this change late in the parliamentary term leaves open the chance that existing parties will lose registration for the next election due to administrative delays.
Background to the Increase
A lift in the membership threshold from 500 to 1,500 was proposed by the Joint Standing Committee on Electoral Matters (JSCEM) after the 2013 federal election. The giant ballot papers and labyrinthine preference deals that blighted the 2013 Senate election led JSCEM to recommend changes to the Senate’s electoral system. The package of reforms included the lift in membership and there were no dissenting reports to JSCEM’s recommendations.
By the time the Turnbull government legislated for Senate reform in 2016, the Labor Party had withdrawn its support. The reforms needed the support of the Senate crossbench, and by 2016 the Greens had withdrawn support for increasing party membership. The original JSCEM proposal had allowed parties twelve months to lift their membership, but the Senate reforms were legislated too close to the 2016 election for that to happen.
So in 2021, as in 2016, the arguments against legislating an increase in the party membership is all about timing.
Because there is justification for the an increase in the party membership threshold.
As it stands, the rules for registering federal parties are considerably weaker than for registering parties under state legislation.
And this is in contrast to rules governing independent nomination and candidate nomination deposits, both of which are tougher for federal elections.
Comparing Party Registration Rules Across Jurisdictions
At the bottom of this post I provide a table and accompanying notes that set out the rules governing nomination and party registration federally and for each state and territory.
The table sets out the number of members required to register a party in each jurisdiction, along with the rules on the number of nominators required to nominate an independent candidate, and well as the nomination deposit that must be lodged on behalf of all candidates, whether party or non-party.
The table shows clearly the higher required nominator numbers and deposits for federal elections. This contrasts with the minimum federal party membership being roughly the same as for registration in the larger states.
The contrast is worth making because one of the benefits of party registration is the right it grants parties to nominate candidates without the need for local nominators. Independents must be nominated by a given number of electors on the roll in the local seat (House) or in the state (Senate). The number of nominators increases in larger jurisdictions, but the same right granted to party nomination does not increase at the federal level.
The final column of the table converts the membership requirements to members required per million voters and shows even more starkly the low requirement for federal party registration.
The Federal requirement corresponds to 30 party members per million voters, well short of state requirements which vary from 116 per million in Victoria to 289 in Western Australia.
Even if the government’s proposed increase to 1,500 members is implemented, it will still leave the Commonwealth with a lower threshold for registration than any of the states at 90 members per million voters.
Not shown in the table are per capita comparisons for nominators and deposits. In summary, per capita federal candidate nominators are equivalent to NSW and tougher than in Victoria. For nomination deposits, the per capita federal deposit is higher than in the three eastern states.
In the notes under the table at the bottom of this post, I set out some of the different regulations applied to parties beyond just minimum membership. Most of the states apply tougher rules on proof of party membership, and several require registration fees. It is significant that the two states that have endured triple deck Legislative Council ballot papers, NSW and SA, have adopted the toughest rules on registration and nomination.
Is it worth having so many parties registered?
I looked at this question in a post I published last week. More than half of parties that nominate for state Senate contests poll less than one percent of the vote. The question is, what balance should there be between allowing a blooming of parties as against providing voters with a ballot paper of reasonable size that they can read and understand while making an informed choice on who to vote for?
The proposal to tighten party registration followed the farcical situation in 2013 when there were so many nominated parties that the AEC had to issue magnifying sheets to help voters read their ballot papers. It was hard for voters to find the parties they knew amongst the flood of unfamiliar party names.
Senate electoral reform was about ending party control over preferences and producing a more manageable ballot paper on which voters could make their decisions on preferences. But there were still 35 parties contesting the 2019 Senate election, which suggests there is room for returning the the 2013 JSCEM recommendation to lift requirements for party registration.
Changes to Party Name Registration
The government’s electoral reform proposals are split across four bills, which should allow the less controversial proposals to pass. Another post I wrote last week outlines the four bills.
The same bill that lifts the party membership threshold includes another proposal to tighten the rules on party names. The bill has been drafted in a manner that tries to create a set of general rules, but in my opinion the provision is designed to allow the Liberal Party to prevent other parties including the word “liberal” in their name without the Liberal Party’s consent.
The provisions on name registration included in the bill are complex, and others have pointed out their drafting creates numerous problems. Check out this article at the Conversation by Graeme Orr, Professor of Law at the University of Queensland, one of Australia’s experts on electoral law.
Possible Other Approaches to Registration
The 2013 JSCEM report discussed allowing state based parties with a lower threshold of membership. Such a party relying on a single state would only have central nomination rights for that state. No firm proposal on the idea has emerged.
Some countries require parties to pass regional thresholds, requiring members from more than one state or province to achieve national registration. Such an idea would require further discussion.
Another proposal I favour is to retain the current low registration figure, but re-introduce Senate nominators for all candidates. This is a measure to control the size of Senate ballot papers. Tasmanians in particular have been annoyed by mainland parties nominating mainland candidates for the Tasmanian Senate. Local independents nominating two candidates would require 200 Tasmanian nominators. Bringing back Senate nominators would require parties to meet the same requirement as state based independents, and push parties to have a presence in more than one state.
For administrative simplicity I would not bring back nominators for House seats at general elections. But it should be considered for by-elections that often attract large fields of out–of-town candidates because parties don’t need local nominators.
Table 1: Nominator, Deposit and Party Registration Requirements by Jurisdiction
|South Australia||20 (LH)
There are some important points to clarify in relation to the above table.
- Party nomination – all candidates (or their party) must pay the per-candidate deposit, but candidates for registered parties do not need nominators. All jurisdictions allow central nomination of candidates for registered parties without individual nominators. Central nomination involves candidates being nominated by the authorised party representative. The proof of party membership required to register a party is functionally equivalent to requiring non-party candidates to have nominators. Western Australia is the only jurisdiction to allow self-nomination, so requiring nominators is a soft test of whether candidates have a minimum level of support for inclusion on a ballot paper.
- Nomination Deposits – payment of the deposit, and acceptance that the deposit may not be returned, is a way of sieving frivolous candidates. In all jurisdictions, deposits are returned where the candidate in a single member electorate polls 4% of the formal vote, and in multi-member contests, candidate deposits are returned if the party/group polls 4%.
- Nominators – are required to be on the electoral roll for the local contest, but candidates are not. For individual electorates, nominators must be enrolled in that electorate, and for state-wide contests (including Senate elections), nominators must be on the roll in that state or territory. Party registration requires no proof of where voters are enrolled so central nomination is based on the national roll, not a local roll.
- Senate Nominators – candidates in a Senate group must have unique nominators, which effectively means a ballot paper group of two candidates must have 200 local nominators. Similar rules apply for other multi-member elections using a Senate-style ballot paper.
- Registration Fees – NSW charges a $2,000 fee for party registration, South Australia and the Northern Territory $500, Victoria 50 fee units, currently $751.50.
- Application Processing Time – parties registered in NSW cannot have party names printed on ballot papers until they have been registered for 12 months, which effectively means parties for the March 2023 election must be registered by March 2022 if they want a party name printed. In South Australia and Northern Territory, parties must lodge registration applications six months before the next general election. Party registration applications for next year’s South Australian close on 17 September. Other jurisdictions with fixed date elections close the party register with the issue of writs and Electoral Commissions give guidance on how long the registration process takes. Variable date elections, such as the Commonwealth’s, means parties can find their applications frozen when an earlier than expected election is called.
- Parliamentary Parties – The Commonwealth and South Australia permit single members of parliament to register a party without the need for party membership. That right either never existed or has been removed in other jurisdictions.
- Proof of membership for registration – several states require parties to lodge individual membership application forms or individually signed statutory declarations that a member has joined the party, as well as a declaration by the party that the membership application has been accepted. Proof of membership rules have been toughened in many states since the prosecution of Pauline Hanson over the registration of One Nation under the Queensland Electoral Act. The initial conviction and later overturning of Hanson’s conviction turned on arcane legal interpretations of membership.
- NSW – A $500 nomination deposit per candidate is required for the Legislative Council. Parties must lodge a minimum 15 candidates for access to an above-the-line voting square, so groups nominating between 10 and 21 candidates have a capped deposit fee of $5,000 for the group. The tough rules on party registration in NSW stem from the explosion of party registrations ahead of the 1999 state election, the Legislative Council election that year infamous for its ‘tablecloth’ ballot paper with 81 columns spread over three rows of parties.
- Victoria – 6 nominators are required for a lower house nomination but 50 per candidate for the Legislative Council.
- Western Australia – candidates can self-nominate without nominators.
- South Australia – In an effort to control the size of the Legislative Council ballot for a state wide election, South Australia boosted nominator numbers and nomination deposits in 2013. The deposit was increased to $3,000 for both houses but reduced to $1,000 for the lower house ahead of the 2018 election. South Australia also has a provision allowing Independents to nominate a pseudo-party name (e.g. Independent Ban Duck Shooting). The draw for Legislative Council ballot positions was also changed in 2013 so that registered parties appear before labelled independents, a first draw for party order followed by a second draw for grouped independents.
- Tasmania – An independent candidate needs 10 local nominators. For access to a separate column on the Hare-Clark ballot paper, single or grouped independents need to provide 100 local nominators for the group.
- Northern Territory – as well as local registration, federally registered parties can be entered on the NT register of political parties.