Assistant Minister for Electoral Matters, Ben Morton, introduced four bills today to amend the Commonwealth Electoral Act ahead of next year’s Federal election.
It’s important to say first that the bills do not include controversial proposals to introduce voter ID and optional preferential voting. Those were put forward by LNP Senator James McGrath in the Joint Standing Committee on Electoral Matters’ (JSCEM’s) review of the 2019 election.
The bills also do not include any of JSCEM’s recent proposals to change the Electoral Act to deal with holding elections in a period when Covid is widespread or lockdowns are in place. Presumably any changes related to Covid will be introduced closer to the election.
These bills introduce a number of changes to counting procedures, party registration, non-party campaign expenditure, multiple voters and other campaigning offences. Some of the changes are more controversial than others, so the changes have been split into four bills.
The most controversial changes concern party registration, and splitting the changes avoids the problem where important changes in an omnibus amendment bill are delayed by more controversial parts of the bill.
Below is my summary of the proposed changes with links to the source documents on the bills.
ELECTORAL LEGISLATION AMENDMENT ( COUNTING, SCRUTINY AND OPERATIONAL EFFCIENCIES) BILL 2021
Full details of bill at this link
This Bill makes a number of technical amendments to the Electoral Act relating to postal voting, pre-polling, scrutiny, and authorisations. The major changes are –
- changed provisions to streamline the processing of postal vote applications, a sensible change given the shift to voters applying for postal votes using the AEC’s on-line application form.
- shorten the period allowed for pre-poll voting so that it cannot commence until 12 days before polling day. Most pre-poll votes are taken in the two weeks before polling day, so shortening the time allowed for pre-poll voting from three weeks is not a drastic change.
- allows for the early opening and sorting of pre-poll ballot papers, and the early extraction of declaration votes.
In the past I have been concerned that cutting the period of early voting would just cause political parties to encourage more people to apply for an early postal vote. The shift to on-line postal vote applications may diminish this, but it is still likely that a shorter pre-poll period will see an increase in postal voting. The processing of postal votes is more complex and expensive than pre-poll votes so there are trade-offs in shortening the period for pre-poll voting.
Allowing the opening of pre-poll ballot boxes two hours before the close of polls makes sense. I have previously written on the problems of counting pre-polls and proposed that counting start early. This bill does not go that far, but allows pre-poll ballot boxes in secure locations to be opened early for unfolding and sorting with counting to begin after 6pm. Given the volume of pre-poll votes at recent elections, there is a substantial delay in starting the count caused by the physical problem of unfolding and sorting thousands of ballot papers. The use of secure locations and the lock-in of scrutineers means information on the count should not leak before 6pm.
The pre-processing of postal votes envelopes would make them available for counting. The AEC has previously counted (though not reported) postal votes on the night at by-elections, but does not count postals at general elections. The AEC’s current computer system does not allow postal vote tallies to be entered on election night. The early opening of postal votes may make more votes available for counting on the Sunday after polling day.
In 2019 the AEC warned that it could not guarantee that all pre-poll votes would be counted on election night. In the end the AEC did count all pre-polls, but the same counting problem will arise in 2022 given the expected further increase in the number of pre-poll votes. The early opening of pre-poll ballot boxes will help the completion of pre-poll vote counting. In my view it makes sense for the AEC to concentrate on finishing the count of pre-poll votes on election night and leave leave postal vote counting for close seats until the next day.
ELECTORAL LEGISLATION AMENDMENT (PARTY REGISTRATION INTEGRITY) BILL 2021
Full details of the bill can be found at this link
This bill increases the number of members required to register a political party from 500 to 1,500. This was recommended after the 2013 election as part of proposed Senate reforms, but the need for crossbench support to pass the Turnbull government’s Senate reforms saw the proposed party membership increase abandoned.
Currently the Electoral Act includes two ways to register a party. Parties can be registered by a Senator or member of the House without the need for the party to have members. Otherwise, registration applications must supply a list of members. The AEC contacts a sample of the supplied members to verify the party has the required number of members. That number will increase from 500 to 1,500 under the proposed change.
The 500 member test for federal registration is currently much weaker than similar tests for state registration. NSW requires 750 members, Victoria, Queensland and WA 500. Most states apply tougher tests for proof of registration, many states requiring a form to be completed and signed by each member to prove party membership. This is a much tougher test than is required by the AEC.
Non-parliamentary parties will have three months after the bill passes to get the extra 1,000 members required to meet the new registration rules.
For those who think the numbers are too high, it is worth considering that one of our much smaller neighbours, Timor Leste, requires parties to have 20,000 members for registration, and the party must have at least 1,000 members from each of the country’s 13 regions.
The other change in this bill concerns tightening rules on allowed party names. The new rules make it much clearer that parties cannot be registered if they have a name that is similar to that of another party. Words like "Alliance" , "Democratic", "Australia" and "Party" are excluded in deciding whether names are similar.
I think there is one loophole on my reading in that "Coalition" is not currently the name of a registered party and so could be used in a new party name, even though it is a term in common use to describe the Liberal-National Party Coalition.
Clearly, this amendment is designed to stop incidents such as occurred at March’s Western Australian election when the Flux Party re-named itself "Liberals for Climate". The Liberal Party have complained in the past about the registration of "liberals for Forests", the "Liberal Democrats", and most recently the "New Liberals".
The bill includes a provision that once the new rules are in place, precedence in the use of a name is given to the first party registered. So the Liberal Party would be able to apply to have the Liberal Democrats and New Liberals de-registered unless they changed their name.
This bill is clearly more controversial than the others. The Greens opposed a previous attempt to lift membership from 500 to 1,500. The new rules around names look like a blunt instrument that allows the Liberal Party to stamp out imitators. The question is whether Labor, who have objected to "Democratic Labor Party" and "Labour DLP" in the past, as well as the Greens, may find the amendment useful to protect their party name from imitators.
The act allow a second party to use a first party’s name where the first party agrees, which will allow the Liberal National Party and Country Labor to retain registration. The LNP is registered as the Queensland branch of the Liberal Party.
One thing not dealt with in the bill is party registration reliant on members of parliament. This form of registration has been abolished in most states and the inquiry into the 2016 Federal election recommended it be removed from the Commonwealth Electoral Act.
Several Senators have used this provision to register parties over the years. The most controversial use of the provision was to register Fraser Anning’s Conservative National Party in 2019. Anning had been a One Nation candidate in 2016, and was elected by re-count when Malcolm Roberts was disqualified. Anning chose not to sit with One Nation and later joined Katter’s Australian Party before being expelled. He used the central nomination advantage provided by party registration to nominate candidates in enough seats to meet the ABC’s requirements for free air time.
Update – the Parliament’s rules on registering parties were challenged in 2004 by the DLP. (You can find the judgment here). The case upheld the 500 members rule and the no membership overlap rule.
Chief Justice Gleeson gave a good summary of the reason why the rules are were valid in paragraph 22.
Plainly, the reason for the 500 rule, in the wider context of a system of registered political parties for various purposes relating to the Act (a system which itself is not challenged by the appellant), is the view, taken by the Joint Select Committee, and then by Parliament, that to qualify as a registered political party a group must have a certain minimum level of public support, and that an appropriate minimum level is established by a membership of 500. As to the first part of that, it is reasonably open to Parliament to consider that, bearing in mind the practical significance of political parties in the operation of the democratic process, it would deprive the concept of “party” of any real meaning if any two or more people, who happened to agree on even one issue, could demand recognition as a “party”. It may be added, as was pointed out in argument, that in Australia there is a long history of electoral systems which discourage multiplicity of candidates by requiring candidates to deposit a sum of money which will be forfeited if they do not achieve a minimum number of votes. Similarly, there are long-standing requirements for nominations of candidates to be supported by a minimum number of people. Those are well-known forms of regulating candidature at elections which have never been regarded as infringing the electors’ right of choice, or as involving unreasonable discrimination. A requirement that, to be eligible to be treated as a political party for the purposes of the Act, a group must have some minimum level of public support, is not materially different. As to the figure of 500, it is, no doubt, to an extent arbitrary, and there is no logical process by which it can be demonstrated that it should be more than, say 100, or less than (as is the case in New South Wales) 750. Even so, the number 500 is not so large as to be outside the range of choice reasonably available to Parliament if a number is to be chosen at all.
So any High Court challenge would have to convince the Court that 1,500 was somehow unacceptable, which seems unlikely. Whether the rules on change of party names somehow conflict with implied rights of poliutical free speech I’ll leave to lawyers to argue.
ELECTORAL LEGISLATION AMENDMENT (POLITICAL CAMPAIGNERS) BILL 2021
Full details of the bill can be found at this link
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 explanatory notes to the bill state it is intended to “enhance public confidence in Australia’s political processes 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 Australian Parliament.”
Funding and disclosure law is not my area of speciality so I can offer little comment on this bill.
ELECTORAL LEGISLATION AMENDMENT (Electoral Offences and Preventing Multiple Voting) BILL 2021
Full details of the bill can be found at this link
To quote the explanatory notes with the bill –
“New Part XVC is inserted to specify the circumstances where the Electoral Commissioner can declare an elector to be a designated elector, requiring the elector to vote by declaration vote. It also provides for the review of a declaration of designated elector to be conducted by the Electoral Commissioner, a delegate of the Electoral Commissioner, or the AAT.”
This change is similar to a provision of the NSW Electoral Act in dealing with suspected multiple voters. Multiple voting is almost impossible to prosecute unless the alleged multiple voter makes an admission. The new provision gives the Electoral Commissioner a mechanism to deal with electors who are reasonably suspected of having voted multiple times in the same election to safeguard against multiple voting in future elections. A voter declared a ‘designated voter’ would still be permitted to vote, but they would have to cast a declaration vote, that is their ballot paper is placed in a declaration envelope to be processed and admitted to the count in the post-election period. Only the first declaration vote would be admitted to the count.
Schedule 2 amends the penalty for the offence of interference with political liberty in section 327. The note in the bill refers to “Violence, obscene or discriminatory abuse, property damage and harassment or stalking are examples of conduct that may be an offence under this subsection.” It provides for a penalty of three years or 100 penalty units. It is a response to threatening behaviour that some candidates have faced at elections, but given the penalty imposed by the provision, would have to be applied to significant events and require strong evidence for conviction. No doubt more detail of past incidents will come to light during the debate.
All sound pretty reasonable to me.
It’s mostly reasonable, but my concern about names is that the DLP and New Liberals are direct splits of a party, and their name reflects that split. I admit that I’m an informed (I read this blog at least) voter and English is my first language; not everyone has those advantages.
I think an easier fix to the naming issue is ensuring party logos are present on ballot papers and campaign material. Logos are unique and can be subject to plagiarism laws preventing copycats. ESL speakers can easily assign their vote by looking for the logo, rather than getting confused between the Liberal Democrats, the Liberals, and the Liberals for Climate.
I agree Brian. The DLP is clearly distinct from the ALP in terms of colours, graphics etc. and there might be a case to have coloured logos on the ballot (although it would of course cost more). The Lib Dems, by contrast are deliberately trying to copy the Liberal Party. Colour distinction could be applied as well, but I think similar names resulting from a historical split can’t be removed. Interestingly, a Victorian Supreme Court ruling certified the DLP as the legal continuation of the ALP in that state, due to the circumstances of the split, so in theory the DLP might be the only party allowed to use “Labour” in the name under these rules.
There were no registered parties in 1955. Party registration, for Commonwealth elections, was only introduced in 1984. The Court ruling was about things like membership records, etc.
Peter, I am trying to locate the Victorian Supreme Court decision to which you refer but cannot find it. Are you able to provide a case name and/or citation? Many thanks. Andrew
(Disclaimer: I am not a lawyer!)
I think there is a reasonable chance that some or all of the controversial changes will get challenged in the High Court. Mostly on implied freedom of electoral communication/elections grounds but applying the party name restrictions to existing parties` existing names (which I am not sure this bill does, it only says “refuse to enter into the register” so there might be grandfathering) might also get challenged on “acquisition of property not on just terms” grounds. How the High Court would rule, I do not know.
COMMENT: Acquisition of property didn’t fly in the tobacco plain packaging case. And if a party name is going to become property, you open up whether names like how the Liberal Democrats could have been allowed to infringe on the property rights of the Liberal Party. In the end the registration of parties is a creation of the Electoral Act.
If the issue turns on number of members, then why is the number 500 magical? Maybe you could argue that rising from 500 to 1,500 is unreasonable this close to an election, but it’s tough to turn that into a general principle of unreasonableness. Especially when 1,500 is less onerous per capita than laws in the states.
The ‘political campaigners’ bill is the bigger long term concern. At least it will upset charitable groups, and some ‘l’ liberals on the government backbenches. It dramatically narrows the net that allows some smaller groups, who do limited advocacy, to avoid the now quite intricate ‘Transparency Register’.
But… not easy to see the High Court intervening here, as it is likely to see ‘mere’ disclosure obligations as not disproportionate burdens. Even though, for smaller often volunteer dependent groups, the red-tape can be tough.
As for the headline grabbing bill – on party names… The High Court would have to upturn the old DLP Deregistration case (Mulholland’s case) to buy itself into this. That case is probably due for revisiting though: the bill here effectively creates a kind of ‘trade mark’ ownership over the use of key political words.
COMMENT: I just added a reference to the Mulholland case to the post.
There might be an argument that the registration is a contract and therefore property. Maintain the membership and the party fulfils the contract and so the just terms rule applies. The High Court may reject this but there may be a reasonable chance they would at least hear it.
Other than in registration is a contract arguments, 500 is not magical, however, the limit may fall between 500 and 1,500.
For national ballot access for a party, 1,500 is reasonable. If the only elections the 1,500 applied to were national at-large elections, there would be little argument against it. However, the current party registration system is one size fits all for elections in all of which Australia is subdivided.
Given that the Senate is designed to preserve the interests of people by state and each state`s Senate election is constitutionally separate enough to have the writs issued by their own governor and House of Reps electorates cannot cross state boundaries, there is a serious argument that party sizes have to work for state sized parties, in their own state. The group electoral system in the Senate also heavily favours groups with party names over groups without. The Jackie Lambie Network being the prime example of a state based party (even though it is currently exempt from the member numbers rule, it did need member numbers during Lambie`s spell out of Parliament) that may or may not have an issue with 1,500 numbers but still be an electoral force at state level.
It might even be extended to individual house electoral level, although the case is probably weaker than at state level or even multiple electorate level. 500 is a decent number of voters to actively back a candidate in an individual electorate and a party of that size within the electorate would likely represent a significant political force. I note that the proposed party naming rules specifically exempt Australian geographical names from first registered party with the name veto, so there is at least some concept of geographically specific parties (e.g. if the Voices for (insert electorate name here) movement that started with Indi) getting registration.
Seems reasonable on the whole, we have been crying out for years to start counting early on pre polls and postals. We need to get rid of party names that are similar to current parties eg “liberal democrats” many people especially the elderly have been confused between it and LIberal.
Unless the Liberal Democrats get a bucketload of new members, they’re stuck in between a rock and a hard place in regards to both the members and feigning the Libs rules. Given that the WA Party is already facing deregistration, one assumes that they’d be a bit screwed under this.
Do the separate branches of the Greens count as separate parties??
COMMENT: The major parties and the Greens choose to register their states as branches of the national party. It has one election advantage in allowing the parties to use different variants of their party name in different states.
> For those who think the numbers are too high, it is worth considering that one of our much smaller neighbours, Timor Leste, requires parties to have 20,000 members for registration, and the party must have at least 1,000 members from each of the country’s 13 regions.
Is Timor Leste really a good example here? e.g., Why not mention Brazil? There you need 500,000 members.
(COMMENT: I could have mentioned almost any country and they would have had a higher requirement than Australia. I just happened to have Timor Leste’s to hand.)
> Timor-Leste has held competitive elections and undergone peaceful transfers of power, but its democratic institutions remain fragile, and disputes among the major personalities from the independence struggle dominate political affairs. Judicial independence and due process are undermined by serious capacity deficits and political influence.
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> 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 explanatory notes to the bill state it is intended to “enhance public confidence in Australia’s political processes 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 Australian Parliament.”
It reduces limits by 5x-10x. It’s similar to (tho much shorter than) the green’s recent draft bill that had ridiculously low limits.
Consider: that change must be targeting some problem, so who is it aimed at? What is the current problem that it solves? It certainly doesn’t help with bad practices from LNP/Labor.
Timor-Leste was ranked first in South East Asia in The Economist’s Democracy Index in both 2016 and 2019, and the quality of elections was a major contributor to that. In the 2019 Index, Timor-Leste was ranked highest in South East Asia on the specific dimension of “Electoral Process and Pluralism”, also being rated more highly than longer-established democracies such as South Korea, the USA, Israel, Japan and India. Timor-Leste also ranked first in South East Asia in the 2019 Perceptions of Electoral Integrity Index compiled by the Electoral Integrity Project.
Asking a small party with limited resources to increase its membership by up to a 1000 in the lead up to an election is unreasonable and clearly intended to deregister voices seeking to improve representative democracy in this country. At the least the Bill should be amended to not require these changes to occur until post the next Federal election.
COMMENT: If a party can’t get a thousand members in the next six months, what hope does it have attracting votes at an election? Parties that have a capacity to attract votes will get enough members. All the complaints seem to be about the struggle that will face parties with very little support. That’s why we have nomination rules, nomination deposits, minimum membership requirements. As Chief Justice Gleeson wrote, these are “well-known forms of regulating candidature at elections which have never been regarded as infringing the electors’ right of choice, or as involving unreasonable discrimination.”
I’d have to respectfully disagree here Antony. Having been involved in minor parties for some time, I know most are already gearing up for the elections as we speak. Demanding they stop this to focus on intensive membership gathering will severely impact on the quality of their election campaign given that they will effectively lose 3 months of campaign preparation. Don’t forget most minors are completely volunteer run, so membership drives and everything else happens on weekends and after work. It’s nothing like what the majors do. Plus funds for membership drives are much more limited for the minors.
Antony, I would have to respectfully disagree with you on this point, given that 1500 members are required after 3, not 6, months. At this point most minor parties are focusing on candidate selection, not membership drives. If this proposal is adopted, these organisations will need to change tack for 3 months to obtain around 1000 extra members or 84 new members per week – no small task for largely volunteer-run parties, particularly those not in parliament. If the 1500 rule was introduced after the election, it would be much fairer. As it stands now, it looks like an attempt to reduce competition for an unpopular Coalition government and disrupt the campaigns of those competitors that do make it to the starting line.
COMMENT: You have more than three months. The bill has only just been introduced. It is three months after the bill has passed both houses and been signed into law by the Governor-General. It won’t be quick because I suspect it will go to a Senate committee. If the process is delayed the law may not even come into force.
Hopefully it doesn’t come into force before the election. I personally believe that the power to oversee electoral change should not be in the hands of Parliamentarians who stand to benefit or lose via those changes. Somehow a non-Party political process is required- perhaps proposed by MPs then taken to a plebiscite or referendum.
COMMENT: In the end, parliamentarians set the rules for this. Parliament created an independent body, the Australian Electoral Commission, and parliamentarians pass the laws that set the rules under which the AEC operates. The suggestions you make all require legislation that is passed through parliament. There is no other body that can set down in law a set of rules governing these matters.
An independent body must be created to avoid incumbent politicians setting the rules on their own election prospects. There are many areas in government where an independent body is needed, which doesn’t currently exist.
Incumbent politicians should not be able to adjust the rules to suit themselves. Period. Nor should they be able to adjust the payments to themselves as ‘public funding’.
The Scandinavian countries transferred the ability of politicians to determine these things decades ago. They are serious democracies.
The New Liberals have almost tripled their membership overnight as a direct consequence of this proposed legislation. Check the Twitter account of Victor Kline to see the story. It’s quite an amazing response from the public and, in one sense, a big backfire for those who might have booed it would hobble them. Instead, they’ve been empowered.
The bigger issue for them (and for the Liberal Democrats) may be the prospect of having to change their party name. The possibility of that would be opened up by the amendments proposed in the Bill to section 134A of the Commonwealth Electoral Act 1918.
When Labor split in Victoria in 1955 the media referred to one party as Cain Labor and the other as Barry Labor, although the leader of the second party (later the Democratic Labor Party) was in fact upper house MP Les Coleman. The Liberal Party split earlier and a party led by former Premier Tom Hollway was called the Victorian Liberal Party in 1955
The proposed changes has led to a huge groundswell of support for TNL- the new liberals. According to the Part leader @victorklineTNL in just 2 days, it’s Twitter a/c has been viewed over 300.000 times. lt has received 1500 Likes, 500 messages and over 1000 new followers. In 2 days, its membership has tripled to over 2000 members!
The barriers tho democracy should be as low as possible, so 500 is good as it would enable parties to build a profile, it’s not that easy to find people politically motivated to join a polarity initially. Places like Timor, Brazil etc that have such high number of members are undemocratic!
Using common terms such as liberal, green, labour, democrat etc used in political discourse should be allowed, using party logos will ensure nobody will be mixed up & vote for the wrong party.