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LCA: Proposed electoral funding law reform ‘vast improvement’ but more work still needed

The Law Council of Australia has shown its support of recommendations to improve the government’s Electoral Funding and Reform Bill, however noted that there are still further issues to consider.

user iconEmma Musgrave 12 April 2018 Politics
LCA: Proposed electoral funding law reform ‘vast improvement’ but more work still needed
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Earlier this week a Parliament statement revealed that the joint standing committee on electoral matters had amended the Electoral Funding and Reform Bill Inquiry Report, putting forward key recommendations.

Among these recommendations, the committee unanimously agreed that foreign donations for the purpose of election campaigning should be banned.

“While most would agree that only Australians should have the power to influence our election outcomes, Australia is one of the few Western democracies where foreign money can still be used to influence domestic elections,” said committee chair senator Linda Reynolds.

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“The committee in-principle supports passage of the bill subject to the government addressing the 15 recommendations contained in the report. These recommendations provide greater clarity for charities to ensure and to align definitions as closely as possible with the intent and principles of the bill, while ensuring regulatory and compliance burdens are minimised.

“The committee also recommended the introduction of a new and easily accessible transparency register to provide voters with the ability to readily identify who is seeking to influence their vote. A transparency register would also assist all third parties, particularly those not currently compliant with legislative requirements, to better understand and comply with their legislative obligations.”

In addition, Senator Reynolds said in “recognition of the significance of this issue to our democracy, committee deliberations on the multi-partisan report were underpinned by the principles of national sovereignty, voter transparency and the preservation of democratic freedoms”.

“Australian citizens must have visibility of who is seeking to influence their votes and have confidence that foreigners are not seeking to influence the outcome of their votes. Therefore, Australia’s electoral laws must apply equally to all participating in the political process with the aim of influencing electors voting intentions,” Senator Reynolds said.

“Despite consensus on the principle of banning foreign donations, over the course of the inquiry there has been significant and democratically important public debate on the bill. In particular, debate on who, and what activities should be subject to the ban.

“At the heart of the debate on this bill lies the fact that election campaigning today is very different from that in the 1980s when the relevant provisions in the Electoral Act were written.

“It is essential for the effective functioning of Australia’s democracy that the Electoral Act reflects contemporary campaigning practices – while not restricting freedom of expression.”

Speaking on the amended report, the Law Council of Australia said it commended the recommendations put forward, noting that a number of them address concerns previously raised by the legal body.

In particular, LCA president Morry Bailes said he was especially supportive of recommendations that align with the legal body’s concerns, such as:

• Activities within charitable purposes, as permitted by the Charities Act 2013 (Cth) and regulated by the Australian Charities and Not-for-profits Commission, should not be included in the proposed electoral funding, disclosure and transparency reforms; and

• The definition of ‘political purpose’ should reflect the purpose of the activity (rather than the activity) so as to exclude charities carrying out their charitable purposes.

“We believe it is appropriate for the Australian Parliament to protect the electoral process from malevolent foreign influence, but we must not restrict legitimate advocacy by Australian charities for well-defined charitable purposes,” Mr Bailes said.

“While the committee did not go so far as to recommend a blanket exemption for registered charities, the report does contain a range of recommendations aimed at ensuring that the regulatory and compliance burden on the charitable sector is minimised.

“Increasing the regulatory burden on the charitable sector takes away from the time and funds they have to pursue their stated purposes.”

However, Mr Bailes noted that there are still further issues to consider, including clarification of the definition of ‘political expenditure’ and addressing the possibility of having overlapping ‘Transparency Registers’ under two different schemes.

“A key issue is that ‘political expenditure’ has still not been defined and so it remains to be seen the extent to which charities and NGOs will be captured,” he explained.

“A further matter is the recommendation to create of a ‘Transparency Register’ and the lack of clarification on how this register will operate in conjunction with the proposed Foreign Influence Transparency Scheme Bill 2018 (FITS Bill).

“Having overlapping registers under two different schemes has the potential to unnecessarily increase the regulatory burden of those affected.

“The Law Council is willing to engage with Parliament to ensure an appropriate definition of political expenditure is reached and that there is a harmonisation of any registers created under this bill and the FITS bill.”

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