Electoral System and Political Parties (AU0011)

Objective and description: To enhance integrity and confidence in Australia’s electoral system. We will do this by working with the Parliament and the public to investigate the conduct of the 2016 election, use of technology in elections and the framework of donations to political parties and other political entities. Status Quo: The Government has asked Parliament’s Joint Standing Committee on Electoral Matters (JCSEM) to investigate a range of matters relating to the conduct of the 2016 federal election, with particular attention to: the potential application of new technology to casting, scrutinising and counting votes, and whether current authorisations requirements could be applied to all forms of communication; and donations to political parties and other political entities, including the extent of donations being received from foreign sources and the options available to Parliament to regulate these types of donations. JSCEM will also be asked to look at the current donations disclosure regime. A range of matters and areas for potential improvement were raised by civil society regarding this commitment during the public consultation period, particularly in regards to political donations. The Department of the Prime Minister and Cabinet has transmitted these civil society comments to the JSCEM for consideration as part of its inquiry. Ambition: To ensure that public confidence in Australia’s electoral system continues to be strong. Relevance: This commitment will advance the OGP values of accountability, transparency and access to information by: reducing the risk of undemocratic behaviour and conduct, which leads to the perception or reality of corrupt behaviour by politicians and political parties; and increasing public confidence in Australian democracy. COMMITMENT DETAILS: OGP Grand Challenge: Increasing Public Integrity; Timeframes September 2016 – 2017 Lead agency; Department of Finance and Australian Electoral Commission; Other actors involved; Government / Parliament; Joint Standing Committee on Electoral Matters and the Parliament of Australia Committee Secretariat contact: em@aph.gov.au; Non-government; The Parliamentary Committee is anticipated to engage with political parties, non-government organisations and the public

11. Confidence in the electoral system and political parties

Commitment Text:

To enhance integrity and confidence in Australia’s electoral system.

We will do this by working with the Parliament and the public to investigate the conduct of the 2016 election, use of technology in elections and the framework of donations to political parties and other political entities.

[…]

Milestones:

1. JSCEM inquiry and report.
2. Government considers recommendations.
3. Parliament and other relevant stakeholders address Government decisions.

Responsible institution: Department of Finance

Supporting institution(s): Australian Electoral Commission

Start date: September 2016 End date: 2017

Editorial Note: This is a partial version of the commitment text. For the full commitment text, see the Australia National Action Plan available at https://www.opengovpartnership.org/wp-content/uploads/2001/01/Australia_NAP_201...

Context and Objectives

This commitment seeks to increase the integrity and confidence in Australia’s electoral system by inquiring into various issues that arose in the context of the 2016 federal election.

On 21 September 2016, the Joint Standing Committee on Electoral Matters (JSCEM), a parliamentary committee consisting of members from both houses of parliament, commenced an inquiry into ‘all aspects of the 2016 Federal Election and related matters’.[1] The Terms of Reference for the inquiry reflect a range of broad issues that arose in the lead-up to the 2016 election, including:

• how requirements relating to authorisation of electoral material applied to all forms of communication with voters;
• the extent of donations and contributions from foreign sources and how these might be regulated; and
• the applicability of ‘truth in advertising’ requirements to communications to voters including third party carriage services, such as internet providers and social media platforms.
  

The inquiry into these matters is likely to identify further issues that may need to be addressed. As the commitment as written merely provides for an inquiry and report, it is of low specificity. The significance of many of the issues and the range of potential recommendations that may emerge suggests that the inquiry may have a moderate potential impact. However, the low specificity limits the commitment’s potential impact by requiring only that the inquiry’s recommendations be considered rather than implemented. Therefore, the commitment is coded as having minor potential impact. Many of the issues under consideration have also been identified in past inquiries and may raise complex or politically sensitive matters which may limit the impact of any reform possible within the term of this national action plan.

One of the issues that arose from the 2016 election was whether requirements relating to the authorisation of electoral material need to be updated to reflect the use of new and emerging forms of media.[2] An inquiry into authorisation of electoral materials could increase the transparency of the communication around electoral matters, ensure consistency and predictability in the treatment of new forms of media and accountability for the information being presented. It therefore can have an important effect on voters’ trust in the integrity of the electoral campaign process.

There have been a number of proposals for reform of the disclosure system for political donations to address some of its weaknesses.[3] Notably, the disclosure requirements do not make any distinction over whether the donor is Australian or from overseas. Several examples of foreign donors received media attention in 2016 leading to concerns over whether foreign donations should be regulated, and if so, how.[4] Some charities and non-profit organisations have raised concerns over whether the administrative burden of having to disclose all foreign donations might discourage political advocacy activities.[5]

An inquiry into political donations is likely to consider these and other aspects of the present disclosure requirements. Any reforms could potentially have a significant effect on the availability of information on political donations, enhancing understanding of the use of donations as a form of civic participation and accountability for the influence such donations might have on government decision making. Enhanced disclosure requirements may also encourage the development of innovative technological approaches to the use of donation information.

Completion
Milestone 11.1 has seen substantial progress during the implementation period under review in this report. The JSCEM had released three interim reports prior to 1 July 2017 – on the authorisation of voter communication,[6] foreign donations[7] and modernisation of the Australian Electoral Commission.[8] The Committee announced a general review into political donations on 22 August 2017.[9]

As of the second interim report, the Committee had accepted more than 140 submissions and conducted 12 public hearings in all capital cities except Darwin, and the regional location of Townsville in north Queensland.[10] The Committee had received submissions and evidence in public hearings from individuals including academics, charities, not-for-profit organisations and other civil society organisations, business representatives, unions and political parties.[11]

In its first interim report, the Committee recommended taking a principled approach to authorisation of voter communication requirements to cover all forms of emerging voter communication, and that further inquiries be made into the issues of impersonating a Commonwealth officer or entity. [12]

The Second Interim Report recommended a prohibition on donations from foreign citizens and entities. It also recommended that there be a further inquiry into how to prevent foreign funds being channeled through organisations engaged in political activities but who are not currently subject to regulation under the Electoral Act.

Milestone 11.2, which is dependent on the inquiry process saw limited completion. Government considered the recommendations made in the first report (see milestone 1.3 completion below). At the same time, the Government committed to introducing legislation before the end of 2017 to address the Committee’s second report on donations.

Milestones 11.3 saw limited completion. In response to the Committee’s recommendations, the Electoral and Other Legislation Amendment Bill 2017 was introduced to the Parliament on 30 March 2017 and assented to on 14 September 2017, after the period of implementation under consideration. The Act extends authorisation requirements in the Electoral Act and Referendum (Machinery Provisions) Act 1984 to all forms of paid electoral advertising, no matter the source or channel of communication. It also amends authorisation to the person who has approved the content of the communication and extends the information to be provided.[13]

The Parliamentary Library has raised some concerns about how practical it will be to enforce the new authorisation requirements and the deterrent effect of the civil penalties now involved for breach of the requirements.[14] The Senate did not agree to proposed amendments relating to impersonating a Commonwealth body originally included in the Bill.

Legislation addressing the second interim report on foreign donations was introduced into Parliament on 7 December 2017.[15] This Bill and concerns raised about its potential impact on public participation will be discussed in the end-of-term report.

As the substantive effect of the Electoral and Other Legislation Amendment Act 2017 was not due to commence until 14 March 2018 there have not been any results as yet of the implementation of this commitment.

Next Steps

While the JSCEM inquiry process provides an open opportunity for consideration of the issues that might have arisen in past elections, further community collaboration in implementing the recommendations of the Committee would enhance community awareness of the issues and legitimacy of any proposals that result. The relationship between political donations and broader questions of political influence was also raised by several civil society organisations as warranting consideration.[16]

Therefore, next steps to be considered could include:

• Developing a more specific consultation process to respond to proposals arising from the final report of the JSCEM inquiry;
  
• Establishing a collaborative process to examine the role of disclosure of political donations in enhancing transparency of lobbying and other forms of political influence.

Commitment 11. Confidence in the electoral system and political parties

Commitment Text:

To enhance integrity and confidence in Australia’s electoral system.

We will do this by working with the Parliament and the public to investigate the conduct of the 2016 election, use of technology in elections and the framework of donations to political parties and other political entities.

[…]

Milestones:

1. JSCEM inquiry and report.
2. Government considers recommendations.
3. Parliament and other relevant stakeholders address Government decisions.

Responsible institution: Department of Finance

Supporting institution(s): Australian Electoral Commission

Start date: September 2016                          End date: 2017

Editorial Note: This is a partial version of the commitment text. For the full commitment text, see the Australia National Action Plan available at https://www.opengovpartnership.org/sites/default/files/Australia_NAP_2016-2018_0.pdf

Commitment Aim:

This commitment sought to identify reforms to increase the integrity of, and confidence in, Australia’s electoral system by holding a public inquiry into various issues that arose in the context of the 2016 federal election. While not specified in the commitment, the terms of reference for the inquiry include:

1. how requirements relating to authorisation of electoral material applied to all forms of communication with voters;
2. the extent of donations and contributions from foreign sources and how these might be regulated;
3. the applicability of ‘truth in advertising’ requirements in communications to voters including third party carriage services, such as internet providers and social media platforms; and
4. the current political donations, contributions, expenditure, and disclosure regime generally.

Status

Midterm: Limited

This commitment was completed to a limited degree by the midterm of the first national action plan. The inquiry into electoral issues by the parliamentary Joint Standing Committee on Electoral Matters (JSCEM) (part of milestone 1) had released three interim reports [152] and announced a general inquiry into political donations. [153] The government had considered the first of the interim reports (part of milestone 2) and introduced the Electoral and Other Legislation Amendment Bill 2017 to the Parliament on 30 March 2017 (part of milestone 3). For further information see the midterm Progress Report.

End of term: Substantial

As part of milestone 3, the Electoral and Other Legislation Amendment Act 2017 became law on 15 September 2017, updating the requirements relating to authorisation of electoral advertising to include new media channels. The Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 was introduced to Parliament on 7 December 2017. [154] The Bill responds to the recommendations of the JSCEM Second Interim Report on the inquiry into the conduct of the 2016 federal election: Foreign Donations. It includes measures to establish a public register for non-party political actors, require political donors to be sufficiently connected to Australia, and make it unlawful to knowingly retain or use foreign donations to finance political expenditure in Australia. [155]

The Minister for Finance referred the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 to the JSCEM on 6 December 2017 to inquire and report on whether the Bill should be passed. The JSCEM reported on 9 April 2018. [156] 203 submissions were received and made available on the committee website along with the transcripts of four public hearings held in Canberra and Sydney. [157] Proposed government amendments to the Bill were put to the committee for consideration on 20 September 2018, with further submissions invited until 27 September 2018. [158] The JSCEM reported on the Bill in October 2018, [159] to which the government responded on 14 November 2018, [160] after the end of the term of the national action plan. The Bill, with amendments, was passed on 27 November 2018. [161]

The JSCEM announced that it would hold a review into political donations generally as part of its review under milestone 1 on 22 August 2017. [162] A discussion paper was released on 8 September 2018, setting out three broad options for donations:

1. Personal funding from candidates financially supporting their own campaigns;
2. Private funding from small and large donors of cash and in-kind support;
3. Public funding from taxpayer-funded payments to political parties and candidates. [163]

The JSCEM also announced that it will extend its inquiry into the conduct of the 2016 election to consider if Australian elections are at risk of social media manipulation, such as that seen in recent reports of cyber manipulation of elections in the United States and United Kingdom. [164]

Since the midterm, the JSCEM has received an additional 88 submissions, and held seven additional public hearings in connection with this element of the inquiry. [165] The JSCEM released its final report after the end of the term of the national action plan in November 2018. [166]

As the JSCEM had not completed its inquiry into the conduct of the 2016 election at the end of the term of the first national action plan milestone 1 was not completed. However, given the number and scope of the interim reports and the introduction of two pieces of legislation responding at least in part to the inquiry, this commitment has been completed to a substantial degree.

Did It Open Government?

Access to Information: Did Not Change

Civic Participation: Marginal

The Electoral and Other Legislation Amendment Act 2017 extends authorisation requirements under current legislation to all forms of paid electoral advertising, no matter the source or channel of communication. It also amends authorisation to the person who has approved the content of the communication and extends the information about that person to be provided. [167] The explanatory statement accompanying the introduction of the legislation states that the additional information provided will be an important element in ensuring transparency in political advertising across new forms of media. [168] However, the legislation will not directly affect the quantity or quality of information provided by the government. Other elements of the commitment which might lead to increased disclosure, such as donations and expenditure reforms, had been legislated or come into effect at the end of the term of the national action plan and thus there was no change at the time of writing.

Based on the number and scope of submissions received, the JSCEM, in its inquiry into the conduct of the 2016 election and into the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017, presented extensive opportunities for the public to make submissions and participate in public hearings. However, the JSCEM inquiry was established prior to the development of the national action plan and followed similar inquiries held after previous general elections. [169] Like other standing committees, the JSCEM had a regular practice of inviting submissions and holding public hearings in relation to all its past inquiries.

The Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017, which arose in part out of the JSCEM Second Interim Report on Foreign Donations, was also referred to the JSCEM for inquiry prior to its being introduced in Parliament. Based on the number and scope of submissions and public hearings involved, that inquiry, and a subsequent reference to consider amendments to the Bill, provided an opportunity for any interested member of the public to make a submission and for a range of stakeholders to appear at public hearings. Greg Thompson, a Board Member for Transparency International Australia, indicated that such references are also common for pieces of controversial legislation, particularly relating to electoral reform. [170]

Carried Forward?

The progress report on the first national action plan recommended that a more specific consultation process be developed to respond to proposals arising from the JSCEM inquiry, and to commit to a collaborative process to examine further disclosure of political donations.

The second national action plan includes a commitment to enhance the transparency of political donations and funding. Under the commitment, the government has committed to investigate options for enhancing the timeliness and accessibility of information relating to political donations and campaign spending. However, the commitment merely continues the current commitment’s reliance on the JSCEM inquiry into the conduct of the 2016 election, with the government again to consider the committee’s recommendations and Parliament and other relevant stakeholders to then consider government decisions.