Electoral (Miscellaneous) Amendment Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Long title, page 1—After 'Electoral Act 1985' insert:

and to make a related amendment to the Local Government Act 1999

No. 2. Clause 2, page 3, lines 4 and 5—Delete the clause

No. 3. New clause, page 4, after line 5—Insert:

8A—Amendment of section 42—Registration

Section 42(2)(e)—delete paragraph (e) and substitute:

(e) comprises or contains the word 'Independent'.

No. 4. Clause 11, page 4, after line 25—After subclause (2) insert:

(3) Section 53—after subsection (10) insert:

(11) In this section—

prescribed amount means—

(a) in the case of a candidate nominating for election as a member of the House of Assembly—$1,000, or such lesser amount as may be prescribed by the regulations; or

(b) in the case of a candidate nominated for election as a member of the Legislative Council—the amount prescribed by the regulations for the purposes of this paragraph.

No. 5. Clause 12, page 4, after line 28—After its present contents (now to be designated as subclause (1)) insert:

(2) Section 53A—after subsection (4) insert:

(4a) If a nomination paper lodged under subsection (2) does not fully comply with the requirement under subsection (3)(a)(ii), the relevant district returning officer must, if practicable, give the nominated candidate notice of the non-compliance sufficient to enable the candidate to fully comply with the requirement before the hour of nomination.

No. 6. Clause 12, page 4, after line 28—After its present contents (now to be designated as subclause (1)) insert:

(2) Section 53A—after subsection (5) insert:

(6) In this section—

prescribed amount means—

(a) in the case of a candidate nominating for election as a member of the House of Assembly—$1,000, or such lesser amount as may be prescribed by the regulations; or

(b) in the case of a candidate nominated for election as a member of the Legislative Council—the amount prescribed by the regulations for the purposes of this paragraph.

No. 7. Clause 14, page 5, lines 8 to 11—Delete the clause

No. 8. New clause, page 5, after line 11—Insert:

14A—Amendment of section 66—Preparation of certain electoral material

(1) Section 66(2)(f)—after subparagraph (i) insert:

(ia) by use of a word or set of words that comprises or contains the word 'Independent' and—

(A) the name, or an abbreviation or acronym of the name, of a parliamentary party or a registered political party; or

(B) matter that so nearly resembles the name, or an abbreviation or acronym of the name, of a registered political party that the matter is likely to be confused with or mistaken for that name or that abbreviation or acronym; or

(2) Section 66(2)(f)(ii)—delete '(2)(e) or'

(3) Section 66(2)—after paragraph (f) insert:

(fa) must not identify a candidate by use of the word 'Independent' if the candidate is endorsed by a registered political party; and

No. 9. Clause 16, page 5, lines 15 to 36—Delete the clause

No. 10. Clause 18, page 6, lines 11 to 14—Delete the clause

No. 11. New clause, page 11, after line 3—Insert:

27A—Amendment of section 112A—Special provision relating to how-to-vote cards

Section 112A—after subsection (5) insert:

(5a) If the Electoral Commissioner is satisfied that a how-to-vote card has been distributed in contravention of this section, the Electoral Commissioner may request that the person who authorised the card do either or both of the following:

(a) immediately cease distributing, or causing or permitting the distribution of, the how-to-vote card;

(b) publish a retraction in specified terms and a specified manner and form,

(and in proceedings for an offence against this section arising from the distribution of the how-to-vote card, the authorised person's response to a request under this subsection will be taken into account in assessing any penalty to which the person may be liable).

No. 12. New clause, page 11, after line 3—Insert:

27B—Amendment of section 112B—Certain descriptions not to be used

(1) Section 112B(1)—after paragraph (a) insert:

(ab) by use of the word or a set of words containing the word 'Independent' and—

(i) the name, or an abbreviation or acronym of the name, of a parliamentary party or a registered political party; or

(ii) matter that so nearly resembles the name, or an abbreviation or acronym of the name, of a registered political party that the matter is likely to be confused with or mistaken for that name or that abbreviation or acronym; or

(2) Section 112B(1)(b)—delete '(2)(e) or'

(3) Section 112B—after subsection (1) insert:

(1a) A person must not publish or distribute an electoral advertisement or a how-to-vote card that identifies a candidate by use of the word 'Independent' if the candidate is endorsed by a registered political party.

Maximum penalty: $5 000.

(4) Section 112B(2)—delete 'Subsection (1) applies' and substitute '

Subsections (1) and (1a) apply

(5) Section 112B(3)—delete 'Subsection (1) does' and substitute:

Subsections (1) and (1a) do

No. 13. Clause 28, page 11, lines 4 to 6—Delete the clause

No. 14. New clause, page 11, after line 6—Insert:

28A—Insertion of section 115A

After section 115 insert:

115A—Automated political calls

(1) A person must not make, or cause or permit the making of, a telephone call consisting of a pre-recorded electoral advertisement unless, immediately after that part of the call consisting of the advertisement, the following statements are made:

(a) the name and address (not being a post office box) of the person who is making, or who authorises the making of, the call;

(b) if the call is authorised for a registered political party or a candidate endorsed by a registered political party—the name of the political party;

(c) if the call is authorised for a relevant third party—the name of the relevant third party.

Maximum penalty:

(a) if the offender is a natural person—$5,000;

(b) if the offender is a body corporate—$10,000.

(2) In this section—

relevant third party means an organisation or other person, other than a registered political party, candidate or natural person, who—

(a) as at the day on which the automated political call to which subsection (1) relates is made, intends to spend more than $2,000 on electoral advertisements—

(i) if the call is made in an election period—during that election period; or

(ii) in any other case—during the election period for the next general election due to occur; or

(b) spent more than $2,000 on electoral advertisements during the election period for the general election immediately preceding the day on which the automated political call to which subsection (1) relates is made.

No. 15. New clause, page 11, after line 6—Insert:

28B—Amendment of section 117—Candidates not to take part in elections

Section 117(2)—delete subsection (2)

No. 16. Clause 29, page 11, lines 7 to 22—Delete the clause

No. 17. New clauses, page 11, after line 36—Insert:

31—Amendment of section 130A—Interpretation

(1) Section 130A(1), definition of capped expenditure period—delete '(subject to subsection (9))'

(2) Section 130A(1), definition of designated period—delete '(subject to subsection (10))'

(3) Section 130A(1), definition of political expenditure—delete the definition and substitute:

political expenditure means expenditure incurred—

(a) for the purposes of the public expression of views on a political party, a candidate in an election or a member of the House of Assembly or the Legislative Council by any means; or

(b) for the purposes of the public expression of views on an issue in an election by any means; or

(c) for the purposes of the production of any political material (not being material referred to in paragraph (a) or (b)) that is required under section 112, 115A or 116 to include the name and address of the author of the material or of the person who takes responsibility for the publication or authorisation of the material (as the case requires); or

(d) for the purposes of the carrying out of an opinion poll, or other research, relating to an election or the voting intentions of electors; or

(e) for any other prescribed purpose,

and includes expenditure of a prescribed kind, but does not include—

(f) expenditure that is a GST payment; or

(g) expenditure of an electorate allowance or another allowance, expense or benefit (as determined by the Remuneration Tribunal) under section 4(1)(c) of the Parliamentary Remuneration Act 1990; or

(h) administrative expenditure; or

(i) expenditure of an allowance or benefit of a kind contemplated under section 6A(1) of the Parliamentary Remuneration Act 1990; or

(j) expenditure of a prescribed kind;

(4) Section 130A—after subsection (1) insert:

(1a) For the purposes of this Part, if the disclosure period for a return required to be furnished under this Part by a candidate or group has not commenced, a requirement in this Part that a return be furnished at a prescribed time during a designated period is not to be taken to require the furnishing of a return by the candidate or group at that prescribed time.

(5) Section 130A(5)—delete '(other than Division 3)'

(6) Section 130A(6)—delete 'For' and substitute 'Subject to subsection (6a), for'

(7) Section 130A—after subsection (6) insert:

(6a) Political expenditure on electoral matter in relation to a candidate or group for election that is incurred—

(a) after polling day for the last preceding general election and before the commencement of the capped expenditure period for the election; and

(b) for the primary purpose of publication, use or display of that electoral matter during the capped expenditure period,

will be taken to have been incurred during the capped expenditure period.

(8) Section 130A(9) and (10)—delete subsections (9) and (10)

32—Substitution of section 130C

Section 130C—delete the section and substitute:

130C—Application of Part

A registered political party is only required under this Part to disclose donations and amounts received or applied for State electoral purposes.

33—Amendment of section 130L—Gifts to be paid into State campaign account

Section 130L—delete 'the gift is made or received in contravention of this Part or is otherwise a gift that must not be paid into such an account in accordance with this Division' and substitute:

—

(a) the gift is made or received in contravention of this Part; or

(b) in relation to a gift received by or on behalf of a registered political party—the gift is not intended by the registered political party to be used for State electoral purposes; or

(c) the gift is otherwise a gift that must not be paid into such an account in accordance with this Division.

34—Amendment of section 130M—Payments into State campaign account

Section 130M—after subsection (1) insert:

(1a) If a registered political party keeps an account with an ADI for federal electoral purposes, the agent of the registered political party must ensure that no amount is paid or transferred from that account into the State campaign account.

35—Amendment of section 130Y—Application of Division

Section 130Y(2)(b)—delete 'the capped expenditure period commences in relation to the candidate or group for the election' and substitute:

—

(i) the capped expenditure period commences in relation to the candidate or group for the election; or

(ii) the disclosure period for a return required to be furnished under this Part by the candidate or group in relation to the election commences,

whichever period commences later

36—Amendment of section 130Z—Expenditure caps

(1) Section 130Z(1)(c)—delete '(or, if different amounts are so allocated to the candidate at different times, the amount so allocated at the end of the capped expenditure period)'

(2) Section 130Z—after subsection (2) insert:

(2a) For the purpose of subsection (2)(a), the amount agreed between the candidate and the agent of the party may vary at different times, provided that the candidate and agent may not vary the amount agreed after notice of the agreement has been given to the Electoral Commissioner under subsection (3).

(3) Section 130Z(3)—delete 'within 3 days of the agreement' and substitute:

at least 8 days before polling day for the election

(4) Section 130Z—after subsection (3) insert:

(3a) The Electoral Commissioner must not publish an agreement given to the Electoral Commissioner under subsection (3) until after the end of the capped expenditure period for the election to which the agreement relates.

37—Amendment of section 130ZF—Returns by certain candidates and groups

Section 130ZF—after subsection (5) insert:

(5a) Despite section 130ZZ, if no details are required to be included in a return required to be furnished under this section by the agent of a candidate or group of candidates endorsed by a registered political party, the return need not be furnished to the Electoral Commissioner as required by this section.

No. 18. New Schedule, page 11, after line 36—Insert:

Schedule 1—Related amendment and transitional provision

Part 1—Amendment of Local Government Act 1999

1—Amendment of section 226—Moveable signs

Section 226(3)(c)—delete 'on the issue of' and substitute:

at 5pm on the day before the day of the issue of

Part 2—Transitional provision

2—Political expenditure on electoral matter

Section 130A(6a) of the Electoral Act 1985 (as inserted by this Act) applies to political expenditure on electoral matter incurred on or after 1 May 2017 (but does not apply to political expenditure on electoral matter incurred before that date).

Consideration in committee.

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments be agreed to.

I will be very brief because I know that it has been an exhausting process for members. I have had a quick perusal of the message and the amendments suggested by the other place and, in my opinion, they have 90 per cent of it right.

The CHAIR: So close.

The Hon. J.R. RAU: I do not want to allow perfection to be the enemy of the good, so I am indicating that we will be supporting this.

The CHAIR: All 18?

The Hon. J.R. RAU: The whole thing, even though in a perfect world there could have been more stuff about pre-polling. Can I say on the record that I do appreciate the constructive way in which the various members of the parliament, both here and in the other place, have engaged on this topic. It has been a very complicated matter, but everybody has entered into this in the appropriate spirit, a spirit of embracing the notion of more disclosure in terms of parliamentary expenditures and donations.

We have also been able, I hope, to clarify a few matters that were potentially vexing for the Electoral Commission, where there are a number of alternative views about what the act, as it is presently, is requiring people to do. Hopefully, we have clarified some of those murky areas so that everybody, from the Electoral Commission down to us, is in no befuddlement about what is expected. That is good because we want everyone to participate in the election in good faith and not make mistakes on the basis that they have tried really hard but just cannot understand what is going on.

Hopefully, we have dealt with those potential problems and, hopefully, this assists the Electoral Commission in doing their very important job of making sure that the transparency and accountability the disclosure and public funding rules require runs smoothly. Even though the legislation changed back in 2013, this is the first time that legislation is actually starting to engage in an electoral process, because at the last election it was far too late in the piece for everyone to be ready to go. With those few words, I recommend that we endorse and support the suggested amendments.

The CHAIR: Before the deputy leader speaks, I do not remember anyone speaking to me about any of this, but there you are; that is another story altogether.

Ms CHAPMAN: Madam Chair, I am concerned if you did not have an opportunity to read the amendments. I suppose if one had been following the debate it can be fairly quickly identified what has been varied. I appreciate that there may be members, not just you, who will not have followed the debate in full to appreciate the amendments and identify them as they have come back from the other place.

In short, the bill was originally prepared and presented by the government based largely on recommendations of the former electoral commissioner and, I think it is fair to say, largely identifying areas of reform that in her view needed to be attended to if we were to have a functional operation not just for electoral matters generally but also for the management of her role or the role of an electoral commissioner during campaigns. In addition to a number of her recommendations, some of which I must say were not taken up by the government, the bill was complemented by some rather novel initiatives of the Attorney.

His view in respect of fines that should apply to people who breached the act and his view in respect of the right of people to undertake their vote as a pre-poll—that is, prior to election day—were rather novel. I can say that I am very pleased that the other place has determined our pre-polling arrangements, and in particular the right for people to exercise their vote prior to polling day, has survived.

The rather novel approach of the government, in particular the Attorney, would have resulted in the denial of people being able to vote other than for a period of four days prior to the election. We all know what the ALP's tactics are in respect of election campaigns and their conduct in the last week so, firstly, I think it is important that we ensure that as much as possible we give people an opportunity to vote before they are hit with a barrage of negative contributions in an election campaign. However, more importantly, we support the principle that people ought to have the right to vote when it suits them, not when it is committed to by a determination of what the Attorney-General thinks.

People have different and busy lives. People have commitments to young children and older relatives, and people have employment which is perhaps different from ours in this house and which means being available on election day on a particular day—the third Saturday and the fourth anniversary in the month of March for elections—does not always suit. Our side of the house is of the view that people should be able to maintain the opportunity to still vote, again within a time frame but considerably greater than the government had intended.

I welcome the upper house consideration and the amendments it has presented. I have quickly scanned what I see as a change in the prescribed amount for House of Assembly members nominating for election which, as I understand it, is a compromise position after a number of discussions. I have quickly scanned some other material which relates to, as the Attorney has quite rightly pointed out, tidying up. Hopefully, it will make the Electoral Commissioner's role in the forthcoming election, particularly relating to disclosure and funding, a more practical way of being implemented. I applaud the amendments that have been finally presented to us. It is unusual for me to do so, but in this case I acknowledge the Attorney's most gracious acceptance of them.

Motion carried.