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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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ELECTORAL (FUNDING, EXPENDITURE AND DISCLOSURE) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

Clause 1.

The Hon. I.K. HUNTER: The first issue raised in questions by the Hon. Mr Lucas relates to the operation of disclosure provisions. The Hon. Rob Lucas has voiced strong concerns in relation to the complexity of the scheme. This is a detailed piece of legislation, undoubtedly, but not unnecessarily so, in our view. There are a number of ways that electoral legislation in other jurisdictions have failed to adequately capture the fundraising activities of political participants. In the government's view, this has been considerably minimised by the approach taken in this bill.

There will obviously be implications for the internal financial reporting structures of political parties, the two major parties in particular, and changes will need to be made to ensure that those structures are appropriate to meet the new reporting obligations, but the outcome—that is, the level of political transparency and accountability that will be achieved through these reforms—is worth it, in the government's view.

In relation to the specific questions about auction arrangements, I am advised that the definition of a gift in clause 4 defines gift to include any disposition of property, this includes any transaction where the value of a person's own property is diminished and another's is increased. In the example given by the member, the value of the donated item intended to be auctioned would indeed need to be determined and disclosed.

Perhaps there will be times when the value of an item is not immediately clear, and the honourable member raises this, but I draw the honourable member's attention to new section 130A(2), which specifically allows the regulations to specify, if necessary, a set of principles for determining the value of gifts received. The extent we need to determine a set of principles and what those principles should be will, no doubt, be the subject of future discussions between the government, opposition and crossbenchers.

As for the amount received from the auctioning of the gift, the relevant amount required to be disclosed should, in the government's view, be the difference. I imagine that calculating the difference may unnecessarily contribute further to the complexity of the scheme, requiring the conciliation of gifts received and sold. Perhaps in some circumstances an overestimation of the value of the gift may therefore be made. In any event, should some clarification be necessary as to what amount should be disclosed, this can also be addressed via regulation. I can confirm that the member's statement in relation to relevant events, or dinner donations as he has referred to it, is correct. If a ticket to a relevant event is sold and the difference is over $200 this will count inevitably toward the aggregated threshold.

In relation to the penalties for failing to submit a return, I draw the honourable member's attention to section 130ZZE of the bill. I particularly note that subsection (1) provides a maximum penalty of $10,000. I note that the penalties contained in the bill are consistent with a range of penalties in the act, none of which attract a term of imprisonment. I also draw the member's attention to section 130ZZD of the bill, which does allow for returns to be amended. The bill is not designed to be harsh or inflexible in its application. The objective is transparency: the provision of information which can be made available to the public. If by some unfortunate oversight certain information has failed to be disclosed or some other error is contained in the return, a request may be made to the commissioner for permission to amend the return.

Finally, the operation of expenditure caps in relation to political parties is intended to provide some flexibility. Section 130Z sets out an applicable expenditure cap for each participant. With respect to a political party contesting seats in the House of Assembly, $75,000 multiplied by the number of seats contested is allocated; that is, $75,000 per lower house party candidate. The applicable expenditure cap for the party candidate is derived from this amount. The political party is required, under subsection (3)(l), to allocate an amount to each candidate.

The amount it can allocate is flexible, as a member has indicated, but can be no greater than $100,000. I am referring to section 130Z(3) in that matter. The party candidate's expenditure cap is therefore an amount agreed between the candidate and the agent or relevant party. If no agreement can be reached, the legislation provides an automatic amount of $40,000. Written notice of the agreement must be provided to the commissioner so she is able to administer all caps on expenditure; however, the agreed amount can be modified throughout the expenditure period through lodgement of an updated agreement.

The Hon. K.L. VINCENT: I speak in favour of the Electoral (Funding, Expenditure and Disclosure) Amendment Bill 2013. The initial intent of this bill is a good one. Most other states and territory jurisdictions have had public funding for some time. The principles of providing public funding, limiting election expenditure and providing greater transparency for all political donations within our electoral system are noble ideals.

I would say, however, that Dignity for Disability is not at all impressed with the fashion that this particular change is being brought on for rapid debate this evening. I understand that, again, the major parties have forced debate to be brought on because they are in agreement with each other. Well, isn't that nice! I do not know why the Attorney-General expressed concern that this legislative agenda is stifled by the good and honest debate of this Legislative Council yesterday when really all he has do to ram legislation through this chamber is combine with the opposition when he feels so inclined. It might be undemocratic, it might deny the many South Australians who voted for something other than the major parties to have their views represented, but, hey, it does not matter, the government can drill on with their panicked legislative agenda.

I find all of this quite ironic when the title of Premier Jay Weatherill's press release of Tuesday 10 September 2013 announcing this bill is 'Integrity'. I am not entirely sure, personally, how much integrity is involved in the directors and key players of the two major political parties holding high level discussions in relation to this bill, excluding the Independent and minor parties in discussion on this bill by urgently bringing on this debate.

I thank the Attorney-General's office for providing a briefing on this bill and for their attempts to provide up-to-date information, despite the fact that they are probably struggling to keep up with the Attorney-General's latest discussions. I would acknowledge that I have received the submission from the Electoral Reform Society of South Australia via their secretary, Deane Crabb, on this bill. The first serious concern the Electoral Reform Society raises is why this bill is being dealt with in such a hurried fashion. That is a very good question. It seems to be on a long list of urgent legislation we have been asked to pass in the next 11 days, as if this government did not have the last 11½ years to push through its agenda. Anyway, perhaps I am digressing just a little.

The Electoral Reform Society suggests that, given we are one of the last jurisdictions to put public electoral funding into operation, we should be doing so after consideration of a select committee. As this bill is not implementing public funding until the 2018 election, with some measures to be in place from 1 July 2015, the society queries the need for this bill to pass this week. Could the government please explain the reason for this urgent rush? Is the only possible moment that the major parties can agree on this issue today? Have the stars aligned in a way that I do not seem to understand and could the government please explain this?

The society also points out that the funding should be provided whether voting reaches 4 per cent or not. I know that interstate this does not occur, but the society argues that every vote should be given the same value so funding should be allocated accordingly whether a candidate achieves one vote or 250,000 votes. Why is this not the case in this legislation?

In summary, the society feels that if taxpayers are to pay for the privilege of there being fair and transparent election in this state, there also needs to be fair and transparent legislation, and I certainly agree with that concern. This process is not giving that impression, with discussion and deals being done behind closed doors.

The Hon. I.K. HUNTER: I will respond very briefly to some of the concerns raised by the Hon. Ms Vincent. I am advised that the 4 per cent threshold was adopted for South Australia to have the state in line with other jurisdictions in Australia, and indeed the world, where a 4 to 5 per cent threshold is common, I am told. I am advised that this matter was discussed in negotiations between the government and the opposition and this was the agreed outcome.

In terms of the Hon. Ms Vincent's concerns about undue haste, can I say that the government through the Attorney-General in the other place, and the opposition through the member for Davenport in the other place, have been working extensively on this reform for the best part of a year. Furthermore, I understand that the member for Davenport reports having worked on this for more than five years. These efforts have been carefully considered over a significant length of time, and while it is true that the legislation will not come into effect until July 2015, there is value in completing this bill now.

There is a need for a significant lead-in time for these measures to come into effect, and I think the Hon. Mr Lucas addressed those issues in some detail in relation to his party. Political parties and operatives, as well as the Electoral Commission, require time to adjust their operations, certain in the framework that will become the law. These changes are wide ranging and the more time members, candidates and organisations have to amend their operations to ensure they are compliant, the better.

While the government has originally sought to stagger the implementation of the legislation, there are some provisions commencing in time for the next election. In the original bill (as introduced) negotiations have led to the government accepting the need to provide a lead-in time for the commencement of the legislation as a whole.

The Hon. R.I. LUCAS: Just before returning to the issues that I addressed earlier today—and the minister has provided some response—I will respond briefly to the comments from the Hon. Ms Vincent.

I am sympathetic in part to some of the concerns that the Hon. Ms Vincent has raised. Whilst the minister has indicated that the Attorney-General and various representatives of government, and the member for Davenport and various representatives of the Liberal Party have engaged in debate on these issues for a considerable period of time, I suspect that has not been the case for the Hon. Ms Vincent and Independents might have—

The Hon. K.L. Vincent: That is precisely my point.

The Hon. R.I. LUCAS: I was just expressing some sympathy.

The Hon. M. Parnell interjecting:

The Hon. R.I. LUCAS: No, I am not losing it; I still express some sympathy because these are complex and complicated issues. From our viewpoint, if the minister and the government chose to extend the period of time for discussion, we would be entirely comfortable with the decision that the minister took in relation to that.

My instructions on behalf of my party are such that there has been an agreement between the member for Davenport and the Attorney-General in relation to these issues, so if the government is prepared to allow further time, then certainly I cannot imagine that we would have any concerns either. I do note that at least the government's priority listing for this week did indicate that these bills were priorities for discussion this week. They did not actually indicate necessarily when—either Wednesday morning or Wednesday evening—they said 'this week'. That is an issue for the minister in this house and the Attorney-General to handle as managers of government business.

Can I go back to the specific issues that I raised. In conclusion the minister's advisers provided him with information to quote section 130ZZD to say, 'Look, this is not going to be too onerous. In the end if you make mistakes, you can always correct the record and come back to it.' I do note that I suspect there is a very similar provision in relation to travel allowance arrangements at the federal level in relation to that, where if you do make a mistake as a federal member—or your staff do, in many cases—at the federal level, you are entitled to go back and correct the errors, make adjustments and repay amounts, or whatever it might happen to be.

The Australian media and the Australian electorate are a very unforgiving lot in relation to the issues of expenditure and members of parliament and political parties. Whilst it is kind of the minister's advisers to quote section 130ZZD, let me just refer the minister's advisers to publicity in recent times and years in relation to corrections of travel allowance and entitlements at the federal level. I suspect that it will be very much the same—that if a political party, member or candidate makes an error and then corrects it, there will be significant publicity, whether they have corrected it or not, frankly, in relation to those issues.

To come back to the specific issues, the first was in relation to auctions, and the minister has clarified the understanding that, first, someone will have to put a value on some of these gifts (or 'auction items', I guess, is how we would commonly refer to them), and I gave the example of a week's accommodation in your house in the country, on an island or whatever it might happen to be.

These issues will have to be done very quickly during that period leading up to the March election date. Earlier in the period, you will have more time, but as you get closer to the election your time becomes much more restricted and, certainly in the frenetic nature of the four-week election period, the current arrangements (which I have indicated perhaps on review might need to be reconsidered) are for weekly accountability mechanisms to be provided by the responsible officer and by the political parties, candidates and members. Someone will very quickly have to put a value on it, and there is a whole variety of issues.

I will not prolong the debate, as the complexities are apparent to anyone, and the minister I am sure is aware of the complexities of this issue as a former senior officer in his party. It will be difficult, and I will not belabour that particular point, other than to say that I think the fact that it has been delayed means that perhaps further work can be done on these particular aspects.

The second example I gave was just as tricky, that is, the issue of the common auction item in both the Liberal Party and Labor Party (I do not know whether it exists in the Greens and Family First) of dinner for two with the Premier, or dinner for two with minister Hunter, or not having dinner with the Hon. Kyam Maher, something along those lines.

The Hon. K.J. Maher: You couldn't put a price on that.

The Hon. R.I. LUCAS: Well, exactly—priceless! But let's take the common one of dinner for two, four or six with the Premier; some dinners might be at Parliament House or at a friendly donor's place, but the issue is how you put a value on dinner for two with the Premier. Clearly, you cannot value the goodwill and that sort of thing; I assume you will just have to put the value of the food and whatever it is. The reality is, as you know, that you do not really know what the value of that is until the blighters actually sit down, eat and drink, and finish the meal. Some are non-drinkers and therefore the cost of your, in essence, auction item is much less than if someone comes along and is quite partial to a bottle or two of red wine.

The dinner that you provide in the first instance might cost you $200, yet in the second instance, the dinner for four, might cost you $400 or $600, particularly if they hang around after dinner and you provide them with a port or two as part of that dinner. At the time, with less than seven days' notice, the responsible officer in the Labor Party and the Liberal Party will have to put a number on whatever the value of the dinner is going to be. Of course, that has to be aggregated because, if Ben Smith is the person who purchases the dinner with the Premier and pays $1,500 to have dinner for four with the Premier, you have to take down his name and address and all that sort of stuff and it has to be aggregated with every other donation Ben Smith has made in any part of the Labor Party for the last 12 months to make sure it does not go over $5,000.

Somebody has to value the dinner at either $200, $400, $600 or whatever it might happen to be. So someone strikes a value which may or may not be accurate ultimately—that is the only way this is going to work—and then someone has to do a calculation quickly as to the differential. I am assuming that, if Ben Smith has paid $1,500 for a $400 meal with the Premier, then the extent of Ben Smith's donation is $1,100, and that goes into his running account in terms of his 12-month aggregate, which, if it adds up to over $5,000 then, bang, the responsible officer in the Labor Party or the Liberal Party is going to have to declare that.

There are all those sorts of complexities. I guess, at this stage, without wanting to again go through interminable examples, if I could just get the minister's adviser's clarification that, in essence, for the dinner, which is a common one for many of us, that is essentially what will have to be done. Someone is going to have to guess the value of the dinner—and it will probably be right or wrong—and then the difference will have to be declared and disclosed.

The Hon. I.K. HUNTER: I understand the complexities raised by the Hon. Mr Lucas. They are issues that have been grappled with in interstate jurisdictions, I understand. I guess, essentially what will happen is the parties will adapt. The parties will adapt to the regulations and the requirements of the act.

They may well, in terms of the dinner situation, for example, say the dinner is going to be the food, and if you want to have wine, then the Premier can chip in out of his own pocket for it—that will be an easier way of actually valuing it. I am sure all sorts of situations like that will be considered by the parties, and they will make the decisions based on their best interests and the regulations that we put in place. I am pretty sure the parties will adapt—they have interstate—and hence the long lead-in time for the bill and its processes.

The Hon. R.I. LUCAS: I am just asking the minister if he or his advisers can clarify that, in the example that I have given, in the event that someone has paid $1,500 for dinner with the Premier and a value of $400 has been put on it, for the purposes of declaration does the responsible officer have to declare immediately the $1,100?

The Hon. I.K. HUNTER: My advice is yes.

The Hon. R.I. LUCAS: There are interminable other examples of that which I am not going to waste the time of the committee on. I just wanted to give those two, and particularly the dinner one because it is such a common example, to indicate the complexity of this. I will certainly be interested, given we do have some time, to see how the other jurisdictions have actually determined that. Again, with the passage of time, if it can be improved, I am sure that whoever is in government after March next year will be anxious to see whether or not we can improve that.

One of the other issues I raised related to expenditure caps. The minister has given some answers, but I am really wanting to go on to the Legislative Council. Our colleagues in the House of Assembly concentrated on the House of Assembly. I am a bit interested in how this is going to work in the Legislative Council.

In relation to the House of Assembly, can I just clarify? The minister confirmed that, with agreement, it can go up to $100,000 in a particular electorate and, with agreement, it can go down. However, is it possible that, with the agreement of the candidate and the responsible officer for the Labor Party or the Liberal Party, you can spend zero in a particular electorate?

The Hon. I.K. HUNTER: My advice is the answer is yes, although I cannot imagine any situation where that could be the case. For instance, you still have to pay for how-to-vote cards.

The Hon. R.I. LUCAS: I concede that. But, in essence, there may well be political parties in their safer seats, for example, rather than zero or zippo, might spend only $5,000 or $10,000 or whatever it might happen to be. What the minister is confirming is that the political party, with the agreement of the candidate, can reduce that expenditure to almost nothing. Then it can have, with the agreement of the candidate, as many $100,000 seats as it wants as long as it does not go over its 47 x $75,000, which is approximately $3½ million total expenditure cap. Is that how the minister's advisers would indicate a political party could operate within the terms of that cap?

The Hon. I.K. HUNTER: That is correct.

The Hon. R.I. LUCAS: As I have said, I am particularly interested in how the Legislative Council cap is going to operate. There was not much debate on this in the House of Assembly, unsurprisingly, but on my reading, it seems to indicate that the expenditure cap is $500,000.

Just as we have gone through the process with the House of Assembly, can the minister indicate what the similar process in relation to the Legislative Council would be? The Liberal Party has tended to run bigger teams in recent years than has the Labor Party. The Liberal Party has tended to run teams of potentially seven; I think this time we might even have eight on our ticket. The Labor Party is struggling to get even No. 4 up, I suspect, according to the Hon. Mr Maher, anyway.

I think that the Labor Party might only have a ticket in the end of, say, five or six or something on some recent occasions—whatever it is; between six and eight people on a ticket. Can the minister explain, as we have just been through the House of Assembly process, what the refinements are in terms of parties deciding to spend and how it spends this $500,000 cap on the Legislative Council?

The Hon. I.K. HUNTER: My advice is that the political party's cap is $500,000 for a Legislative Council campaign. So, putting aside the House of Assembly candidates, for the Legislative Council it would be $500,000, and that would be for a political campaign. If a Legislative Councillor incurs expenditure, that expenditure, I am advised, will be subtracted from the $500,000 from the political party cap.

For example, if candidate No. 3 on a ticket incurs some expenditure themselves for their campaign and goes out and advocates for one vote for No. 3 (I cannot imagine they would), that expenditure would be subtracted from the Legislative Council campaign cap of $500,000. Unlike the House of Assembly candidates, there is no specific cap per candidate in the Legislative Council group of money.

The Hon. R.I. LUCAS: In relation to the Legislative Council, in the Liberal Party, we have eight candidates as part of our team. There is no per candidate cap, so one candidate could spend the whole $500,000 (not that they would) and the others nothing, or it can be any combination between that, and there is no limit on a particular candidate.

I cannot imagine this would be the case, but one candidate, and the party would have to agree, could go out and publicise only one particular candidate in the team, and the whole $500,000 could be spent on that individual without any reference to anybody else, and that would comply with the terms of the legislation.

The Hon. I.K. HUNTER: My advice is yes, or it could be spent in its entirety by a statewide campaign by a political party. If a political party makes the decision that the entirety of the money is to be spent on one candidate, they can do so.

The Hon. R.I. LUCAS: In relation to the provisions of the legislation, I am wondering if the minister can indicate the particular clauses that cover this.

The Hon. I.K. HUNTER: The relevant clause is 130Z, Expenditure caps: 130Z(1)(b)(ii), for example, relates to Legislative Council candidates.

The Hon. R.I. LUCAS: The question I have in relation to the Legislative Council, for example, concerns what is actually going to be permitted. Clearly, very old-style campaigning, which some may remember, with posters for Legislative Council candidates which are erected and which say, 'Vote for the Labor Legislative Council team', or 'Liberal Legislative Council team', or advertise for that, etc., would be covered in terms of the expenditure. However, given that the Legislative Council represents all electorates, is there anything in the legislation which prevents Legislative Council candidates, as part of their expenditure cap, in essence campaigning on statewide election issues?

A House of Assembly candidate is entitled to say, 'Vote for Vince Tarzia in Hartley because he's a fantastic candidate and he supports Steven Marshall's infrastructure SA campaign, the Productivity Commission and a variety of other initiatives the Liberal Party has.' On my understanding, and to be fair I assume, there is nothing that prevents—as part of the $500,000 expenditure cap—any one of the eight Legislative Council candidates (or six, in the Labor Party's case, or whatever it is) or all of them saying, 'The Labor Legislative Council team supports Jay Weatherill and Jay Weatherill's team,' or whatever it is, and his particular policy, whatever the policy might be, or the equivalent for the Liberal Party. Is that the government's advice in relation to the way these provisions would operate?

The Hon. I.K. HUNTER: My advice is that it basically leaves it up to the determination of the political party. I think my attention was been drawn to 130Z(5) on page 23. I think that goes to the question you asked.

The Hon. R.I. LUCAS: In essence, the minister's reference to that as political expenditure is the very broadest definition of political expenditure—that is, it is up to the political party. For example (and the minister will be familiar with this), both parties have Legislative Council members who have been paired, as mentors or pairs, with lower house seats. I have copies of then backbencher Hunter's newsletter circulated in the state electorate of Adelaide urging people in that electorate to support the Labor government on whatever it was.

The Hon. I.K. Hunter interjecting:

The Hon. R.I. LUCAS: I have a copy of one—on water issues or whatever it happens to be, those sorts of things. I do not single out the minister on that because many upper house members do the same thing. I am assuming on the basis of the reference to subsection (5) on page 23 that for the purposes of this cap, given that is political expenditure, minister Hunter could endorse Grace Portolesi in Hartley and her campaign for getting rid of playgrounds or saving playgrounds in Payneham, for example, or whatever it might happen to be.

The Hon. I.K. HUNTER: My advice is that matters that are pursued by Legislative Council candidates that may be general or relating to their election would be counted towards the political party cap, but if a matter were to be circulated which could go to a local candidate in a lower house seat, then that could contribute to the cap for the lower house seat. That is captured, I understand, at 130ZB(3) on page 23.

The Hon. R.I. LUCAS: 130ZB(3)? Maybe I have the wrong copy of the bill; I do not have a subsection (3) to 130ZB. Let me just check. I have a photocopy. Sorry; I do not know what I have. I must have an old version. I thank the minister for that. The minister's advice is that 130ZB in essence says this would ultimately be a decision for determination, I suspect, that it might be argued that doing that might be caught by that, but having looked at that it might be argued that it might not be.

I guess that will be an issue that ultimately would have to be determined by legal advice to the political parties in the first instance and then ultimately there will be a determination by somebody—the commissioner, I guess—as to whether or not it is caught. I think it is obviously an important issue for certainly the two major parties to consider, given the passage of time, to have a look at what the rules of engagement are going to be in relation to all of this. Both the government and the alternative government have similar arrangements in relation to pairing, where members of the Legislative Council are paired and do assist in particular areas.

Even if the strictest interpretation of 130ZB(3) ruled that that could not be done, if there were an issue of importance in the electorate of Hartley or Norwood, for example, you could campaign on that issue. On my reading of that, it would be hard to say that a Legislative Council candidate who represents the whole seat could not argue either for a playground to be saved in Norwood or a road to be widened in Norwood—whatever it might be—without mentioning either the Labor or the Liberal candidate in that area.

As I said, in looking at the debate in the House of Assembly, understandably, there is precious little discussion about the impact of this particular element of the legislation on the activities of members of the Legislative Council. One of the reasons we have a Legislative Council is to look at things that might have been missed by the House of Assembly but, also, I think, to take into consideration what the particular impacts will be.

I do not know about the Labor Party but, certainly within the Liberal Party, there have been varying views over the years about the notion and advisability of campaigns where real money is spent on upper house (either Senate or Legislative Council) campaigns. I note in recent times in relation to the state the paucity of advertising about the Legislative Council team for the Labor Party in South Australia and, probably, there have been the same debates within the Labor Party that, if you have got any money, it ought to be spent in the marginal seats in the House of Assembly.

Clearly, the way this has been drafted is that a not insignificant chunk of money is there for a Legislative Council campaign (that is, $500,000) which I can assure members from the Liberal Party's viewpoint is significantly above anything that has ever been contemplated or spent on a Legislative Council campaign in South Australia's history. I suspect it would be the same in relation to the Labor Party.

It may well be that there are precedents interstate as to why this has occurred, but the two secretaries have been up to their armpits in discussions in relation to this so I am assuming there was some reason why this particular sum was selected as part of the $4 million expenditure cap—or perhaps it was just something picked up from another jurisdiction and made pro rata for the South Australian circumstance.

I think the Hon. Mr Parnell has some questions on this aspect as well and I do not intend to prolong this aspect of the debate now but, in raising it, I urge minister Hunter (if he is still a minister after March 2014) and the Hon. Kyam Maher (if he is still in the parliament after March 2014), as people who have had engagement within their organisations, that they further reflect on these particular aspects of the legislation and, even if they are in opposition, I think there needs to be further discussion in terms of what these provisions in practice actually mean and how they might be interpreted, and there is probably the capacity to further clarify how they might operate.

The Hon. M. PARNELL: I want to pursue this line of questioning a little bit further because, as the Hon. Rob Lucas alluded to, upper house campaigning plays second fiddle with the major parties but I have to say it is at the heart of our concerns and I think it is probably fair to say that most of our campaigns have been focused on the upper house.

So that I understand how these caps will work, under section 130Z, if you have 47 candidates at $75,000 each, there is your $3.5 million, then you have another $500,000 for the Legislative Council, effectively (provided you have five candidates), so there is the $4 million that people have been talking about. My assumption was that a generic ad calling for a vote for your party on television, presumably, would just be averaged out over all of those seats. Do you have to work out the extent of television coverage? If you advertise on FIVEaa, do you have to work out which seats FIVEaa reaches? Do you take into account people with very powerful antennas who might be able to receive FIVEaa in Coober Pedy, whereas someone else might not?

I have been working on the assumption that your global amount of, say, $4 million, could pretty much be spent wherever you want if it was statewide and that the main limitation was that if it was aimed at a particular lower house candidate and it was just, for example, literature letterboxed to that area, then a cap would apply to that; but, provided you did not mention that candidate's name, you could do as much advertising as you wanted on television, radio and in print, provided you kept it generic to the party. Have I understood that correctly?

The Hon. I.K. HUNTER: My advice is if it is a generic advertisement—for example, to benefit a party—and it does not mention a specific individual candidate, then the honourable member is right. The honourable member might wish to run a generic TV advertisement with all of his candidates and then it would still also fall under that purview. You come into the individual caps when you are dealing with lower house candidates and lower house seats in terms of local areas, in particular in terms of circulation of newspapers, etc.

The Hon. M. PARNELL: That was my question. A typical Greens piece of election literature letterboxed in an area would be, say, a double-sided A5 with an upper house candidate's photo on one side and a lower house candidate with a bio on the other side. Would we be limited to a statewide spend of $500,000 if that was in fact the style of literature that we put out?

The Hon. I.K. HUNTER: My advice is that you would look to 130ZB(3) and you would ask yourself the questions under (a), (b) and (c). Who is it communicated to? Does it mention one candidate or other candidates? Is it meant to communicate with electors outside the district or not? They would be the reasons you would base your interpretation on.

The Hon. M. PARNELL: And that is exactly what I have been looking at—130ZB. It seems that leaving aside advertisements which say 'Vote Green' or even if they just say 'Vote Green in the Upper House', anything that has a photo of an upper house candidate on it, even if it is mixed with other material, is it bound by that $500,000 cap? I wouldn't have thought so but it is quite important from my party's perspective.

The Hon. I.K. HUNTER: My advice is that in this situation—and in many of these situations—the decision will be based on the specific facts of the circumstances contained in the matter that you are circulating. Section 130ZB(3), of course, relates to House of Assembly elections, so if you had a piece that was directed to them, you would make a decision—and again I come back to the point about how the party would adapt—so that you did not go over the cap in terms of the House of Assembly seat. If it was related to a general statewide approach for electing Greens in the upper house, then you come back to 130Z(1)(b)(ii).

The Hon. R.I. LUCAS: I am just clarifying. I am assuming that, under this legislation, it is not possible for one piece of material costed at, say, $5,000 to count towards two caps at the one time.

The Hon. I.K. HUNTER: That would be perverse and, no, that is not the intention.

The Hon. R.I. LUCAS: Because in the example that the Hon. Mr Parnell is talking about, where it is advertising both for House of Assembly and for the Legislative Council, in the end the government's advice appears to be that there will have to be a decision by the parties (and ultimately by the independent umpire) as to whether, on balance, it was for the House of Assembly cap or for the Legislative Council cap. It is not going to be able to be attributed by the independent umpire so that half of it was to the value of the Legislative Council candidate and half was to the value of the House of Assembly and therefore it will be allocated half to a Legislative Council cap and half to a House of Assembly cap.

The Hon. I.K. HUNTER: My advice is that it would not be shared: it has to be one or the other and you would ask the questions again that are outlined in 130ZB(3)(a), (b) and (c) and make a determination whether it is in fact primarily directed towards the House of Assembly campaign and you would adjust your campaign strategy accordingly.

The Hon. M. PARNELL: Just so I understand this, if a campaign says, 'This election: Vote Green' full stop, how is that allocated to either upper or lower house?

The Hon. I.K. HUNTER: If that is the message, that would be allocated under the party cap.

The Hon. M. PARNELL: If a party is running 47 lower house candidates and a team in the upper house, so that their cap is $4 million and their message is 'Vote for our party', and you do not specify a particular candidate, you just say 'Vote for our party', then $4 million is the cap and it does not matter where geographically that message was spread—whether it is a corflute in Coober Pedy or a radio ad in Adelaide; is that correct?

The Hon. I.K. HUNTER: I will attempt this answer: the answer is, yes, but you would need then to allocate a certain amount to each of your candidates in the lower house seats to come to your cap. Under 130Z(3) there needs to be an allocation of the political party's funding to lower house candidates, so the cap may not be $4 million for a statewide generic: it will be $4 million minus the allocation to lower house candidates.

The Hon. M. PARNELL: I am going to ask a very basic question out of an abundance of caution, just so I am clear about it. Section 130Z talks about $75,000 per lower house candidate and the number of candidates as at the end of the capped expenditure period. Then, when you go to the definition of 'capped expenditure period' it seems to me that it basically is a month after the election. Can I just clarify that that effectively means the number of candidates that you actually ran and that there is no sort of minimum period before an election in which candidates have to be endorsed? I think I have understood it but I need to clarify it because if it was actually at the start of the capped election period you would have to have all of your candidates endorsed 8½ months out from the election in order to build up your 47. So, it is effectively the number of candidates you actually ran times 75,000.

The Hon. I.K. HUNTER: Feel comforted, your original interpretation is correct, I am advised.

The Hon. R.I. LUCAS: This has certainly been a very beneficial discussion, might I add as someone who has followed this probably more closely than many others. I am still not clear: in response to one of the minister's replies based on advice in the last five minutes, when the minister was taking advice earlier and referring to the 'party cap' was he actually referring to the Legislative Council cap?

Let us take the Labor Party and the Liberal Party, where you are running both Legislative Council teams and 47 candidates in each of the House of Assembly seats, if in the end you decided not to spend, for whatever reason, the maximum amount in the House of Assembly seats; that is, you spend only $10,000 in a lot of safe seats, you spend only up to the $100,000 and you end up only getting up to $3.2 million, or something, out of $4 million, does the Legislative Council cap for the Labor Party or the Liberal Party in those circumstances then become $800,000? Can they adjust within the $4 million the amount they spend on the House of Assembly; that is, by reducing the House of Assembly spend down to $3.2 million can they then notionally spend for the Legislative Council campaign $800,000?

The ACTING CHAIR (Hon. J.S.L. Dawkins): I call the minister's attention to the hour of the day. We have a number of messages. I call the minister.

The Hon. I.K. HUNTER: My advice is: no. If a party wants to spend more than $500,000 on the Legislative Council campaign they can.

The Hon. R.I. Lucas: They can?

The Hon. I.K. HUNTER: They can, up to the limit of the party cap. What this mechanism does at 130Z is allocate a notional split, but parties may alter that if they so wish, within the limit.

The Hon. R.I. Lucas: Within the $4 million?

The Hon. I.K. HUNTER: Yes. With that, I think it might be an ideal time to report progress.

Progress reported; committee to sit again.

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