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senate vote 2023-03-22#7
Edited by
mackay staff
on
2023-03-24 16:48:37
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Title
Bills — Referendum (Machinery Provisions) Amendment Bill 2022; in Committee- Referendum (Machinery Provisions) Amendment Bill 2022 - in Committee - Provisional voting
Description
<p class="speaker">James McGrath</p><p>HAIR ( Senator McGrath ) (): The committee is considering the amendments moved by Senator Farrell on sheets QE100, PX151, PX149, PX150 and ZB195, and the amendment moved by Senator David Pocock to government amendment No. (1) on sheet ZZB195. The current question before the chair is that Senator David Pocock's amendment be agreed to.</p>-
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2023-03-22.349.1) introduced by Queensland Senator [Larissa Waters](https://theyvoteforyou.org.au/people/senate/queensland/larissa_waters) (Greens), which means it failed.
- ### What does the amendment do?
- Senator Waters [explained that](https://www.openaustralia.org.au/senate/?gid=2023-03-22.349.1):
- > *This amendment pertains to on-the-day enrolment not just for First Nations people but for anyone who wishes to have their voice heard in this and any other referendum, who has not been able for a variety of legitimate reasons to be able to enrol themselves prior to election day. As I said in my second reading speech, this bill is an important and timely opportunity to improve enfranchisement, particularly for First Nations communities and particularly on this topic, and we must not waste the opportunity. The government have consistently said that they want the referendum to be as close as possible to a normal election, but in the last election many people missed out on voting. That's something that we need to fix rather than replicate.*
- ### Amendment text
- > *(1) Page 63 (after line 2), at the end of the Bill, add:*
- >
- > *Schedule 9 — Provisional voting*
- >
- > *Referendum (Machinery Provisions) Act 1984*
- >
- > *1 After subsection 4(1)*
- >
- >> *Insert:*
- >>
- >> *(1A) Despite subsection (1), a person is entitled to vote at a referendum if the person makes a claim for enrolment under paragraph 37(1)(f).*
- >
- > *2 At the end of subsection 37(1)*
- >
- >> *Add:*
- >>
- >> *; or (f) the person wishes to make a claim for enrolment and each of the following applies:*
- >>
- >>> *(i) the person's name cannot be found on the certified list of voters, or an approved list of voters, for the Division for which the person claims to vote;*
- >>>
- >>> *(ii) the person is entitled to enrolment and to vote under section 93 of the Commonwealth Electoral Act 1918.*
- >
- > *3 After subsection 37(1)*
- >
- >> *Insert:*
- >>
- >>> *(1AA) A person who wishes to make a claim for enrolment under paragraph (1)(f) may be asked to satisfy the identity requirements under subsection 98AA(2) of the Commonwealth Electoral Act 1918.*
- >>>
- >>> *(1AB) A person who wishes to make a claim for enrolment under paragraph (1)(f) and casts a provisional vote is deemed to have made a claim for enrolment for the purposes of section 98 of the Commonwealth Electoral Act 1918.*
- >
- > *4 Subsection 37(2)*
- >
- >> *Omit "or claims to be", substitute "claims to be, or wishes to be".*
<p class="speaker">James Paterson</p><p>Minister, I wonder if you had the opportunity to refresh your memory or to seek wider advice from your colleagues about the issues we were discussing this morning?</p> <p class="speaker">Don Farrell</p><p>Thank you, Senator Paterson. I've had a response from the Attorney-General and it's a very long response. I'm happy to give it to you—to read it out or to table it. What about that? Are you happy to receive it through tabling?</p> <p class="speaker">James Paterson</p><p>I certainly have no objection to it being tabled, but I would also like to ask follow-up questions based on it. If it's a very long statement, I suppose that we shouldn't waste time on reading it out. Perhaps other senators can ask their questions and deal with their matters while I consider the document, after it has been tabled, and then I can ask questions on that basis.</p> <p class="speaker">Don Farrell</p><p>by leave—I table the document.</p> <p class="speaker">Jane Hume</p><p>Minister, how will the AEC police electoral material with no authorisation during the referendum?</p> <p class="speaker">Don Farrell</p><p>I would have thought that they would police it in the same way they police it in a general election: if somebody makes a complaint or they discover that somebody hasn't authorised relevant material then they would take the action they would take in any other set of circumstances.</p> <p class="speaker">Jane Hume</p><p>Does the government intend to provide the electoral roll to any organisation campaigning during the referendum?</p> <p class="speaker">Don Farrell</p><p>No.</p> <p class="speaker">Jane Hume</p><p>Minister, will parliamentarians be allowed to provide their access to the electoral roll to organisations that are campaigning during the referendum?</p> <p class="speaker">Don Farrell</p><p>That is not permitted.</p> <p class="speaker">Jane Hume</p><p>Under the legislation, Minister, can a parliamentarian campaign for either case at the referendum? And can the staff of a parliamentarian campaign for either case at the referendum as part of their duties?</p> <p class="speaker">Don Farrell</p><p>Yes.</p> <p class="speaker">Jane Hume</p><p>Minister, noting that certain electoral activities undertaken by parliamentarians and political parties associated with them are exempt from the Privacy Act 1988, will the activities of participants captured by the referendum machinery provisions in this bill and the act be subject to the same exemptions?</p> <p class="speaker">Don Farrell</p><p>They're not registered political parties, so there would be no exemption.</p> <p class="speaker">Jane Hume</p><p>You've said that you want this to be a civil-society led referendum, and many community groups will be involved. If a community group nominates to fundraise for the purpose of putting forward an argument in the referendum, will they be captured by the donation regime?</p> <p class="speaker">Don Farrell</p><p>My understanding is that if they go over the disclosure threshold then they would have to declare. That threshold, which I think I talked about earlier today, is in the vicinity of $15,000.</p> <p class="speaker">Jane Hume</p><p>Minister, what mechanisms are in place to prevent a community group from accepting a foreign donation, prior to them actually receiving it?</p> <p class="speaker">Don Farrell</p><p>This act replicates the foreign donations provisions of the Electoral Act. As I've said so many times today, the idea is to match the same experience, and so the same provisions would apply.</p> <p class="speaker">Jane Hume</p><p>The foreign donations law applies to registered political entities, and these organisations won't be registered political entities or registered political parties. Is there a mechanism that's specifically in place to prevent civil society at large from accepting foreign donations, prior to them actually doing it?</p> <p class="speaker">Don Farrell</p><p>If they became a referendum entity by virtue of the level of donations then, yes, they would be captured if they were in receipt of foreign donations.</p> <p class="speaker">Jane Hume</p><p>So a referendum entity is something that has to be registered? Earlier today you said that there wasn't necessarily going to be a register of entities that can campaign as part of the referendum.</p> <p class="speaker">Don Farrell</p><p>They're not formally registered. They're required to disclose and, as such, they would then attract the regulation regarding foreign donations.</p> <p class="speaker">Jane Hume</p><p>Will a community organisation be liable for receiving an illegal donation if they are ignorant of the provisions against foreign donations?</p> <p class="speaker">Don Farrell</p><p>As a general rule, ignorance of the law is no defence. That wouldn't be any different in these circumstances, and, obviously, they are subject to the foreign disclosure provisions.</p> <p class="speaker">Jane Hume</p><p>Will the government then expect a community group to be prosecuted by the AEC if they receive an illegal donation?</p> <p class="speaker">Don Farrell</p><p>The idea is that, by virtue of the foreign donations rules, it would work in the same way it would work in a general election. We're not seeking to do anything different here. The idea is to standardise the experience that people get and the obligations organisations have, whether it be for a general election or for a referendum.</p> <p class="speaker">Jane Hume</p><p>What is the penalty for receiving an illegal foreign donation, and what action would the government take when it becomes aware of foreign donations occurring?</p> <p class="speaker">Don Farrell</p><p>I understand it to be 100 penalty units. What was your second question?</p> <p class="speaker">Jane Hume</p><p>What action would the government take?</p> <p class="speaker">Don Farrell</p><p>It wouldn't be the government taking the action. It would be the Australian Electoral Commission, who would do whatever they usually do when they find a breach of any aspect of the electoral law, which I imagine would be a prosecution.</p> <p class="speaker">Jane Hume</p><p>How might donations of cryptocurrency be treated under this donations regime?</p> <p class="speaker">Don Farrell</p><p>I'll get the AEC to give me a response to that question.</p> <p class="speaker">Jane Hume</p><p>How will donations in kind to organisations campaigning in the referendum be treated under the donations regime?</p> <p class="speaker">Don Farrell</p><p>They will be treated exactly the same as the Electoral Act currently provides.</p> <p class="speaker">Jane Hume</p><p>Will foreign citizens be able to purchase goods and services that are sold for the purpose of funding referendum activities?</p> <p class="speaker">Don Farrell</p><p>Again, it's exactly the same provisions as in the Electoral Act, which is that if it's in excess of $100 then yes, it applies.</p> <p class="speaker">Jane Hume</p><p>Can you explain to me what will happen to funds raised by a referendum campaign organisation that isn't expended prior to the referendum?</p> <p class="speaker">Don Farrell</p><p>Could you repeat that question?</p> <p class="speaker">Jane Hume</p><p>If an organisation is a campaigning organisation for the referendum and is accepting donations from citizens to campaign for the referendum, what will happen to that money if the organisation hasn't expended all of those donations prior to the referendum?</p> <p class="speaker">Don Farrell</p><p>It would be the same as it is for a political organisation if they raise more money than they use in an election. It would sit somewhere, I guess, in a bank account. Obviously, if it exceeds the threshold, they would be required to declare that. I assume it would be up to the organisation as to what it subsequently does with the money.</p> <p class="speaker">Jane Hume</p><p>nator HUME () (): Is there any obligation on the organisation to notify those that have donated that it still contains money in a bank account somewhere that belongs to them and hasn't been expended?</p> <p class="speaker">Don Farrell</p><p>I think the rule would be the same as a political party getting more money than it expends. I don't know how often that happens. I suppose it happens occasionally. It never happens in the Labor Party, so we never have this issue. The only answer I can give you is that the organisation would have to resolve how they dealt with the money. If it were no longer required, you'd hopefully get them to return the money if that were possible.</p> <p class="speaker">Jane Hume</p><p>My concern there, of course, is that if you donate to a political party the chances are it's going to be fighting another election—a referendum is a one-off occurrence. I think that there probably needs to be some clarity around that. Perhaps you could confirm for the chamber that the government is considering how to build some clarity around that.</p> <p class="speaker">Don Farrell</p><p>I'll give it some very deep thought.</p> <p class="speaker">Jane Hume</p><p>What confidence should Australians have that they'll be donating to a genuine referendum campaign organisation?</p> <p class="speaker">Don Farrell</p><p>The hope of the government is that this referendum will be conducted in a civil fashion—that each side will have an opportunity to progress its arguments through civil society. Our expectation is that people will abide by that sense of civility in the processes and that we won't find people doing things that are inappropriate or, for that matter, illegal.</p><p>If we find that issues arise in that regard, and I hope we don't find that those sorts of issues arise, then I guess we'll have to deal with them. But we're working on the basis that people are going to behave appropriately throughout the course of the referendum and that we won't get into a situation where, for instance, people are illegally taking money on false pretences. But I guess there are other laws which might come into play. If somebody set themselves up as an organisation receiving money for the 'yes' or 'no' case and we discovered that in fact they were a bogus organisation, I imagine there are laws in place that deal with those sorts of things quite independently of the referendum.</p><p>I think we have to work on the basis of a degree of trust in the Australian people and trust that this will be a civil campaign and that, at the end of the day, whether it's a 'yes' case or a 'no' case, people are satisfied that the Australian people have had appropriate opportunity to express their view on a Voice to Parliament.</p> <p class="speaker">Jane Hume</p><p>Minister, do you think that, without a register of organisations or an official 'yes' or 'no' campaign, this is a situation that is ripe for scammers?</p> <p class="speaker">Don Farrell</p><p>No.</p> <p class="speaker">Jane Hume</p><p>Minister, when a private company engages in pro bono work on behalf of a referendum entity or a participant captured by one of the disclosure regimes, would that activity be captured as a donation or a gift? How would that be disclosed—as a donation or a gift by the individual, or as a donation or a gift by the company?</p> <p class="speaker">Don Farrell</p><p>It will be treated as an in-kind donation for both.</p> <p class="speaker">Jane Hume</p><p>Where a private company becomes aware of work conducted using its resources and its staff for a referendum entity or a participant and it hasn't disclosed that activity, will that organisation then be subject to penalties?</p> <p class="speaker">Don Farrell</p><p>That would be an issue for the AEC to work through, in the same way they would do that in respect of a general election.</p> <p class="speaker">Jane Hume</p><p>Could the minister confirm that the donation and disclosure regimes in the bill, and the act, will apply retrospectively?</p> <p class="speaker">Don Farrell</p><p>Are you talking in respect of contributions that might already have been made to either the 'yes' case or the 'no' case?</p> <p class="speaker">Jane Hume</p><p>Or to a community entity or community organisation or to a private company who are—</p> <p class="speaker">Don Farrell</p><p>It's a reasonably complicated answer. Let me see if I can explain it. If the money is received and spent in the six months prior to the issuing of the writ then, yes, it will have to be included in the declaration that you make. I consider that a prospective rather than retrospective application because the declaration would have to be done after the issuing of the writ.</p> <p class="speaker">Jane Hume</p><p>Can I just clarify? Because we don't know the date of the issuing of the writ yet there are companies out there right now who may be donating their time, may be donating their staff's time and may be donating money that don't realise that they have to declare that or record it yet. Is that a concern for the government?</p> <p class="speaker">Don Farrell</p><p>What we're concerned about is that when this legislation, hopefully, passes today—if you don't have too many more questions for me—all organisations understand their obligations and comply with them.</p> <p class="speaker">Jane Hume</p><p>Sorry, I'm not entirely sure that organisations understand their obligations, because those obligations haven't been specified to those organisations yet and they don't know whether they fall outside or inside that six-month regime. Is there a message from the government that you would like to send today to those organisations that want to provide pro bono work to a campaign organisation?</p> <p class="speaker">Don Farrell</p><p>Yes, there is a message, and thank you for the opportunity you've given me to give them a message: please comply with the obligations under this new legislation, and we'll do our level best to make sure that you're aware of what your obligations are. I suspect the sorts of organisations that you are talking about, Senator Hume, will take a very careful look at the legislation and take the opportunity to get some advice. I'm sure my office—and perhaps even yours—after this legislation goes through would be happy to advise them exactly what their obligations are.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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