Electoral Legislation Amendment (Party Registration Integrity) Bill 2021 [2021] AUPJCHR 93 (25 August 2021)

• Electoral Legislation Amendment (Party Registration Integrity) Bill 20211
• Increasing unique party membership for non-parliamentary parties
• Preliminary international human rights legal advice
• Right to freedom of association and right to participate in public affairs
• Committee view

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Electoral Legislation Amendment (Party Registration Integrity) Bill 2021^[1]

Purpose	This bill seeks to amend the registration eligibility requirements for a federal non-Parliamentary party by increasing the minimum membership from 500 to 1500 unique members
Portfolio	Finance
Introduced	House of Representatives, 12 August 2021
Rights	Freedom of association; political participation

Increasing unique party membership for non-parliamentary parties

1.36 This bill would amend the Commonwealth Electoral Act 1918 to increase, from 500 to 1500, the minimum number of unique members required by a political party in order for it to be federally registered.^[2] Further, the bill would provide that a person may not qualify as a unique member of multiple political parties which are not represented in the federal parliament. Rather, within at least 30 days of being notified by the Australian Electoral Commission, they would be required to nominate one party in order to count towards its unique membership.^[3] If they failed to nominate a party within at least 30 days, no party would be permitted to rely on their membership as contributing to their unique membership.

1.37 Where a political party is registered, that party name may be printed on the ballot papers for an election adjacent to the name of a candidate who has been endorsed by that party.^[4]

Preliminary international human rights legal advice

Right to freedom of association and right to participate in public affairs

1.38 By increasing the minimum required membership for a non-parliamentary political party to be registered as a political party for the purposes of a federal election, this bill may limit the right to freedom of association. The right to freedom of association protects the right of all persons to group together voluntarily for a common goal and to form and join an association.^[5] This right prevents the State from imposing unreasonable and disproportionate restrictions on the right to form an association, including imposing procedures for formal recognition as an association that effectively prevent or discourage people from doing so.^[6] Further, this bill may also engage and limit the related right to participate in public affairs, which gives citizens the right to take part in the conduct of public affairs, directly or through freely chosen representatives, and includes guarantees of the right of Australian citizens to stand for public office and to vote in elections.^[7] Any conditions which apply to the exercise of the right to participate in public affairs should be based on objective and reasonable criteria.^[8]

1.39 These rights may be permissibly limited where the limitation seeks to achieve a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving the objective. The right to freedom of association may only be limited where the measures are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.^[9]

1.40 The statement of compatibility does not identify that this measure engages and may limit the right to participate in public affairs, and so no information is provided with respect to its compatibility. The statement of compatibility notes that this measure engages the right to freedom of association. It states that the amendment is intended to ensure that any political party on the federal Register of Political Parties has 'a genuine foundation of national community support', and notes that the reforms would not preclude members of smaller associations from standing as independent candidates for federal elections with organisational endorsement.^[10] However, no information is provided as to: how the figure of 1500 unique members was reached; why a membership of 1500 people (as opposed to 500) is indicative of a foundation of national community support; or why a person may only count as a unique member with respect to one non-parliamentary political party. Further, it is not clear whether and how the measure is necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. The statement of compatibility states that the proposed amendment is proportionate given that there are over 16 million people on the Commonwealth Electoral Roll who can be a member of a political party for the purposes of registration, and noting that the revised threshold would still be less restrictive than equivalent thresholds under some state electoral laws.^[11] However, given that voting in federal elections occurs based on a person's electorate (in the House of Representatives) and state or territory (in the Senate), it is not clear that the total number of voters at the federal level is directly relevant to the minimum number of registered party members (particularly where a party may be focused on concerns specific to a particular region, or particular cohort in society).^[12]

1.41 In order to assess the human rights compatibility of this measure further information is required as to:

(a) whether and how increasing the minimum required unique membership of a non-parliamentary political party from 500 to 1500 members is necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others;

(b) how the figure of 1500 unique members was reached, and why a membership of 1500 members is considered to be indicative of a foundation of national community support (whereas 500 members is not);

(c) how many federally-registered political parties currently have less than 1500 registered members;

(d) whether this amendment may have the effect of discriminating against parties representing minority groups;

(e) why a person would only be permitted to count as a unique member with respect to one non-parliamentary political party; and

(f) whether and how this measure constitutes a proportionate limit on the right to participate in public affairs.

Committee view

1.42 The committee notes that this bill seeks to amend the registration eligibility requirements for a federal non-parliamentary party by increasing the minimum membership from 500 to 1500 unique members. The committee notes that this engages and may limit the right to freedom of association, and the right to participate in political affairs. The committee notes that these rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.43 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this bill, and as such seeks the assistant minister's advice as to the matters set out at paragraph [1.41].

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^[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Electoral Legislation Amendment (Party Registration Integrity) Bill 2021, Report 10 of 2021; [2021] AUPJCHR 93.

^[2] Schedule 1, item 1, subsection 123(1).

^[3] Schedule 1, item 2, proposed section 123A.

^[4] Commonwealth Electoral Act 1918, subsection 169(1).

^[5] International Covenant on Civil and Political Rights, article 22.

^[6] The European Court on Human Rights has similarly stated that requiring proof of minimum levels of support by political parties must be reasonable and democratically justifiable and not so burdensome as to restrict the political activities of small parties or to discriminate against parties representing minorities. See, Republican Party of Russia v. Russia, European Court of Human Rights, Application No. 12976/07 (2011) [110]-[119]. See also, Council of Europe, European Commission for Democracy through Law, Guidelines on Political Party Regulation (December 2020) pp. 27-28.

^[7] International Covenant on Civil and Political Rights, article 25.

^[8] UN Human Rights Council, General Comment No.25: Article 25, Right to participate in public affairs, voting rights and the right of equal access to public service (1996) [4].

^[9] International Covenant on Civil and Political Rights, article 22(2).

^[10] Statement of compatibility, p. 4.

^[11] Statement of compatibility, p. 4.

^[12] Excluding those parties represented in the federal parliament, there would appear to be approximately 38 political parties registered at a federal level. See, Australian Electoral Commission, Current register of political parties, 11 August 2021, https://www.aec.gov.au/parties_and_representatives/party_registration/ Registered_parties/ (accessed 16 August 2021).