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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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The bill seeks to amend the Commonwealth Electoral Act 1918
and the Referendum (Machinery Provisions) Act 1984 to:
• introduce gift caps, require expedited disclosure of gifts, and
reduce the disclosure threshold to $1,000;
• introduce electoral expenditure caps;
• replace the requirement for election returns with annual returns
submitted on a calendar year basis; and
• increase public funding of parties and candidates.
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Portfolio
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Finance
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Introduced
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House of Representatives, 18 November 2024
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Rights
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Right to take part in public affairs; freedom of expression; privacy;
equality and non-discrimination; rights of persons with disabilities
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2.23 The committee requested a response from the minister in relation to the bill in Report 11 of 2024.[17]
2.24 Schedule 3 of the bill seeks to amend the Commonwealth Electoral Act 1918 (Electoral Act) to introduce annual caps on the gifts that a person or entity can give to the same recipient in a calendar year[18] to fund election campaigning[19] up to $20,000.[20] The bill would provide that gifts made to recipients related to a particular state or territory would be subject to the state and territory gift cap of 5 times the annual gift cap.[21] A donor would be able to donate to multiple individuals or entities that are not related to an overall gift cap of 32 times the annual gift cap for the calendar year.[22] These caps would reset if a general election were held in a calendar year.[23] The bill would impose separate caps for by-elections and Senate-only elections of $20,000.[24]
2.25 Schedule 4 of the bill seeks to introduce annual caps on electoral expenditure incurred by registered political parties, candidates, members of the House of Representatives, Senators, associated entities, significant third parties, nominated entities and third parties. ‘Electoral expenditure’ means expenditure incurred for the dominant purpose of creating or communicating an electoral matter.[25] The bill would provide for different values and formulas to determine a person or entity’s expenditure cap.[26] For example, for a registered political party, the bill would cap such expenditure at a federal level to $90 million, at the divisional level to $800,000, and at the state or territory level to $200,000 multiplied by the number of divisions in the state or territory.[27] For an independent House of Representatives candidate or member, the bill would cap expenditure at $800,000.[28] For an independent Senate candidate or Senator, the bill would cap expenditure at $200,000 multiplied by the number of divisions in the state or territory, divided by 6 for a state and 2 for a territory.[29] The bill would also impose separate caps for by-elections and Senate-only elections.[30]
2.26 Schedule 7 of the bill seeks to introduce administrative assistance funding and election funding for registered political parties and independent members of the House of Representatives and independent Senators. The Electoral Act provides that election funding is payable in relation to any candidate who received at least four per cent of the total formal first preference votes cast in the election.[31] This bill proposes to increase the nominal dollar rate of $2.801 (currently indexed at $3.346) to $5 per total first preference vote for eligible recipients,[32] and also provides that regulations may be made to provide for the advance payment of election funding.[33]
2.27 To the extent that limiting the amounts of money that can be donated and spent on electoral matters may remove the influence of substantial donors and allow for more individuals and entities to participate in political debate, these measures may promote the right to take part in public affairs and the right to freedom of expression.
2.28 However, if these measures were also to impact the ability of an individual or entity to campaign effectively by limiting donations and electoral expenditure, they may also limit these same rights. The right to take part in public affairs includes guarantees of the right of Australian citizens to stand for public office, to vote in elections and to have access to positions in public service.[34] The right encompasses equality of access to the public service, which includes all positions in the legislature. It requires states to ‘treat all political parties on an equal footing and offer them equal opportunities to pursue their legislative activities’.[35] The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, either orally, in writing or print, in the form of art, or through any other media of an individual’s choice.[36] The effective functioning of a democratic society necessarily requires free political communication.
2.29 Further, to the extent that these measures may disproportionately impact people with particular protected attributes who are underrepresented by major political parties (for example, women or ethnic minority groups), they may also engage and limit the right to equality and non-discrimination.[37] This right provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.[38] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[39] Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate' exclusively or disproportionately affects people with a particular protected attribute.[40]
2.30 Additionally, increasing public funding to parties and candidates based on formal first preference votes may increase the relative monetary power of some individuals and entities over others, particularly incumbents and bigger parties, which may impact the ability of independents and non-incumbents to take part in public affairs. This bill has been subject to significant public comment raising concerns in this respect.[41]
2.31 The right to take part in public affairs may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. The right to freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others,[42] national security, public order, or public health or morals. Additionally, such limitations must be prescribed by law, be rationally connected to the objective of the measures and be proportionate.[43] Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[44]
2.32 The committee noted that this bill seeks to cap the provision of electoral financing gifts and permissible electoral expenditure. The committee noted that the stated intention of the measure is to limit the influence of big donors and allow for more individuals and entities to participate in political debate. The committee considered that, to the extent the measure may achieve this in practice, it may promote the right to take part in public affairs and the right to freedom of expression.
2.33 However, the committee further noted that these measures, and the measure to provide additional public election funding, may also limit the rights to take part in public affairs, the right to freedom of expression and the right to equality and non-discrimination.
2.34 The committee considered further information was required to assess the compatibility of this measure with these rights, and as such sought the minister's advice.
2.35 The full initial analysis is set out in Report 11 of 2024.
(a) Gift caps, electoral expenditure caps and increase to public funding of parties and candidates
The PJCHR considers caps may, on the one hand, promote the right to take part in public affairs and the right to freedom of expression, and on the other, limit the rights to take part in public affairs, the right to freedom of expression and the right to equality and non-discrimination.
As outlined in the Bill's explanatory memorandum, spending in Australian elections is increasing above inflation and population growth. For many participants, this upward trend necessitates fundraising and donation drives, to secure financial means to outspend, rather than out-campaign, one's opponent.
The expenditure cap levels in the Bill are set to arrest the exponential growth in campaign spending. These levels were set using data in the Transparency Register published on the Australian Electoral Commission's website, and engagement with electoral participants.
The Bill leaves participation, policy, and media use/coverage untouched. By placing parameters on spending, the Bill will promote local, grass-roots participation, engagement, and campaigning. This will seek to return election campaigning to a contest of ideas rather than bank balances.
The Bill as drafted, captures all political participants, and sets reasonable and generous annual financial limits on all participants in the political process – from major parties to small charities and individual donors. Capturing every participant in the process, via a balanced and proportional limit, prevents creative avoidance like the 'Super PAC' model seen in the United States of America.
While Australia's political system has historically featured major parties, there is an ever-increasing pool of financially wealthy or well-funded independent candidates, working alone or in coalition. Date from the Transparency Register shows a spate of candidates in the 2022 federal election who received large donation amounts from a small group of donors. There is much public discourse about the influence of 'vested interests' in our democracy and the competing interests of individual wealthy donors and constituents.
In addition, in 2022, there are estimates of candidates and parties spending significant amounts, even millions of dollars, in single divisions. These kinds of electoral races do not serve the voting public and in fact may tend towards the opposite.
Consideration of cap values
The gift cap and expenditure cap provisions in the Bill were developed following extensive consultation across the parliament and with stakeholders. These changes implement the recommendations of JSCEM and recognise that real or perceived disproportionately large amounts of donations and expenditure undermine the integrity of Australia's electoral system by inviting suggestions of corruption and buying influence.
The caps on electoral expenditure and gifts apply to individuals and entities engaged in the Australian electoral system. This includes registered political parties, candidates, significant third parties, nominated entities, associated entities and third parties. The caps apply equally to all these kinds of individuals and entities regulated by the Electoral Act.
The Bill's EM includes data from the AEC Transparency Register which shows that major parties spent well over $100 million each last election. Based on this, the Bill has an all-inclusive national cap of $90 million for registered political parties per calendar year.
State limits (proportional to the size of the state/territory) and divisional (electorate-based) limits of $800,000 are also included within the $90 million federal cap, preventing big parties from pooling unrestricted large sums in targeted areas. Taking the 150 seats to be contested in 2025, a party could spend $600,000 in each division, if it had no electoral expenditure on a national campaign or any senate (whole state/territory) campaigns.
The same federal caps and senate caps apply regardless of a party's size: minor parties running few candidates have the same caps as a major party running candidates in all seats. The division cap is the same for an independent or unendorsed candidate. In both cases, this acknowledges that regardless of a party or candidate's fundraising ability or profile, they should be able to spend the same in a divisional race. It is these divisional races that determine the parliament and the government.
As discussed above, there is an increasing need to fundraise to participate in a divisional race. By setting limits on donations and spending, candidates who already have large personal wealth, access to funds, or wealthy patrons and donors, would have limitations on how much of that wealth they can spend. Further under the legislation, candidates and parties would also have limits on how much they can take from any one donor, curtailing the capacity for wealthy individual donors to wield their influence.
Candidates with existing access to funds, and who properly and legitimately spend that money in elections in accordance with the Bill, will not need to fundraise as much as new entrants. However, setting limits on campaign spending and individual donations, will make campaigning in an election more accessible to ordinary Australians.
The caps will set a ceiling to stop the upper range of donations and spending, applying downward pressure on the cost of elections. This ensures that elections are a contest of ideas, not bank balances, and protects the right of all Australians to exercise political expression.
Public funding
Public funding is available to all eligible candidates, including those who are not elected but who meet the funding threshold provided for under current Part XX of the Electoral Act.
Advance payment of public funding proposed in the Bill would operate on an opt-in basis. The Bill creates a regulation-making power to permit the payment of election funding to be made as an advance on funding that may become payable, based on entitlement to election funding for the previous general election. This, along with increasing the dollar rate on which election funding is calculated, serves the purpose of reducing the need for political actors to rely on private donations to contest elections, taking 'big money' influence out of elections.
2.37 The preliminary analysis noted that creating the conditions for more people to stand for public office and reducing the influence of big donors over election outcomes likely promotes the right to take part in public affairs and the right to freedom of expression. However, questions arose as to whether, if the measures impacted the ability of an individual or entity to campaign effectively, they would limit those same rights and disproportionately impact people with particular protected attributes who are underrepresented by major political parties (for example, women or ethnic minority groups). The preliminary analysis noted that the stated objectives would constitute legitimate objectives for the purposes of international human rights law. However, it was unclear to the committee whether the measures are rationally connected to (that is, capable of achieving), and a proportionate means of achieving, these objectives.
Rational connection
2.38 As to whether the measures are rationally connected to the objective of creating the conditions for more people to stand for public office and to reduce the influence of big donors over election outcomes, the minister advised that expenditure cap levels are set to arrest the exponential growth in campaign spending. The minister stated that these have been set using data in the Transparency Register, and engagement with electoral participants. The minister stated that the cap will promote local, grass-roots participation, engagement and campaigning. While the caps on expenditure and gifts apply equally to all kinds of individuals and entities regulated by the Commonwealth Electoral Act 1918, they remain at a level which would appear to still allow significant influence over election outcomes. It remains unclear how setting such high caps would not have a disproportionate impact on the ability of an unaligned independent candidate to campaign effectively against more well-resourced candidates who are supported by a political party. Consequently, it remains unclear how this measure would be effective to promote greater participation.
2.39 The minister stated that the advanced additional electoral funding to existing members of Parliament would be available based on entitlement to election funding for the previous general election on an opt-in basis. The minister stated that this would reduce the need for political actors to rely on private donations to contest elections, thereby taking ‘big money’ influence out of elections. However, it remains unclear what impact this measure may have on non-incumbents who are unable to access such funding in advance to spend on electoral campaigns. If these measures provide an unfair advantage to some parties or candidates in practice, this may undermine the stated objectives of the measures. It therefore remains unclear whether the measures are rationally connected to (that is, effective to achieve) their stated objectives.
Proportionality
2.40 As to proportionality, the minister stated that the gift and expenditure caps were developed following extensive consultation across the parliament and with stakeholders, and would implement the recommendations of the Joint Standing Committee on Electoral Matters (JSCEM). The minister stated that the measures recognise that disproportionately large amounts of donations and expenditure (real or perceived) undermine the integrity of Australia’s electoral system and that setting limits on campaign spending and individual donations will make campaigning in an election more accessible to ordinary Australians. However, as noted in the preliminary analysis, the JSCEM Interim Report stated that such caps should be based on evidence the committee had received, and should have regard to being based at a level that recognises ‘the additional hurdles to entry faced by independents or new entrants’. It also considered having caps ‘higher for independent candidates, noting they generally have less existing structural support than candidates endorsed by a national political party’.[46] It remains unclear whether the cap limits set have taken into account the additional hurdles to entry for independents or new entrants and whether the measures would indirectly disadvantage particular groups of people from standing for election, and whether less rights restrictive alternatives (such as identifying any structural disadvantages some individuals may face over others and introducing measures to counteract them) would be ineffective to achieve the stated objectives of the measures.
2.41 Consequently, there may be a risk that these measures would constitute impermissible limits on the rights to take part in public affairs, freedom of expression, and equality and non-discrimination in practice.
2.42 The committee thanks the minister for this response. The committee notes that it was received after the deadline by which the committee had requested it.
2.43 The committee notes that this bill would cap the provision of electoral financing gifts and permissible electoral expenditure. The committee notes that, in its preliminary analysis, it concluded that (to the extent the bill may achieve this in practice) limiting the influence of big donors and allowing for more individuals and entities to participate in political debate may promote the right to take part in public affairs and the right to freedom of expression.
2.44 However, the committee considered that if these measures were to also impact the ability of an individual or entity to campaign effectively by limiting donations and electoral expenditure, they may also limit these same rights and may disproportionately impact people with particular protected attributes who are underrepresented by major political parties (for example, women or ethnic minority groups), and as such they may also engage and limit the right to equality and non-discrimination.
2.45 The committee considers that it remains unclear whether the measures would disproportionately impact independents or new entrants, and that it is unclear how the measures would be rationally connected to (that is, effective to achieve) the objectives sought. The committee considers that it remains unclear whether the cap limits set have taken into account the additional hurdles to entry for independents or new entrants and whether the measures would indirectly disadvantage particular groups of people from standing for election, and whether less rights restrictive alternatives (such as identifying any structural disadvantages some individuals may face over others and introducing measures to counteract them) would be ineffective to achieve the stated objectives of the measures. As such, the committee considers there may be a risk that these measures would impermissibly limit the rights to take part in public affairs, freedom of expression and equality and non-discrimination in practice.
2.46 The committee draws these human rights concerns to the attention of the minister and the Parliament.
2.47 The Electoral Act currently requires that a donation of $16,900 and over must be disclosed publicly to the Australian Electoral Commission (AEC) Transparency Register.[47] Schedule 1 of the bill seeks to reduce that disclosure threshold to $1,000 (subject to indexation on 1 January after each general election).[48] Schedule 2 of the bill would also require such donations to be disclosed to the AEC more frequently.[49] Disclosure timeframes would vary depending on the recipient but, generally, relevant gifts must be disclosed before the end of the 21st day of each month, within 7 days during the ‘election period’[50] and, for donors during the ‘expedited notice period’,[51] within 24 hours.[52] Recipients and donors who do not disclose within the relevant timeframe would be subject to a civil penalty of the higher of 60 penalty units (currently, $19,800) or 3 times the amount or value of the relevant gift.[53]
2.48 Gift donations over the disclosure threshold, or aggregated to an amount which is over the disclosure threshold, are published on the AEC Transparency Register. The Australian Electoral Commissioner would be required to publish information provided in a return within 24 hours of receiving it.[54] The Australian Electoral Commissioner would be required to publish the following information in relation to a gift:
• the name of the person or entity that received the gift;
• the name of the donor;
• if the recipient is a candidate in an election or by-election, a member of the House of Representatives or a Senator, the registered political party (if any) that the recipient is related to;
• the amount or value of the gift;
• the date on which the gift was made;
• if the gift was made during the election period for a by-election or Senate-only election, the name of the division or the state or territory to which the election relates;
• if the total amount or value of all gifts received by the recipient from the donor during the calendar year in which the gift was received is more than the disclosure threshold, the total amount or value of all gifts so far received; and
• any other gift received by the donor if the earlier gift was used wholly or partly to enable the donor to make the gift, or reimburse the donor for the gift, to which the donation disclosure notice relates and the amount or value of the earlier gift is more than the disclosure threshold.[55]
2.49 The Australian Electoral Commissioner would have the power to redact or remove personal information (within the meaning of the Privacy Act 1988) required to be published, or decide not to include information in the AEC Transparency Register, if the Australian Electoral Commissioner were satisfied that the publication of the information places, or would place, the personal safety of a person or of members of the person’s family, at risk.[56]
2.50 By lowering the disclosure threshold, a greater number of donations (and potentially individual donors) would be subject to publication on the AEC Transparency Register, including publication of personal information. This would engage and limit the right to privacy. Further, if this requirement resulted in individuals choosing not to donate to avoid personal information about their political preferences being included on the AEC Transparency Register, this measure may engage and limit the right to take part in public affairs.
2.51 The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.[57] It also includes the right to control the dissemination of information about one's private life. The right to take part in public affairs is set out above. It includes the right of every citizen to take part in the conduct of public affairs by exerting influence through public debate and dialogues with representatives either individually or through bodies established to represent citizens.[58]
2.52 These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.53 The committee noted that the bill seeks to reduce the threshold for which disclosure of an electoral donation must be made public from $16,900 to $1,000. The committee considered that to the extent that this would provide greater transparency over political donations, this may promote the right to take part in public affairs.
2.54 However, the committee considered that the requirement to publicly disclose a greater number of donations, a process which includes the publication of personal information on the AEC Transparency Register, also engages and limits the right to privacy and, if this measure resulted in individuals choosing not to donate to political candidates because they do not want their information to be public, may limit the right to take part in public affairs.
2.55 The committee considered further information was required to assess the compatibility of this measure with these rights, and as such sought the minister's advice.
2.56 The full initial analysis is set out in Report 11 of 2024.
2.57 The minister advised:
(b) Reducing the donations disclosure threshold
The Bill lowers the disclosure threshold to $1,000, to be indexed on the first 1 January after every general election, implementing recommendation 1 of the JSCEM Interim Report.
The current disclosure threshold has blown out to amounts more than $16,900 and increases every year, at odds with equivalent political donation disclosure thresholds under state and territory electoral law. As outlined at paragraph 39 of the Bill's Explanatory Memorandum, lowering the disclosure threshold would have significant benefits, including more closely aligning federal electoral financial disclosure thresholds with those in state and territory jurisdictions to provide consistent levels of transparency.
I note that the Bill inserts the new definition of 'third party threshold', being $20,000, implementing recommendation 14 of the JSCEM in the Final Report. This will ensure that smaller actors such as charities and community groups that spend less than $20,000 in relation to federal elections are not subject to reporting obligations under Part XX of the Electoral Act. Once this third party threshold has been reached, the person or entity is considered a third party and is subject to the relevant obligations.
As outlined in the Statement of Compatibility with Human Rights included in the Bill's Explanatory Memorandum and related Schedules, the Bill will increase privacy protections for donors and recipients, including by not publishing address information, and enhancing the Electoral Commissioner's powers to redact or remove certain information if it would cause a safety risk.
Information disclosed to the AEC under this regime is collected and used consistently with the Australian Privacy Principles (APPs), and the AEC are held to the standards, rights and obligations as set out by these principles. The financial reporting reforms in this Bill are consistent with the AAPs, particularly that only information that is necessary to support the operation and enforcement of the financial disclosure regime is disclosed.
2.58 The preliminary analysis noted that providing for transparency in financial contributions to political parties and candidates is likely a legitimate objective for the purposes of international human rights law, and lowering the disclosure threshold so more political financing information is publicly available appears rationally connected to (that is, effective to achieve) that objective. However, it was unclear why $1,000 represents the threshold at which donations may influence electoral outcomes and as such, whether the measure was a proportionate means of achieving these objectives.
2.59 The minister stated that lowering the disclosure threshold would have significant benefits, including more closely aligning federal electoral financial disclosure thresholds with those in state and territory jurisdictions to provide consistent levels of transparency. However, no information was provided as to why the $1,000 threshold (subject to indexation) is the appropriate threshold. It is unclear why aligning with other jurisdictions necessarily makes this the appropriate threshold.
2.60 In relation to lowering the threshold at which donations must be made public and the impact this may have on donors making small contributions and their willingness to participate in public affairs by donating, the minister advised that the bill inserts a ‘third party threshold’ of $20,000 to ensure that charities and community groups that spend less than this amount are not subject to reporting obligations under Part XX of the Electoral Act. However, it appears that whether an entity is considered a third party relates to their reporting obligations as recipients of gifts, but individuals who make a donation of $1,000 or more (or aggregated to that amount) have disclosure obligations as donors.[60] This therefore does not appear to address the concern that individuals may choose not to donate to avoid personal information about their political preferences being included on the AEC Transparency Register.
2.61 As to whether an individual could request the Australian Electoral Commissioner to not include or remove personal information on the public register, the minister restated the provisions in the bill and stated that the Australian Privacy Principles apply to information disclosed to the Australian Electoral Commission under this regime. While the Electoral Commission would be empowered to redact or remove certain information if there are safety concerns with respect to that individual, it appears that there is no mechanism for an individual to request information be removed on the basis that it would limit their right to privacy.
2.62 Consequently, there may be a risk that these measures would constitute impermissible limits on the rights to take part in public affairs and to privacy.
2.63 The committee thanks the minister for this response.
2.64 The committee considers that it remains unclear how the $1,000 threshold was calculated and whether it may impact the privacy of individuals. The committee considers it an important objective to have transparency and accountability around the conduct of public affairs. However, the committee also notes there may be a risk that these measures may limit the right to engage in public affairs and the right to privacy.
2.65 The committee draws these human rights concerns to the attention of the minister and the Parliament.
2.66 The Electoral Act provides that a person who, ‘by reason of being of unsound mind’, is incapable of understanding the nature and significance of enrolment and voting is not entitled to have their name placed or retained on any roll or to vote at any Senate or House of Representatives election.[61] It provides that the Australian Electoral Commissioner shall not remove an elector’s name unless an objection has been made and is accompanied by a certificate of a medical practitioner stating that, in their opinion, the elector, because of unsoundness of mind, is incapable of understanding the nature and significance of enrolment and voting.[62]
2.67 Schedule 10 of the bill seeks to change the words in both these provisions from ‘being of unsound mind’ to ‘cognitive impairment’.[63]
2.68 Restricting the circumstances in which an individual is entitled to be enrolled and vote based on cognitive impairment engages and limits the rights of persons with disabilities to equal recognition before the law and the right to take part in public affairs.
2.69 The UN Convention on the Rights of Persons with Disabilities (CRPD) reaffirms that all persons with disability are guaranteed all human rights without discrimination, including those rights set out in other human rights treaties. Article 5 of the CRPD guarantees equality for all persons under and before the law and the right to equal protection of the law. It expressly prohibits all discrimination on the basis of disability. Article 12 of the CRPD requires state parties to refrain from denying persons with disabilities their legal capacity, and to provide them with access to the support necessary to enable them to make decisions that have legal effect. The right to equal recognition before the law includes the right to enjoy legal capacity on an equal basis with others in all aspects of life; and in all measures that relate to the exercise of legal capacity, there should be appropriate and effective safeguards to prevent abuse.[64] There can be no derogation from article 12 of the CRPD, which describes the content of the general right to equality before the law under the International Covenant on Civil and Political Rights.[65] This means 'there are no permissible circumstances under international human rights law in which this right may be limited'.[66] As noted previously, the right to take part in public affairs includes guarantees of the right of Australian citizens to vote in elections and is an essential part of democratic government that is accountable to the people.[67] It includes the right and opportunity for persons with disabilities to vote by, among other things, ‘guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice’.[68]
2.70 The committee noted that restricting the circumstances in which an individual is entitled to be enrolled and vote based on cognitive impairment engages and limits the rights of persons with disabilities to equal recognition before the law and the right to take part in public affairs.
2.71 The committee considered that further information was required to assess the compatibility of this measure with these rights, and as such sought the minister's advice.
2.72 The full initial analysis is set out in Report 11 of 2024.
2.73 The minister advised:
(c) The ability to vote in cases of cognitive impairment
The Bill does not propose alteration of the enrolment objection process as administered by the Australian Electoral Commission, consistent with current Part IX of the Electoral Act.
The Bill responds in part to recommendation 5 of the JSCEM Final Report by replacing outdated and offensive terminology in the Act in relation to cognitive impairment. The use of the term 'unsound mind' in the Electoral Act has been a subject of concern within the disability community and among disability advocacy groups for a significant period of time. The replacement terminology of 'cognitive impairment' was recommended by the AEC.
The Government recognises the findings of the JSCEM, that further work needs to be done to provide people with disability with independent, secure and accessible voting options.
The Government welcomes further inquiry into increasing enfranchisement of persons with a disability and is supportive of further engagement across government and with the community and advocacy groups to ensure that reform is designed in a manner that achieves the best outcome without unintended consequences.
2.74 The minister advised that the bill does not propose to alter the enrolment objection process, stating that the term ‘unsound mind’ has been a subject of concern within the disability community and advocacy groups for some time and the replacement terminology of ‘cognitive impairment’ was recommended by the Australian Electoral Commission.
2.75 The fact that the bill does not seek to alter the existing enrolment objection process does not address the underlying question of the human rights compatibility of that existing process itself. Section 93 of the Electoral Act (which provides that a person of unsound mind shall not be listed on the roll) has never been subject to an assessment of its compatibility with human rights (a requirement introduced in 2012).
2.76 In addition, it remains unclear how the process provided for would impact people with disability in practice, and in particular:
(a) when and how an assessment of a person’s ‘cognitive impairment’ for the purposes of section 93 would be undertaken;
(b) why section 93 does not appear to contemplate the provision of supported decision-making for a person with cognitive impairment to participate in public affairs by voting;
(c) when and how an objection to a person’s eligibility to vote under section 118 based on cognitive impairment would occur in practice, and how it would be assessed;
(d) how a certificate of the medical practitioner is obtained and used in the decision-making process under section 118, and whether and how this is compatible with Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities.
2.77 Consequently, there appears to be a risk that the existing process for electoral objections relating to people with disability impermissibly limits the rights of persons with disabilities to equal recognition before the law and the right to take part in public affairs, and may therefore be incompatible with Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities.
2.78 The committee thanks the minister for this response.
2.79 The committee notes the minister’s advice regarding increasing enfranchisement of persons with a disability. The committee notes that the existing enrolment objection process which may apply to a person of ‘unsound mind’ has never been subject to an assessment of its compatibility with human rights (a requirement introduced in 2012).
2.80 The committee considers that there appears to be a risk that the existing process for electoral objections relating to people with disability impermissibly limits the rights of persons with disabilities to equal recognition before the law and the right to take part in public affairs, and may therefore be incompatible with Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities.
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Suggested action
2.81 The committee recommends that consideration be given to reviewing
sections 93 and 118 of the Commonwealth Electoral Act 1918 to ensure
that they (and the process for which they provide) are compatible with
Australia’s obligations under the UN Convention
on the Rights of Persons
with Disabilities.
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2.82 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[16] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Electoral Legislation Amendment (Electoral Reform) Bill 2024, Report 1 of 2025; [2025] AUPJCHR 9.
[17] Parliamentary Joint Committee on Human Rights, Report 11 of 2024 (27 November 2024) pp. 14-30.
[18] ‘Gift’ means any disposition of property made by a person or entity to another person or entity, being a disposition made without consideration in money or money’s worth or with inadequate consideration, and includes the provision of a service for no consideration or inadequate consideration: see Schedule 1, part 1, item 18, proposed section 287AAB.
[19] That is, for a ‘Federal purpose’. This means the purpose of incurring electoral expenditure, or creating or communicating electoral matters: see Commonwealth Electoral Act 1918, subsection 287(1).
[20] Schedule 3, item 2, proposed subsection 302BA(1).
[21] Schedule 3, item 5, proposed subsection 302CJ(1).
[22] Schedule 3, item 5, proposed subsection 302CI(1).
[23] Schedule 3, item 5, proposed sections 302CG and 302CK.
[24] Schedule 3, item 1, proposed section 302B; item 5, proposed sections 302CE and 302CF.
[25] Commonwealth Electoral Act 1918, section 287AB.
[26] Schedule 4, item 2, proposed Division 3AB.
[27] Schedule 4, item 2, proposed section 302ALA and subdivision C.
[28] Schedule 4, item 2, proposed section 302ALA and subdivision D.
[29] Schedule 4, item 2, proposed section 302ALA and subdivision E. For example, the independent Senate cap in New South Wales is $1,533,333 (($200,000 x 46) ÷ 6) and the independent Senate cap in the ACT is $300,000 (($200,000 x 3) ÷ 2).
[30] Schedule 4, item 2, proposed sections 302AMD and 302AME.
[31] Commonwealth Electoral Act 1918, sections 293, 294 and 295.
[33] Schedule 7, item 11, proposed section 298J.
[34] UN Human Rights Committee, General Comment No.25: Article 25, Right to participate in public affairs, voting rights and the right of equal access to public service (1996).
[35] UN Human Rights Committee, Concluding observations on the third period report of Rwanda, CCPR/C/RWA/CO/3 (2009) [21].
[36] International Covenant on Civil and Political Rights, article 19(2).
[37] International Covenant on Civil and Political Rights, articles 2 and 26.
[38] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.
[39] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[40] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'. See Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 3rd edition, Oxford University Press, Oxford, 2013, [23.39].
[41] See, for example, Emerita Professor Anne Twomey, Sneaky, excessive and unjustified: why Labor’s electoral reforms are vulnerable to constitutional challenge, The Guardian, 20 November 2024; Professor Joo-Cheong Tham, Political finance law reforms will reduce big money in politics, but will rich donors be the ultimate winners?, The Conversation, 19 November 2024.
[42] Restrictions on this ground must be constructed with care. For example, while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion, such restrictions must not impede political debate. See UN Human Rights Committee, General Comment No. 34: Article 19: Freedoms of Opinion and Expression (2011) [28].
[43] UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011) [21]-[36].
[44] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].
[45] The minister's response to the committee's inquiries was received on 20 January 2025. This is an extract of the response. The response is available in full on the committee's webpage.
[46] Joint Standing Committee on Electoral Matters (JSCEM), Conduct of the 2022 federal election and other matters: Interim Report (19 June 2023) pp. 66-67.
[47] Commonwealth Electoral Act 1918, Division 4 (disclosure of donations).
[48] Schedule 1, item 10, proposed subsection 287(1)(definition of disclosure threshold).
[49] Schedule 2, item 4, proposed sections 303A and 303E.
[50] ‘Election period’ means the period beginning on the issue of the writ for the election until close of polls, see Schedule 2, item 4, proposed section 303.
[51] ‘Expedited notice period’ means the period beginning on the Saturday immediately preceding the polling day for the election and ending seven days after that polling day, see Schedule 2, item 4, proposed section 303.
[52] Schedule 2, item 4, proposed subsections 303A(2) and 303E(2).
[53] Schedule 2, item 4, subsections 303A(1) and 303E(1).
[54] Schedule 2, item 4, proposed section 303J.
[55] Schedule 2, item 4, subsection 303J(1).
[56] Schedule 5, item 21, proposed paragraph 320(1)(1A).
[57] International Covenant on Civil and Political Rights, article 17.
[58] International Covenant on Civil and Political Rights, article 25. See also 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) [1],[5]-[6].
[59] The minister's response to the committee's inquiries was received on 20 January 2025. This is an extract of the response. The response is available in full on the committee's webpage.
[60] Schedule 2, item 4, subdivisions B and C.
[61] Commonwealth Electoral Act 1918, paragraph 93(8)(a).
[62] Commonwealth Electoral Act 1918, subsection 118(4).
[63] Schedule 10, item 12, paragraph 93(8)(a).
[64] Convention on the Rights of Persons with Disabilities, article 12.
[65] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [1], [5].
[66] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [5].
[67] UN Human Rights Committee, General Comment No.25: Article 25, Right to participate in public affairs, voting rights and the right of equal access to public service (1996).
[68] UN Convention on the Rights of Persons with Disabilities, article 29(a)(iii).
[69] The minister's response to the committee's inquiries was received on 20 January 2025. This is an extract of the response. The response is available in full on the committee's webpage.
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