Commonwealth Electoral Amendment (Donation Reform and Other Measures) Bill 2020 [2020] AUSStaCSBSD 26 (12 February 2020)

• Commonwealth Electoral Amendment (Donation Reform and Other Measures) Bill 2020
• Significant matters in delegated legislation
• Privacy1
• Broad delegation of investigatory powers2

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Chapter 1

Comment bills

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

Commonwealth Electoral Amendment (Donation Reform and Other Measures) Bill 2020

Purpose	This bill seeks to amend the Commonwealth Electoral Act 1918 to strengthen transparency and accountability measures in relation to the disclosure of political donations or gifts at the Commonwealth level
Sponsor	Senator Jacqui Lambie
Introduced	Senate on 5 February 2020

Significant matters in delegated legislation
Privacy^[1]

1.2 Item 2 of Schedule 2 to the bill seeks to insert proposed section 302AB into the Commonwealth Electoral Act 1918, which will require the Electoral Commissioner to establish and maintain a system known as the AEC Disclosure Portal (the portal). Proposed subsection 302AB(2) provides that the portal has the following purposes:

• the electoral expenditure purpose;

• the disclosure and reporting purpose; and

• any other purposes prescribed for the purposes of this paragraph.

1.3 Proposed subsection 302AB(3) provides that additional purposes may be prescribed in regulations. Additionally, proposed section 302AC provides that regulations may make provision for the establishment, performance and administration of the portal. Proposed section 302AD provides that regulations may make provision for any matters that relate to the electoral expenditure purpose. Proposed section 302AE provides that regulations may make provision for any matter that relates to the disclosure and reporting purpose.

1.4 The committee has consistently raised concerns about framework bills, which contain only the broad principles of a legislative scheme and rely heavily on delegated legislation to determine the scope and operation of the scheme. As the detail of the delegated legislation is generally not publicly available when Parliament is considering the bill, this considerably limits the ability of Parliament to have appropriate oversight of new legislative schemes. Consequently, the committee's view is that significant matters, such as the functions and purposes of the proposed AEC Disclosure Portal, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. The explanatory memorandum does not contain a justification for leaving key elements of the establishment and operation of the portal to regulations.

1.5 The committee also notes that, in relation to the disclosure and reporting purpose, the nature of the information that may be required to be disclosed, including whether this will include personal information, will not be subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. As this matter is not addressed in the explanatory memorandum, it is difficult for the committee to accurately assess whether appropriate safeguards will be in place to ensure that any personal or sensitive information is appropriately managed.

1.6 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving key aspects of the scope and operation of the proposed AEC Disclosure Portal to delegated legislation.

Broad delegation of investigatory powers^[2]

1.7 Schedule 4 to the bill seeks to insert proposed Division 5A of Part XX into the Commonwealth Electoral Act 1918, which triggers the monitoring and investigation powers in Parts 2 and 3 of the Regulatory Powers (Standard Provisions) Act 2014. Proposed subsections 314AJ(4) and 314AK(3) provide that an inspector may be assisted by 'other persons' in exercising powers or performing functions or duties in relation to monitoring and investigation. The explanatory memorandum does not explain the categories of 'other persons' who may be granted such powers and the bill does not confine who may exercise the powers by reference to any particular expertise or training.

1.8 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of conferring monitoring and investigatory powers on any 'other person' assisting an inspector. The committee notes that it may be appropriate to amend the bill to require that any person assisting an inspector must have the knowledge or experience appropriate to the power being exercised or the function being performed.

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[1] Schedule 2, item 2, proposed sections 302AB, 302AC, 302AD and 302AE. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

[2] Schedule 4, item 2, proposed subsections 314AJ(4) and 314AK(3). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).