Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697642016769.pdf (Australia)
Introduction Thank you for the opportunity to comment on the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 Recommendations for improvement are made throughout my submission.

Oh, and by the way, no foreign donations were offered or accepted to assist in the preparation of this submission.

Executive Summary I don't like it Recommendation: Abandon this Bill.

Go back to the drawing board.

Engage in genuine community consultation and do it much earlier in the process.
General Comments In this section I make some general comments about foreign donations and this Bill.

Baby out with the bathwater This Bill is throwing the baby out with the bathwater.

It may be trying to stop e.g.

China, improperly influencing political debate in Australia but most of the substantial bureaucratic burden falls on law-abiding, politically engaged Australians.

They must be laughing in Beijing.

Is there really a problem?


There must be some question though as to whether the problem that the government has identified actually exists.

I don't think that the government has really made the case that we have a significant problem with foreign interference in the Australian political process via donations.

I understand that some information may be being withheld from public discourse because it would reveal to a foreign government what we know and maybe how we know it.
However that would mean that the need for a really terrible Bill is being taken on trust.

Conflict of interest I suggest that it is a fundamental conflict of interest that the parliament can make the rules for elections and the political process.

Requiring only a simple majority in each house of parliament allows for tyranny of the majority, within the limits of the constitution, which is silent on many issues such as the issues raised by this Bill.
It has been credibly suggested that this Bill does not represent merely an attempt to avoid foreign donations but is also a trojan horse for • • • suppressing criticism from outside the parliament centralising all political activities within political parties specifically targeting GetUp!
Inquiry into the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017Submission 163 • • saving money on public funding and fiddling with the rules regulating and controlling the political process itself Recommendation: Remove all the trojan aspects of this Bill.

Limit the Bill to those matters that directly relate to foreign donations.
Recommendation: Establish an independent entity that must review and approve all legislation that would impact on elections or the political process.

This sets a higher bar than merely whether new legislation is constitutional, which the High Court will always take care of, and instead requires it to be fair dinkum.

Become more like your “enemy” It's funny.


When Islamic terrorism came along, Prime Ministers sagely intoned that the terrorists hate our freedoms, and then proceeded to legislate away some of our freedoms.

So while fighting Islamic terrorism, we became more like their model authoritarian society.
Now with allegations that China might be supporting some groups in our society in order to further its agenda, Prime Ministers will sagely intone that China is taking advantage of our freedoms and then proceed to legislate away some more of our freedoms.

So we become even more like an authoritarian society.

The legalistic society This Bill continues a long-standing trend of making everything more legalistic.
A person is forced to employ a lawyer to find out what restrictions apply to scratching one's nose.

The days when the law was common-sense are long gone.

This has the likely affect of disadvantaging small community groups, where spending heaps of money on expensive lawyers subtracts from the good that they can do.

Alternatives I don't have great alternatives to the proposed Bill, other than throwing it away, but what alternatives were looked at before settling on this course of action?
In this section I discuss some alternative approaches.

Recommendation: Consider all alternatives and justify why you have chosen the approach that you have.

Voluntary regime Don't laugh.

Perhaps a voluntary regime is a starting point.

Governments should at least look at getting cooperation voluntarily before immediately jumping to a regime of compulsion.
Perhaps the integrity that comes from having a well-audited set of Australian donors is a positive branding exercise for an organisation, like Made in Australia / Product of Australia.

Monitoring only An alternative approach for this entire Bill would be to make it a disclosure exercise, rather than a banning exercise.

In other words, run with a beefed-up disclosure regime for a few years and see whether anyone is actually receiving foreign donations, and to what extent.
Inquiry into the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017Submission 163 All anonymous donations (e.g.

cash, cryptocurrency, untraced) would be considered “foreign”, hence an organisation without the resources to follow up every single donation could prioritise which donations it bothered to follow up, with an eye to how that would affect its foreign donation profile.
Listed organisations Another approach to the problem would be legislation that allowed the government to 'list' an organisation that it suspected of being a vehicle for a foreign agenda.

Such a 'listing' decision would of course be reviewable by the courts.

Once 'listed' the organisation would be subject to higher standards of auditing and subject to foreign donor restrictions.
This would ensure that the burden of these restrictions is targeted where it is more likely to make a difference, rather than the scatter-gun approach of the present Bill.

Counter-propaganda Accept that other countries may be able to get their view and their agenda publicised in Australia, one way or another, and learn to highlight that and learn to combat that with counter-propaganda.

Specific objections In this section I discuss specific objections I have to the Bill.
It's the limit The limit of $250 is far too low, particularly given the onerous process of a statutory declaration that applies once the threshold is reached.

The limit of $250 is embarrassingly below the disclosure threshold of $13,500.

People have been saying for years that $13,500 is much too high an amount to be able to keep secret.

Does the fact that a donation is from a dinky-di source really justify a premium of 54x before it has to be investigated and disclosed?
It does not appear to be the case that the foreign threshold of $250 is indexed.

Why is that?

Why is it OK for the disclosure threshold to maintain its real value but for the foreign threshold to disappear into nothingness in real terms?

The limit of $250 is mentioned specifically through the Bill, rather than being defined in one place.

This will make it more difficult to adjust the limit in the future, whether up or down.
However the limit is not the be-all and end-all of this problem because, as other submissions have pointed out, while it is a sensible anti-avoidance measure to require a recipient to aggregate donations from the same source, it means that effectively every donation, no matter how small, needs to be followed up.
Recommendation: Define the foreign donation limit to be always identically equal to the disclosure threshold and reset the disclosure threshold to $1,000 (which would continue to be indexed as now).

Recommendation: Introduce an additional donation threshold amount below which the recipient never needs to investigate or report the source or apply aggregation.

An example amount might be $50 (indexed).


It is understood that that means that a foreign donor could cobble together a Inquiry into the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017Submission 163 sequence of 20 identical donations in order to circumvent a foreign donation limit of $1000.

However that in itself may well attract suspicion.


Certifying mechanisms In respect of certifying “allowable donor status”, the legislation does not itself provide for any more reasonable alternative than a statutory declaration and indeed allows the regulations to remove even this alternative!
A statutory declaration is particularly an onerous requirement for people in a rural electorate, where the nearest Justice of the Peace may be a significant round-trip (travelled for each recipient throughout the year).

If the regulations were to remove the last mechanism i.e.

leaving there being no mechanism by which a donor could certify status, this would effectively cap donations at $250 per donor per recipient per year – and, due to lack of indexation, the true cap would dwindle to nothing.
This must be skating on constitutional thin ice.

This Bill strikes at the heart of the political process.

It is not good enough to delegate a key part of it to the regulations.

Recommendation: The Bill itself needs to enumerate all the alternatives, and some of them need to be better than a statutory declaration.

Any paper-based process (statutory declaration) is completely out of touch with 21st century fundraising.
Much fundraising is online, for its efficiency and immediacy, and that will be somewhat undermined under this new regime.

Goodness knows how donations via a cryptocurrency, such as Bitcoin, might be handled by an entity affected by this legislation.

Acceptable actions In the event that donations that are not allowable donations are received, one of the options is to surrender the donation to the Commonwealth.

Seriously?

This just makes you look like money- grabbers.


The list of "acceptable actions" is too narrow and in any case should not specifically include transfer to the Commonwealth.

Recommendation: An entity that needs to dispose of a donation should be permitted to transfer the donation to any other entity, including to an entity that would itself be covered by this regime.

The second entity may be more motivated or more capable in establishing the status of the donor.
This recommendation would still allow the entity to dispose of the donation by giving it to the Commonwealth, or returning it to the donor, as currently provided for.

Associated entity Other submissions have already canvassed how dubious the concept of an 'associated entity' is.

However I would like to highlight the part that is most offensive to me, namely the parts that sanction 'opposition' e.g.

287H(5)(a)(ii).

This appears to be an attempt to sanction the very act of opposition.
Because I am opposed to something that the government is doing, and prepared to do something about it, I face the sanction of being registered as an associated entity, presumably an associated entity of the Opposition much of the time, with the administrative and other burden that goes with that.

Recommendation: Remove all the stuff about “associated entities” i.e.

revert to a more reasonable definition that picks up genuinely associated entities, not mere alignment of political opinion.
Inquiry into the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017Submission 163 So much for a secret ballot The requirement for “senior staff” to declare their party memberships is a clear breach of privacy.

It seems hard to justify.

It seems also that it could be circumvented fairly easily.

Most political parties won't miss the loss of one member if the person who is becoming “senior staff” has to resign from the party for the duration of his or her employment.
That act of resignation is very unlikely to change their political views, and unlikely to change their personal political allegiance.

Recommendation: Remove the requirement to declare party memberships.

Company rort While this legislation is tough on political activists, it seems very weak on companies.

The test for whether a company is dinky-di, for the purposes of political donation, is very weak and could clearly serve to undermine the intent of this Bill.
Recommendation: For a company to be an “allowable donor” the company must be majority Australian-owned (by number of shares held).

Taxpayer funding This Bill makes a small change to the formula for taxpayer funding of political parties relating to an election i.e.

setting an upper limit equal to the actual amount spent.

This change seems fundamentally unfair, in particular to new and growing parties, or at least to those parties who choose to live within their means.
It seems designed to protect the existing parties from emerging parties.

Apart from a simple cost-saving measure it is hard to see the justification for it.

Is there any evidence that a person has formed a political party solely for the purposes of benefiting from taxpayer funding?

The 4% threshold is a tough one.

Such a person is unlikely to succeed anyway.


This change creates whole new depths of bureaucracy, requiring parties to account for their expenditure and make a claim, potentially leading to sterile and endless arguments (court cases) about what is “electoral expenditure”.

I offer a choice of three recommendations.

Recommendation: Abandon taxpayer funding.

It is just a tax on voting.

Recommendation: Abandon the proposed change and leave the formula as it is.
Don't require a whole lot of extra bureaucracy.

Recommendation: Since the effect of this legislation is to spread the burden and red tape that political parties currently have onto entities that are not political parties, I suggest that voters be allowed to direct their election funding (currently $2.70479 per vote) to an entity so-affected, instead of to the party who received their first preference.
This would make a more level playing field and would ensure that some of the cost of the burden imposed on the entity by this legislation can be met by the taxpayer, but only to the extent that voters choose that option.

A voter would also be entitled to choose that no entity receive election funding from their vote i.e.

the voter can choose not to pay the voting tax.


Inquiry into the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017Submission 163 Political purpose Political purpose (b) must be close to the broadest definition ever proposed to appear in a piece of Australian legislation.

the public expression by any means of views on an issue that is likely to be before electors in an election Let's unpack that.

No mention of what country's election?


No mention of what level of government?

What about union elections?

Elections in another type of organisation?

What is an election?

Is a referendum / plebiscite an election?

Is a postal survey an election?

No limit on time frame?

No idea what threshold applies for an issue being “before electors”?

Two guys in a pub who have had too much to drink mouthing off?

No realistic way of guessing how “likely” something is anyway?
I challenge the government to swear hand on heart that they have any examples that don't meet that condition.

The government seems to have lost sight of the fact that the public expression of political views is exactly the right that living in a democracy gives everyone.

It must not be encumbered by threats of jail time and massive fines.
Proportionate Questions have been raised as to whether this Bill is a proportionate response, which could have implications for its being consistent with the Constitution.

Looking at Example 2 on page 19 of the Explanatory Memorandum, regarding the application of Section 287F, “Joseph”, our hypothetical political campaigner, spends $50,000 on political expenditure but fails to jump through the necessary hoops in time.

He is potentially fined $2,368,800.


How can you possibly justify a multiplier of more than 47x ?

In fact, this is not even the worst case, given that the lateness in the example of 47 days was just an arbitrary choice for the example.

The potential fine, and hence the multiplier, could have been much larger.

Recommendation: Cap each of these administrative fines at 3x the actual political expenditure for the relevant financial year.
Prosecution of foreigners Let's just say as a purely hypothetical scenario that an election is held in Country A.

Country B allegedly discretely “interferes” in the election by publicising some real issues and some fake issues.

After the election, Country A calls foul and eventually indicts 13 nationals of Country B and 3 organisations in Country B.
There is no extradition treaty between Country A and Country B and even if there were such a treaty, the alleged offences might fall outside the set of offences that are covered by the treaty.

(For example, the offences are clearly of a political nature and many countries are loathe to extradite for political offences, and for good reason!)
Inquiry into the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017Submission 163 There is no evidence that any nationals in Country A knowingly participated in this alleged conspiracy – although some may have effectively participated by sharing social media posts which expressed opinions with which they agreed anyway etc.

In this scenario, how effective will this Bill be?

In the worst case, not at all.


In the best case, a few random Australians may be prosecuted, potentially unjustly, while the actual perpetrators get off scot-free.

Is it realistic that such a campaign of “interference” could be conducted purely in the virtual world of the internet?

It seems to me that the answer is “yes”.

We are all increasingly reliant on information received via the internet.

Only larger parties can afford to spam everyone in the electorate with actual pieces of paper.
Consolidation Echoing at least one other submission, and given the particularly large number of changes made by this Bill, it would have been helpful to produce a marked-up hypothetical amended Commonwealth Electoral Act.

Concluding comments Many other submissions have been written by or on behalf of charities.

The problems with this Bill will not be fixed by exempting charities.
It is no more acceptable to have three groups in society (political parties, charities, and the rest of us with our impoverished democratic rights) than it is to have two groups (political parties and the rest of us).

This Bill is irredeemable.

Inquiry into the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017Submission 163