WA Standing Committee on Legislation Reports on Electoral Reform Bill

The Electoral Amendment Bill 2020 (100 of 2020) [WA] (the Bill) was introduced into the WA Assembly on 25 June 2020 by Attorney General Mr J.R. Quigley. According to the Attorney General, the Bill proposes to amend the Electoral Act 1907 (WA) (the Act), , "to give effect to the government’s clear election commitments to improve disclosure laws around political donations, introduce expenditure caps for election campaigns and ban foreign political donations". The Bill passed through the Assembly on 13 August 2020 and reached second reading stage in the Council, where it was referred to the WA Standing Committee on Legislation (the Committee). On 12 November 2020 the Committee tabled its report on the Bill.

Outline of the Key Bill Provisions

The references in the definition of "Australian citizenship" would be updated from the Australian Citizenship Act of 1948 (Cth) to the Australian Citizenship Act 2007 (Cth) [Bill clause 4].

Minor amendments are made by removing the references to section 88(1) which are deleted from sections 87(8) and 99A(2). Section 88(1) which was deleted in 1967, allowed candidates to withdraw their nomination after nominations had been declared - a situation no longer accommodated in the Act [Bill Clauses 5 and 6].

The heading of Part VI is amended to "Electoral funding and gifts, income and expenditure" [Bill Clause 7].

The new capped expenditure period for State elections will commence on 1st October before the election is held the following March. The expenditure period will conclude on polling day. For a by-election the capped expenditure period will commence on the issue of the writ and conclude on polling day. The expenditure period will apply to expenditure such as television, radio, internet electoral advertising, opinion polling, consulting and advertising agent’s fees [Bill Clause 8].

As the Electoral Commissioner is no longer responsible for determining the specified amount section 175A(6) is deleted and reference to the new Division 4A that deals with expenditure caps is included in section 175A [Bill Clause 9].

The Bill gives Part VI Division 3 a new heading of "Gifts and other income" and the definition of "CPI" has been moved to section 175 of the Act [Bill Clauses 10 and 11].

The Bill provides that political parties and associated entities will have to lodge quarterly returns to the WA Electoral Commission within 10 business days at the end of each quarter. Further, all donations from an individual or corporation that reach the specified amount of $1,000 or more accumulatively in the financial year will be disclosed in the quarter they reach $1,000 [Bill Clause 12]. At present political parties and their associated entities can satisfy the Act by lodging a return under the Commonwealth Electoral Act 1918 (Cth). The Commonwealth disclosure threshold is $14,000 and the State disclosure threshold is $2,500 - the option of lodging a Commonwealth return to satisfy State threshold requirements will no longer be an option.

A complete on ban foreign donations is proposed by the Bill, as a result it will be unlawful to accept a political donation unless the donor is an Australian resident or citizen, or has a relevant Australian Business. Recipients of a banned foreign donation will have six weeks to return it [Bill Clause 13].

At present, political parties, candidates and Legislative Council Groups have to lodge a return even if no gifts in kind were received. The Bill now provides that  associated Entities will also now have to lodge a quarterly return if no donations were received [Bill Clause 14].

A new Part VI Division 4A providing for caps on electoral expenditure is inserted [Bill Clause 15]. In the case of caps for a political party, at the next State election political parties will have electoral expenditure capped at $125,000 for every Legislative Assembly district and $125,000 for every Legislative Council region contested. However, political parties may spend over the capped amount in a particular district or region, although overspends would then need to be balanced by a reduction in other districts or regions.

In the case of expenditure for an independent candidate a spend $125,000 in a State election and $300,000 in a by-election is allowed. The expenditure caps for Groups is proposed as $125,000 in a State election and $300,000 in a by-election. The expenditure caps for others is $2 million for individuals and organisations that wish to campaign in a State election and are not a political party, candidate or a Legislative Council group and $50,000 for a by-election.

The Bill proposes that the expenditure cap will be indexed to CPI from 1 July 2021 and each subsequent financial year. It is provided in the Bill, that any organisation, political party, Legislative Council Group, or candidate that exceeds the cap is liable to pay the State twice the amount they exceeded the cap.

Offences for exceeding the cap are, for a serious breach of the cap, liability to a two year prison sentence plus a severe financial penalty. A body corporate that breaches the cap could face a fine that is five times the maximum fine that could be imposed on a natural person because of the operation of section 40(5) of the Sentencing Act 1995 (WA).

Overview of the Committees Report

The Council referred the Bill to the Committee with the power to inquire into policy behind the proposed. The policy objectives of the Bill are stated as being to: 

• improve disclosure laws around political donations

This objective would mean that any donation made to a political party or associated entity of $1 000 or above would have to be declared, with details of the donor included, in returns to the WA Electoral Commissioner. Currently the disclosure threshold is $2,500. 

On this objective the Committee sought an explanation as to some details of the proposals, and recommended that the disclosure threshold should be amended to "an amount above $1,000", so as to establish a requirement that is simpler and easier to communicate.

•  ensure more timely disclosure of those donations

This objective would be achieved by introducing quarterly reporting of gifts and donations received by political parties and associated entities, instead of what happens currently which a requirement for an annual report.

On this objective a majority of the Committee found that moving to quarterly reporting would create administrative difficulties for political parties, associated entities and the WA Electoral Commission for no material benefit. The recommendation is that the proposed clause 12 of the Bill be deleted. The minority view of the Committee, was that quarterly reporting is an important step in the direction of a more transparent system of disclosure.

• place a total ban on foreign donations in WA

Placing a total ban on the receipt of foreign donations or gifts by election participants was, according to the Report, generally welcomed by the Committee and, ". . . subject to the receipt of satisfactory explanations from the Minister for Electoral Affairs, enactment of clause 13 should proceed".

• introduce expenditure caps for election campaigns

Proposals for the introduction of expenditure caps on election participants were considered by the Committee and comparisons with the operation of such caps in other jurisdictions were made. The contents of the Government’s Tabled Paper 4104 Explanation of the justification of the expenditure caps in the Electoral Amendment Act [Bill] 2020 (WA)  was discussed by the Committee and a majority of the Committee recommended that the measure not be passed while a minority supported the proposed clause 15.

As already stated the Bill is at second reading stage in the Council.

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Electoral Amendment Bill 2020 (100 of 2020) [WA], second reading and explanatory material as reported in the TimeBase LawOne Service.

Electoral Amendment Bill 2020 (Report No 47, Standing Committee on Legislation [WA] November 2020)