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Electoral Funding Bill Report - Portfolio Committee No. 1 - Premier and Finance

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Cate Faehrmann
NSW Greens MP
10 October 2023

I speak as a participating member of the Portfolio Committee No. 1 - Premier and Finance inquiry into the Electoral Funding Amendment Bill 2023. I participated in the inquiry because The Greens wanted to have a say in it, and also because I am a member of the Joint Standing Committee on Electoral Matters [JSCEM], which has been formed although it has not yet made any inquiries in the current term of Parliament. The Greens were very concerned that the bill that came before this place was an overreach beyond what it was claimed to represent. The Government claimed that it was simply putting in place a cap for by‑elections as recommended by JSCEM. That was something that needed to be sorted out. As a result of the High Court decision, it was necessary to put in place a cap for third-party campaigners. The High Court struck that out because of the very low cap of $20,000 that was originally in the Act—that is fair enough. JSCEM considered that and recommended that the Parliament put in place a cap.

However, the bill that came before this place went much further. The bill included a cap that was quite extraordinary—a figure 10 times higher than the one struck down by the High Court. The cap is $225,900. But also, suddenly, the cap would apply in a general election for third-party campaigners in every seat. That was something that JSCEM had not considered and that none of the experts had considered. There was no evidence given about that. It was alarming that in the second reading speech it was considered just a consequential amendment. "Oh, this is just something that has to happen as a result of us putting a cap in place for third-party campaigners at a by-election." No, it is not just a consequential amendment. I have spoken with Government members to reiterate that setting the cap for third-party campaigners at a general election is a very serious amendment with very serious consequences. Let us take that to JSCEM. Let us split the bill up. I hope to speak to that more when the bill comes before the Parliament. Fingers crossed that will happen next week, but definitely before the end of the year.

I now focus on the $225,900 cap itself. I looked at the history of the JSCEM report from the last Parliament, which investigated that cap, and did some digging to find out what the evidence base was behind the figure of 75 per cent of the candidate cap. I looked at what various witnesses had put forward, and what the various experts in electoral funding law and the legal brains had put forward. In fact, there was not really any evidence behind that 75 per cent figure. It was simply the figure that, for whatever reason, JSCEM chose to put forward as a recommendation. One stakeholder—one union—had put forward a table where it averaged out what it would spend in a by-election. From the averages of that one stakeholder, JSCEM took a figure of 75 per cent. There was a lot of other evidence, including from Unions NSW, which put forward what it believed would be an average spend in a by-election. The figure from that evidence was around $120,000.

The Greens have written to all members of this place and the other place to put forward what we see as a compromise position—but one that is based on evidence—for a third-party campaigner cap of $120,640. We had a look at average by‑election spends, which the JSCEM did not do because a lot of that evidence was not available when the JSCEM was considering what the expenditure cap would be. We had a look at the spends in recent by‑elections and some were incredibly concerning. For example, in the Willoughby by‑election in 2022 the Liberal Party spent $157,416.94 and the next highest spend was $12,590.21 by Larissa Penn. The Liberal Party spent the maximum of $157,000 in the Willoughby by‑election. The committee considered a proposed cap on electoral expenditure of $225,900 for third‑party campaigners—for Clubs NSW, for the Minerals Council of Australia, for the Australian Hotels Association, for Unions for Yes. In the Willoughby 2022 by‑election The Greens spent $9,652.

A number of people have put forward that candidates in regional electorates potentially need to spend more. In the Upper Hunter by‑election the National Party spent $232,000, the Labor Party spent roughly $184,000, and the Shooters, Fishers and Farmers Party spent $35,000. Again, the by‑election expenditure cap for third‑party campaigners under the bill that the inquiry looked into is $225,900. A by‑election is a six‑week campaign during which the candidates and political parties have to rally all of their resources and materials, and talk to all of the voters in that electorate about every single thing that the candidate stands for. There are multiple pieces of communication over a six‑week period. All of the polling booths need to be staffed. The Greens polling booths are manned by volunteers. Some parties pay for staff, but not The Greens. However, my point is that the campaign requires co‑ordination, assistance, advertising and distribution of flyers to letterboxes. To think that every single third‑party campaigner—again, the Minerals Council of Australia, the AHA, Clubs NSW, you name them; and there are a lot of them—could spend roughly the same as the National Party or the Labor Party is just ridiculous.

There is a principle around ensuring that the wealthy do not drown out the voices of the candidates who want to participate equally in that election. The High Court has spoken about that. Experts in electoral law, such as Mr Geoffrey Watson, SC, and Professor Anne Twomey, speak about that. The proposed figure of $225,900 does exactly that; it drowns out the voices of most other participants, certainly The Greens and Independents. It must be reduced. I urge the Government to provide evidence for why the figure of $225,900 is necessary when they bring the bill before the Parliament. It needs to be based on evidence. The High Court accused the former Government of having no evidence to justify the $20,000 cap. There is not much evidence to justify $225,900. One stakeholder plucked 75 per cent out of nowhere and suddenly it was adopted. There is no substance behind that 75 per cent. Mr Geoffrey Watson, SC, told the committee:

I personally think that the sums advanced are too large.

The Hon. Kevin Rozzoli, and many other experts mentioned by the Hon. Chris Rath in his contribution, said the same thing. I will save the rest of my contribution for when the Government brings the bill to this place for debate. I certainly hope that will be before the end of the year, so that we can have caps on expenditure by third‑party campaigners if a by‑election is called.

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Cate Faehrmann
NSW Greens MP
10 October 2023
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