The Human Rights implications of the Electoral Disclosure Reform and Foreign Influence Bills

By Dr Adam Fletcher

The Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017, along with the Foreign Influence Transparency Scheme Bill 2017 and the Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017, constitute a package of legislation designed to overhaul Australia’s political donation and covert lobbying rules. The Government’s aim with these Bills is ambitious – it wants to reshape the landscape of participation in the nation’s political debate. According to its critics, the package would stifle civil society in a manner reminiscent of Russia, China and others, which have cracked down on human rights advocates funded in whole or part by foreign donors.

The Funding and Disclosure Reform Bill has been in the news this week because the Joint Standing Committee on Electoral Matters handed down its relevant report. The committee found that, as a matter of policy, the Bill went too far and could seriously harm advocacy by civil society groups. This supports earlier arguments presented by eg Professor Anne Twomey about the flawed nature of the Bill.

The Foreign Influence Bills were referred to Parliament’s Joint Committee on Intelligence and Security in December. That committee has yet to complete its inquiry, but it will no doubt make a splash when it does, due to the committee’s clout and high profile.

However, the subject of this post is the Joint Committee on Human Rights (JCHR), which has been working away quietly in the wings. I have written here before about the JCHR, which tends to receive much less attention than other parliamentary committees, despite its important findings of (potential) human rights incompatibility of many prominent pieces of legislation since 2012.

The JCHR issued its report on all three of these Bills on 27 March, causing barely a ripple in the news cycle. Nevertheless, its findings largely pre-empted the concerns of the Joint Standing Committee on Electoral Matters, and deserve more attention from those who care about Australians’ right to ‘take part in the conduct of public affairs’ of our nation (see ICCPR, article 25). As it happens, several other ICCPR rights are threatened by these Bills too.

The JCHR’s report covers a great deal of other legislation and its findings are quite dense, so I have taken the opportunity to summarise the most pertinent ones.

On the Funding and Disclosure Reform Bill, the JCHR found (its own words in bold):

  • The proposed registration requirement for 3rd-party campaigners and ‘associated entities’ have legitimate goals such as ‘allowing voters to distinguish between political opinions popular because of their merits, and those that are common in public debate because their promoters incurred significant political expenditure’ and discouraging corruption. However they may be incompatible with the right to freedom of expression, the right to freedom of association, the right to privacy, and the right to take part in the conduct of public affairs. This is because the measure does not appear to be sufficiently circumscribed to constitute a proportionate limitation on these rights.
  • The proposed restrictions on, and penalties for, foreign donations to political parties are likely to be a proportionate limitation on the right to freedom of expression, the right to freedom of association and the right to participate in public affairs. However, the overly broad definitions of terms such as ‘political purpose’ mean that these measures do not appear to be sufficiently circumscribed to constitute a proportionate limitation on these rights in respect of 3rd party political campaigners.
  • In relation to the proposed measure requiring parties as well as 3rd party campaigners to disclose in their annual returns to the Electoral Commission details of senior staff and political affiliations they may have (the scenario in mind no doubt being that GetUp! would have to declare members’ affiliations with the ALP or Greens), the JCHR concluded [b]ased on the information provided, it is not possible to conclude that the disclosure of names of senior staff of candidates, third party campaigners, political campaigners and of political parties is rationally connected to or a proportionate limitation on the right to privacy.
  • In addition, civil penalties for failure to register, or for making prohibited donations, or for failing to declare allegiances may be considered criminal for the purposes of international human rights law. This means that criminal process rights under articles 14 and 15 of the ICCPR are required to apply. However, the bill does not appear to provide for these rights to apply, and therefore it is not possible to conclude whether these civil penalties are compatible with criminal process rights.

Similarly, in relation to the Foreign Influence Bill, the JCHR found:

  • The requirement to register if ‘undertaking activities on behalf of a foreign principal’ (which would presumably catch such ‘foreign principals’ as Huang Xiangmo, Glencore PLC or indeed Rupert Murdoch) obviously has legitimate transparency and anti-corruption goals. However, once again definitions of terms including ‘foreign principal,’ ‘on behalf of’ and ‘for the purpose of political and governmental influence’ were insufficiently precisely delineated, leading to the conclusion that aspects of the measure may be incompatible with the right to freedom of expression, the right to freedom of association, the right to privacy, and the right to take part in the conduct of public affairs.
  • In relation to the proposed power of the Secretary of the Attorney-General’s Department to ‘make available to the public any other information prescribed by the rules’ in relation to foreign influence, the JCHR said there may be human rights concerns in relation to its operation. This is because the scope is such that it could be used in ways that may risk being incompatible with the right to privacy.
  • Finally, the JCHR noted that the breadth of the definition of ‘foreign principal’, coupled with the definition of ‘on behalf of’, raises concerns that the registration requirement may have a disproportionate negative effect on persons or entities that have a foreign membership base, and could therefore amount to indirect discrimination on the basis of nationality.

In short, the Bills prescribe severe penalties for a broad range of activity characterised as ‘political,’ which could encompass much of the public advocacy of charities, NGOs and others, threatening the vibrancy of our democracy and the rights of vital players in our political system.

These findings were bipartisan and unanimous, with the exception of Julian Leeser MP sitting out of consideration of the Foreign Influence Bill given his position on the Joint Committee on Intelligence and Security which is still considering it (JCHR membership can be viewed here).

I believe the time is ripe for political donation reform – the work of researchers such as Professor Joo‑Cheog Tham has made that abundantly clear. The influence of lobbyists and foreign powers in our system of government is also a genuine, pressing concern.

However, as is so often the case, the Government has failed to target and justify the measures in these Bills rigorously, and provide adequate safeguards to see that rights such as freedom of speech and privacy are protected. This may be due to the rushed nature of the Bills, but it is unfortunately a familiar pattern to anyone who has been studying the JCHR’s reports. The fact that the Government must draft a Statement of Compatibility with Human Rights to accompany each Bill does not appear to have elevated human rights concerns in the Ministerial or Parliamentary mind, as was the original intention for this aspect of the Human Rights Framework 2010.

The JCHR’s conclusion that the Bills may be incompatible with Australia’s international human rights obligations under the ICCPR is well-founded, and should be heeded. Unfortunately, my research to date indicates that this is unlikely unless more powerful committees such as the JCIS happen to raise similar concerns (based on arguments other than human rights).

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Castan Centre

The Castan Centre for Human Rights Law seeks to promote and protect human rights through the generation and dissemination of public scholarship in international and domestic human rights law. In pursuit of this mission, the Centre brings the work of human rights scholars, practitioners and advocates from a wide range of disciplines together in the Centre’s key activities of research, teaching, public education (lectures, seminars, conferences, speeches, media presentations, etc), applied research, advice work and consultancies.

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