Reflections on the Electoral Bill Debate

Krystian Seibert reflects on the foreign donations bill that recently passed the Senate, and explains how a reasonable and sensible policy outcome was achieved.

Last Friday, the Senate passed the Australian government’s Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) bill 2018, nearly a year after it was introduced. It now needs to be passed by the House of Representatives.

The last year of advocacy in relation to the bill has been somewhat of a journey, so I thought it was timely to reflect back on the year and look at some of the negatives of the process leading to the bill’s passage, and some of the positives.

First the negatives.

Unfortunately, when the bill was introduced in December last year, it was an example of how not to make public policy.

One essential ingredient of a good public policy development process is effective consultation. However there was next to no consultation on the bill before it was introduced.

Yes, the Joint Standing Committee on Electoral Matters had been conducting an Inquiry into the Conduct of the 2016 Federal Election, and its second interim report had recommended that foreign donations to political parties, associated entities and third parties be banned.

However, public consultation on a draft bill would have been good practice. This is especially the case given the bill went much further than just banning foreign donations, introducing a comprehensive new regulatory framework for non-party political actors such as charities and other organisations who participate in elections. 

In the words of the Australian Government’s own Best Practice Consultation guidance note:

“A genuine consultation process ensures that you have considered the real-world impact of your policy options. This is likely to lead to better outcomes and greater acceptance in the community, particularly among any stakeholders who may be adversely affected by the policy.”

Given the subject matter of the bill, it’s likely that a consultation process will still have been contentious, and the bill that would have been introduced into the Parliament will likely still have been the subject of strong debate and probably opposition.

But consultation gives legitimacy to a public policy development process, helping to refine a policy proposal and identify unintended consequences.

Linked with this, there was no comprehensive regulatory impact statement for the bill. Only a so called called short form regulatory impact statement was prepared, and it was never publicly released. These brief documents are intended in the cases where a policy proposal only has a minor regulatory impact or relates to national security, public safety, a natural disaster or a pressing event.

Yes, the bill was dealing with foreign donations, but it’s hard to claim it was a matter of national security that prevented a proper regulatory impact statement being completed.

Given the potential impact of the changes in the bill, a comprehensive regulatory impact statement should have been completed and released before the bill was introduced, to quantify compliance costs and examine alternative policy options.

So although the bill did not get off to a good start, things did change – overall there are also some positives that are important to highlight.

The Joint Standing Committee on Electoral Matters did an excellent job examining the bill. It made some sensible recommendations in its first advisory report into the bill, in April.

On the basis of this, the government proposed comprehensive draft amendments to the bill. They caught stakeholders by surprise, as many did not expect the government to propose such wide-ranging changes to the bill.

In what was a commendable decision, the government then referred these draft amendments to be examined by the Joint Standing Committee on Electoral Matters.

Using the Joint Standing Committee in this manner was a smart approach, adding transparency to the process.

It is at this point that the dynamic changed in the debate around the bill. The tension in the atmosphere started to dissipate, because stakeholders saw that the government was prepared to listen to them and make changes that respond to their genuine concerns.

The debate about the bill become less about a perceived “attack on advocacy” and more about what kinds of changes are reasonable to regulate non-party political actors. Whilst there were still some major concerns, things were headed in the right direction.

In its second advisory report into the bill, the Joint Standing Committee made some further welcome recommendations for changes to the draft amendments.

At this point in time, both the government and the opposition undertook further targeted consultations with certain stakeholders and experts, to refine the detail of the amendments. A number of important changes were made to the amendments to make it clear that general issues based advocacy by charities and other organisations was not intended to be captured by the bill.

For these reasons, ultimately the amended bill was comfortably passed by the Senate, with the opposition’s support.

So credit where credit is due.

The government did change its approach and ultimately adopted a much more constructive approach to engaging with stakeholders and responding to their concerns. It is good to see that charities and peak bodies recognised this in their public statements following the bill’s passage through the Senate.

The opposition was inclined to support reforms to improve the integrity of the electoral system, but early in the process it made it clear that it would not do so if they would stifle advocacy by charities and other organisations. It played a very important role pushing the government to make changes to the bill.

The Joint Standing Committee’s work demonstrated the importance of parliamentary committees, and how their review function can lead to better policy outcomes.

And lastly, credit is due to charities and other organisations who came together to campaign for laws which respect the importance of advocacy in our democracy. Special recognition in particular is due to the Hands Off Our Charities alliance. The not-for-profit sector, in all its diversity, united to speak up when a line was crossed. This is the key reason that the end result is a reasonable and sensible policy outcome.

About the author: Krystian Seibert is an industry fellow at the Centre for Social Impact at Swinburne University of Technology and has a strategic advisory role with Philanthropy Australia.