Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

I seek leave to amend business of the Senate notice of motion No. 3 relating to a referral to the Finance and Public Administration References Committee.

Leave granted.

I move the motion as amended:

That the following matter be referred to the Finance and Public Administration References Committee for inquiry and report by 9 June 2023:

The administration of the referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution through an Aboriginal and Torres Strait Islander Voice, with particular reference to:

(a) protections against the potential for foreign actors to seek to influence the outcome or public debate on the referendum question;

(b) the detection, mitigation, and obstruction of potential dissemination of misinformation and disinformation, including via social media or technology platforms;

(c) the potential application of the Foreign Influence Transparency Scheme to the referendum and its participants;

(d) the potential application and administration of foreign donation laws to the referendum and its participants;

(e) the application of authorisation requirements to the referendum and its participants;

(f) the ongoing integrity and assurance processes of the Australian Electoral Commission; and

(g) any other related matters.

The origin of this reference came up during the debate we were having on the Referendum (Machinery Provisions) Amendment Bill 2022 last week. In the committee stage of that debate we were going backwards and forwards with Minister Farrell in relation to many questions about how this upcoming referendum will be conducted and the role of the AEC in that. The minister was answering questions, but there were a lot of questions that he was not able to sufficiently answer. That was surprising because he is not just a minister representing someone from the other place; he is the Special Minister of State. Often, it's understandable for a minister to get advice from someone sitting in the adviser's box, but we saw it a lot last week. I don't want to reflect on Minister Farrell, but it was difficult to get some detailed answers on the conduct of the upcoming referendum. So I asked Minister Farrell to put in motion a mechanism to be able to make the Electoral Commissioner of the Australian Electoral Commission available to take some very detailed questions about the upcoming referendum. He agreed in the chamber that he would do that. I very much appreciated him agreeing to do that. I then put together the terms of reference that we have in front of us today. I understand the Labor Party will be supporting this reference, and I thank them very much for that.

There are some serious questions that need to be asked. I appreciate that there will be a further inquiry into the substantive legislation on the actual question, but this reference goes to the mechanism and, in particular, the role that foreign interference could potentially play in the outcome of the referendum. Senator Paterson was asking some very pertinent questions about the role the AEC will be able to play in the absence of a 'yes' and 'no' campaign. There's no font of wisdom, if you like, to reference on either the 'yes' or 'no' points. Social media platforms won't have those reference points, so it's going to be difficult for them to be able to make a call on whether a position being put out on social media is truth, or untruth, on either the 'yes' or 'no' points. These are very serious points. Senator Farrell said with confidence that the AEC will be able to do that, that the AEC is in a position to be able to make those calls and can be relied on, and that the social media platforms are able to rely on them to be able to make an adjudicated call on what's in or out in this debate. We want to test that. We want to test, with the commissioner, their capacity to be able to do that.

It's very important that we get this right. It's very important that this is right, because the government's decision to push ahead on this referendum is—obviously the substantive question is very, very important, but we've got to make sure that the referendum is conducted in a way that is transparent and fair. It's absolutely critical that the processes that we have surrounding this upcoming referendum are very sound indeed. I thank the government for agreeing to—well, we'll see. I'm sure they're going to follow through on the negotiations we've had and that they'll support this reference. A short, sharp and quick inquiry into this point is all that's really required. We very much appreciate that.

The risks associated with poorly regulating donation disclosures, in particular, with foreign interference, were the key reasons that the coalition had strongly advocated for the designation of the official 'yes/no' campaign. Having an official 'yes/no' campaign will make things simpler for the regulatory environment and for the proper conduct of a referendum. There's no special law relating to foreign donations. The AEC's given evidence to parliamentary committees that the donation and disclosure regime remains the most complex part of the Electoral Act. Again, without that official 'yes/no' campaign organisation, there are some very serious and detailed questions that we want to put to the commission as to how they will go about ensuring the integrity of this referendum, particularly in relation to donations and expenditure, so that we can be absolutely confident as a nation that there isn't any foreign interference in Australia's decision.

This is Australia's document—the Constitution—and Australians should be the only ones that are influencing the debate in this country on this referendum. It's absolutely critical that we get it right. We want to see the regime in this referendum. For participants who are not regularly involved in elections, we want to ensure that there is a proper regime put in place. An official campaign structure is going to be the best way for regulators to ensure appropriate education and enforcement of the electoral laws for the referendum. Having a single point of coordination to provide education and to commence any audit process for donations or foreign interference is the best way to ensure the integrity of the referendum. This inquiry will go to that. It will look at the detail as to how that could be assured. It's very, very important.

The risk of foreign interference is not just something that's thought up in a flurry in the course of a debate on legislation. The Director-General of ASIO, only three weeks ago, told Australians that we're seeing the greatest level of foreign interference in Australia's history right now. This is happening in our country right now. So surely we should look at simple, practical measures that put structure around this process and that help our regulators and agencies manage this referendum. We know that there's been foreign interference in other countries around the world in their elections, in different forums. In Canada, their intelligence agencies have uncovered plots to interfere in their 2021 election in order to create a minority government.

Foreign actors may not particularly care about the outcome of the referendum, in terms of whether Australians vote yes or no, but they might be quite interested in sowing discord within the debate to create a little bit of mayhem. That in itself is enough for us to be concerned. There are some serious issues that other colleagues will go into as well, but dealing with this is absolutely critical.

A good friend of mine, who happened to be following the debate last week and heard Senator Farrell make the commitment that they would allow this inquiry, contacted me. Jacqueline Martin, I have come to trust as someone to be relied upon with passing on good information. She pointed out to me that this is absolutely critical.

I urge the Senate to unanimously get behind this inquiry. Let's get it done in a civil way, as we do in these sorts of inquiries, and let's work it through and get it through as quickly as we can.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The Referendum (Machinery Provisions) Amendment Bill 2022 was recently considered by this chamber. That bill, which has now passed both houses, replicates the same restrictions on foreign donations and campaigning that apply to federal elections.

That means, thanks to work by a Labor government, the referendum legislation will prohibit referendum entities from receiving gifts of $100 or more from foreign donors. It will prohibit foreign persons and entities from authorising referendum material and will prohibit foreign persons and entities from fund raising or directly incurring referendum expenditure of $1,000 or more in a financial year. As this most recent legislation confirms, it is the Labor Party that leads electoral reform in this country. This includes protecting our democracy from foreign influence and interference.

The Albanese government takes the integrity of electoral events, including referendums, very seriously. It's important that Australians can have confidence in the conduct and outcomes of our electoral processes. Our government has an appetite for more electoral reform this term. However, we recognise that electoral reform is best when it is broadly supported across the parliament, as we saw with the recent referendum machinery legislation, and broad, considered, genuine consultation works best for electoral reform.

This term, Labor will be focused on lowering the disclosure threshold for donations to a fixed $1,000, reining it in from the current disclosure threshold of $15,200. The Special Minister of State is also committed to delivering a mechanism for pursuing truth in political advertising within Australia's electoral arrangements. Both these issues need careful consideration and are currently before the Joint Standing Committee on Electoral Matters. When that committee reports back on its review of the 2022 federal election, the Special Minister of State will be keenly considering how we can implement these electoral reforms most effectively.

Coming back to the motion at hand, senators will be pleased to know about structures already in place. Currently, the Australian Electoral Commission works with other federal government agencies to ensure that Australian electoral systems are secure and resilient to threats of physical or cyber disruption and foreign interference. In 2018 the AEC established the Electoral Integrity Assurance Taskforce to safeguard the integrity of our elections from threats, including foreign interference.

This taskforce is comprised of relevant agencies, across federal government, working together to provide information and advice to the electoral commissioner on matters relating to the integrity of the process of federal elections and referendums. There are a range of federal portfolios that are members of that task force across different departments, including the AEC, Department of Finance, Australian Signals Directorate, Office of National Intelligence and a number of others.

The task force is also supported by members of the national intelligence community as required. Members of that task force consult with online media platforms, including prior electoral events, including referenda, and have also established escalation processes for the referral of content in breach of Commonwealth legislation or the social media platform's terms of service. Agencies that participate in the task force are already working to provide appropriate support to protect the integrity of the proposed referendum, including from foreign actors.

Senators will be pleased to know that on 26 July last year the Australian Electoral Commissioner released a public media statement confirming that task force agencies did not identify any foreign interference or any other interference that compromised the delivery of the 2022 federal election and would undermine the confidence of the Australian people in the results of the election. The government will continue to work through the members of the task force on risks to the integrity of the referendum, including the threat of foreign interference, to ensure the public can continue to have confidence in the conduct and outcome of this and other electoral events.

Senators will also be familiar with the work that was done by the Australian Electoral Commission during the last federal election to counter misinformation and disinformation. Ahead of the last election, in response to an estimates question, the AEC advised the AEC federal election advertising campaign budgeted $615,000, excluding GST, for media placement to deliver disinformation awareness messages to voters via digital media channels across the election period. Further, that the AEC would also undertake a range of proactive media resources and public relations activities to further promote and distribute disinformation awareness messages as part of the Stop and Consider campaign. We anticipate the AEC will build on its capabilities in this area as we head into the upcoming referendum. With that small contribution, I'm happy to indicate that the government will be supporting this motion.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens have long supported efforts to minimise foreign influence on our democracy, whether through regulating donations from foreign entities, addressing online disinformation, or calling out investor-state dispute settlement clauses in free trade agreements that stop the Australian government acting in the interests of Australians.

We will not oppose the referral proposed by this motion, but we are not convinced there's any justification for a standalone inquiry into foreign interference in the context of the referendum. It is an issue that's much more appropriately dealt with through a broad review of foreign influence over the political process. As I'll set out shortly, many of these issues are already being investigated, and a standalone inquiry risks ad hoc solutions rather than comprehensive ones.

The Australian Greens did not oppose the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act, also known as the EFDR act, five years ago once the chilling effect of the original bill on public interest advocacy was defeated. But we did point out at that time that the bill would fail to achieve its ostensible purpose of preventing foreign interference unless it included stronger measures to reduce the corrupting influence of all political donations. Our concerns were confirmed by the fourth-year review of those changes conducted by JSCEM last year.

Expert witnesses to the review said the EFDR act was not effectively curtailing foreign influence, given ongoing opportunities for foreign companies and individuals to channel donations through Australian residents or local companies. The then government pointed to anti-avoidance provisions, but Professor Anne Twomey said:

… it is not an anti-avoidance issue and it's not a question of the AEC having the ability to do anything; it is simply the way the act operates. I'm sure all of us would think it would be preferable if it didn't operate in that way. But, as I pointed out, the reason it does is constitutional constraints that are a result of earlier High Court decisions; and given that we can't get around them without an amendment to the Constitution, and we have to live with them, the only way I can see of reducing foreign influence is by reducing everybody's influence.

The Australian Greens agree: the clearest way to minimise the influence of foreign donations is to limit the influence of all political donations. Experts have said it and experts will keep saying it.

But despite these concerns, the then Liberal-chaired committee held:

… that the relevant parts of the Act are working effectively … The Australian political system continues to be a successful exemplar democracy, that is looked on with admiration by many others around the world.

And no changes were made.

The Greens have consistently called for all political donations over $1,000 to be disclosed in real time so that the voters can see who is funding campaigns. And that is in fact Labor's own policy the last time I checked. Yet neither Labor or the Liberals supported the Greens amendments just last week to reduce the donations threshold or to require real-time disclosure of donations during the referendum. It's almost as though the coalition wants to exploit the public's appetite for more transparency and fears around the foreign interference and to point to foreign donations as the bad guy, rather than good old-fashioned domestic donations from corporate mates and lobbyists and the cosy relationship between the big parties and industry.

So, what are the issues that this motion wants us to investigate? The motion proposes to ask the Finance and Public Administration Committee to look at measures to protect against foreign actors seeking to influence the outcome or public debate—and remember, this is in relation to the referendum—and the potential application of foreign donation laws to the referendum and its participants. Well, the Referendum (Machinery Provisions) Amendment Bill that we passed in this place last week included provisions that brought the referendum into line with existing electoral laws, prohibiting the authorisation of materials by foreign campaigners, preventing the giving or receiving of gifts over $100 from foreign entities, and restricting referendum spending by foreign entities.

The Joint Standing Committee on Electoral Matters, or JSCEM, examined the bill and the issues referred to in the motion, including the application of the Foreign Interference Transparency Scheme. The bill was subject to rigorous—some might say ad nauseam—debate in the Senate last week that went to those concerns. The AEC has mechanisms in place to ensure compliance with restrictions on foreign interference, and there is nothing to suggest that those compliance measures will apply any differently to disclosures during the referendum.

The motion nonetheless also invites the FPA committee to examine detection, mitigation and obstruction of potential dissemination of disinformation, including via social media. There is already an FPA committee inquiring into foreign influence through social media. That inquiry is ongoing and is due to report in August of this year. It is unclear why any questions that the Liberals seek to have answered about those issues will not already be considered through that inquiry and why a referendum-specific inquiry is required. The JSCEM inquiry into the 2022 election is already examining the broader issues of disinformation in political communications and the need for truth in political advertising. The Greens want to see those measures in place, and we wanted to see those measures in place prior to the referendum. That's why we moved amendments to that effect last week—and sadly got no support from the large parties.

But without such laws applying to all political communications, there's no reason to single out communications about the referendum for a separate inquiry. It's standard practice for the minister to invite JSCEM to review the conduct of an election to identify any issues that have arisen. The same should happen with this referendum. As I said at the outset, the Greens support measures to address any undue influence on our democracy, whether that's from foreign actors or big local donors. But I'll repeat the words of Professor Anne Twomey: 'The only way I can see of reducing foreign influence is by reducing everybody's influence.' Now, we will not stand in the way of this inquiry, but it is abundantly clear that we need action on donation reform, not yet another inquiry. We'd rather not waste more time and resources getting the same experts to say the same things. Instead, let's listen to them and make some changes. Unfortunately, the referendum bill debate last week was an exercise in ignoring what the experts have said and delaying action.

The Joint Standing Committee on Electoral Matters took evidence about the importance of increasing enrolment and engagement in the referendum, particularly for First Nations and other disenfranchised communities. We heard from the Australian Electoral Commission, from land councils, from academics and from advocates. Everyone talked about the need for action to maximise the number of people who could vote. Everyone recommended measures to boost enrolment and voter turnout, including on-the-day enrolment and continuing the secure phone voting—also amendments that the Greens moved last week that did not receive the support of either of the big parties.

We've heard over and over from stakeholders that on-the-day enrolment and provisional voting will have a significant impact on the number of people who are able to cast a vote on referendum day. And we heard that the provisional voting measures manage any risk of fraud by ensuring that voters are added to the formal count only after the usual checks are made by the AEC. Finally, we had a JSCEM report that accepted that evidence and recommended measures to increase enrolment.

JSCEM supported that change. The Australian Electoral Commission supported that change. The evidence from states and territories who already have on-the-day enrolment supported that change. There was absolutely no rational argument against making that change, which would redress decades of disenfranchisement and give the most number of people the chance to vote in the referendum. Yet both the Labor Party and the coalition refused to make that change. They said it needed more consideration. The JSCEM would consider it, again, at a later date—another inquiry rather than action.

Repeated inquiries into constitutional reform and referenda have recommended scrapping or modernising the provisions for preparing the 'yes' and 'no' pamphlets. Experts consistently called, across three separate inquiries, for an independent panel to review the text or other measures to ensure that the content was clear and accurate. Yet both the Labor Party and the coalition voted against amendments put forward by my crossbench colleagues to achieve exactly that. What is the point of yet more inquiries when we already know the answers and you just don't like them?

This referendum is a historic opportunity to give voice to First Nations communities on decisions that affect them and to put Australia on a path to treaty and to truth telling. It's an opportunity to right past wrongs and the ongoing impacts of colonisation, to actually close the gap and embed self-determination. That's what the focus should be.

As I said, the Greens will not oppose this inquiry, but we do question the need for it. The answer to tackling undue influence is strong donations reform across the board. Let's just get on and do it.

Carol Brown (Tasmania, Australian Labor Party, Assistant Minister for Infrastructure and Transport) Share this | Link to this | Hansard source

I move:

That the motion be put.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

The question is that the motion moved by Senator Brown be agreed to. A division having been called, I remind honourable senators that, because there are no divisions after 6.30, this will be deferred until tomorrow. The debate is adjourned accordingly.