Australian High Court rejects NSW Berejiklian Government's 2018 electoral funding reforms

In May 2018 the NSW Berejiklian Government announced plans to cap election-related spending by unions, environmental groups, and churches at a maximum of $500,000. 

The Electoral Funding Act 2018 No 20 came into force on 1 July 2018.

In December 2018 five unions joined Unions NSW in challenging these laws in the High Court of Australia.

Australian Financial Review, 29 January 2019:

In July 2018, the Berejiklian Government reduced the amount that unions and other third parties could spend in the six months before an election from $1.05 million to $500,000. A political party and it candidates, however, can spend up to $22.6 million if it stands candidates in all 93 seats.

The High Court said NSW proved that aiming to "prevent the drowning out of voices in the political process by the distorting influence of money" was a legitimate purpose.

However, it said "the reduction in the cap applicable to third-party campaigners was not demonstrated to be reasonably necessary to achieve that purpose".

The court did not accept NSW's argument that $500,000 was still a substantial sum that would allow third parties to "reasonably present their case".

The lead judgement of Chief Justice Susan Kiefel and Justices Virginia Bell and Patrick Keane said "no enquiry as to what in fact is necessary to enable third-party campaigners reasonably to communicate their messages appears to have been undertaken".

The reforms also sought to ban third parties from acting "in concert" by pooling money into multi-million-dollar campaigns, such as the "Stop the Sell-off" campaign against energy privatisation for the 2015 poll. Those who breach the act would have faced up to 10 years' jail.

Former Commonwealth solicitor-general Justin Gleeson SC was lead counsel for Unions NSW and the five unions which also signed up for the challenge.

BACKGROUND

HIGH COURT OF AUSTRALIA, Judgment Summary, 18 December 2018:

UNIONS NSW & ORS v STATE OF NEW SOUTH WALES [2013] HCA 58

Today the High Court unanimously held that ss 96D and 95G(6) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act") are invalid because they impermissibly burden the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution.

Section 96D of the EFED Act prohibits the making of a political donation to a political party, elected member, group, candidate or third-party campaigner, unless the donor is an individual enrolled on the electoral roll for State, federal or local government elections. The EFED Act also caps the total expenditure that political parties, candidates and third-party campaigners can incur for political advertising and related election material. For the purposes of this cap, s 95G(6) of the EFED Act aggregates the amount spent on electoral communication by a political party and by any affiliated organisation of that party. An "affiliated organisation" of a party is defined as a body or organisation "that is authorised under the rules of that party to appoint delegates to the governing body of that party or to participate in pre-selection of candidates for that party (or both)".

Each of the plaintiffs intends to make political donations to the Australian Labor Party, the Australian Labor Party (NSW Branch) or other entities, and to incur electoral communication expenditure within the meaning of the EFED Act. The second, third and sixth plaintiffs are authorised to appoint delegates to the annual conference of the Australian Labor Party (NSW Branch) and to participate in the pre-selection of that party's candidates for State elections. A special case stated questions of law for determination by the High Court.

The High Court unanimously held that ss 96D and 95G(6) burdened the implied freedom of communication on governmental and political matters. The Court held that political communication at a State level may have a federal dimension. The Court accepted that the EFED Act had general anti-corruption purposes. However, the Court held that the impugned provisions were not connected to those purposes or any other legitimate end.

· This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons

The relentless drive by Australian federal and state governments to create unsafe data collection and retention systems continues unabated

The Sydney Morning Herald, 26 January 2019:

More than 1 million Australians have had their name and address added to the electoral roll and then automatically passed to global marketing giants without their knowledge.

Direct enrolment laws passed by Parliament in 2012 meant Australians no longer had to register on the electoral roll to have their details entered, with information of workers and school students scanned from drivers licences, Centrelink and records from the Board of Studies in each state.

The electoral roll has since been handed over to credit-check operators for identification purposes designed to help financial services firms such as banks, Afterpay and Zip, to run fraud, anti-money laundering and anti-terrorism checks, but four of those identity firms are now running global marketing operations using data analytics.

No government body has been able to advise if anyone is monitoring the companies for breaches of the electoral act, which carries fines for using the data in commercial operations, or if they are monitoring the separation of data between the companies' identification and marketing arms.

The Sydney Morning Herald and The Age revealed this week that AXCIOM, Experian, Global Data and illion (formerly known as debt collectors Dun & Bradstreet) all have access to the electoral roll as "prescribed authorities". In their secondary businesses, each boasts of their ability to provide marketing data analytics on millions of Australians to their clients but maintain they are in full compliance with the privacy act and do not use the data for marketing purposes.

AXCIOM and Global Data have not responded to multiple requests for comment. An auto-reply email from AXCIOM said "data monetisation awaits!"

The only non-marketing firm among the group, US credit check giant Equifax, had the records of 145.5 million hacked in a breach in 2017 was fined $3.5 million by the Federal Court last year for misleading, deceptive and unconscionable conduct…..

….database that contains information on 16 million Australians. More than 1.5 million Australians who were eligible to vote - but not on the electoral roll - are likely to have been added since the laws passed.

School students as young as 16 have been caught up in the data transfer, with more than 18,846 people aged 16 and 17 provisionally on the electoral roll as of December 31.

Prime Minister Scott Morrion's bullying of single mothers increases

The Guardian, 28 January 2019:

Single mothers placed on a compulsory welfare program for disadvantaged parents allege they were pressured into allowing private job service providers to collect their “sensitive information”.

ParentsNext participants are asked to sign a privacy notification and consent form, which is similar to documentation provided to those on other welfare programs such as the employment scheme Jobactive.

The program is compulsory for those who want to receive parenting payments and are considered “disadvantaged”, but departmental guidelines state that participants may decline to sign the form and still take part.

Instead, some case workers have told participants that they would have their payments cut if they refused to sign the form.

The situation has meant women who did not want to give their consent have done so anyway. One of the five participants who spoke to Guardian Australia about their experience said they felt the situation represented “coercion”.

“She [my case worker] just said, flat out, ‘If you don’t sign it, you won’t get your parenting payment’,” one mother, who did not want to be named, told Guardian Australia. “It was simple as that.”

The women were concerned by the fact the privacy form states that providers “may collect sensitive information … [which] may include … medical information”. It is understood the form would allow providers to handle participants’ mental health information.

Parenting payment is the sole income for many women on the ParentsNext program, which is currently the subject of a Senate inquiry.

While is standard practice for welfare recipients to be asked to sign privacy consent and notification forms, the chairman of the Australian Privacy Foundation, David Vaile, noted that, in this case, the women felt they needed to sign the form in order to keep receiving their payments.

“It has all the characteristics of bad consent,” Vaile said.

Ella Buckland, who has been campaigning against ParentsNext since she was placed on the program, has asked her provider to destroy the consent form she signed last year. She was told she needed to sign the form to take part in the program – and therefore keep her payments.

“I felt humiliated and disempowered that I didn’t have a choice,” Buckland, a former Greens staffer, told Guardian Australia. “[I thought] if I didn’t sign it, I wouldn’t be able to feed my kids.”

The department has told Buckland in writing she may withdraw her consent at any time. Her provider, who did not reply to a request for comment, has been asked by the Department of Jobs and Small Business to respond to her claims.

Terese Edwards, the chief executive of the National Council of Single Mothers and their Children, said many women had legitimate reasons for refusing to sign the form, such as having left a violent relationship.

 “Providing this information reduces their sense of security,” she said. “It could be where the child is getting schooled, which then has the address of the parent. It could also have the name of the child.”

Among the women Guardian Australia has spoken is a mother of a transgender child who did not want to sign the form because she was concerned about the privacy of her daughter.

Eva* is eligible for an exemption from the program because she homeschools her daughter, but was told in a text message she would have to sign the consent form for this to be processed. She was also told she would have to attend a meeting with her provider, about two hours’ drive away, and to provide evidence that her daughter was homeschooled......

ParentsNext privacy notific... by on Scribd

Murray-Darling Basin irrigator has cotton farm asset frozen under Criminal Proceeds Confiscation Act - required to pay back $15.7 million

People living along the major rivers on the NSW Far North Coast, particularly those on the Clarence River, will remember that it was irrigators in southern Queensland as well as other areas within the Murray-Darling Basin who made repeated calls to dam and divert one of more of these coastal rivers to fill heir greedy maws with additional water.

The Courier Mail, 25 January 2019, p.27:

Authorities have gone to court to force an award-winning Queensland cotton farmer to pay $16 million to the state’s Public Trustee after a “covert source” told them the accused water fraudster had sold his farm for more than $100 million.

John Douglas Norman, 43, a former Australian Cotton Farmer Of The Year, from Toobeah in southern Queensland, has been charged with defrauding the Murray-Darling Basin water program of $20 million.

The charges are before the Brisbane Magistrates Court.

Last week the State Government was granted an urgent court order, forcing Norman to pay $15.7 million to the state’s Public Trustee, after the police received a tip that his company had sold its Queensland cotton and grain farms to a global corporate giant.

Norman must pay the $15.7 million once his deal with the $43 billion Canadian giant Manulife Financial Corporation settles, a Supreme Court judge has ruled. The order was made under the Criminal Proceeds Confiscation Act.

The mega-deal was due to settle last week, court documents state. Until the $15.7 million is paid, Norman’s share of the giant farms, west of Goondiwindi, will remain frozen by the Supreme Court.

The remaining share of the business is owned by his mother Aileen Joan Norman. She has not been charged with any crimes and has not had her assets frozen.

The farms, spread over 18,000ha, are mostly irrigated and run along or close to the NSW-Queensland border, the court heard. They are in “a core crop production region” and with “significant water entitlements”.

The farms and a $2 million riverfront Southport mansion, owned by Norman’s wife Virginia, were raided and searched by police during the probe, court documents state.

BACKGROUND

The Land, 30 August 2018:

Meanwhile in Queensland, a major alleged fraud in the cotton industry was uncovered by police, with two executives from Queensland's cotton group Norman Farming charged over an an alleged $20 million fraud involving federal funds earmarked for Murray-Darling water savings.

Norman Farming CEO John Norman, 43, and his chief financial officer Steve Evans, 53, were granted bail after appearing in Brisbane Magistrates Court over the alleged fraud.

Police allege the director of the company submitted fraudulent claims, including falsified invoices related to six water-efficiency projects on a property near Goondiwindi, called Healthy Headwater projects.

Police allege the fraud occurred over seven years.

In NSW, the Natural Resources Access Regulator (NRAR) has issued a number of charges in the north and south-west of NSW for various alleged water offences.

The NRAR is the new independent water regulator in NSW. It started operations on April 30, after an outcry over alleged water deals in northern NSW exposed by the ABC's Four Corners program….

NRAR said it was pursuing the following cases:

● A Moree company has been charged with water theft offences. It is alleged the company, involved in irrigation, took water from a river while metering equipment was not working, an offence against section 91I(2) of the Water Management Act 2000. It is further alleged they constructed and used a channel to convey water without approval.

● A Carinda man has been charged with using a channel to convey water without approval, an offence against s91B of the Water Management Act 2000.

● Two men have been charged with water theft offences on properties in Walgett and Mallowa.

● A 35-year-old man from Carinda in Northern NSW alleged he provided false and misleading information to water investigators.

● Two men have been charged after they allegedly carried out controlled activities on the Murray River near Corowa.

ABC News, 13 February 2018:

The Murray Darling Basin Authority (MDBA) is powerless to prevent upstream farmers harvesting overland floodwaters desperately needed to flow through the river system for the benefit of all users, the authority's head has admitted.

It comes as details emerge of massive earthworks built to enable upstream farmers to carry out "floodplain harvesting"…..

Last week, MDBA head Phillip Glyde travelled to Mr Lamey's farm to see first hand what was happening.

"I've learnt a lot," Mr Glyde told 7.30.

"For people like the Lameys, it's very hard to negotiate through and find what's the best way to make sure the problems they're experiencing don't occur."

Although he admitted floodplain harvesting was a serious issue, he acknowledged there was nothing the authority could do in relation to the approval and regulation of irrigation earthworks.

"There's overlapping responsibilities: local, state, different departments," he said.

"Then you've got the Commonwealth, then you've got the Murray Darling Basin Plan."

On Wednesday, the Senate decides whether to pass a proposed reduction in the amount of water Queensland irrigators give back to the ailing Murray Darling River system.

"We don't want the irrigators to be keeping even more water, we want the banks pulled down in Queensland," Mr Lamey said.

"We want the river to run like it should."

First Newspoll of 2019 doesn't end Morrison Government's losing streak

SBS News, 29 January 2018:

The coalition's primary vote has risen in the first Newspoll of 2019, but Labor remains in front.

Support for Scott Morrison's government increased by two points, according the poll published by The Australian on Monday night.

The Newspoll shows Labor ahead in the two-party preferred vote 53-47.

The poll was conducted between January 24-27 and based on a survey of 1634 voters across Australia.

Graphics on Twitter, 29 January 2019

Scott Morrison remains preferred prime minister at 43 to Shorten’s 36 per cent in this latest Newspoll.

The last time the Coalition were ahead on a Newspoll Two Party Preferred (TPP) basis was on 2 July 2016 when the Turnbull Government stood at 50.5 per cent on the day of the 2016 federal election.

That represents a 30 month long losing streak for the Liberal-Nationals Coalition to date.

https://www.theaustralian.com.au/national-affairs/newspoll

While the Coalition's easy dominance of the Newspoll Primary Vote had ended within five months of the last federal election and disappeared completely by 26 August 2018.

https://www.theaustralian.com.au/national-affairs/newspoll

Wangan and Jagalingou people's fight against foreign mining giant Adani continues into 2019

ABC News, 25 January 2019:

The United Nations has asked the Australian Government to consider suspending the Adani project in central Queensland until it gains the support of a group of traditional owners who are fighting the miner in court.

A UN committee raised concerns that the Queensland coal project may violate Indigenous rights under an international convention against racial discrimination if it goes ahead, giving Australia until April to formally respond.

Meanwhile, a public interest legal fund backed by former corruption fighter Tony Fitzgerald has stepped in with financial backing for a federal court challenge to Adani by its opponents within the Wangan and Jagalingou (W&J) people.

The Grata Fund, which boasts the former federal court judge as a patron, agreed to pay a court-ordered $50,000 bond so W&J representatives can appeal a court ruling upholding a contentious land access deal secured by the miner.

The UN Committee on the Elimination of Racial Discrimination last month wrote to Australia's UN ambassador to raise concerns that consultation on Adani's Indigenous Land Use Agreement (ILUA) "might not have been conducted in good faith".

These allegations "notably" included that members of the W&J native title claim group were excluded, and the committee was concerned the project "does not enjoy free, prior and informed consent of all (W&J) representatives"….

UN committee chair Noureddine Amir in a letter told Australia's UN ambassador Sally Mansfield the committee was concerned ILUAs could lead to the "extinction of Indigenous peoples' land titles" in Australia.

Mr Amir said it was "particularly concerned" by 2017 changes to native title laws to recognise ILUAs not signed by all native title claimants, "which appears to be in contradiction" with an earlier landmark Federal Court ruling.

"Accordingly, the committee is concerned that, if the above allegations are corroborated, the realisation of the Carmichael Coal Mine and Rail Project would infringe the rights of the Wangan and Jagalingou people, rights that are protected under the International Convention on the Elimination of All Forms of Racial Discrimination," Mr Amir said.

The committee gave Australia until April 8 to outline steps taken to ensure proper consent "in accordance with Indigenous peoples' own decision-making mechanisms".

It asked Australia to "consider suspending" the Adani project until consent was given by "all Indigenous peoples, including the Wangan and Jagalingou family council".

It invited Australia to seek expert advice from the UN experts on Indigenous rights and to "facilitate dialogue" between the W&J and Adani.

Why is the Australian Government subsidising a News Corp television program?

On 21 December 2018 the Australian Communications and Media Authority announced:

The ACMA has awarded up to $3.6 million in grants to regional and small publishers under the first round of the Regional and Small Publishers Innovation Fund.

Round one of the Innovation Fund will support 29 projects by 25 successful applicants nationwide, with a mix of regional and metropolitan proposals funded. 

Grants will support innovation and digitalisation across a wide range of activities, including market research, trials of new business models, podcasts, and video capability.

A list of successful applicants and their projects is here.

However, there is another grant stream which sees News Corp’s Sky News Channel - part of multinational media empire  - receive money to cover 15 per cent of a particular Sunday program’s production costs.

BuzzFeed, 25 January 2019:

The show is partly funded through a Commonwealth government grant awarded to Mundine's business Nyungga Black Group, through a closed non-competitive selection process, according to the grant information published online.

The grant, running from June 18, 2018 to Aug. 1 this year is for a total of $220,000. The Department of Prime Minister & Cabinet confirmed to BuzzFeed News that the grant was for Mundine's Sky News show.

News Corp’s 2018 annual report states of the corporation’s news channel:

Australian News Channel

ANC operates 10 channels featuring the latest in news, politics, sports, entertainment, public affairs, business and weather. ANC is licensed by Sky International AG to use Sky trademarks and domain names in connection with its operation and distribution of channels and services. ANC’s channels consist of Sky News Live, Sky News Business, Fox Sports News, Sky News Weather, Sky News UK, Sky News Extra, Sky News Extra 1, Sky News Extra 2, Sky News Extra 3 and Sky News New Zealand. ANC channels are distributed throughout Australia and New Zealand and available on Foxtel and Sky Network Television NZ. ANC also owns and operates the international Australia Channel IPTV service and offers content across a variety of digital media platforms, including mobile, podcasts and social media websites. In addition, ANC has program supply arrangements with third parties such as WIN Corporation. ANC primarily generates revenue through monthly affiliate fees received from pay-TV providers based on the number of subscribers and advertising.

ANC competes primarily with other news providers in Australia and New Zealand via its subscription television channels, third party content arrangements and free domain website. Its Australia Channel IPTV service also competes against “over-the-top” IPTV subscription-based news providers in regions outside of Australia and New Zealand.

This is a corporation which admits to having assets of over $16 billion in June 2018 - $2 billion of which was held as cash or cash equivalents - and yet the Australian Government feels the need to subsidise its weekend programming?

This is the second time in less than two years that the Coalition Government has given News Corp money for programming. Then it was a funding package worth a cool $30 million.