ACT Legislative Assembly Select Committee on Amendments to the ACT Electoral Act 1992

Thursday 10 April 2014 @ 11.16 a.m. | Legal Research

The ACT Legislative Assembly website has posted a call for submissions from interested organisations and individuals to its Select Committee on Amendments to Electoral Act 1992 (ACT) (the Electoral Act) established on 20 March 2014 which is, among other matters, reviewing the 2012 Australian Capital Territory  Election. The report of the Select Committee inquiry is to be presented at the end of June 2014.

Terms of Reference

 The inquiry terms of reference, published on 20 March 2014 are, that the ACT Legislative Assembly notes:

  • the public position of the Labor Government and the Liberal Opposition that the membership of the Legislative Assembly be expanded to 25 members at the 2016 election;
  • certain provisions of the Electoral Act will require amendment as a result of this change;
  • the recent High Court of Australia decision, Unions NSW & Ors v NSW [2013] HCA 58, and that this decision also has implications for the operation of the Electoral Act 1992; and
  • the Elections ACT’s Report on the ACT Legislative Assembly Election 2012 contains a number of recommendations pertaining to the Electoral Act ;

and that the ACT Legislative Assembly resolves that:

  • a Select Committee be established to inquire into the above matters and any related issues;
  • the committee will be comprised of one member of the Government, one member of the Opposition and one member representing the ACT Greens; and
  • the committee report by the last day of June 2014.

Key Issue under the terms of Reference

Size of the ACT Legislative Assembly

As Anthony Green reported on his ABC Election Blog on last year, the review into the size of the ACT Legislative Assembly had presented its report to the ACT Chief Minister and the ALP, some Labor MPs, business groups, academics and various former MLAs, and this recommended that the size of the ACT Assembly increase to 25 members. The ACT Greens were reported as favouring a 21 member ACT Legislative Assembly which would be made up of three seven member electorates. Anthony Green further reported that the Liberal Party did not make a submission to that review.

An interesting point is made by Anthony Green in his Blog that, in the past, attempts increasing the size of the ACT Assembly had been prevented by the requirement for passage of legislation through the Federal parliament to authorise the changes, a step no longer required since the passage of the Australian Capital Territory (Self-Government) Amendment Act 2013 (No 28 of 2013) (Cth) (the CTH Act) (which commenced on 31 March 2013) which gives the ACT Legislative Assembly the power to alter its size without Federal sanction.

The CTH Act allows the ACT Legislative Assembly to vary its size if the proposed change is supported by two-thirds of the ACT Legislative Assembly. In the current ACT Legislative Assembly that means a change needs the support of 12 of the 17 Assembly members.

As Anthony Green's report indicates, since its last election, the ACT Legislative Assembly has been comprised of eight Labor members, eight Liberal members and one ACT Green. On the current numbers for any change to succeed will require Liberal party support and the fact the "Liberal Party itself [has] chosen not to take a position" may make the final Select Committee's recommendations adoption an interesting piece of political negotiation.

Implications for the ACT of the Unions NSW Case

The Select Committee is also to look into the implications of Unions NSW & Ors v State of New South Wales [2013] HCA 58 (18 December 2013) for the operation of the Electoral Act 1992. In that case, the High Court of Australia unanimously held that sections 96D and 95G(6) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (the EFED Act) were invalid because they "impermissibly burden the implied freedom of communication on governmental and political matters", contrary to the Commonwealth of Australia Constitution. Further, the Court held that political communication at a State level may have a federal dimension and while it accepted that the EFED Act had general anti-corruption purposes, it however, held that the "impugned provisions were not connected to those purposes or any other legitimate end".

Details for Submission

The Select Committe has indicated that written submissions are to be lodged by Friday 2 May 2014. Complete submission details are available on the ACT Legislative  Assembly website.

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