Chapter 7: Standing for election
Standing for federal elections
Candidates in federal elections must be 18 years old, Australian citizens and eligible voters. There is no requirement that candidates live in the electorate that they wish to contest.
The Constitution of Australia, under section 44, disqualifies the following people from nominating as candidates:
- citizens and subjects of a foreign power;
- anyone convicted of an offence punishable by a sentence of 12 months or more;
- undischarged bankrupts;
- anyone holding an office of profit under the Crown;
- anyone with a pecuniary interest in an agreement with the Commonwealth Public Service (except members of incorporated companies with 25 people or more).
Prior to 2016, these constitutional restrictions saw very few successful candidates challenged in the courts. In 2016 and 2017, however, seven Members of the House of Representatives and 10 Senators resigned or were disqualified as a result of the provisions of section 44. Several potential Senate replacements were also caught up by section 44. In this period, the High Court heard cases concerning three of the grounds for disqualification: allegiance to a foreign power; conviction for an offence; and holding an office of profit under the Crown. Most of the controversy, however, involved Members and Senators who were eligible citizens or subjects of other countries, even if they did not realise this. In its judgements, the Court followed its previous ruling that candidates had to take ‘all reasonable steps’ to renounce any foreign allegiance but it added the important stipulation that candidates had to complete this process by the time they accepted nomination for election.
Disqualification on the basis of holding public office represents a significant barrier for many potential parliamentarians. Although the aim of the rule is to prevent elected representatives being compromised by their duty to the executive government, it extends to a wide range of occupations with very little potential for conflict. For example, in 1996, Liberal Party candidate Jackie Kelly won the seat of Lindsay while an officer serving in the RAAF (an office of profit). She was found ineligible but, having resigned from the RAAF, successfully recontested the seat in a by-election. The Commonwealth has legislated to ensure that public servants who resign their positions to contest elections are reinstated if they are unsuccessful. In some states, public servants who nominate are placed on leave without pay. Despite these measures, the problem has not been eliminated entirely.
How do candidates nominate?
People wishing to nominate in federal elections have to do so between the issuing of writs for an election and the close of nominations (between 10 and 27 days after writs are issued). Nomination forms are available from the Australian Electoral Commission and can either by submitted individually by candidates or in bulk by political parties.
Candidates must be nominated by 100 electors or be endorsed by a political party, in addition to paying a deposit of $1000 to contest a House of Representatives seat and $2000 to contest a Senate seat. Deposits are returned to candidates who get more than four per cent of the first preference vote.
Nomination and deposit requirements limit access to election contests in an attempt to discourage frivolous candidates, and to try to reduce the length and complexity of ballot papers so as to minimise the possibility of voter confusion and mistakes. In 2016, 631 candidates nominated for the Senate. A further 994 candidates nominated for the House of Representatives – an average of 6.6 candidates per seat.
Standing for state and territory elections
The states and territories have similar laws governing who can nominate in their elections and when and how they nominate. Grounds for exclusion from candidacy vary but generally relate to residency, criminal sentences and offices of profit.
The number of people who need to support an individual nomination also varies, from six (for example, in the Northern Territory Legislative Assembly) to 250 (South Australian Legislative Council), although most candidates are nominated in bulk by registered political parties. Deposits vary from $200 (Northern Territory) to $3000 (South Australian Legislative Council). The percentage of votes needed to recoup deposits also varies. While it is typically four per cent of the first preference vote, 20 per cent of the quota is required in Tasmanian and ACT Legislative Assembly elections, and only the winners get their deposits back in Tasmanian Legislative Council elections.
How parties choose candidates
Although an increasing number of election candidates are independents, with no ties to political parties, most successful candidates are members of political parties. The stability of Australian voting patterns means that the Labor, Liberal and National parties each win certain lower house electorates, so-called ‘safe seats’, at nearly every election. These parties are also guaranteed of winning a number of Senate places.
In safe seats, the greatest contest in an election is over who will become the winning party’s candidate. The rules for these preselection contests vary from party to party and among its state and territory branches.
Hot Tip: Preselection
Preselection is the process by which a party selects official candidates to run for it at particular elections.
Apart from the issues of who may nominate for a preselection contest and which members are eligible to vote, the main point of difference is the composition of the body that selects the candidate (the selectorate). Some examples are given in the following table:
| Selectorate | Example |
|---|---|
| 1. Ballot of eligible local party members | NSW Branch of the ALP for House of Representatives candidates. |
| 2. Delegates from local branches vote | NSW Division of the National Party for House of Representatives candidates. |
| 3. Local members and a central panel drawn from other parts of the party vote | Victorian Branch of the Liberal Party for House of Representatives candidates. |
| 4. Local delegates and a central panel drawn from other parts of the party vote | SA Branch of the ALP for House of Representatives candidates. |
| 5. Members of a state convention or conference vote. | Queensland Branch of the ALP for Senate candidates. |
The most common types of major party preselection panels in House of Representatives elections are types 3 and 4 in the table. Local party members or their delegates have some say in who their party’s candidate will be. This say is balanced by votes from a central panel drawn from other branches, members of the party executive, parliamentarians and, in the case of the ALP, delegates of trade unions formally affiliated with the party. The most common Senate preselection panels are type 5, in which delegates meeting at a statewide conference vote to decide who their Senate candidates will be.
Critics of preselections based solely on branch members' votes argue that this process encourages ‘branch stacking’. Branch stacking occurs when large numbers of members with no real interest in a party are signed up just to support a particular preselection candidate, sometimes in return for expected favours if that candidate wins a seat. Critics of preselections in which a central panel has a large say, argue that this process can preselect candidates who have no real connections with, or feel for, the seat they are contesting.
In each of these types of preselection, decisions about who will contest (and therefore win) safe seats are often taken by no more than a few hundred people, often meeting in private.
In recent years, a number of political parties have experimented with preselection contests in which members of the local community who are not party members may also vote. Commonly called ‘community preselections’, these contests have been trialled in a handful of seats by the Victorian ALP, the NSW National Party and by the NSW Branch of the Labor Party. The NSW National Party's community preselection for the NSW State Parliament seat of Tamworth in 2010 attracted 4,293 voters (or 10 per cent of the electorate).
Preselection and the law
Some commentators argue that Australian electoral law should focus more on how people become preselected as candidates for their parties. Until recently, the law treated Australian political parties essentially as private bodies, voluntary organisations whose internal arrangements were not the business of courts. This treatment, and the legal arguments for it, rested on the High Court’s 1934 judgment in Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358. The political parties were happy to determine their own affairs away from the courts. Unsuccessful candidates for preselection were expected to accept internal party decisions, even when they appeared unfair or against the party’s rules.
Since the Queensland Supreme Court’s 1993 judgment in Baldwin v Everingham, the courts have developed a new position on the reach of the law into political parties. This new position rests on the fact that political parties are now registered for public funding under the Commonwealth Electoral Act and various state and territory laws (see Party registration below). Parties are required to lodge their constitutions as part of their registrations. In a series of subsequent cases, different state supreme courts, while still acknowledging Cameron v Hogan, have effectively set it aside, reasoning that the statutory recognition of parties brings with it a public interest in the enforcement of internal party rules.
Some commentators and politicians argue that the law should go further than simply enforcing current party rules. They argue that the law should prescribe particular types of democratic preselection. This is the case in democracies such as New Zealand and Germany, which prescribe that registered political parties and preselections must be internally democratic, as well as the United States where political parties are mandated by law to conduct open primaries in order to select candidates for public office.
Political parties’ preselection contests in Australia are exempt from anti-discrimination legislation such as the Sex Discrimination Act 1984 (Cth). This allows political parties to implement affirmative action measures to increase the number of women selected as candidates in winnable seats. Initiatives such as the ALP’s current rule, (under which at least 40 per cent of party positions, including public office positions, must be held by women), have increased the presence of Labor female representation in Parliament. However, similar rules have not been supported by all Australian parties.
Questions for discussion
- What are the advantages and disadvantages of making the requirements for nominating as an election candidate more stringent?
- Should parties have been left to run their own preselections, including dealing with any disputes over party rules, or is legal action in the courts a legitimate means of ensuring fairness in preselections?
- Should the law force parties to adopt particular approaches to preselections, such as adopting community preselections or ballots in which all party members vote?
- Is the application of affirmative action measures to party preselection an appropriate way to increase the presence of women and minorities in public office?
Party registration
In 1984, the Commonwealth introduced the registration of political parties for electoral purposes. One benefit of registration for political parties was that their names could be printed alongside their candidates’ names on ballot papers. In 2016, the law was changed to allow the logos as well as names of registered parties to appear on federal ballot papers. Rather than voters having to work out which candidates belonged to which party, ballot papers now contain this information for registered parties. This is particularly useful for smaller parties that may not have enough members or volunteers to give out ‘How to Vote’ cards at every polling place, informing voters about their candidates.
Other benefits of registration include the right for parties to receive public election funding. Although individual candidates of unregistered parties can also receive this funding, registration allows funding to be centrally administered by parties. Registered parties can also coordinate nomination processes and are eligible to receive copies of electoral rolls and other electorate information.
To be eligible to register under the Commonwealth Electoral Act, parties must:
- have an acceptable name;
- have a written constitution setting out its aims;
- either have at least 500 members, or have at least one member of parliament at Commonwealth level; and
- pay an application fee of $500.
Members must be unique to each political party – that is, not also relied on by other political parties for their registration, but need not be eligible voters. This enables non-citizens and those under 18 to join political parties.
Applications are made to the Australian Electoral Commission, which verifies the claims made in applications and advertises proposed registrations so that people can lodge objections. Certain party names, including lengthy and obscene names or names which may cause confusion with existing registered parties, are not allowed. For example, in 2011 prominent Queensland parliamentarian Bob Katter applied to register Bob Katter’s Australia Party. The initial application was rejected by the Australian Electoral Commission on the basis that the shortened version of the name that was to appear on the ballot paper ‘The Australia Party’ could be too easily confused with other parties. Katter subsequently amended the party name and ‘Katter’s Australian Party’ was registered in September 2011.
Once registered, a party is added to the Register of Political Parties. Registered parties must lodge annual financial statements. The Australian Electoral Commission audits their compliance with the conditions of registration. Parties can be de-registered if they cease to exist, no longer comply with the requirements for registration, or were registered fraudulently or by misrepresentation.
The requirement that political parties have 500 members for federal registration was challenged in the High Court by the Democratic Labor Party (DLP) in Mulholland v Australian Electoral Commission[2004] HCA 41; (2004) 220 CLR 181. The Court rejected the argument that an unregistered party’s inability to place a party name on the ballot paper was an undue restriction on political communication and upheld the ‘500 rule’.
The relevant electoral acts in most states and territories also provide for party registration and de-registration. The required number of party members for registration under state and territory laws varies from 100 (ACT) to 750 (NSW). Pauline Hanson’s One Nation Party was de-registered in Queensland after the Queensland Supreme Court found in 1999 that it had been registered under the Queensland Electoral Act 1992 by fraud or misrepresentation. One Nation’s constitutional structure meant that the party itself did not have the required 500 members.
Election funding and candidate finances
NSW first introduced public funding of candidates’ election campaigns, tied to public disclosure of candidate’s donations and expenditure, for the 1981 state election. Commonwealth public funding laws followed in 1984. Queensland, West Australia and the ACT now have systems of public funding for election candidates. The measure has been debated in some other states but not introduced.
The introduction of public funding of candidates usually has been supported by the ALP and opposed by the Coalition parties. The rationale for the introduction of public funding for federal elections was to assist parties in financial difficulty, to lessen corruption, to avoid excessive reliance upon ‘special interests’, to equalise opportunities between the parties and to stimulate political education and research. Arguments against public funding usually rest on responsibility, public cost and fairness - candidates should be responsible for raising their own support, taxpayers should not have to support the activities of political parties. The scheme is seen to be unfair, in that most of the public funding goes to Labor or the Coalition, further entrenching their duopoly in the electoral system.
The Commonwealth legislation provides for candidates to be paid an amount for every first preference vote they win, as long as they win more than four per cent of the first preference vote in their electorate. At the 2016 federal election, the amount was $2.63 per vote. Total candidate funding in 2016 was almost $63 million. Candidates who are endorsed by registered political parties do not receive funding directly – it is paid to the registered parties. The relevant states and territories have similar funding formulae and procedures.
Australia, like a number of other western democracies, has laws that require parties, candidates and others to reveal publicly their election-related financial relationships. The main argument for such financial disclosure is transparency. Disclosure reduces the capacity for secret policy deals between parties or candidates and their financial backers. The main argument against disclosure is privacy. People should be able to donate money to whomever they want without facing possible intimidation or other repercussions of that donation becoming public knowledge.
Donations
Candidates and parties contesting federal elections must disclose donations they receive to the Australian Electoral Commission, which makes information about these donations public, and posts all disclosure returns on its website.
Parties and candidates in federal elections are required to disclose the overall value of donations, the total number of sources of donations and the names of donors who give more than $13,800 to a candidate or party (as at May 2019). Other individuals or groups who spend $13,800 on electoral purposes (such as advertising in support of a party or candidate or donating money) are also required to disclose this.
Political finance in NSW is highly regulated by comparison with the federal disclosure regime. Measures introduced by the Keneally Labor Government in 2008 and 2010 placed caps on political donations and expenditure in return for increases in public funding. They also created a class of ‘prohibited donors’ to election candidates that included businesses involved in property development, liquor, tobacco and gaming. In 2012 the O’Farrell Liberal Government banned all donations to political parties and candidates from anyone or anything other than a person registered on the electoral roll. While the O’Farrell Government’s blanket ban was successfully challenged in the High Court Unions NSW v New South Wales [2013] HCA 58 due to an implied constitutional freedom of political communication, restrictions on donations from property developers survived a 2015 High Court challenge in McCloy v State of New South Wales [2015] HCA 34; (2015) 257 CLR 178, partly on the grounds of an implied constitutional equality of political participation.
The most recent controversy surrounding electoral finances has concerned foreign donations, particularly from Chinese sources. In response to recent concerns about foreign interference in Australian elections, the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Cth) is designed to limit gifts for campaign purposes from foreign donors to $1,000.
Proper monitoring of electoral finances is notoriously tricky and controversial. The Commonwealth Electoral Act has been amended a number of times since 1984 to deal with perceived loopholes and weaknesses in disclosure law. These include the time allowed between the making and disclosure of donations, which at Commonwealth level can be as long as 19 months. Monitoring of campaign finance involving ‘associated entities’ (such as trade unions affiliated with the ALP) and ‘third parties’ (advocacy groups such as GetUp!) has also become a contentious issue. The major parties have accused each other of hiding money by receiving benefits from organisations that have not made public their finances and sources of donations. Whether the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act can be enforced to prevent candidates and parties from, for example, receiving foreign donations disguised as domestic donations is unclear.
Questions for discussion
- Should the election expenditure of parties and candidates be subsidised by public funding?
- Should there be limits to the amounts that candidates and parties are allowed to spend on election campaigns?
- Should donations from some sources, such as particular industries or foreign sources, be completely banned?
- What are some of the key difficulties in making electoral finances as publicly transparent as possible? Is it worth trying to achieve this goal?