Bill: Electoral Amendment Bill 2025

BILL:

‘ELECTORAL AMENDMENT BILL 2025’.

Wednesday, 4 March 2026

James NEWBURY (Brighton) (14:45):

I rise to speak on the Electoral Amendment Bill 2025.

As the House has noted, the Government has just moved a substantive package of Amendments of which I have just received a copy in the Chamber. The Government has previously advised those amendments relate to knocking out the nominated entities provisions of the Bill but also a public service secondment power. Without being able to double-check the Amendments that have just been passed to me, I take on face value the commitment that was given in relation to those Amendments. In dealing with the Bill today I do note that it appears the Government has removed those provisions, as discussed prior to coming to the Chamber, and I will speak about engagement with the Government throughout my contribution.

I also under Standing Orders wish to advise the House of Amendments to this Bill and request that they be circulated. I will speak to the substance of my Amendments, but I do note that as it appears that one of the Amendments that the Government has moved takes out a concern that the Coalition had with the Bill, one of my Amendments will no longer need to stand.

This Bill had its genesis in two things. Firstly, a number of candidates at the last State election took umbrage with Victoria’s donation laws and the system by which the former Premier reformed the donation system. Their perceived view was that the system was unfair and as such appealed those provisions as unconstitutional in the High Court. The matter is currently before the High Court. The question is still outstanding as to whether the nominated entity provisions specifically were or are unconstitutional. For background, when that case took hold the Government felt the need to develop a Bill that in part acquitted concerns that those candidates had with the nominated entity provisions in the act, and so they have developed a Bill – and some might say a set of quite radical Amendments – to put to the applicants in the High Court matter as a way of assuaging their concerns and therefore setting aside their application.

After the section of the bill in that form was drafted, we were consulted on the Bill in that form. I do note that for the House, because I do think that when it comes to the donation and electoral system more broadly Victorians deserve a robust system – a system that is fair, a system that is transparent – and the best way to achieve that in terms of electoral law more broadly is through
collaboration with all members of both Chambers of this place. I do note that we, the Coalition, have said for some time that we would be happy to work with the Government on any electoral matter, because we feel that we have ideas, insights and inputs that we can bring to development of legislation in this area, which speaks to the principles I just spoke about – about bringing integrity, about bringing robustness, about ensuring that democracy can flourish and doing it in a way that is transparent for all Victorians. I do note that the Government, since the drafting of the Bill, did engage with the Coalition.

At the time that the drafting was put to us we raised a significant number of concerns with the nominated entity provisions in the Bill and made it clear to the government that we had a raft of concerns with those provisions. But setting that aside, we felt that that did not go to the heart of the question that the two former candidates had in their application to the High Court, and I did not feel – and I do not think the Coalition felt – that the matter could be set aside at that time or that it would not assuage their concerns, which has turned out to be the case. I note, therefore, that the Government has moved to remove the nominated entity provisions, I think that would be fair to say, in anticipation of that case, and I can understand why that would be. That gives a little bit of background as to how we got to the Amendments that the Government just moved in relation to nominated entities.

The second portion of the Bill – the other half, as it were – is mostly operational in relation to how the Electoral Commissioner performs their duties, concerns they have had and requests they have made in relation to their function. Not all of those asks by the Commission are not controversial, and not every electoral change in the other part of the Bill has been generated entirely from the Electoral Commissioner, though the majority have, to be fair.

There have been two further Amendments other than the nominated entities, from the discussions I have had with the Government. As I said earlier, I have not had an opportunity to cross-check the Amendments that have just been moved in the house, but based on the conversation that the Government has had with me – and I take them absolutely at face value – one of the Amendments that has been proposed today is to remove a formal process by which the Government, in the form of the public service, can move into assisting with electioneering with the Electoral Commission. When I became aware of the provision in the Bill, looking through the Bill before it was to be considered, I raised at that time a very, very serious concern about that provision in the Bill. I do want to take a few moments to put on record why I have concerns, and also some history that I discovered prior to today in relation to that power, and concerns potentially moving forward. In short, what the provision would have done is formalise an ask process whereby the Electoral Commission could say they need staff, and the public service could
provide staff to the Electoral Commission. I am not saying this – the Ombudsman has said the public service is politicised. I am not saying that – that is what the Ombudsman said. The Ombudsman has found and reported that the public service is politicised. In no way am I asserting that every single person in the public service is politicised – of course not. Again, that is not my assertion. This is the Ombudsman saying it.

A member interjected.

James NEWBURY: I would not reflect on the Ombudsman. The Ombudsman has found that the public service is politicised. It would be fair and reasonable to suggest that any mechanism whereby public servants are moved into the election processes is concerning, especially where there is no oversight or transparency around those processes. What concerns me even more greatly is that, in being briefed on this Bill, I was formally advised that that happened at the 2022 election.

In 2022, before it was proposed that this power exist in this Bill, the then Daniel Andrews Government sent public servants into the Electoral Commission to electioneer. No-one knew about it. At no point has there been – and, of course, there was not – any transparency provided in a fair and reasonable way about that occurring. I think Victorians would want to know that. I think when they go into an election booth, they think that Victorian Electoral Commission staff work there. That is who I think they expect to see there. I do not think they expect to see public servants from another area who have been pushed in. Now, when I raised concerns about that particular power being put into the Bill, and I note again part of the Amendments will strike it out, the Department advised the reason for that move of staff at the 2022 election was because the Victorian Electoral Commission could not find enough staff. When you hear that, you think, ‘Four weeks before an election, they’re short on staff and they don’t know what to do. What do they do? They’ve run out of staff. They don’t have enough. They can’t get enough people in. With four weeks to the election, how are they going to operate an election? We need to ask the Government: can you help us with staff?’

The Department advised me that the process to second staff occurred nearly a year before the election. It was formally approved by the Victorian Secretaries’ Board in February of that year, which means that the process to make that happen would have occurred at the end of the year prior, the end of 2021, to ensure that the Secretaries were briefed on the issue, to ensure that a submission was put up to the Secretaries’ board. The Secretaries just do not get together with an idea that happened yesterday. The request would have been formulated at the end of the year prior. So, one year prior to the last election, an approval process was put in place. It was approved in February, at the start of the electoral year, to move public servants into electioneering for the 2022 election – a stunning revelation.

I thank the Government for hearing our concerns, and I say that in a collaborative way. I thank the Government for striking out that power from the Bill. It was the right thing to do, taking that power out of the Bill. They heard the Coalition’s concerns. I put it to them strongly and they have taken it out, and I thank them for that. I think it was the right thing to do. Clearly it was the right thing to do. However, as we saw at the last election, they did it without having the power in the first place. They did it before there was a power in a Bill to do it. Before there was a power at law to do it, they struck an agreement and did it. So even though this new power has been struck out of the proposed Bill, that does not stop the same thing occurring at the next election. The reason I have spent quite considerable time talking this issue through is because I would hope that we now have, on every possible occasion, questions being asked as to whether this Government is sending public servants to electioneer, in what should be an electoral commission that is beyond reproach, at this forthcoming election. I hope by exposing this issue, giving context to it happening before the power was in the bill in the first place, we can ensure that there will be no requests from the Electoral Commission.

I do not know in 2022 if the request came from the Electoral Commission or if the Government proffered the idea. Maybe the Electoral Commission said it could not get enough staff and the Government thought it would solve the problem. ‘I will solve your problem,’ said former Premier Daniel Andrews, ‘I will give you some of my staff.’ I do not know whether it is true or not, but what I do hope is that for the forthcoming election –

Members interjecting.

James NEWBURY: And the government laugh. They laugh because the politicised public servants who were working in electioneering were working at electoral booths. I think Victorians would be concerned by that. Whether or not Labor thinks that is a clever idea is irrelevant, because I think the public would agree. I really do. Not only does the public agree but the executive agrees – not the Members in the cheap seats, but the executive – because they have taken the power out of the Bill.

Gary Maas interjected.

James NEWBURY: I cannot hear you back there, mate. I think we need to ensure that our Electoral Commission is, beyond any question, impartial. I hope that because this issue has been raised the media and the public more broadly can now do the collective job of ensuring that does not happen again, because it was wrong, and I thank the government for removing that provision. But I think we need to be very clear on making sure that does not happen at this coming election.

The other power I will note which links very clearly to that one, which the Government agreed to remove previously and which the coalition raised concerns about, is the Minister’s capacity to set the location of election booths. A politically aligned Minister would have had the power under the Bill in its initial form to determine the location of booths. When we saw that provision in the initial Bill, we said no way – no way, no way, no way – and the Government took it out.

Members interjecting.

James NEWBURY: You can ask the Premier’s office, cheap seats – ask the Premier’s office. The Government took that out, and so they should have, because a Minister should not have any power in relation to selecting what locations booths exist at. Clearly a political appointee would not be impartial in relation to how our elections are operated.

I have just gone through three substantive changes to the Bill that the Government has made to get us to the form of the Bill we are at today. There are a number of other changes that we have been concerned about. I will now note, though, that on the basis that the Government has taken out the public service provision, the ministerial booth-appointing position and the nominated entity provisions, we will not be opposing the Bill.

However, I have circulated Amendments. One, as I mentioned, relates to the secondment power. Without being able to check while standing, the Amendments that have been circulated in this Chamber, with that being struck out, that knocks out one of our proposed Amendments, and I would put to the Chamber that Amendment now no longer needs to be moved. But there are three other Amendments that I have circulated. They are textual so unfortunately – I cannot imagine the Government taking this into consideration-in-detail – they will not be taken to a vote in this place, but we will be moving similar Amendments in the Upper House.

There are three other issues, one in relation to the request which I understand has come from the Electoral Commissioner for quite broad delegation powers. The new delegation powers proposed by the Bill, as I understand it – and I take the Government on face value – were at a request from the Commissioner to delegate authority, either where it is specifically set out in the bill or by instrument. We have concerns around those delegation powers. I think it is important that we seek to amend in that way those powers, because they are very broad delegation powers. With the Electoral Commissioner having the job of managing elections, and setting aside that we have had six by-elections in this presumably four-year term – we have one election every four years –it is not unreasonable to expect that the Electoral Commissioner would have the role of managing elections. That is not an unreasonable thing. When it comes to making significant calls around elections, I think it is only reasonable for the Electoral Commissioner to make the final call when it comes to significant vote counts, when it comes to significant determinations. Our concern is that the Electoral Commissioner should make those final calls, and what this Bill would effectively allow is the capacity for the commissioner to delegate some of those powers. We are concerned about that. We would say that those delegation powers are too broad, and so we have moved an Amendment on that.

The second Amendment I spoke to, which related to the secondment, is now null and void based on the government’s Amendment to strike that out from the Bill, if I take them at their word.

What this Bill does in one of the Amendments is remove a print house requirement on election material, and that print house requirement was put in place as a second point of contact with election materials. Currently election material requires an authorisation of the person, the candidate per se, and a print house detail. It ensures that there are two points of contact. Historically that was also put in place because if the candidate did not want to be found or had, for example, a phoney address, print house details are different in that it is a substantive business and so you could, it was thought, find the candidate through that business should you need to. That certainly is the case with material that is inappropriate or offensive – that if you cannot find someone based on the first point of contact you would through the second. It seems a very reasonable thing and a protection to the integrity of the system to have that second point of contact where potentially a candidate does not want to be found or gives a false address, so we have concerns about those print house details being removed from the act also.

There is a fourth Amendment, and it is disappointing to have to put this Amendment into a proposed package of Amendments. From memory, from the last election seven of the 88 Legislative Assembly seats – I believe Sandringham is one, Brighton is another – the Electoral Commission still has not done full preference counts. It seems only reasonable that an Electoral Commission would do full counts on the outcome of a seat on election day – in fact I do not think anybody could disagree that a full count should occur in a seat.

I would have thought that all 88 seats were done with haste. I can speak to what happened in my seat, which may explain why it has not occurred in all seats, and I think it has happened in others.

On election night I discovered, in my seat, when the votes were being counted, that the Electoral Commissioner had determined who would come second in my seat. So, for the first couple of booths they started counting, presuming to do a two-party preferred count against who they picked would come second. Well, they did not check with anyone on who might come second. They did not base it on any information. They did not start counting and then think, ‘This person might come second, so we’ll start doing a two PP on them.’ They did it on the person who came fourth. So, an hour and a half into the night, they realised that they had picked the wrong person as coming second, which completely mucked up their entire two-preference count, and that started happening in other seats. I know that booth workers were in the booths counting votes, and they said to the divisional managers, ‘You’ve got the wrong person as your second preference,’ and they said, ‘The Electoral Commissioner has said to us that we’ve got to use the name in the envelope. We weren’t allowed to change whose name was in the envelope, even as we counted.’ We got partway through the night on election night, and the Electoral Commission of course did first-preference counting, worked out who won on first preferences and said, ‘We won’t do any more.’ They worked out who they preference counted to 50.0001 per cent, who got one vote over the line, and then said, ‘We’re not going to do any more. We’re going to go home.’ And they did it across, as far as I am aware, seven seats.

Now, I have not spoken to him about this, but he has made a public statement about it, especially as it related to my seat. The Electoral Commission then never went back and started counting votes, so Antony Green – God bless him – went to the Electoral Commission and started counting votes for it, purely because he loves elections. Antony Green, who we are all sad has retired, went and counted the Brighton votes and got me a two-party preference count. Good on him – thank you, Antony Green. But it should not be that way. So, an amendment that we have moved will require a full, two-party preference count in all 88 seats in the Assembly. I hope that when the Amendments are considered in the other place, all Members – though, these Amendments will be considered in detail in the Council, so they might see ‘Assembly’ and they might knock them out purely on the basis of –

Danny O’Brien interjected.

James NEWBURY: No, they should not, but they might, purely on the basis of the difference in Chambers. But I hope that the Government, I hope that the cross-party Members, can see the obviousness of an Election Commission counting votes in seats to their final outcome.

This Bill, as I mentioned throughout the contribution, has had a chequered history. To the Government’s credit, we have reached a Bill today that the Coalition will not oppose, because matters in the Bill which were of significant concern to the Coalition have been removed. I note that, and I noted the collaboration that has occurred, as it should have, because every Victorian wants to see a robust system that was formed through collaboration with all Members of the Parliament. I hope that collaboration on electoral matters can continue.

The Coalition will not be opposing this Bill.