Hansard debates

Anthony CARBINES (Ivanhoe – Leader of the House, Minister for Police, Minister for Community Safety, Minister for Victims, Minister for Racing) (10:53): Under the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Electoral Further Amendment Bill 2026.

In my opinion, the Electoral Further Amendment Bill 2026, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

On 15 April 2026, the High Court handed down its decision in Hopper v Victoria [2026] HCA 11 (Hopper).

In Hopper, the High Court found that Victoria’s political donations and expenditure laws contained at Part 12 of the Electoral Act 2002 (Act), was wholly invalid as it impermissibly burdened the implied freedom of political communication, contrary to the Commonwealth Constitution.

The High Court declared Part 12 of the Act invalid in its entirety, as it was not permissible to sever any parts of provisions, subdivisions or divisions of Part 12 to preserve its validity.

In light of the High Court’s finding in Hopper, the purpose of this Bill is to amend the Act to introduce a new political donations, State funding and reporting regime (proposed regime).

The new regime applies to registered political parties, candidates at an election, elected members, associated entities and third-party campaigners (collectively, ‘regulated person or body’).

The key reforms in the Bill include:

a. setting a $7,500 general cap on political donations to a regulated person or body;

b. setting a higher general cap of $15,000 for eligible new entrants to the electoral process;

c. prohibiting political donations from foreign sources;

d. prohibiting anonymous political donations equal to or above the value of $1,250;

e. requiring that political donations equal to or above $1,250 be disclosed to the Victorian Electoral Commission (VEC) within 7 days.

f. requiring regulated persons or bodies to provide annual returns containing financial information to the VEC;

g. providing powers for the VEC to compel the production of documents or require a person to give evidence in relation to compliance with the proposed regime;

h. prescribing offences and penalties relating to non-compliance, including introducing prospective criminal liability for any failure to disclose certain political donations made between 15 April 2026 and the day the Bill receives Royal Assent; and

i. make State funding available to eligible registered political parties, independent candidates and independent elected members.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

In my opinion, the human rights under the Charter engaged by the Bill are the:

• right to recognition and equality before the law (section 8 of the Charter);

• right to privacy (section 13(a) of the Charter);

• right to freedom of expression (section 15 of the Charter);

• right to take part in public life (section 18 of the Charter); and

• right to property (section 20 of the Charter).

Having considered all relevant factors, I am satisfied that the Bill is compatible with the Charter. To the extent that any rights are limited, the limitation is reasonable and able to be justified in a free and democratic society based on human dignity, equality and freedom in accordance with section 7(2) of the Charter.

Right to equality and protection from discrimination (section 8 of the Charter)

Section 8(2) of the Charter provides that every person has the right to enjoy their human rights without discrimination. Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (Equal Opportunity Act), on the basis of an attribute in section 6 of that Act, which includes race. Relevantly, the definition of ‘race’ in the Equal Opportunity Act includes ‘nationality or national origin’.

Ban on foreign donations

Clause 5 of the Bill will insert new section 209 into the Act to make it unlawful to make or accept a political donation if the donor is not an Australian Citizen or Resident, or in the case of a donor who is not a natural person, where the donor does not have an Australian Business Number.

The ban on foreign donations limits the right to equality before the law as it prohibits the rights of persons to make a political donation on the basis of nationality. However, it is a lawful restriction within the meaning of the Charter, as it is reasonably necessary to prevent foreign governments, corporations or individuals exercising influence on Victoria’s political system through donations to regulated persons or entities. This proposal supports national sovereignty by restricting the influence that non-Australians have over Victorian politics and elections.

Right to Privacy (Section 13(a) of the Charter)

Section 13(1) of the Charter states that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Anonymous donations and requirement to provide disclosure returns

Clause 5 of the Bill will insert new section 210 into the Act to make it unlawful to make or accept an anonymous political donation equal to or above $1,250. This amendment engages the right to privacy as it requires a person to divulge their name and address if they wish to make a political donation which is equal to or above the threshold.

Clause 5 will also insert new section 216 into the Act to require that a disclosure return be provided to the VEC in relation to any political donation equal to or above the disclosure threshold of $1,250. The disclosure return must include the name and residential address of the donor. New section 217 requires that that VEC publish the disclosure return on its website (which would include the name but not the residential address of the donor) within 14 days of its receipt.

These amendments also engage the right to privacy as the names and addresses of people who donate above the threshold must be provided to the VEC, and the names of each these donors will then be published on the VEC’s website.

While both the anonymous donations and requirement to provide disclosure returns amendments engage the right to privacy, in both cases, the interference is lawful as it is authorised under legislation. Further the interferences are not arbitrary, as they are reasonable and proportionate to the legitimate objective of supporting transparency and reducing the possibility of regulated persons or bodies working in the interests of anonymous donors.

Powers of the Commission

Clause 5 will insert new section 255 into the Act to provide a VEC compliance officer with the power to serve a notice requiring a regulated person or entity to produce documents or other things, or to appear before a compliance officer to give evidence. A notice may only be served on a regulated person or body or on any other person if the compliance officer has reasonable grounds to believe the person is capable of giving evidence in relation to a possible contravention.

These powers engage the rights to privacy as they could be used to require a person to divulge private or personal information to the VEC. However, the interference is lawful as the powers are clearly prescribed in the Bill. The powers are not arbitrary as the power is reasonable and justifiable as it enables the VEC to conduct investigations and encourages compliance with the scheme.

Freedom of expression

Section 15(1) of the Charter provides that every person has the right to hold an opinion without interference. Section 15(2) of the Charter provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and includes information imparted orally or in writing.

General cap on political donations

Clause 5 of the Bill inserts new section 212 into the Act, to provide for a general cap on political donations. The general cap is $7,500 (subject to indexation) or any higher amount prescribed by regulations. The donations cap applies to one off-donations and to aggregated donations from a single donor to the same regulated person or body within a 4-year election period (new section 213).

The donations cap engages the right to freedom of expression by limiting the funds available for people or bodies covered by the scheme to engage in political communication and by limiting a person’s ability to donate and engage in political communication.

However, to the extent this clause limits freedom of expression, it is reasonable and demonstrably justified as it reduces the risk of corruption and undue influence in the political process.

If political donations were not capped, then a person or body could use their wealth to have a disproportionate impact on elections. In this manner, the donations cap promotes the right to freedom of expression by allowing for a greater number of people to express their political views.

Ban on political donations from foreign sources

The ban on foreign donations in new section 209 (discussed above) engages the right to freedom of expression by preventing foreign nationals from engaging in political communication through a political donation. However, this is a lawful restriction within the meaning of the Charter, as it is reasonably necessary to address concerns about interference from foreign sources in elections, and it prevents foreign governments, corporations or individuals exercising influence on Victoria’s political system through donations to regulated persons or bodies.

The cap on the number of third-party campaigners to whom a donor can donate

Clause 5 of the Bill inserts new section 211 into the Act to limit the number of third-party campaigners to which a donor may make a political donation. This limits a donor’s freedom of political expression by restricting the number of third-party campaigners to whom a person can donate.

The purpose of the amendment is to prevent the proliferation of third-party campaigners as a means to exceed the general cap, whereby donors could seek to split their political donations among a large number of third-party campaigners.

To the extent that this clause limits the right to freedom of expression, it is reasonable and demonstrably justified to ensure the integrity of the general cap and prevent its effectiveness being undermined. The general cap will, in turn, reduce the risk of undue influence in the political process and encourage equal participation in the electoral process.

Further, clause 5 of the Bill will insert into new section 206 of the Act, under the definition of “third party campaigner” an example that provides if a third party campaigner incurs political or electoral expenditure for general advertising and awareness raising, for the benefit of a registered political party (RPP), candidate, group, elected member or associated entity, the making of this expenditure is not a gift. This is to ensure that restrictions on donations to third-party campaigners are not inadvertently captured by the definition of “gift”, and subject to associated restrictions, where they are not incurred by a person or entity for the benefit of, or that otherwise benefits, one or more other persons or entities.

Payment of public funding

Clause 5 will insert new section 227 into the Act to enable the payment of public funding to eligible registered political parties and independent candidates. A party or candidate will be eligible for public funding where they contested the previous general election and were elected or, one or more candidates received at least 4% of the first preference votes (new section 227(3)).

Registered political parties and independent candidates who qualified for public funding for the previous election, will also be eligible for instalment payments of equivalent public funding in advance of the next election (new section 232). Public funding supports electoral parties and members to focus their efforts on participation in parliamentary processes by meeting the administrative costs associated with being an elected representative. It also reduces the reliance on political donations which provide disproportionate power to people with the financial resources to donate. Public funding therefore promotes the right to freedom of expression by enabling more people to participate in the electoral process.

The public funding amendments also limit freedom of expression by restricting public funding to parties and independent candidates who satisfy the eligibility criteria, which in turn, decreases the capacity of members and supporters of smaller parties to contribute ideas and opinions into the political debate.

To the extent this clause burdens the right to freedom of expression, it is a lawful restriction within the meaning of the Charter, as it is reasonably necessary to prevent candidates or parties from receiving payments if they only receive a handful of votes, make no substantial contribution to the democratic process, or have little intention of engaging in electoral competition.

New entrant general cap

Clause 5 will insert new Division 5 of Part 12 into the Act to introduce the new entrant general cap for eligible candidates. An independent candidate and RPPs will be eligible where they are ineligible to receive other sources of funding under the Act, including public funding, administrative expenditure funding, and policy development funding.

Resultantly, the new entrant general cap will apply to first-time independent candidates, recontesting independent candidates who received less than 4% of the first preference votes at the most recent election, and new or first-time RPPs which have been registered for less than a whole calendar year. The purpose of the new provision is to reduce barriers for eligible electoral participants by ensuring they have access to increased funds for political expenditure, despite not being eligible for a stream of State funding.

Previously, due to ineligibility for State funding streams, these participants were wholly reliant on political donations but subject to the same cap as all participants, resulting in them having access to less funds for political expenditure. The availability of funding through the new entrant general cap therefore promotes the right to freedom of expression by enabling new people and RPPs to participate in the electoral process.

Right to take part in public life (Section 18)

Section 18(1) of the Charter provides that a person has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.

Further, section 18(2) of the Charter provides that every eligible person has the right, and is to have the opportunity, without discrimination to (a) vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors; and (b) have access, on general terms of equality, to the Victorian public service and public office.

General cap on political donations and limitation on anonymous donations

The donations cap and limitation on anonymous donations engage the right to take part in public life as these reforms place limitations on the way in which a person may participate in the conduct of public affairs through a political donation.

However, any limitation on the right to take part in public life imposed by these amendments is reasonably and demonstrably justified as the amendments will reduce the risk and public perception of corruption and undue influence in the political process.

The donations cap also reduces the disproportionate influence of people with significant financial resources to influence elections, thereby providing the opportunity for others to participate in the conduct of public affairs.

Payment of public funding

A party or candidate will only be eligible for public funding where they contested the previous general election and were elected or otherwise received a total first preference vote of at least 4% of votes given in that election.

The right to take part in public life may be burdened as those candidates who are not eligible for funding will be less able to convey the opinions and policy preferences of their supporters. Additionally, those candidates will be less able to provide information to electors which will in turn impair the information available to voters for future elections.

To the extent that the entitlement to public funding burdens the right to take part in public life, it is a lawful restriction within the meaning of the Charter, as it is reasonably necessary to prevent candidates or parties from receiving instalment payments if they only receive a handful of votes, make no substantial contribution to the democratic process, or have little intention of engaging in electoral competition.

Further, public funding will reduce the reliance on political donations, which disproportionately favour those with the financial resources to donate. In this manner, public funding enhances the right to partake in public life by enabling more people to participate in the conduct of public affairs.

Clause 5 also inserts new section 233, that provides a discretionary power for the VEC to seek repayment in instalments or waive repayments for candidates that are no longer eligible to receive public funding for the next general election, in circumstances where repayment of overpaid advance public funding may cause serious financial hardship, or in other circumstances deemed relevant by the VEC. The inclusion of this power enhances the right to take part in public life by ensuring that parties are not deterred from accessing public funding to participate in the election process merely on the basis of risk of financial hardship where repayments may be required.

New entrant general cap

New entrant general cap under new section 247 will enhance the right to take part in public life under s 18(2) of the Charter by enabling new people and RPPs to participate in the conduct of public affairs, such as greater opportunities to run successful campaigns and be elected at State elections, despite being ineligible for State funding. Therefore, the new entrant general cap will address the burdens on the right under section 18(2) flowing from eligibility limitations for State funding under the Act, by providing access to another source of funding where eligibility requirements are met.

Right to property (Section 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law.

Powers of the VEC

The right to property is engaged through the VEC’s power to serve a notice requiring a specified person to produce evidence, documents or other things in new section 255. This allows the VEC to deprive a person of their property rights where the property would be relevant to assessing disclosure with the regime.

The VEC’s right to deprive a person of their personal property is clearly conferred by the Bill. As such, any deprivation of property would be clearly in accordance with the law, and therefore compatible with the Charter.

Further, clause 5 inserts new offence provisions at sections 278, 279, 280, 281 and 282 into the Act to require certain amounts to be disclosed and in some cases returned. These include unlawful political donations (e.g. those exceeding the general cap) and certain specified gifts received that are greater than the donations cap under new Part 12 of the Act, received between 15 April 2026 (the date that the High Court handed down its decision in Hopper) and the day the Bill receives the Royal Assent. Where disclosures or returns are required, this is to occur within 30 days after the day the Bill receives royal assent. New section 277 also requires the return of certain amounts received by RPPs from their Nominated Entities between 1 July 2023 and 14 April 2026 before the 2026 State election. New section 215 also requires forfeiture to the State of political donations accepted in contravention of new Division 2 of Part 12, including any foreign donations, anonymous donations above the $1,250, donations above the general cap.

These amendments engage the right to property as a person would be required to repay any money, which is a form of property, to the donor, or forfeit amounts to the State. However, this would be clearly in accordance with the law, as it would be clearly prescribed in the Bill. Further, the amendment would not be arbitrary, as it is for the legitimate purpose of ensuring that regulated persons or bodies do not have an unfair advantage by receiving a donation which is unlawful or above the old general cap, prior to the new regime being introduced.

Conclusion

I consider that the Bill is compatible with the Charter because, to the extent that some of the provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society in accordance with section 7(2) of the Charter.

The Hon. Jacinta Allan MP

Premier