GetUp Limited

This advice sets out the AEC's conclusion in relation to the matters described below:

The matter

Whether GetUp Limited (ACN 114 027 986) is an "associated entity" that operates "wholly, or to a significant extent, for the benefit of one or more registered political parties" and therefore has a reporting obligation to lodge "associated entity" annual returns with the AEC.

When matter raised

Previously the AEC examined the status of GetUp in late 2005 and has received requests from Opposition Senators in September and October 2010 for the AEC to again review this status.

How matter raised

Various letters from Opposition Senators.

Legislation

Part XX of the Commonwealth Electoral Act 1918 (the Act).

AEC process

The AEC considered public information available from company and internet searches, and media reports.

AEC conclusion

The AEC has reviewed the previous information in its possession together with the additional material that has come into the public domain since 2006. The results of this review are that there is still no information or available evidence to show that GetUp meets any of the six grounds set out in the definition of an "associated entity" contained in subsection 287(1) of the Electoral Act.

Reasons

The legal issue under Part XX of the Electoral Act primarily relates to the definition of an "associated entity" contained in subsection 287(1) of the Electoral Act. This term is defined as:

"associated entity means:

1. an entity that is controlled by one or more registered political parties; or
2. an entity that operates wholly, or to a significant extent, for the benefit of one or more registered political parties; or
3. an entity that is a financial member of a registered political party; or
4. an entity on whose behalf another person is a financial member of a registered political party; or
5. an entity that has voting rights in a registered political party; or
6. an entity on whose behalf another person has voting rights in a registered political party."

In addition, the term "entity" is defined in subsection 287(1) of the Electoral Act as:

"entity means:

1. an incorporated or unincorporated body;
2. the trustee of a trust."

The AEC accepts that GetUp is an incorporated body that is legally separate from its members and is therefore an "entity" within the above definition. However, it is then necessary to determine whether its activities fall within the definition of an "associated entity".

Background

The current definition of an "associated entity" was inserted by the Electoral and Referendum Amendment Act (No1) 1999 ('the Amending Act'). The Amending Act changed the previous definition in paragraph (b) from "operates wholly or mainly for the benefit" to "operates wholly, or to a significantly extent, for the benefit". The then Leader of the Opposition in the Senate, Senator the Hon. John Faulkner, moved an amendment to 'tighten the definition of associated entity': Electoral & Referendum Amendment Bill (No 2) 1998, In Committee, Senate Hansard page 2182 (18 February 1999). However, the amendment proposed by Senator Faulkner was agreed to by the Senate without further debate evidencing the substantive or practical difference the Parliament considered would flow as a consequence of the amendment. Senator Faulkner's reference to 'tighten[ing] the definition of associated entity', is the only available indication of the parliamentary intention about the nature of the changed test and appears to support a conclusion that the amendment was intended by the Parliament to reduce the threshold at which an entity would be considered to be an associated entity of a political party.

Consistent with the above apparent intention of the Parliament, it would be reasonable to conclude that the difference between mainly and significant extent is one of degree, the precise nature of which is underscored by the meaning of significant. To that end, the Macquarie Dictionary defines significant as: 'important; of consequence'. Accordingly, if an "entity" operates for the benefit of a political party in ways that are 'important; of consequence' for the entity (not the party) it would be likely to fall within the terms of paragraph (b) of the definition of "associated entity" in subsection 287(1) of the Electoral Act.

The AEC is previously on the record (see pages 13 and 14 of the AEC's Funding and Disclosure Report – Election 1998 published in 2000) indicating the difficulties in administering this definition due to the inexact phrase "significant extent" and the scope of "benefit". Yet these elements of the test for an "associated entity" remain in the Electoral Act and appear to be directly in issue in the material that has been now referred to the AEC to examine.

Factors

The AEC has previously received a range of external legal advice on the application of the test "operates wholly, or to a significant extent, for the benefit" of a political party. From those legal advisings the following principles emerge.

1. Determining whether an entity is an "associated entity" of a registered political party requires an assessment of the facts on a case by case basis.
2. The instruments that establish and govern the operations of the entity are relevant. In the case of a company that is subject to the Corporations Act 2001, this would include the Constitution and the Memorandum and Articles of Association setting out the purpose of the company. In addition, the recent financial statements of the entity are relevant.
3. The making of donations to a registered political party are a relevant factor in determining if an entity is an associated entity as the reporting requirements in section 314AEA relate to reporting the receipt and payment of monies. Donations to political parties are distinguished from donations to candidates. That is, a benefit to a candidate cannot always be equated to a benefit to a political party.
4. Directly advocating voting for a particular party '…advocated a vote for a particular party…', may be one factor to take into consideration when determining if an entity operates for the benefit of a registered political party. However, this needs to be directly advocating of a particular vote as opposed to general support. An example of this was the action of the Minerals Council of Australia advocating on the resources tax.
5. Whether the entity operates '…for the benefit of a registered party' is an objective fact and the subjective intention to benefit a party is not determinative. Thus the view of the entity is not a relevant factor when determining whether the entity is an associated entity.
6. The meaning of the term 'operate' has been judicially considered in ASIC v Pegasus Leveraged Options Group Pty Ltd & Anor [2002] NSWSC 310 (Pegasus Case). The meaning of 'operate' in the Pegasus Case has been positively applied in a case in the New South Wales Supreme Court and the Western Australia Supreme Court since the original decision. In the Pegasus Case Justice Davies stated:

   'The word "operate" is an ordinary word of the English language and, in the context, should be given its meaning in ordinary parlance. The term is not used to refer to ownership or proprietorship but rather to the acts which constitute the management of or the carrying out of the activities…'

   It is clear from this judicial definition of 'operate' that the aims of an organisation alone are not enough to determine that an entity operates for the benefit of a political party. The manner in which the entity carries out their aims is just as relevant to determining a benefit as the aims themselves.
7. There is no absolute threshold at which something ceases to be insignificant and becomes significant. It is a matter of degree which must be assessed on a case by case basis. The meaning of the term 'significant' has also been judicially considered. In the case of Emaaas Pty Ltd v Mobil Oil Australia Ltd [2000] QCA 513 Justice Thomas of the Queensland Supreme Court stated:

   'The word "significant" is not a synonym for "substantial", although it is often used in that way. It is richer in meaning than the quantity-oriented "substantial". The Oxford English Dictionary Second Edition definition of the word includes the following entries: "1. Full of meaning or import; highly expressive or suggestive… 2. Having or conveying a meaning; signifying something… 3. Expressive or indicative of something…"

   The word has been considered in a variety of legal contexts, both in statutes and other legal instruments, and while I will not attempt a review of authorities it is useful to note that on a number of occasions the terms "important" or "of consequence" have been adopted as useful synonyms. The comments of an American court adopted by Young J in Coombs v Bahama Palm Trading Pty Ltd suitably illustrate the flexibility of the word:

   "While …determination of the meaning of 'significant' is a question of law, one must add immediately that to make this determination on the basis of the dictionary would be impossible. Although all words may be 'chameleons, which reflect the colour of their environment', 'significant' has that quality more than most. It covers a spectrum ranging from 'not trivial' through 'appreciable' to 'important' and even 'momentous'."

   It is a word then which takes its meaning very much from the context in which it is used.'
8. The context in which the term 'significant' is used in relation to the definition of "associated entity" in paragraph 287(1)(b) is in close relation to the term "…operates wholly…". The fact that an associated entity must "wholly" or to a "significant extent" operate for the benefit of a registered political party would appear to qualify the term "significant" in this context to be a degree once removed from "wholly" rather than more merely than 50%.
9. Indirect or consequential benefits to a particular political party does not constitute a "benefit" for the purposes of paragraph 287(1)(b) a more direct link than this is required. There may be situations involving indirect or consequential benefits for a party or number of parties as a result of the actions of an entity which does not involve "operating for the benefit of" a party. A more direct link between the activity and a benefit for a party or parties concerned is required. Thus, the fact that an organisation advocates a 'left' agenda does not mean it is "operating" for the benefit of all 'left' registered political parties. Some closer connection is required between the actions of an organisation and a party before one can say the organisation operates for the benefit of that party.
10. Despite the fact that the offence in section 315 of the Electoral Act (e.g. for an associated entity failing to lodge a return) is an offence of strict liability, the AEC must still prove that the entity is an "associated entity" (as this is not a physical element of the offence). Due to the fact that this is a criminal offence the fact that an entity is an "associated entity" must be proven by the AEC 'beyond reasonable doubt'. Obviously, this is a very high standard of proof that must be met by the AEC. In this regard the AEC also notes the comments of the High Court concerning the interpretation of penal provisions as indicated in the case of Beckwith v The Queen (1976) 135 CLR 569 where Gibbs CJ stated at page 576 that:

    'In determining the meaning of a penal statute, the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.'

    The ambiguity surrounding the exact scope of paragraph (b) of the definition of an "associated entity" is likely to fall within the above comments resulting in criminal action being unlikely to succeed where there is any doubt as to whether a particular entity falls within this definition.
11. Judicial decisions relating to the meaning of "benefit" have generally construed the definition widely. In the case of Moylan v the State of Western Australia [2007] WASCA 52 (the Moylan Case) 'benefit' was defined by Justice Miller as:

    'The wide and residual meaning of 'benefit' has long been recognised in common law, as in the famous definition of consideration adopted from Comyn's Digest in Currie v Misa (1875) LR 10 Exch 153 at 162:

    A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other:

    This judicial definition states that a detriment to another may be considered a "benefit" in circumstances where the person gains something valuable from it or is placed in a superior position. This must be assessed on a case by case basis.'

The present information

The information forwarded with Senators' letters was material in the public domain referring to various actions of GetUp indicating that the company operates in a manner that is partisan and claiming that this was inconsistent with claims that GetUp is independent of political parties and is non-partisan. The material also referred to the employment history of persons on the GetUp board, the activities of GetUp during the 2007 and 2010 election campaigns and donations made to GetUp.

AEC analysis

The AEC has examined the above additional information. The AEC has also considered the previous information in its possession and the lists of all the GetUp campaigns set out on its website. The AEC readily acknowledges that many of GetUp activities could be reasonably regarded as of some "benefit" to the 'left' parties (e.g. the anti-Coalition Senate campaign in the ACT prior to the 2007 election). However, the AEC also notes that many of the activities of GetUp appear to be solely issue based (e.g. climate change, human rights, indigenous homelands, close the gap, internet censorship, economic fairness, buy me a river, paid maternity leave, end mandatory detention, etc.) rather than supporting or advocating support for a particular registered party political.

Taking into account all of the activities undertaken by GetUp since 2006, the AEC has been unable to conclude that those activities which may reasonably be regarded as directly benefiting a particular political party comprise the whole or a significant proportion of all the activities undertaken by GetUp and are of benefit to a particular political party. The AEC is of the view that the present information and available evidence is unlikely to be sufficient to enable a Court in a criminal prosecution to find that GetUp is operating "wholly, or to a significant extent" for the benefit of either/both the Australian Labor Party and/or the Greens.

Conclusion

Accordingly, the AEC once again concludes that there is still no information or available evidence to show that GetUp meets any of the six grounds set out in paragraph (b) of the definition of an "associated entity" contained in subsection 287(1) of the Electoral Act.