Liberal Party Senator Andrew Bragg has stepped up his campaign against the OpenAustralia Foundation. The senator has hired high profile lawyer Rebekah Giles to threaten legal action over how the OpenAustralia Foundation website They Vote For You presents his parliamentary voting record. 

They Vote For You takes the official voting record from Hansard and presents these publicly available records in a more accessible form so that voters can see how their elected representatives actually vote in parliament. As They Vote For You explains: “Forget what politicians say. What truly matters is what they do. And what they do is vote, to write our laws which affect us all.”

Senator Bragg, who serves as a member of the Liberal-National Party government, has objected to being recorded as an MP who has voted with his government colleagues on issues such as closing the gap, public school and university funding, increasing the Newstart allowance, the Paris Climate Agreement and increased funding for renewable intention etc.
Senator Bragg, and some of his Liberal colleagues such as Wentworth MP Dave Sharma, have joined in a campaign against They Vote For You.

First, Senator for NSW Andrew Bragg wrote to the Australian Charities and Not-for-profits Commission (ACNC) attempting to deregister us as a charity. This happened late last year. We don’t know what specifically was said in that letter.

Then, Dave Sharma, MP for Wentworth, wrote, in a coordinated action, to the Australian Electoral Commission (AEC) to try to stop us by claiming that we were breaking the law by not displaying “authorised by” on They Vote For You. That complaint was dismissed by the AEC because “…They Vote For You’s communications did not appear designed to influence elections and therefore were outside the commission’s domain.”

The first we knew of either of these was when they were reported in the Sydney Morning Herald “MPs call for ‘partisan’ political transparency site to lose charity status“.

Now, Senator Andrew Bragg has hired lawyers to threaten us with legal action for “misleading and deceptive conduct under Australian Consumer Law”. Furthermore they don’t want us to be able to openly discuss the issues because they have claimed that their legal threat is “PRIVATE & CONFIDENTIAL – NOT FOR PUBLICATION”.

The unfortunate thing is that this legal threat letter contains the first concrete and specific allegations which we can meaningfully respond to. Up until now it’s been months of mud-slinging in public from their position of power, claiming all sorts of ludicrous things while multiple attempts from us to invite a productive discussion with them have been met with silence.

It is our belief that the legal threat letter does not contain anything that is “private & confidential”. In reality it’s quite the opposite. It’s largely a discussion of the voting record of Andrew Bragg. Furthermore it is essential that discussions of the facts of politicians’ voting record happen in public. For that reason we have decided to publish a complete copy of the letter below.

Our legal advice is that Senator Bragg has no cause of action and we’ll revisit that legal question below, but first, let’s look at the body of their complaints.

Responding to Senator Andrew Bragg’s complaints

(a) Voted generally against closing the gap between indigenous and non-indigenous Australians

While it is true that the votes mentioned “have no substantive effect on the legal rights and duties of Australians, nor to raise or lower funding or taxes”, they are still votes that took place in our parliament on a particular subject matter of interest to Australians.

We are only able to include votes that go to division on They Vote For You, as they are the only votes that are recorded in any detail in the official parliamentary record (which is where we get our data). That is, only division records tell us exactly who was in the room at the time and how each of those individuals voted.

We cannot find any divisions on the bills listed at [7] that would be relevant to this policy. The votes on whether to pass those bills were only recorded as votes ‘on the voices’ in the Journal of the Senate: Aboriginal Land Rights (Northern Territory Amendment (Jabiru) Bill, Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 and Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021. Note that the Corporations (Aboriginal and Torres Strait Islander) Amendment Bill has not yet been voted on in the Senate. We also cannot find any divisions specific to the funding listed at [8]. Therefore, these votes cannot be included in our record.

A solution we have recommended previously is for all votes to be adequately recorded in the official parliamentary record, which could be achieved most efficiently by introducing electronic voting to parliament.

(b) Voted consistently against increasing funding for public schools

When attaching a division to a policy, we mark them as either “strong” or ordinary (e.g. “Yes (strong)” or “Yes”). Divisions that actually change the law are “strong” while divisions that are merely symbolic are ranked as ordinary. The two divisions you mentioned are ordinary and ranked accordingly. A division on an appropriation bill directly relevant to this policy would be ranked as “strong” and therefore have more weight on the senator’s voting record. However, we cannot find any such division to add to this policy.

(c) Voted consistently against increasing funding for university education

While appropriation bills may be the only bills that impact direct funding arrangements, many bills impact funding arrangements indirectly, including those mentioned at [11], which is why they are included in this policy.

(d) Voted consistently against increasing investment in renewable energy

Low emission technologies are not renewable, which is why these two disallowance motions are included in this policy.

While appropriation bills may be the only bills that directly impact government spending, many divisions either indirectly impact funding arrangements or express an opinion towards funding arrangements, and so are included in our voting records.

We have not found any divisions specific to the funding listed at [16]. Therefore, they cannot be included in our record.

(e) Voted consistently against increasing the Newstart Allowance rate

While appropriation bills may be the only bills that directly impact government spending, many divisions either indirectly impact funding arrangements or express an opinion towards funding arrangements, and so are included in our voting records.

We have not found any divisions specific to the funding listed at [19]. Therefore, they cannot be included in our record.

(f) Voted consistently against the Paris Climate Agreement

Our parliamentarians may not control whether we enter the Agreement, but as our elected representatives they should be expected to have an opinion on the matter. These divisions express that opinion.

(g) Voted consistently against a carbon price

These motions expressed an opinion on the carbon price. Elected representatives are expected to have opinions on important matters of concern to Australians.

(h) Voted consistently against increasing legal protections for LGBTI people

These motions expressed an opinion on legal protections for the LGBTQI+ community. Elected representatives are expected to have opinions on such matters.

As far as we can see, no relevant divisions on the bills mentioned in [26] were recorded in the official parliamentary record, so cannot form part of our voting records. The only record of voting on the Religious Discrimination Bill and the Human Rights Legislation Amendment (we presume this is the bill you referred to as the Sex Discrimination Amendment) is in the Senate Journal, which noted that a first reading vote took place ‘on the voices’ before debate was adjourned. 

Regarding the subjects listed in [27]:

The new category called “We can’t say anything concrete about how they voted on” was created to take account of the fact that not all divisions are equal. 

Only divisions that make real legal changes are classified as “strong”, while the rest (including symbolic motions) are classified as ordinary. After exchanging emails with several staff members of elected representatives, we agreed that no policy position should be determined solely by a single ordinary vote. Instead, where a representative has only voted once in an ordinary division for a policy, their voting record now says “We can’t say anything concrete about how they voted on…”.

We acknowledge the information you have provided regarding Senator Bragg’s position on these subjects, but our site runs solely on data drawn from the official parliamentary record. Without relevant divisions, we cannot make any changes to the record.

(a) We can’t say anything concrete about how they voted on increasing workplace protections for women

We agree that it is bizarre that divisions are not always taken on important voting matters, such as on whether to pass a bill. Unfortunately, this is common voting practice in our parliament.

Our record does not include a division on whether to pass the Sex Discrimination and Fair Work (Respect at Work) Amendment because there was no such division. That vote was taken ‘on the voices’ and so cannot be included on our site. The reason we cannot include votes ‘on the voices’ is that such votes are not recorded with any detail in the official parliamentary record – we do not know exactly who was in the room at the time of the vote, nor how each individual voted. In this case, the Senate Journal simply states, “On the motion of the Attorney-General (Senator Cash) the report from the committee was adopted and the bill read a third time.”

As mentioned above, a solution we have recommended previously is for all votes to be adequately recorded in the official parliamentary record, which could be achieved most efficiently by introducing electronic voting to parliament.

(b) We can’t say anything concrete about how they voted on increasing funding for road infrastructure

While appropriation bills may be the only bills that directly impact government spending, many divisions either indirectly impact funding arrangements or express an opinion towards funding arrangements, and so are included in our voting records.

We have not found any divisions specific to the funding listed at [33]. Therefore, they cannot be included in our record.

(c) We can’t say anything concrete about how they voted on increasing the foreign aid budget to 0.7% of Gross National Income

While appropriation bills may be the only bills that directly impact government spending, many divisions either indirectly impact funding arrangements or express an opinion towards funding arrangements, and so are included in our voting records.

(d) We can’t say anything concrete about how they voted on a constitutionally enshrined First Nations Voice in parliament

While a referendum would be required to actually amend the constitution, this division expressed an opinion on the matter. Elected representatives are expected to have opinions on such matters.

The legal threat

Now back to where they are threatening to sue us under Australian Consumer Law. For this we defer to the letter that Michael Bradley from Marque Lawyers wrote. He is generously helping us pro-bono. Here is the letter he wrote in response.

Where to from here?

I hope after all this it is more than obvious that there is no attempt by us with They Vote For You to deceive or in any way misrepresent the voting records of any politicians.

However, there are serious issues with the completeness of the parliamentary voting record that have been until now largely unknown, ignored and invisible to the general public. We need a complete record of all votes, one that lists how every single person votes on every single vote, whether “on the voices” or by division. This is the only way that a complete picture of every politician’s voting record will be available so that citizens can truly and fairly hold their elected representatives to account.

How can we make this more widely known? How can we work together so that parliament improves how they record all the votes?

Matthew, Kat and Mackay