Sam Dastyari

The level of public disgust over the (completely fair) perception that both the Coalition and ALP increasingly spend their energies doing the bidding of those who give them cash money is reaching peak nauseation in the post-Dastyari gloom. Both major parties have suddenly come over all moral-like, competing in their demands that somebody should do something about it.

That’s all been an unfocused mess, as you’d expect when politicians are making policy both unwillingly and in response to unfolding events rather than on the basis of something boring like actual evidence.

But we can always rely on Tony Abbott to do two things in a public policy debate: reduce it to simple terms, and get the law wrong. And here he is, solving the political donations problem:

“We need to look long and hard at restricting donations to real people on the electoral roll. To that end, there should be no union donations, company donations or foreign donations.”

If not for one minor thing, you’d have to say Tony totally nailed it there. That minor thing is the Australian constitution.

Maybe it’s just Tony being Tony, but if you wanted evidence that Malcolm is also spending more of his time being Tony these days, then here’s what he said on the same subject on the same day:

“You would exclude not simply foreigners, but you would exclude corporations and you’d exclude trade unions.”

Turnbull did allude to possible “constitutional issues” but that was never going to make it into the headline. So we have both current prime ministers calling for a major reform of our political donations system — but is it possible?

We’ve actually been here before, quite recently. In 2012 the NSW government amended the Election Funding, Expenditure and Disclosures Act to include a new provision that said:

“It is unlawful for a political donation to a party, elected member, group, candidate or third-party campaigner to be accepted unless the donor is an individual who is enrolled on the roll of electors for State elections, the roll of electors for federal elections or the roll of electors for local government elections.”

Unions NSW challenged this law in the High Court, which declared it invalid six judges to nil. The problem was that it infringed the implied freedom of political communication, which the constitution protects. I’ll try to explain it without pictures.

In Australia, we do not have a right to free speech (unlike Americans, the lucky buggers). However, our constitution entrenches a system of government that involves a properly informed electorate freely voting for the candidates of their choice. The freedom of choice only works if we have freedom of communication about the things that inform that choice. So, the High Court says, the freedom of communication exists.

The court also says that it’s OK for governments to make laws that reduce that freedom, as they frequently do (simple examples include defamation laws and laws prohibiting incitement of politically motivated violence). However, the limit on their power to do so is that any such law must satisfy two tests: first, that it has a legitimate purpose; secondly, that it is reasonably appropriate and adapted to achieve that purpose in a manner that is compatible with our system of representative government (i.e., democracy).

It’s important to understand that the law being attacked is not measured by how much it reduces our freedom to speak. Important especially in this context, because the question is not whether the act of giving a donation to a political party is itself a form of political communication. That could be argued all day, but it isn’t relevant.

The point, which the High Court emphasised when it was asked this very question, is that a law that limits political donations necessarily puts a burden on freedom of political communication because politics costs money. Candidates and parties spend that money mostly on advertising, the most potent medium for telling voters what they want to say and trying to elicit support. If the money tap is turned down, the communication flow reduces.

The big question then is, what is the purpose of the prohibition on donations from anyone other than people enrolled to vote? The High Court couldn’t find one.

The court had already said, in the famous Lange case (which started all this freedom stuff) that “each member of the Australian community has an interest in dissemination and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia”.

That means everyone, not just the voters. The court said our system of government “depends upon free communication between all persons and groups in the community. An elector’s judgment on many issues will turn upon free public discussion, often in the media, of the views of all those interested.”

The fact was, the High Court found, that there was no discernible link between prohibiting donations from non-electors and any legitimate purpose such as reducing corruption. By contrast, financial limits on donations have been upheld because they make sense in that context. Locking out some community members altogether, but not others, doesn’t.

The result is that a blanket ban on donations of the type being promoted by both Abbott and Turnbull would be doomed (as Turnbull surely knows). If the ban were limited to foreigners, it’d be a more interesting question. It wouldn’t be too hard to construct a rational argument in favour of restricting donations in that way, on the basis of a greater potential for insidious influence-buying from offshore. That could possibly pass muster.

It’s also not beyond prospect that a law, which placed greater restrictions on the ability of companies and unions to give donations to politicians than those on humans, might get through. Again, there are reasonable arguments that entities, possessing no soul as they do, are more likely to want a return for their cash which isn’t in the best interests of democracy.

Reform of political donations laws is desperately needed and there are plenty of positive changes that could be made and would be constitutionally valid. The silly distraction of these calls for changes, which have no chance of surviving, simply proves that our politicians should shut up, do their homework and come back to us when they’ve worked up something sensible.

Peter Fray

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