On 24th May – the Victorian Legislative Assembly was debating the Electoral Legislation Amendment Bill 2018 – and one member pulled no punches – We post here an excerpt from Hansard (all rights belonging to the Crown).
ELECTORAL LEGISLATION AMENDMENT BILL
Thursday, 24 May 2018
Ms STALEY (Ripon) (15:45)
— I rise to speak on the Electoral Legislation Amendment Bill 2018. I plan to make a short— I hope— contribution, focusing on campaign finance caps and campaign disclosure. The main elements of this bill that I will be talking about are the introduction of $4000 per term limits on donations; bans on foreign donations; caps on small donations that are not counted, so that we can still run raffles; and the fact that the bill allows union affiliation fees and captures third party campaigners in the scheme and limits their political expenditure.
I am going to start, and probably this will set the scene for what I will say later, by quoting article 19 of the Universal Declaration of Human Rights, and that says that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
My key objection to these sections of the bill is that I believe they are an unacceptable restriction on freedom of speech and they suppress democratic political participation. Unlike public funding, which already exists, Victoria has no campaign limits at the moment. There are no limits on what individuals, corporations and trade unions can donate to political parties, so this is a wholly new feature of Victorian electoral law.I want to set the scene a bit by having a look at what a couple of courts have said about these sorts of proposals. I am going to start with the US Supreme Court. In 1976, in a landmark decision, Buckley v. Valeo, the court affirmed a First Amendment interest in spending money to facilitate campaigns, writing:
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.
… Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.
Then in 2010, in a case that many in this place probably
have heard of, Citizens United v. Federal Election Commission, the court held that the free speech clause in the US constitution prohibits the government from restricting independent expenditures for communications by non-profit corporations, for-profit corporations, labour unions and other associations. It held that because spending money is essential to disseminating speech, as established in Buckley v. Valeo, limiting a corporation’s ability to spend money is unconstitutional because it limits the ability of its members to associate effectively and to speak on political issues.
The final US case I wanted to refer to is McCutcheon v. Federal Election Commission, a 2014 judgement, in which Justice Thomas said:
… limiting the amount of money a person may give to a candidate does impose a direct restraint on his political communication …
I now turn to the High Court of Australia. The most recent commentary or judgement by the High Court on such a matter is Unions NSW & Ors v. State of New South Wales. A number of things happened in that case, which I will come to, but the court held that if you aggregate the electoral communication expenditures of political parties and affiliated organisations and then limit them, it impermissibly burdens the freedom of political communication. The High Court granted both the declarations that Unions NSW were seeking, unanimously holding that those sections that knocked out union and company donations were invalid on the grounds that they impermissibly burdened the implied freedom of communication on governmental and political matters, contrary to the Australian constitution.
Because of Unions NSW I believe this bill is open to constitutional challenge, and it is not to do with the provisions that allow unions to continue to donate, which are in this bill because of that judgement. I would go further and agree with Unions NSW assistant secretary Mark Morey, who said:
The court has spoken very loudly to confirm people have the right to come together, to put their money together, to participate in the political process.
I believe this legislation before the house severely restricts that right. It is a fundamental restriction on our human right to freedom of speech, and it is not one that I am at all keen on. I would also note that some of the commentary about this by others in this place has very much focused on the limits to overseas donations. This bill does not just limit overseas donations; it limits the ability of individuals, corporations, trade unions and others to donate for political purposes. The trade union exemption, which comes out of Unions NSW & Ors v. State of New South Wales, does create an uneven playing field. It does mean that the Labor Party will always have an advantage in the funding stakes because of this bill. We should not shy away from the fact that this is a bill that advantages the Labor Party in terms of its financial outlook.
Finally, I would like to rebut a little of what the Greens representative said, because I thought his speech was characterised by an incredible level of hypocrisy. He stood up and said, firstly, that this was a Greens bill— I do not believe they have been involved in any of the negotiations to do with this bill; and secondly, that donations are only made because people want some sort of benefit. Why did the Electrical Trades Union donate $300000 to the Greens? Why did the Construction, Forestry, Mining and Energy Union donate $25 000 to the Greens? Why did Duncan Turpie, who is associated with gaming interests, donate $500 000 to the Greens? Why did Graeme Wood give the Greens what was the largest political donation in Australian history — $1.68 million— if not to buy influence, according to the Greens?
I would hold that people give money to political parties because they believe in what they stand for. People donate to political parties because they want to see that side or that party in government. They want to see them succeed because they share their world view. It is not about quid pro quo; it is about saying, ‘We like the values that your party stands up for. We share those values and we want to support you’.
I would argue that being able to do that financially is a core aspect of our freedom of speech and freedom of expression, and this bill limits and in fact to a very large extent actually removes that.
In the short time I have remaining I would like to briefly touch on the disclosure regime. I have no problem with real-time disclosure. I think the limits set in this bill are problematic, not least because they conflict with the federal limits even in terms of how much can be tax-deductible, and I think that could cause confusion. But I have no problem with the principle that people should know who is donating to political parties in significant amounts. I think that is a transparency and accountability provision which is supportable. I also think that with technology the way we have it now we can do it close to real time. The federal provisions allow people to effectively not disclose donations for 18 months; that is far too long, so I support the provisions in the bill that shorten the time line and bring in that regime. However, I end by saying that this bill is an attack on freedom of speech and is a very dangerous path to go down.