Tuesday, July 28, 2015

Australia: Banning political donations will run foul of free speech protections in the constitution

In the "Citizens United" case, SCOTUS has ruled that donations are protected speech in the USA too

Unfortunately the simple solution to the potentially corrupting influence of political donations - banning them altogether - is not as simple as it seems.

The inquiry into political donations laws in NSW headed by Kerry Schott found that only Tunisia has adopted a total ban and that virtually all Western democracies allowed fundraising from the private sector.

For a start, a total ban would likely drive donations underground and shunt political campaigning into third party identities, giving rise to the new problem of establishing whether the groups were independent or linked to political parties.

Second, most Western democracies regard financial support for political ideals as part of the democratic right.

A total ban would almost certainly fall foul of the implied right of freedom of political communication in the Australian constitution.

Even partial bans have run foul. Bob Hawke's attempt in 1992 to ban television advertising in an effort to curtail the burgeoning costs of campaigning, was knocked on the head by the High Court. So was former NSW premier Barry O'Farrell's attempt to ban donations from unions and corporate donors.

The latest freedom of speech challenge is coming from former Newcastle mayor and property developer Jeff McCloy, who is challenging NSW's ban on developer donations. The ICAC heard allegations that McCloy had paid $30,000 in secret donations to local Liberal MPs in breach of NSW laws which ban certain classes of people, including property developers from making political donations. The ICAC report and the High Court decision are still pending.

The thinking behind NSW's approach of banning certain classes of donors is that the profits of developers, the alcohol industry and the gaming industry are directly affected by state decisions and so the risk of corruption is much higher.



Anonymous said...

Corruption should have to be proved and then punished.

Anonymous said...

"Corruption" should first have to be defined as it can be open to interpretation (widely).

Use the Name, Luke said...

Corruption (in politics) = Bribery.

Bribes disguised as "political donations" are still bribes. The challenge is that that donating to someone who will do what you want them to do even if you didn't donate can often be indistinguishable from donating to someone to cause them to do something. The former is support and the latter is bribery.

stinky said...

Banning/controlling donations via a central authority? That cure is worse than the disease.

Bird of Paradise said...

And here they passed Campaign Finance Reform

Anonymous said...

The problem with an implied right is that it is even more nebulous and liable to vary than an express one.
Given the right case I could see the High Court bend on this issue.