Page 2782 - Week 07 - Wednesday, 29 June 2011
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
Caps already exist in Victoria. I refer members to the Victorian Electoral Act, section 216. This is a jurisdiction with a human rights charter. There is a cap in Victoria on how much gambling operators can donate. That is also capped at $50,000, and obviously that is a different position from a cap on all donations. Further, we are all aware of the reforms that have taken place in New South Wales as a result of particular improprieties that occurred there.
Donations are vexed, and, whilst some attention is given to the Labor party in this regard, we also have to make the point that it is not just about any one party. I understand, and I am happy to be corrected, that the Liberal Party of Australia is in fact the largest single recipient of donations from Philip Morris the world over.
I would like to turn to some of the constitutional issues that have been raised by the scrutiny committee and that are always raised in the context of electoral reform. The constitutional questions are very complicated and I do not propose to put a definitive argument here today. As a creature of the commonwealth parliament, it follows that we are subject to all the same limitations that the commonwealth parliament is subject to under the constitution. The most important of those for this debate is what is referred to as the implied freedom of communication, probably better characterised as a limitation of the legislative power of the commonwealth. I draw the attention of members to a passage in the judgement of Justices Gummow and Hayne in the case Coleman v Power, paragraph 195:
In Lange [v ABC], the court unanimously held that “[f]reedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates”. That freedom is not absolute; “[i]t is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution”. It operates upon the common law and also, in the manner identified by McHugh J in his reasons in this case, as a restriction on the legislative powers of the Commonwealth, the states and the territories.
It is a proportionate test and one that only the High Court can answer on the facts of any particular case.
These issues are considered in the scrutiny report. They are complicated and we have not had time to fully resolve them and completely satisfy ourselves of the detail. But we do support the overall principle of what is being put forward today.
It is helpful to look at broader experiences. I draw members’ attention to the United States case Citizens United v FEC, which I hope we all agree has not been good for democracy over there. This case effectively equated free speech with the ability to give money. In Australia we are in a different position where the constitution imposes a limitation on legislative power to the extent that it limits political communication. I sincerely hope that we do not want to go down the path of saying that financial gifts are equivalent to political free speech.
An alternative that has been used elsewhere is expenditure caps, as proposed for New South Wales, for example. I must admit that I cannot recall the exact outcomes of
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video