Page 642 - Week 02 - Thursday, 19 February 2015
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The attorney may well argue here today that the aggregation of expenditure caps was under threat by the High Court decision in New South Wales v Unions NSW and that for this reason they should be removed. However, the evidence presented to the committee indicates that this is not the case and that he may well be the only person who thinks so.
The definition of an “associated entity” is far narrower than the New South Wales definition of an “affiliated organisation”, which was found not to be legal by the High Court. We are talking about organisations that are controlled by or established for the sole or significant purpose of benefiting a party. An affiliated organisation under the New South Wales legislation required only that the body be authorised to appoint delegates to the relevant party or participate in the preselection of candidates for the party. An affiliated organisation could have a purpose entirely unrelated to the party in question.
Constitutional law experts who gave evidence to the select committee thought that the ACT’s provisions in regard to the definition of an “associated entity” had a good chance of surviving any High Court challenge. Professor Anne Twomey indicated clearly that she thought part (a) of the definition would definitely survive and that part (b) was “probably okay”.
Professor George Williams indicated:
… there are sound reasons to say why these provisions are distinguishable from those struck down in the New South Wales legislation. They do operate much more narrowly and, critically, they do forge a strong link between the aggregated entities and the MLA or the political grouping. And that does mean you knock out the biggest concern to the court …
He went on to say:
There is certainly doubt about it, but I think there is certainly a real prospect that your aggregation provisions could survive.
The committee reached this view:
… there are valid reasons to include associated entities in caps on electoral expenditure by parties and non-party MLAs, in order to prevent the limits being avoided through the setting up of an entity with the sole purpose of assisting in the election of an MLA or candidates from a political party.
The committee expressly noted that even if paragraph (b) of the definition of an “associated entity” was problematic, paragraph (a) should be included—something that JACS acknowledged could be done. But this bill removes associated entities not from the act itself but from under the expenditure cap. If the government really thought there was a problem with the definition of part (b), they could have potentially wound that back. Rather, I believe it suited them to remove the provision altogether. It seems rather opportunistic to have done so.
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