Page 30 - Week 01 - Tuesday, 12 February 2019
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The government’s bill banning property developers from making political donations goes some way towards limiting potentially questionable donations. I understand that this was modelled off the New South Wales legislation that was upheld by the High Court in the McCloy case. That legislation, the Electoral Funding, Expenditure and Disclosures Act 1981 in New South Wales, also banned donations from a number of other sectors, including gambling, tobacco and liquor industries. The current New South Wales legislation, the Electoral Funding Act 2018, maintains this list of prohibited donors.
The Greens’ amendments do not target alcohol or tobacco industries, and focus instead on banning gambling donations. This is because we think that gambling is much more likely to be an issue in the ACT. Unfortunately, new standing order 182A means that we had less time available to write amendments.
The McCloy case concerned property developers, rather than the other three categories of prohibited donors. It followed quite a number of cases in the New South Wales Independent Commission Against Corruption which showed undue influence from property developers. The ACT has almost, but not yet, got a functioning integrity commission; thus there is no proven evidence of widespread corruption or similar untoward behaviour relating to the property sector.
Nonetheless, both property developers and gambling entities are in a position where relatively simple changes in government policy can have major implications for their viability and profitability. For example, the zoning or permitted uses of a particular block of land or precinct, a cap on the number of poker machines or a pre-commitment requirement for gamblers could have major financial implications for the entities who are governed by them, in particular, gambling and property development entities. Given that the value of property development and gambling businesses is so dependent on government regulations, it seems to us entirely reasonable and proportionate to ban donations from these types of businesses.
One of the issues, though, is that, despite the best of intentions, defining a property developer is quite difficult. There are numerous people and organisations who are involved in most developments. The threshold for the legislation before us today is very similar to the one in New South Wales. It relates to the number of successful development applications—three—in a given period, which is the previous seven years, or one current, open DA. Of course, only one entity submits a DA for development, so unless the developer totally utilises in-house resources, there are likely to be many people and many organisations involved in a given development, and some of these people will not be caught under the government’s definition of “property development”. Some of them should not be caught, because they are so peripherally involved.
This is one of the reasons why the Greens will also be seeking to limit the size of donations to $10,000 per year. This will catch all entities. In Lange v Australian Broadcasting Corporation [1997], the High Court reiterated the test for determining whether legislation infringes on the implied freedom of political communication.
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