High Court rules donation bans, caps compatible with free speech

The High Court last week made an important decision on the implied constitutional freedom of political communication. Jeff McCloy, a property developer, challenged the validity of NSW restrictions on political donations. The High Court’s ruling was important because it upheld the laws, clarified the test to be applied in “implied freedoms” cases, and confirmed that equality of participation in democracy was a “grand underlying principle” of the Constitution.

In its 2013 Unions NSW v New South Wales decision, the High Court ruled that a ban on all non-voters making political donations was an impermissible restriction of the implied freedom of political communication. While the government claimed it was aimed at eliminating corruption, the Court held there was no clear link between the challenged provisions and that purpose, and therefore the law failed the Lange test.

This prompted McCloy to challenge provisions in the Election Funding, Expenditure and Disclosures Act 1981 (NSW), which bans property developers from making political donations. Applying the logic of the precedent, he argued there was no reason to believe property developers were more likely to make corrupt donations than other people, therefore there was no rational connection to anti-corruption purposes.

However, a majority of the Court firmly rejected this argument, finding that “Property developers are sufficiently distinct to warrant specific regulation”, referring to “recent history” in NSW including a number of reports by the Independent Commission Against Corruption (ICAC). The law was therefore appropriately adapted to the legitimate purpose of preventing corruption or the appearance of corruption.

(The Court’s reliance on ICAC was interesting because the plaintiff’s illegal donations to Liberal Party MPs were uncovered through an ICAC investigation. In his testimony, McCloy said, “They all come to see me for money, I feel like a walking ATM, some days.”)

The Unions NSW case also struck down a combined cap on election spending by political parties and any affiliated industrial organisations. Although the law did not specify any particular target, the plaintiffs pointed out the Labor Party had maintained affiliation with trade unions for more than a century. Hayne J expressed concern this may have been the true target of the law, asking the NSW Government’s counsel, “Is there any other party to which 95G(6) presently has application? … Are we to ignore 100 years of history in this country, Mr Kirk? Are we to shut our eyes to what has been observed over the last decades?” The Court again held there was no rational link to an anti-corruption purpose, so the combined spending cap was unconstitutional.

McCloy sought to expand on this precedent, taking aim at the Act’s general cap on political donations. He argued “that the ability to pay money to secure access to a politician is itself an aspect of the freedom and therefore the subject of constitutional protection”. The High Court majority emphatically rejected this argument, holding that donation caps “are not only compatible with the system of representative government; they preserve and enhance it.”

They noted that in the absence of limits on donations, wealthy citizens may have a greater influence over our political system than others. The majority explicitly held that “Equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution.” Professor Graeme Orr argues this is the most significant aspect of the decision, because it balances the competing values of liberty and equality.

Another significant aspect of the decision was the Court’s attempt to clarify the second limb of the Lange test, which requires that a law is “appropriately adapted” to achieve its purpose. However, over a series of cases there was disagreement about how to judge this, and in particular whether this was a test of “proportionality”. In August this year, Sir Anthony Mason (who was Chief Justice from 1987-1995) gave a speech on Proportionality and its Use in Australian Constitutional Law, in which he identified three competing versions of the concept emerging from past High Court precedents.

In McCloy, the High Court majority confirmed that “proportionality analysis of some kind is part of the Lange test”, and clarified what this meant in the Australian context. They said it did not simply “involv[e] matters of impression, such as whether the legislative measures go too far, or not far enough”. Specifically, “there are at least three stages to a test of proportionality. … [T]hey are whether the statute is suitable, necessary, and adequate in its balance.” That final stage requires the Court to consider whether the burden on an implied Constitutional right outweighs the benefit of the law.

Critics of “judicial activism” argue that this allows unelected judges to interfere with the power of the Parliament to determine priorities and legislate accordingly. However, the High Court majority explicitly rejects this criticism: “The fact that a value judgment is involved does not entitle the courts to substitute their own assessment for that of the legislative decision-maker. … However, the courts have a duty to determine the limit of legislative power affecting constitutionally guaranteed freedoms, and assessments by courts of the public interest and benefit in a piece of legislation are commonplace. … To say that the courts are able to discern public benefits in legislation which has been passed is not to intrude upon the legislative function.”

Professor Anne Twomey suggests the decision may prompt legal change in jurisdictions around Australia:  “the High Court has opened the way for more comprehensive reform of political donations at the state and federal level. The excuse that it ‘might be unconstitutional’ no longer has legs.”

Abbott replaced by Prime Minister Turnbull

Malcolm Turnbull has been sworn in as Prime Minister, after defeating Tony Abbott in a ballot for the leadership of the Liberal Party.

Australia has now had six prime ministers in the last eight years. The Coalition campaigned on a platform of stability in the wake of the Rudd-Gillard-Rudd years, telling voters “If you vote for the Labor party in 2013 who knows who you will end up with”, and promising stability.

However, Abbott’s leadership of the Liberal Party came under pressure due to his continued poor results in opinion polls. He survived a challenge in February after he asked for six months to prove he could improve the Coalition’s popularity, declaring that “It’s the people that hire, and frankly it should be the people that fire.”

However, the polls did not turn around, and after being informed that he was losing support, Abbott called a leadership spill. After a ballot in which he lost by 54-44, he resigned by sending a fax to the Governor-General, recommending that Malcolm Turnbull be sworn in.

The new Prime Minister promised to return to “thoroughly traditional cabinet government”, characterised by greater consultation and ministerial independence from the Prime Minister’s office.

VLRC kept busy with cannabis, while NSWLRC is gutted

The Victorian Law Reform Commission has released an issues paper on Medicinal Cannabis. The paper notes that the “terms of reference do not invite the Commission’s views on [the merits of] this policy”; instead, the Attorney-General asked it to consider how the policy could be implemented, and to ensure the expert advice of medical practitioners was taken into account. The two main questions it seeks to answer are “Who should be eligible to use cannabis for medicinal purposes?” and “How extensive should any Victorian medicinal cannabis scheme be?” The VLRC has asked the public for submissions in response by 30 April 2015, as it must report by 31 August. Meanwhile, the NSW government is scaling back their Law Reform Commission. It has not referred an issue for more than two years, and legal journalist Richard Ackland reports, “The position of chairman of the LRC has not been filled since James Wood retired over a year ago. No full-time commissioners have been appointed for over 12 months.” Furthermore, “All five of the existing LRC staff are seeking jobs elsewhere, and have been advised to do so by the department”; the Justice Department will instead take over the day-to-day administration of the LRC and allocate departmental staff when needed. Ackland suggests this may be an attempt by the executive to effectively abolish the NSWLRC as an independent body without parliament repealing the Law Reform Commission Act 1967 (NSW): “The commission, as a self-contained functioning entity, dedicated to independent investigation into legal policy issues, is finished.” (This approach has been taken before: when the Abbott Government’s attempt to abolish the Office of the Australian Information Commissioner was blocked in the Senate, it nevertheless redistributed staff to other agencies and closed the office, leaving the Commissioner to oversee the Freedom of Information system by himself, working on a laptop at home.)

Higher education bill’s failure highlights bicameral challenge

The Abbott Government is struggling to make laws, as the AFR‘s Laura Tingle observed: “Consider the government’s legislative record for 2015. It is not good. It has passed just one piece of legislation through both houses of parliament this year… On all its major reforms, its lack of political capital now renders the government impotent in the Parliament.” In part, this is because with 33 seats the Government does not have a majority in the Senate, and must find an extra six votes from Labor (29), the Greens (10) or a diverse group of minor party and independent senators (8). (The task has become more difficult with the resignations of Jacqui Lambie and Glen Lazarus from the Palmer United Party; they must now be courted separately.) The difficulty of negotiating bills through the Senate is highlighted by the Government’s proposed higher education reforms, which involve funding cuts to be made up through deregulation of student fees. The Education Minister, Christopher Pyne, adopted a tough negotiating stance, threatening to end a scientific research program if the bill wasn’t passed. This was rejected by most of the crossbench senators, and Pyne said he had “fixed it” by splitting the bill into two parts. The first, dealing with fee deregulation, was rejected yesterday, with only three crossbenchers supporting it. Pyne now says he will reintroduce it later, potentially creating a trigger for a double dissolution election. However, Professor Anne Twomey explains that the Government would be unlikely to pull that trigger because, while the they might be able to pass the deadlocked bill through a joint sitting under section 57, “it would be likely to make it even harder for the Coalition to negotiate [other] bills through the Senate. Because 12 Senators would be elected in a State, rather than six, the quota for winning a seat would be lower. This makes it much easier for micro parties and independents to win seats.” A joint sitting to resolve a deadlock has only occurred once in Australia’s history.

New government, new portfolios

At the election held on 29 November 2014, the Victorian electorate voted for a change of government. The new premier, Labor’s Daniel Andrews, immediately made significant structural changes to the executive. There will now be just nine government departments, each covering multiple portfolios. This is designed to improve efficiency, but the new “super-departments” might be difficult to manage. He also created two new portfolios within the Department of Premier and Cabinet. Martin Foley is Australia’s first Minister for Equality, focussing on LGBTI issues, and Fiona Richardson is the first Minister for the Prevention of Family Violence. These new portfolios suggest the government’s priorities for the next three years. However, they might face problems passing bills through the Legislative Council, where the balance of power is held by five “micro-party” MLCs with vastly different interests.

Voters choose convenience over democracy sausages

The Victorian State election is still four days away, but more than 500,000 people have already voted. The Victorian Electoral Commission says a surge in postal and early voting it is possible a quarter of eligible voters have cast their ballot before election day. “Convenience voting” is designed to improve democratic participation by ensuring citizens aren’t prevented from voting by illness, work commitments or travel. However, while convenience voting has rapidly increased over the last decade, VEC statistics show voter participation hasn’t improved. The University of Queensland’s Graeme Orr is concerned that this trend towards convenience voting is changing our democratic culture: “[T]here is a baby and bathwater dimension to the relationship between convenience voting and the role of polling day. If delivering convenience voting becomes our main goal, polling day will be diluted. … Polling in person on election day is more than an empty ritual; it may be a richer form of participation. There is an important distinction—both symbolic and real—between polling day as a communal event, and the elongated process by which individuals vote over many days or weeks, ensconced in their own homes or pre-polling in electoral offices.” Indeed, early voters will not enjoy a “democracy sausage”—supporting schools and community groups—as part of their voting experience. In addition, convenience voting may have an impact on the outcome of elections, as votes are case before the parties have fully outlined their positions on key issues. (Teachers: the current issue of the AltLJ includes classroom activities based on Orr’s article.)

NSW to lose a federal seat, WA to gain one

The Australian Electoral Commission has announced that at the next federal election, NSW will lose a seat in the House of Representatives, and WA will gain one. Section 24 of the Constitution requires that “[t]he number of members chosen in the several States shall be in proportion to the respective numbers of their people”, with a minimum of five seats if the population is too low (such as in Tasmania). The AEC calculates the number of seats based on up-to-date statistics, and then holds public consultations on the fairest way to redraw the electoral boundaries.

Victorian election officially called

On Tuesday, Governor Alex Chernov issued the writs to formally call a Victorian election for Saturday, 29 November 2014. Unlike the Commonwealth, Victoria has fixed four-year parliamentary terms, with elections usually held on the last Saturday in November. Enrolment and voting is compulsory for all adult citizens who have lived in Victoria for more than one month. The deadline to enrol or update your details is 8:00pm on Tuesday, 11 November 2014. Students who are over 16 or 18 may be interested in working for the VEC on election day. Election-specific news coverage can be found at the Herald-SunThe Age, and the ABC.

Geoff Shaw returns to Parliament

The Member for Frankston, Geoff Shaw, returned to Parliament this week following his suspension. Upon his return, he gave a Personal Explanation: “To avoid being in contempt of the Legislative Assembly, … I humbly and sincerely apologise to the house and to the people of Victoria for my breach of the code of conduct for members”. However, later that day, Shaw told the Herald Sun the situation was “a political farce”. Premier Denis Napthine took this as evidence that the apology was not genuine, and moved a motion to expel Shaw permanently—but the Opposition dismissed it as a “stunt” and voted with Shaw to keep him in the chamber. There is only one sitting week of parliament remaining before the election.

Abbott abandons 18C change; racial insult ban stays

It will remain illegal to “offend, insult, humiliate or intimidate” people on the basis of their “race, colour, or national or ethnic origin”, after the federal government abandoned its election promise to amend section 18C of the Racial Discrimination Act 1975 (Cth). Prime Minister Tony Abbott made a “leadership call” and overruled Attorney-General George Brandis, who had been pushing for the amendment. The decision was made after a strong public backlash. It was revealed last week that more than 75% of submissions in the consultation process were opposed to the plan. However, not everyone is pleased by the backdown. The Prime Minister phoned Andrew Bolt to tell him of the decision before it was announced publicly, and Bolt is not pleased. He has previously breached section 18C in writing about light-skinned Aboriginal people, and now complains that he will be unable to speak his mind about “Muslims” and “people from the Middle East”.