A controversial electoral reform bill currently making its way through the Australian parliament is drawing fire from critics who argue its campaign finance provisions are not only ineffective, but likely unconstitutional. The Albanese Labor government’s legislation purports to take big money out of politics, but upon closer examination, it may do more to entrench the power of incumbents than clean up the system.
Sky-High Donation Caps Undermine Reform Goals
On the surface, the bill contains several positive measures aimed at improving transparency and limiting the campaign spending arms race. It lowers the disclosure threshold for political donations to $1,000 and requires more frequent reporting. Crucially, it also imposes caps on both donations and electoral expenditures.
However, these caps are set so high as to be nearly meaningless. An individual donor can give up to $20,000 to a party or candidate in each state, territory, and at the federal level annually. With some creative accounting, a single donor could contribute as much as $640,000 in a single year, or $1.28 million over a two-year campaign cycle.
While a donation of $5,000 is unlikely to buy influence, donations over $100,000, on an annual basis, certainly could do so.
– Constitutional law professor Anne Twomey
As Professor Twomey points out, the purported aim of preventing undue influence is utterly undermined by allowing such massive contributions to continue unabated. When the High Court inevitably scrutinizes this law, the government will be hard-pressed to defend these sky-high caps as a reasonable means of achieving a legitimate aim.
Expenditure Rules & Funding Formulas Tilt the Field
The constitutional issues don’t end with the ineffectual donation caps. The bill’s campaign spending limits and public funding provisions also appear to be rigged in favor of the major parties and incumbents.
Much of the taxpayer money directed to parties is allocated based on vote shares in the previous election, giving an automatic boost to those already in power. Independent candidates and new parties seeking to break in face a daunting uneven playing field.
One cannot seek to justify a law as levelling the playing field if it “favours the sitting members and their political parties at the expense of the views of those who do not hold political power”.
– Former High Court Justice Michael McHugh
As Twomey notes, the High Court took a dim view of similarly skewed rules in its very first case on the implied freedom of political communication. A law banning paid broadcast advertising, while granting limited free airtime mostly to parliamentary parties, was struck down as an unjustified burden on political speech.
Lack of Scrutiny Invites Court Intervention
Perhaps most concerning is the Albanese government’s refusal to allow robust parliamentary examination of the bill. Having reached a deal with the opposition Coalition, Labor is rushing the legislation through with minimal debate or opportunity for amendment.
This leaves the High Court as the only remaining check on a bill that, in Twomey’s words, reeks of “sneaky, excessive and unjustified” provisions more about entrenching power than cleaning up politics. Unless significant changes are made, the government may soon find its supposed reforms of democracy undone by the judiciary.
