Party donation reform 'unconstitutional'

10 August 2011

Associate Professor Anne Twomey believes a complete ban on donations to political parties may conflict with the constitution.

Speaking before the Joint Standing Committee on Electoral Matters, Associate Professor Anne Twomey told the committee, "Can you completely ban donations in relation to non-individuals? Probably yes."

Corporations, unions and other organisations aren't voters, she said, but banning individuals would infringe on their right to free speech in the form of voicing that opinion by donating money to a political party.
"Basically (it is) putting your money where your mouth is, your use of your money as a form of political expression," she said in a report filed by the Australian Associated Press (AAP).

Associate Professor Twomey raised the idea of capping donations to a level low enough to eliminate the advantage of large organisations.

"Then the property developer or the big media corporation would have exactly the same influence
potentially as the corporation that runs the local fish-and-chip shop," she said.

But on the flipside, she warned about legislation that limited political parties or other organisations in how much they could spend during an election campaign.

"So if you make the cap too low and you impede that form of political communication ... then again you're vulnerable to constitutional problems," she said.

Related to this issue are incumbent parties and the advantage of them having access to funds set aside for government advertising.

"Again that may be a trigger for unconstitutionality," she said.

But having uniform legislation for the commonwealth and the states would be desirable, the committee heard, even though enacting such laws at the federal level could be seen as undermining state processes.

"Ideally, what one would have would be a cooperative scheme, where the states and the commonwealth come together, reach an agreement, enact a form of uniform legislation with one jurisdiction taking the lead and the others adopting (it)," Associate Professor Twomey said.
She stressed the importance of a national approach to also close any possible loopholes.
"If you impose limitations at one level and they don't exist at the other the money comes back in through the back door and the regulation tends to be ineffective," she said.

Contact: Greg Sherington

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