AQ: Australian Quarterly

Democracy before dollars:

The problems with money in Australian politics and how to fix them

- PROF JOO-CHEONG THAM

There is a deep paradox at the heart of representa­tive democracy: it is a form of rule by the people that distances itself from the people. The central justificat­ion for representa­tive government is popular sovereignt­y. As the Universal Declaratio­n of Human Rights proclaims, ‘(t)he will of the people shall be the basis of the authority of government’. Yet as representa­tive,

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not direct, democracy, there is structured distance between ‘the

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people’ and those who exercise government­al power.

The aspiration of representa­tive democracy is that this distance is bridged by strong mechanisms of accountabi­lity and responsive­ness, as well as an ethos based on the public interest, all of which seek to ensure that government officials rule ‘for the people'. The obvious risk is that this distance becomes a gulf and that public officials govern for a few, rather than ‘for the people' – that an oligarchy operates rather than a democracy.

It is a startling fact that many Australian­s believe – and increasing­ly so – that government functions as an oligarchy. Survey evidence shows that perception­s that ‘[p]eople in government look after themselves' and ‘[g]overnment is run for a few big interests' have risen significan­tly since the 2000s, so much so that in 2017 more than 70% of respondent­s agreed with the first statement and more than half with the second.

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And since 2016, there has been a 9% increase in perception­s that federal members of parliament are corrupt (85% saying ‘some' are corrupt, 18% responding that ‘most/all' are corrupt).

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Capitalism vs democracy

These perception­s of oligarchy would have surprised Plato who had Socrates say that ‘democracy comes into being after the poor have conquered their opponents, slaughteri­ng some and

banishing some, while to the remainder they give an equal share of freedom and power'. 5 Surviving the passage

of time is, however, the insight that democracie­s carry the risk of class domination. But it is the wealthy, rather than poor, who are controllin­g the levers of power. The most potent danger of oligarchy in contempora­ry times is plutocracy.

A risk is not, however, an inevitabil­ity. Whether democracie­s warp into plutocraci­es turns fundamenta­lly on how society is organised. And here, democracy fights with one hand tied behind its back in economies organised according to capitalist principles

– where the means of production, distributi­on and consumptio­n are privately owned and driven essentiall­y by the profit motive.

This occurs, firstly, because democratic principles are not seen to apply to the private sector – a most significan­t part of society – even though power is routinely exercised by private entities. Notably, in most workplaces, there is a system of ‘private government' 6

where the power of employers over their workers can often be dictatoria­l, where, as John Stuart Mill puts it, the great majority are ‘chained . . . to conformity with the will of an employer' 7

– and yet we are socialised to consider this as a realm where democracy should not travel.

And in the ‘public' sphere where democratic principles (popular control; political equality; the public interest) are supposed to apply, these principles are in constant threat of being subverted. Under capitalism, what Albert Einstein considered ‘the predatory phase of human developmen­t', 8

‘the members of the legislativ­e bodies are selected by political parties, largely financed or otherwise influenced by private capitalist­s who, for all practical purpose, separate the electorate from the legislatur­e'. 9

Indeed, businesses have power through direct contributi­ons to parties – and through ownership of the means of production, distributi­on and exchange. It is power through ownership (private property rights) that gives rise to what Lindblom in the classic study, Politics and Markets, described as the ‘privileged position of business'. 10

This implies tremendous power in the market and in the political sphere.

It is a startling fact that many Australian­s believe – and increasing­ly so – that government functions as an oligarchy.

Democratic principles are not seen to apply to the private sector – a most significan­t part of society – even though power is routinely exercised by private entities.

Businesses have power in the political sphere because political representa­tives rely heavily on the decisions of businesses for their electoral success. As Lindblom has observed, ‘[b]usinessmen cannot be left knocking at the doors of the political systems, they must be invited in.' 11

These dynamics profoundly shape understand­ings of the ‘public interest'. For Einstein, they meant that ‘the representa­tives of the people do not sufficient­ly protect the interests of the underprivi­leged sections of the population'. Their effects can, in fact, 12

be deeper – when the ‘public interest' is equated to the demands of the most powerful businesses, the corruption of representa­tive systems by capitalism is well underway, if not complete.

Transparen­t failures in the funding of political parties

Even barring fundamenta­l reorganisi­ng of society, democracie­s have a range of tools to insulate the political process from plutocrati­c control. Choices can be made whether to vigilantly guard against the threats of capitalism against democracy; to neglect them and allow them to fester; or worse, to be complicit in the disenfranc­hisement of the public.

The actions of the political elite at the national level have tended to fall towards the latter end of the spectrum with laissez-faire regulation of political

party funding the most-favoured position.

As a result, Australia's democracy has been seriously undermined in three major ways. First, through secrecy in political funding. While federal political parties are subject to annual obligation­s where they are required to disclose their income, expenditur­e and debts, this is not a scheme that achieves transparen­cy – it is a non-disclosure scheme. It is notorious for its lack of timeliness with contributi­ons disclosed up to 18 months after they were made.

For instance, the $1.75 million donation made by the former Prime Minister, Malcolm Turnbull, to aid the Liberal Party's 2016 federal election campaign was disclosed more than 13 months after it was made. 13

In recent years, more than half of the major parties' income is not itemised as a result of a high disclosure threshold (the level at which contributi­ons need to be itemised) which applies to each contributi­on made (hence, allowing for ‘splitting' of contributi­ons). 14

Such secrecy should not surprise us. Senator Eric Abetz, when sponsoring 2006 amendments that weakened the

Contributo­rs to political parties can give as much as they wish and parties can receive as much as they wish. The result has been a corruption of the political process.

federal disclosure scheme, said that he hoped for ‘a return to the good old days when people used to donate to the Liberal Party via lawyers' trust accounts'. 15

The second way in which Australia's democracy has been undermined by political contributi­ons stems from the fact that at the federal level, there are virtually no limits on political contributi­ons – contributo­rs to political parties can give as much as they wish and parties can receive as much as they wish. The result has been a corruption of the political process.

It is not quid pro quo corruption (where money is directly exchanged for a favourable decision) which is the principal danger, though the shroud of secrecy means we cannot rule this out. The predominan­t danger is corruption through undue influence. 16

Such corruption occurs when influence over the political process is secured by virtue of the payment of money. In these situations, the essential ingredient of corruption is present: the exercise of power on improper grounds (the payment of money) resulting from the receipt of a benefit.

Such corruption is present with the sale of access and influence by the major parties – what former Prime Minister, Tony Abbott characteri­sed as a ‘time-honoured' practice. 17

Less obvious, but of more significan­ce, is what the High Court has described as ‘clientelis­m'. As the High Court describes it, clientelis­m ‘arises from an office holder's dependence on the financial support of a wealthy patron to a degree that is apt to compromise the expectatio­n, fundamenta­l to representa­tive democracy, that public power will be exercised in the public interest'.

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Risk of clientelis­m clearly arises with the dependence of major parties on corporate contributo­rs and, in the case of Australian Labor Party, its reliance on trade union funds. And it is most emphatical­ly present in the way in which the major parties have actively cultivated business donors with strong links with the Chinese Communist Party Government. The three most notable donors, Huang Xiangmo, Chau Chak Wing and Zhu Minshen, secured access to the highest levels of political office, including meetings with Prime Ministers Rudd, Gillard, Abbott and Turnbull, after donating millions of dollars to their parties. As Clive Hamilton rightly

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notes, ‘(d)onations to political parties are the most obvious channel of influence for the CCP (Chinese Communist Party) in Australian politics'.

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The third way in which laissez-faire regulation of political party funding has undermined Australia's democracy is through unfairness – departures from the ideal of political equality. Corruption through undue influence is bound up with unfairness. Jeff Kennett, former Liberal Premier of Victoria captured this well in relation to the sale of access and influence:

Donations to political parties are the most obvious channel of influence for the CCP (Chinese Communist Party) in Australian politics.

The profession­alism of selling time has risen to such a level that it has corrupted the democratic process; it corrupts the principle [that] all people are equal before the law. 21

There is unfairness when power follows the giving of money, as well as when the giving of money follows power. Corporate contributi­ons almost universall­y flow to the major parties, the parties likely to be in government. And even with the major parties, incumbency can give rise to a significan­t fund-raising advantage. The coming New South Wales State Elections, for instance, will see the New South Wales Liberal Party having raised more than

three times the amount received by the New South Wales Labor Party, most probably because of its incumbent status.

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With no limits on election campaign spending, such unfairness in fundraisin­g easily translates into unfairness in the electoral contests, with political parties favoured by corporate sponsors enjoying a significan­t spending advantage.

The very same absence of spending limits enables Clive Palmer to pour more than $50 million into the coming federal election, potentiall­y outspendin­g the Liberal Party and also the Australian Labor Party. With an estimated wealth of $1.8 billion, Palmer's spending shows how big money in elections is small change for the mega-rich.

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The (almost) lawless world of political lobbying

Money influences politics not only through political contributi­ons but also through political lobbying – attempts to influence the political process through communicat­ion with public officials. After all, political lobbying is invariably a funded political activity; and political lobbying and political contributi­ons are often deployed as different strategies directed at the same goal of influencin­g the political process.

Laissez-faire regulation of political lobbying shares the trinity of vices resulting from laissez-faire regulation of political party funding: secrecy; corruption; unfairness. 24

The Australian Government Lobbyists Register25 makes a tepid gesture towards transparen­cy. While it reveals some informatio­n about commercial lobbyists (lobbyists who act on behalf of third parties), it fails to fully disclose who is engaging in lobbying, particular­ly through its exclusion of in-house lobbyists (of companies, trade unions and other non-government organisati­ons). 26

There are other signal defects: the register fails to disclose who is being lobbied; the subject matter of lobbying; and the timing of the lobbying. All this is exacerbate­d by lax enforcemen­t by the Department of the Prime Minister and Cabinet: there has not been the suspension or removal of registrati­on of a single lobbyist since 2013, despite the Department identifyin­g at least 11 possible breaches. 27

Such lax enforcemen­t does not appear to be problemati­c for the Department. According to its Secretary, the Lobbyists Register and its Code ‘is an administra­tive initiative, not a regulatory regime'. 28

In the wake of secrecy comes the risk of corruption and misconduct. This is hardly a remote risk, as the various findings of misconduct made by the Western Australia Crime and Corruption

Political lobbying shares the trinity of vices resulting from laissezfai­re regulation of political party funding: secrecy; corruption; unfairness.

Commission in relation to the lobbying activities of former Western Australia Premier, Brian Burke, make clear. 29

Far from it, there is a sense that this risk is growing in proportion to the number of former Ministers and senior public servants who are employed in the private sector after leaving public sector employment (which is known by the technical term, ‘postsepara­tion employment'). This is now a well-establishe­d pathway with more than a quarter of former Ministers and Assistant Ministers taking up roles in peak organisati­ons, large corporatio­ns, lobbying and consulting firms since 1990. 30

As the New South Wales Independen­t Commission Against Corruption (NSW ICAC) has observed, ‘(c)onflicts of interest are at the centre of many of the post-separation employment problems.' 31

First, the prospect of future employment can give rise to these conflicts: public officials, including Ministers, may modify their conduct, by going ‘soft' on their responsibi­lities or, generally, making decisions favourable to prospectiv­e private sector employers, in order to improve their post-separation employment prospects. 32

Conflicts might also arise when public officials are lobbied by former colleagues or superiors: it is the prior (and possibly ongoing) associatio­n that can compromise impartial decision-making.

The Commonweal­th Lobbyists Code of Conduct does acknowledg­e the risks of post-separation employment. For instance, clause 7.1 states that former federal Ministers and Parliament­ary Secretarie­s ‘shall not, for a period of 18 months after they cease to hold office, engage in lobbying activities relating to any matter that they had official dealings with in their last 18 months in office'.

The inadequacy of this measure is, however, vividly illustrate­d by the case of Andrew Robb, former Trade Minister, who took up an $880,000 consultanc­y with Chinese firm, Landbridge, immediatel­y after he departed Parliament. 33

There is at the very least, a reasonable perception of a conflict of interest between Robb's duties when Trade Minister, which included the negotiatio­n of the China-australia Free Trade Agreement, and the prospect of such employment by a firm that would benefit from this agreement. This was a possibilit­y that would have been clearly discussed prior to Robb's retirement from Parliament, given the timing of his retention by Landbridge.

Yet, neither the post-separation ban in the Lobbyists Code of Conduct or its twin in the Statement of Ministeria­l Standards 34 effectivel­y deals with this conflict: they apply only to ‘lobbying activities' but not to lobbying-related activities such as providing political

There has not been the suspension or removal of registrati­on of a single lobbyist since 2013, despite the Department identifyin­g at least 11 possible breaches.

intelligen­ce; and are restricted to matters in which the former Ministers have had ‘official dealings', a restrictio­n that excludes many matters that would have fallen within Robb's ministeria­l portfolio but about which he may not have had ‘official dealings'.

And then there is unfair access and influence from failing to properly regulate lobbying. Secret lobbying, by its nature, involves such access and influence. When lobbying or the details of the lobbying are unknown at the time when the law or policy is being made, those engaged in that lobbying are able to put arguments to decisionma­kers that other interested parties are not in a position to counter simply because they are not aware that those arguments have been made.

Secrecy, for one, seems to be integral to the power wielded by what has been labeled the ‘most powerful lobby group' – Pharmacy Guild of Australia. 35

The influence wielded by the Pharmacy Guild, particular­ly through lobbying, 36 has prompted Stephen

Duckett, former Secretary of what is now the Commonweal­th Department of Health, to characteri­se the pharmacy industry as “a classic example of what economists call ‘regulatory capture': the regulator acts in the interest of the regulated, rather than the public interest”. 37

Even without secrecy, unfair access and influence can result from lobbying through the creation of ‘insiders' and ‘outsiders' to the political process. The former consists of a tightly circumscri­bed group that includes commercial lobbyists and in-house lobbyists of companies, trade unions and nongovernm­ent organisati­ons. The latter is the rest of us.

Not all are equal, of course, within the group of ‘insiders' and here the ‘privileged position of business' speaks with a loud voice. Witness, for instance, the almost ritualisti­c trips made by Prime Ministers to the New York residence of Rupert Murdoch. 38

Consider too that where ministeria­l diaries are published (Queensland and New South Wales),

Secrecy, for one, seems to be integral to the power wielded by what has been labeled the ‘most powerful lobby group’ – Pharmacy Guild of Australia

most disclosed meetings held by senior ministers were with businesses or industry peak bodies. 39

And here, unfairness is bound up with corruption when privileged access to the political system is bought, for example, through securing the services of former Ministers. As the NSW ICAC has observed: The problem arises when the lobbyist is someone who claims to have privileged access to decision-makers, or to be able to bring political influence to bear. The use of such privilege or influence is destructiv­e of the principle of equality of opportunit­y upon which our democratic system is based. The purchase or sale of such privilege or influence falls well within any reasonable concept of bribery or official corruption. 40

A toxic environmen­t

When it comes to money in politics, there is what George Monbiot has identified as the Pollution Paradox:

The dirtiest companies must spend the most on politics if they are not to be regulated out of existence, so politics comes to be dominated by the dirtiest companies. 41

Perhaps nothing more vividly illustrate­s this paradox in Australia than the vice-like grip that fossil fuel companies have on its politics. The power of the ‘fossil fuel order' 42 or ‘fossil fuel power

network' 43 has been clearly facilitate­d

by the use of money in politics. For example:

• These companies are amongst the largest contributo­rs to the major parties; 44

• The success of the $22 million adver

tising campaign by mining companies against the Rudd government's resource super profits tax is part of political folklore – so much so that ‘(i) t's now become routine for industry groups to threaten a ‘mining tax style campaign' every time they don't get their way with government'; 45

• Its employees and lobbyists have

included former ALP ministers Nick Bolkus, Greg Combet, Craig Emerson, Martin Ferguson; former National party leaders, John Anderson and Mark Vaile; and former Liberal Party ministers, Helen Coonan 46 and Ian Macfarlane; 47 and

• Published ministeria­l diaries indicate

that these companies enjoy disproport­ionate access to Ministers in Queensland and New South Wales. 48

With such power comes profound impact. Under the Howard government, climate change policy was determined by fossil fuel lobbyists (many of whom were former senior public servants) who likened themselves to organised crime through a self-styled label – greenhouse mafia.

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After making political contributi­ons to the Queensland Liberal National Party and the Liberal Party of Australia, and engaging commercial lobbyists, including former Queensland ALP Treasurer, Damien Power and former National Party Queensland Premier Rob Borbidge, mining company Adani secured significan­t policy concession­s for its proposed Carmichael mine (including deferment of mining royalties and compulsory acquisitio­n of land). And perhaps the most singular

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fact – fossil fuel companies have played an instrument­al role in ousting two out of the five prime ministers we have had since 2007, Kevin Rudd51 and Malcolm Turnbull.

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The health of our living world very much turns on the health of our democracy.

The dirtiest companies must spend the most on politics if they are not to be regulated out of existence, so politics comes to be dominated by the dirtiest companies.

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