Donation reform law must wait for court case feedback

Electoral laws must be right, which is why we’ve delayed the deadline, says Elise Archer

THE

Hodgman Liberal Government is committed to ensuring that our democratic processes are contemporary and that our laws are in line with changing technology. That is why our government committed to a review of electoral laws in May last year.

However, as first law officer of the state of Tasmania, I am particularly conscious that any reform to these laws must be carefully considered, measured and ensures no one party is advantaged over another.

The need for care has been highlighted by recent developments in the High Court that have seen certain parts of NSW electoral laws — those relating to the capping of third party expenditure — held to be unconstitutional.

There is the need to take care of how decisions of the High Court may impact on Tasmania, and this decision is highly relevant to several aspects of the current review into Tasmania’s Electoral Act and associated laws.

The decision directly relates to the issue of capping electoral expenditure by third party campaigners and potentially also extends to limits on donations to third parties for the purpose of electoral expenditure. The court considered that, at least in some circumstances, capping electoral donations and discriminating between political candidates and third party campaigners is legitimate and can be justified. However, no specific guidance or criteria was set down by the High Court to determine the process of justification to allow the burden to stand.

It is important to emphasise that any evidence used in support of a reform needs to be viewed through the lens of a court and how it would consider such matters — not through personal views or subjective perceptions of the public interest.

It is a clear finding of the High Court, however, that there must be material before the court to allow it to conclude that legislation which burdens the implied freedom of communication on governmental and political matters, implied and protected by the Commonwealth Constitution, can be justified.

As third-party regulation is an important part of our current review, it is critical that members of the public and all stakeholders have the opportunity to factor in the recent developments that flow from this High Court decision into their submissions.

As a result, the Government has decided to extend the consultation period until April 15. The decision of the High Court represents an important development in the law, and it is vital to the integrity of the final report that all those who have a submission be able to reflect on this and amend or add to their submission, as appropriate. This extended time frame will still enable the report to be finalised this year.

The importance of the consultation process is reflected by the first stage of the review that has resulted in the development of draft legislation for the removal of the election day media coverage ban (including social media comment), along with other straightforward

technical amendments to improve the operation of electoral laws in the state. This will allow for Tasmania’s electoral laws to be updated in the meantime and, in some cases, brought into line with other Australian jurisdictions before some Tasmanians are required to return to the polls this year.

There has been broad public support for the need for this Bill to pass both Houses of Parliament prior to Legislative Council elections this May and I look forward to introducing the Bill when Parliament resumes.

The more complex and contentious issues, as well as the views of all parties, will continue to be considered as part of the ongoing review, ahead of the release of the final report.

One of the most contentious proposals which some parties support being adopted in Tasmania is public funding for political parties and candidates.

As the interim report notes, every state in Australia which has increased disclosure requirements on political parties also has public funding — that is, public money going to political parties to help them campaign.

There are varying levels of dollars-per-vote in each state, and it is as high as $8 per vote in the ACT (with the same size parliament and Hare-Clark electoral system). It can also involve base funding for registered political parties, with the logic being that they are then less reliant on donations from other organisations or individuals.

As the Greens and some others are on the public record as supporting public funding, Tasmanians have a right to consider whether or not they want to introduce a restricted disclosure system which, in other states, requires public funding of election campaigns, and this will no doubt be an important issue discussed in their further submissions to the interim report.

To assist in making further submissions, an addendum to the original interim report has been prepared and is available at www.justice.tas.gov.au.

I look forward to hearing the views of Tasmanians and implementing reforms which will allow our great democracy to continue to flourish.