Reining in political donations

Max Atkinson takes a pragmatic look at the politics at play in Tasmania in making our democracy less easily bought and sold

IT is now clear the present system whereby political parties can effectively purchase political power using third-party donors will not be easy to reform.

After struggling with it for more than 12 months, the Hodgman Government was unwilling or unable to offer a solution. This is despite the support and resources of the Treasury, the Law Department, the Law Society and the University law school (the Tasmania Law Reform Institute), the independent Tasmanian Electoral Commission and the University of Tasmania’s Institute for the Study of Social Change.

It does, however, give the new Tasmanian Premier a chance to put together a package of reforms to provide the state with the best and fairest laws to govern elections. It could do this by going directly to the heart of the matter, which is the anxiety each major party has that others will attract more donations than itself.

The immediate problem, given this fear, is to ensure major parties will not be disadvantaged. The only way to do this is with strict caps on donations, including third party donations, as well as caps on what candidates and parties can spend on elections.

This should not be difficult for a government that believes in one vote one value.

In the meantime, it is worth asking what might be possible if party leaders adopted this aim, because we could be surprised.

The first possibility arises from a promise made by Tasmanian Speaker Sue Hickey that, while she would guarantee the Government confidence and supply, she would deal with all legislation on its merits. There is a good chance she would agree it is time to ban third-party donations and impose realistic limits on parties and candidates.

The second possibility is that independent Madeleine Ogilvie might share this view.

This is likely to pose a problem for the leader of the Tasmanian branch of the Labor Party because Rebecca White might hold the same view but will not, commentators report, consider a deal with the Greens. Notwithstanding, and because the numbers in support of reform are now critical, she might seek advice from constitutional lawyers as to whether the state branch, with an unclear degree of autonomy under the party’s constitution, can go it alone.

If the answer is yes or perhaps and she decides to put up a bill to reform the law, the numbers could be 12-all, in which case the Speaker will exercise her casting vote.

The bill will then proceed to the Upper House, which might or might not find the reform arguments persuasive.

What, then, of the Tasmanian Greens? In this case, there is no room for doubt since the reform of political donation laws has been a priority for decades.

Some readers will recall former leader Bob Brown’s aim for an electoral system which would cap all donations at $100, which is arguably still the least unfair proposal. It is, after all, an amount which gives enthusiastic but not wealthy citizens a chance to invest in the nation’s future.

What, then, of the trade union faction in the state Labor Party, will they support third-party bans? The answer is unclear. Tasmanian unions are by far the most prominent third party and, because of their crucial social role, are likely to remain so. They do, however, have reason to be sceptical of reforms from both sides of politics if it lessens funding for health, education and welfare.

The question of what union factions may do is unclear because of a widely shared misunderstanding on the part of both the state and federal Labor parties. This is an unfounded belief that state parliaments lack the power to impose caps and bans on candidates and parties.

Recent decisions by the Australian High Court have refuted this claim. They have done so by clarifying and strengthening two implied constitutional principles which, when taken together, show there is abundant power to justify both caps and bans.

Indeed, they make a compelling case that, given the facts of reliance on third-party donors in the last Tasmanian election, both principles would justify their imposition.

Finally, much of the public discussion has assumed that the Liberal Party is bound to oppose these reforms because the status quo has so clearly advantaged them.

There is, however, no reason to assume the Premier would reject them out of hand. He might decide we are all better off if each vote has equal value and elections are held on a level playing field.

THE WAY TO DO THIS IS WITH STRICT CAPS ON DONATIONS, INCLUDING THIRD PARTY DONATIONS, AND CAPS ON WHAT CANDIDATES AND PARTIES SPEND.