Muddying the waters on Manildra donations

One fairly obscure aspect of the Manildra affair (which John Howard seems to have successfully if unjustly “toughed out” despite clearly lying to Parliament and failing to retract or apologise) relates to corporate political donations. The other day I heard Labor frontbencher Bob McMullan quizzed about his party’s belated and seemingly hypocritical rejection of a $50,000 donation from Manildra’s Dick Honan. Unfortunately I can’t now find it on the Internet. McMullan tried to deflect the interviewer’s probing about Honan’s donations and Labor’s attitude to them, by pointing out that the Hawke government had attempted to outlaw political donations and implement fully publicly-funded election campaigns where TV stations would be required to give political parties “free time” for tightly-regulated campaign advertisements. However, McMullan fulminated, the High Court had struck down Labor’s far-sighted legislation, a decision he labelled “ridiculous”.

Of course, McMullan was just trying to deflect attention away from his party’s current expedient and dodgy stance, but his attempted dismissive characterisation of the relevant High Court decision merits attention in its own right. The decision McMullan was referring to was the Political Advertising Case (1992) (ACTV v Commonwealth),which was one of the two decisions that established the implied freedom of political speech in Australian constitutional law. However, only a one-eyed supporter of one of the two major political parties could regard the decision as “ridiculous”, or the law struck down as a sensible or fair one let alone far-sighted.

It would have entrenched the dominance of Labor and the Coalition and effectively excluded minor parties and Independents from participation in the political process for evermore. A more carefully-designed piece of legislation aimed at reducing the influence of big corporate (and trade union) donations on the political process would stand up to constitutional challenge, as long as it respected the access rights of Independents and minor parties. McMullan’s peddling of a false contrary message does him no credit. Chief Justice Sir Anthony Mason eloquently discussed the pros and cons of political advertising restrictions in the following extended extract from ACTV:

In approaching the respective interests in this case, I am prepared to assume that the purpose of Pt IIID is to safeguard the integrity of the political process by reducing pressure on parties and candidates to raise substantial sums of money, thus lessening the risk of corruption and undue influence. I am prepared also to assume that other purposes of Pt IIID are to terminate (a) the advantage enjoyed by wealthy persons and groups in gaining access to use of the airwaves; and (b) the “trivialising” of political debate resulting from very brief political advertisements. Moreover, I am prepared to accept that the need to raise substantial funds in order to conduct a campaign for election to political office does generate a risk of corruption and undue influence, that in such a campaign the rich have an advantage over the poor and that brief political advertisements may “trivialise” political debate.

Given the existence of these shortcomings or possible shortcomings in the political process, it may well be that some restrictions on the broadcasting of political advertisements and messages could be justified, notwithstanding that the impact of the restrictions would be to impair freedom of communication to some extent. In other words, a comparison or balancing of the public interest in freedom of communication and the public interest in the integrity of the political process might well justify some burdens on freedom of communication. But it is essential that the competition between the two interests be seen in perspective. The raison d’etre of freedom of communication in relation to public affairs and political discussion is to enhance the political process (which embraces the electoral process and the workings of Parliament), thus making representative government efficacious.

The enhancement of the political process and the integrity of that process are by no means opposing or conflicting interests and that is one reason why the Court should scrutinize very carefully any claim that freedom of communication must be restricted in order to protect the integrity of the political process. Experience has demonstrated on so many occasions in the past that, although freedom of communication may have some detrimental consequences for society, the manifest benefits it brings to an open society generally outweigh the detriments. All too often attempts to restrict the freedom in the name of some imagined necessity have tended to stifle public discussion and criticism of government. The Court should be astute not to accept at face value claims by the legislature and the Executive that freedom of communication will, unless curtailed, bring about corruption and distortion of the political process.

As I pointed out earlier, Pt IIID severely restricts freedom of communication in relation to the political process, particularly the electoral process, in such a way as to discriminate against potential participants in that process. The sweeping prohibitions against broadcasting directly exclude potential participants in the electoral process from access to an extremely important mode of communication with the electorate. Actual and potential participants include not only the candidates and established political parties but also the electors, individuals, groups and bodies who wish to present their views to the community. In the case of referenda, or at least some of them, the States would have important interests at stake and would be participants in the process.

It is said that the restrictions leave unimpaired the access of potential participants during an election period to other modes of communication with the electorate. The statement serves only to underscore the magnitude of the deprivation inflicted on those who are excluded from access to the electronic media. They must make do with other modes of communication which do not have the same striking impact in the short span of an election campaign when the electors are consciously making their judgments as to how they will vote.

It is also said that the protection given by s.95A to items of news, current affairs and comments on such items, and talkback radio programmes will preserve communication on the electronic media about public and political affairs during election periods. But access on the part of those excluded is not preserved, except possibly at the invitation of the powerful interests which control and conduct the electronic media. Those who are excluded are exposed to the risk that the protection given by s.95A may result in the broadcasting of material damaging to the cause or causes they support without
their being afforded an opportunity to reply.

The replacement regime, which rests substantially on the provisions relating to the grant of free time, is weighted in favour of the established political parties represented in the legislature immediately before the election and the candidates of those parties; it discriminates against new and independent candidates. By limiting their access to a maximum of 10 per cent of the free time available for allocation, Pt IIID denies them meaningful access on a non-discriminatory basis. As for persons, bodies and groups who are not candidates, they are excluded from radio and television broadcasting during election periods. The consequence is that the severe restriction of freedom of communication plainly fails to preserve or enhance fair access to the mode of communication which is the subject of the restriction. The replacement regime, though it reduces the expenses of political campaigning and the risks of trivialisation of political debate, does not introduce a “level playing field”. It is discriminatory in the respects already mentioned. In this respect I do not accept that, because absolute equality in the sharing of free time is unattainable, the inequalities inherent in the regime introduced by Pt IIID are justified or legitimate.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Homer Paxton
Homer Paxton
2022 years ago

Ken,

I thought the reason/spin for the giving back of the money was that soon after donating the money he was demanding a meeting with Super Simon ie a quid pro quo.
This ‘apparently ‘ didn’t have with previous donations.
So there Ken the ALP are full of honorable men!!

Gummo Trotsky
2022 years ago

Yes Homer, they are all of them honorable men.

Ken Parish
Ken Parish
2022 years ago

Homer,

Yes, McMullan’s primary defence was that Honan had sought a meeting with Simon Crean, and they ultimately decided that this meant the donation came with “strings” attached, and that’s why it was returned. The dismissive comments about the ACTV decision were very much a subsidiary part of McMullan’s justification, but they sparked my interest because of the constitutional law dimension.

Nevertheless, the fact is that the democratic implications of big money influence remain as relevant as ever. The issue has fallen off the political agenda because it doesn’t suit the interests of either major party to raise it (except cynically, dismissively and misleadingly as McMullan did). The two major parties maintain their dominance at present at least in part because of their privileged access to the lion’s share of corporate and union donations. It’s difficult not to conclude that they’re simply not interested in any form of campaign funding reforms that don’t allow them to securely maintain that dominance. Both parties have no shortage of good lawyers who know very well that what McMullan said is nonsense, and that it would be relatively easy to reform campaign laws in a constitutionally valid manner so as to minimise excessive big money influence. They simply don’t want to do so.

Of course, that then raises the obvious question of why the media hasn’t raised the issue given the self-serving silence of the politicians. For the commercial media the answer is obvious: they make big bucks out of political advertising, and any commercial TV political journalist is inevitably going to be reticent to offend Murpack in such an important revenue area.

With the ABC the answer is less obvious. Maybe it’s the erosion of journalistic standards flowing from the death of a Thousand Funding Cuts, or maybe it’s just the prevailing fashion for an aggressively confrontationist but vacuous juvenile cartoon caricature version of investigative journalism that mostly prevails among the “communards”.

Geoff Honnor
Geoff Honnor
2022 years ago

Honan himself denies vehemently that he had a prid quo pro expectation of a meeting with Crean following his donation. Nor, he says, did he have those expectations in relation to the $150,000 he’s reported to have donated to the ALP previously. That it seems was ‘clean’ money as opposed to the “dirty’ money (as Latham termed it) currently at issue. Maybe the party’s washing machine is on the blink?