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.