Margo Kingston’s Web Diary hosts an excellent post this morning by
UNSW Latrobe law lecturer Joo-Cheong Tham discussing the issues surrounding whether the Australian Electoral Commission should require Tony Abbott’s delightfully deceptively-named Australians for Honest Politics to disclose the identities of its donors under existing law.
I agree entirely with Joo-Cheong Tham. Although there are a few vaguely respectable arguments to the contrary, a purposive (rather than narrow and technical) approach to interpreting the provisions (Part XX of the Commonwealth Electoral Act) results in a conclusion that disclosure is required. At the very least the appropriate course would have been for the AEC to demand disclosure and let the courts decide the question if Abbott chose to contest its decision.
In fact I think the more interesting questions here are political ones. Why didn’t the AEC make any moves to compel disclosure? Its passive approach suggests at least the possibility of a disturbing degree of politicisation of an arm of the bureaucracy whose fearless independence is crucial to a functioning democracy. As such this aspect of the Hanson/Abbott affair is arguably even more worrying than the “children overboard” affair, which provided strong evidence of the extent of creeping politicisation of the public service at large (and to an extent the defence forces as well).
In the longer term, I think the most desirable solution to dilemmas of this sort would be to revisit the sort of campaign funding and regulation laws struck down by the High Court in the Political Advertising Case in 1992, which established Australia’s implied constitutional freedom of political speech. Laws of that sort can remove far more effectively the ability of big money to influence or even determine electoral outcomes.
Several of the Justices in the Political Advertising Case hinted that it might well be possible to design laws to similar effect that would pass constitutional muster (e.g. see the extract from Mason CJ in my recent post about the Manildra affair), but no federal government since then has taken up the challenge. A cynic might conclude that this is because the only way to achieve a constitutionally valid regime of that sort would be to draft it in such a way that Independents, new and minor party candidates gained fair campaign access to the media. That would be an outcome that wouldn’t suit the interests of either major party.