Joint Standing Committee on Electoral Matters
Inquiry into the funding of political parties and election campaigns, Tuesday 9 August 2011
Professor George Williams, Private capacity
Full transcript available here.
Senator RHIANNON: As you know, in relation to donations we have a ban in place now in New South Wales on developers, tobacco, for-profit alcohol and gambling, and I understand that for even longer there has been a ban in place in Victoria on gambling. In the time that those bans have been there I understand that there has not been a legal challenge, do you put any interpretation on that, that they are safe and that they stand up to the Constitution? Can we take anything from that?
Prof. Williams: The first thing to say is that the arguments for invalidity are certainly stronger at the federal level than at the state level, and that is because of the guarantee we are talking about, which is derived from the Australian Constitution and is about voting primarily in federal elections. It certainly has a counterpart at the state level but it can operate more weakly at the state level. Apart from that, I do not take much from the lack of a challenge. It is often the case that laws can sit on the books sometimes for decades only to be struck down decades later. It does demonstrate that, in the absence of a challenge, the law can operate quite happily, but it may well face a problem sometime in future.
Senator RHIANNON: I would like to ask you one question and then would you take on notice to provide us with more information about the modelling you talked about. When talking about bans and caps you said that modelling needs to be undertaken. Do you have any examples of that or how you envisage it would be put in place? You spoke about holistic reform in your opening statement and you spoke about specifics in the spread of the legislation. Are you also talking about the fact that there needs to be uniformity across the country with the different levels of government? Does that come into your interpretation of holistic reform?
Prof. Williams: On the modelling, I have not done the modelling myself and I do not have the expertise in that area. I am aware that Associate Professor Joo Cheong Tham has done work along those lines as part of his work, and I would look particularly to that.
CHAIR: I think he will be appearing before the committee tomorrow.
Prof. Williams: I would be asking him that specifically, because he has looked quite carefully at this, and he is the sort of person who is best equipped to answer questions such as the appropriate level of a cap and the like. I admit that I am making what are essentially educated guesses about that matter, and that is not satisfactory. Sorry—what was your second question?
Senator RHIANNON: It was about holistic reform.
Prof. Williams: Yes—in the states as well as the territories.
Senator RHIANNON: I am interested in the consistency across levels of government and across the country.
Prof. Williams: It is absolutely desirable. Without that, the possibilities are opened up to work around one level of regulation by operating at a state or territory level. Nonetheless, my view is that there are still great advantages of proceeding, even if the federal parliament needs to do so initially and alone. It might actually provide a model that can then be adopted elsewhere, so we have a seamless network of regulation.
Senator RHIANNON: I do have just one more thing—again, grappling with the constitutional aspects of this. All voters, including company executives, can engage in campaigning, make individual donations and engage in any aspect of campaigning. We are seeing more and more that they are becoming third parties. Does that also cover this constitutional problem that we often try to explore—that is, that in fact they are not being excluded, because they can come into the political process in these ways?
Prof. Williams: Certainly it does in the sense that they have the capacity to put arguments on behalf of their shareholders and other associated people and yes, that does give them a capacity to be involved in the system. My view would be that if they did that as, say, part of a campaign during an election campaign that they be subject to the same caps as other third parties and the same level of transparency and the like. I do not think any particular entity, whatever its political view, should have a privileged position within that. But, as I have said, personally I would limit the ability of those corporations to go on and actually donate to political parties. I would limit them to campaigning subject to transparency on their own behalf.
Senator RHIANNON: And then there are the constitutional aspects—the fact that they can engage as individuals and they can engage through their companies as third parties. Do you think that this demonstrates that they can still fully function and participate in the democratic process so that they are not in fact being excluded?
Prof. Williams: I think the question is whether you think they have an entitlement to participate in the first place on the same terms as voters and individuals. This is where the American approach would actually suggest that they have quite a high level of participatory right. I do not think the Australian courts will go that path. Indeed, the American path is quite unusual internationally in this field. I think it is most likely that the Australian courts would say that if you are a voter, if you are someone who has the right to choose your representatives, then that does give you certain entitlements about donating, participating and the like. But if you are a corporation, which is essentially a creature of an act of parliament, you do not individually have any extra free speech rights, and for that reason you can be subject to what might be far more rigorous regulation.
My point with regard to tobacco companies is not that you cannot regulate corporations but that it gets dangerous to single them out, particularly because, if nothing else, as the New South Wales legislation shows, why would you pick on just tobacco companies? There is a range of companies that fit in that category, and why would you privilege the speech of developers over tobacco companies? That is the sort of problem that does raise constitutional issues.
CHAIR: Professor Williams, thank you for your attendance today. As always, your evidence has been excellent and enlightening to the committee, and thoughtful. You will get a copy of the transcript. If there are any corrections of fact that you need to make, please feel free to do so. Also feel free to do a supplementary submission on any aspect of the committee's inquiry or, if you wish to further pursue the questions on the constitutionality of tobacco donations, to put something specifically in writing.