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Orr, Graeme --- "The Currency of Democracy: Campaign Finance Law in Australia" [2003] UNSWLawJl 1; (2003) 26(1) UNSW Law Journal 1

[*] Senior Lecturer, Law Faculty, Griffith University, Brisbane, Australia: g.orr@griffith.gu.edu.au.

The law is stated as at the end of 2002. Versions of this paper were given at the Money Politics International symposium, Florence, 18–19 October 2001 and a joint University of Columbia/Institute of Advanced Legal Studies seminar, London, 5–6 July 2002. Thanks to Professor Keith Ewing for his kind invitations, Jodie Thomas for research assistance and most particularly the Electoral Council of Australia and the Australian Research Council for funding Professor George Williams’ and my larger project on Australian electoral law, to which this article is a contribution.

[1] Minor party, independent and ‘protest’ voting now routinely measures in the 15–20 per cent range.

[2] Adrian Brooks, ‘A Paragon of Democratic Virtues? The Development of the Commonwealth Franchise’ [1993] UTasLawRw 14; (1993) 12 University of Tasmania Law Review 208, 208–9. Here, Brooks discusses the ‘myth’ of seamless enfranchisement. Cf Marian Sawer, ‘Pacemakers for the World?’ in Marian Sawer (ed), Elections: Full, Free and Fair (2001) 1.

[3] Leading psephologist Malcolm Mackerras employs ‘semi-proportional’ to describe the relatively high quotas required for election to the Senate. Proportional representation, under a Hare-Clark method, also applies in two of the smaller lower houses (Tasmania and the ACT).

[4] Local government remains a creature of (largely unfettered) State jurisdiction. Whilst many State Constitutions incorporate reference to or safeguards of the existence of a regime of local government, only South Australia has an entrenched system of elected local government.

[5] Victoria’s public funding regime is the most recent: Electoral Act 2002 (Vic) pt 12. It imposes no real disclosure regime, but merely relies on State parties filing copies of any returns they are required to file under the federal regime. Western Australia, conversely, has an independent disclosure regime for State elections, but no public funding.

[6] See, eg, Ian Farrow, ‘Politicians Inc’ (1995) 47(4) Institute for Public Afairs Review 8.

[7] See, eg, Denny Meadows, ‘Open Election Funding or Hide and Seek’ (1988) 13 Legal Services Bulletin 65.

[8] Commonwealth, Election Funding Disclosure and Australian Politics: Debunking Some Myths, Parl Research Service Paper No 21 (1995) 1 (emphasis added).

[9] Australian Electoral Commission (‘AEC’), Submission to the Joint Standing Committee on Electoral Matters Inquiry into Electoral Funding and Disclosure, Submission No 15, 3 August 2001, [1.4], <http://www.aph.gov. au/house/committee/em/f_d/subfifteen.pdf> at 10 June 2003.

[10] Ernest Chaples, ‘Public Funding of Elections in Australia’ in Herbert A Alexander (ed), Comparative Political Finance in the 1980s (1989) 76. Chaples had long been monitoring the development of finance and disclosure laws in NSW: Ernest Chaples, ‘Public Campaign Finance: New South Wales Bites the Bullet’ (1981) 53 Australian Quarterly 4; Ernest Chaples, ‘Election Finance in New South Wales: the First Year of Public Funding’ (1983) 55 Australian Quarterly 66. For an exceptional legal foray, see Teresa Somes, ‘Political Parties and Financial Disclosure Laws’ (1998) 7 Grifith Law Review 174.

[11] Deborah Cass and Sonia Burrows, ‘Commonwealth Regulation of Campaign Finance: Public Funding, Disclosure and Expenditure Limits’ (2000) 22 Sydney Law Review 447.

[12] Joo-Cheong Tham, ‘Legal Regulation of Political Donations in Australia: Time for Change’ in Glenn Patmore (ed), The Big Makeover: A New Australian Constitution (2000) 72; Joo-Cheong Tham, ‘Campaign Finance Reform in Australia: Some Reasons for Reform’ forthcoming in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003).

[13] Ian Ramsay, Geof Stapledon and Joel Vernon, Political Donations by Australian Companies (2001); Ian Ramsay, Geof Stapledon and Joel Vernon, ‘Political Donations by Australian Companies’ (2001) 29 Federal Law Review 177.

[14] A noteworthy exception is Hare v Gladwin (1998) 82 ALR 307. There, the AEC successfully defended its right to demand the production of documents from a trust used by the Northern Territory Country Liberal Party to channel the bulk of its fundraising.

[15] Lisa Allen, ‘Invisible World of Political Donations’, Australian Financial Review (Sydney), 20 April 2001, 72–3.

[16] The bulk of this is in the disclosure regime. This figure does not include operationalising regulations or the party registration provisions.

[17] Allowing of course that the breakthrough legislation on funding and disclosure originated in New South Wales. That the federal system now exerts centripetal force is illustrated by Queensland’s ‘cut and paste’ adoption of the bulk of the federal regime: Electoral Act 1992 (Qld), s 126B and Schedule.

[18] Federal law mandates that polling days be kept distinct, Commonwealth Electoral Act 1918 (Cth) s 394.

[19] See below n 125 and accompanying text.

[20] Tham, ‘Legal Regulation of Political Donations in Australia: Time for Change’, above n 12, 78–80.

[21] Cass and Burrows, above n 11.

[22] Ibid 453–7.

[23] The high water mark of that view in Australia was the High Court’s overturning of a broadcast advertising ban in Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 (‘ACTV v Commonwealth’). This was controversially achieved by ‘implying’ a constitutional freedom of political communication.

[24] Cass and Burrows, above n 11, 454–5.

[25] Commonwealth Electoral Act 1918–1980 (Cth) pt XVI (superseding Commonwealth Electoral Act 1902 (Cth) pt XIV).

[26] R v Tronoh Mines Ltd [1952] 1 All ER 697 (interpreting laws restricting expenditure and ‘promoting the election of a candidate’ as inapplicable to advertising promoting or denigrating parties generally).

[27] The original limits were set in the inaugural Commonwealth Electoral Act 1902 (Cth) s 169.

[28] Commonwealth Electoral Act 1946 (Cth) s 4.

[29] Enforcement was far from stringent. Early on, the Chief Electoral Officer adopted a practice of not prosecuting candidates who did not bother to account for their expenditure if they happened not to win the seat they were contesting: Patrick Brazil (ed), Opinions of the Attorneys-General of the Commonwealth of Australia: Vol 1 1901–1914 (1981) 500–1.

[30] Re Electoral Act 1907 [1979] TASRp 28; [1979] Tas R 282. The Tasmanian limit was then $1500.

[31] Commonwealth Electoral Amendment Act 1980 (Cth).

[32] In effect, this brought the expenditure of parties within the strict limits on candidate expenses: Attorney-General v Liberal Party of Australia, Tasmanian Division [1982] TASRp 8; [1982] Tas R 60.

[33] For the current Tasmanian position, see below nn 85–7 and accompanying text.

[34] Commonwealth Electoral Legislation Amendment Act 1983 (Cth). The reform was preceded by a wide-ranging inquiry, see Joint Select Committee on Electoral Reform, Parliament of Australia, First Report (1983).

[35] Election Funding Act 1981 (NSW). For simple guidance, see Election Funding Authority of NSW, The Election Funding Authority Handbook (1999).

[36] Electoral Act 1992 (Qld) s 126A, Schedule; Electoral Act 1992 (ACT) pt XIV; Electoral Act 2002 (Vic) pt XII. The Queensland reforms were preceded by Queensland Electoral and Administrative Review Commission, Report on Investigation of Public Registration of Political Donations, Public Funding of Election Campaigns and Related Issues (1992) which remains a useful source. In some respects the ACT regime is more advanced than the federal regime.

[37] Political Broadcasts and Political Disclosures Act 1991 (Cth) introducing a new pt IIID to the Broadcasting Act 1942 (Cth). The Act was held to be unconstitutional in ACTV v Commonwealth [1992] HCA 45; (1992) 177 CLR 106. The immediate inspiration for these thwarted reforms lie in Joint Standing Committee on Electoral Matters (‘JSCEM’), Parliament of Australia, Who Pays the Piper Calls the Tune: Minimising the Risks of Funding Political Campaigns (1989). However, as Cass and Burrows reveal, the ALP had foreshadowed its free air-time plans for some years, above n 11, 472–3.

[38] Keith D Ewing, ‘The Legal Regulation of Electoral Campaign Financing in Australia: a Preliminary Study’ (1992) 22 University of Western Australia Law Review 239; Eric Barendt, ‘Importing United States Free Speech Jurisprudence’ in Tom Campbell and Wojciech Sadurski (eds), Freedom of Communication (1994) 57; Sarah Joseph, ‘Political Advertising and the Constitution’ in Glenn Patmore (ed), The Big Makeover: A New Australian Constitution (2000) 48.

[39] Commonwealth Electoral Act 1918 (Cth) pt XX, div 3. Regularly updated guidance is given in the AEC’s Funding and Disclosure Handbooks (of which there are separate versions directed to parties and candidates).

[40] JSCEM, Parliament of Australia, Behind the Scenes: The 2001 Election (2002) 43.

[41] Cf Queensland elections, where funding is capped by a need to receipt expenditure, Electoral Act 1992 (Qld) ss 295(8)(b), 298. The federal system commenced on such a ‘reimbursement’ basis, but both the AEC and the parties found it administratively burdensome.

[42] Election Funding Act 1981 (NSW) pt 5, divs 3–4.

[43] This in turn is leading to a push to simply require the Authority to pay all the funding in respect of endorsed candidates to the registered party’s agent: David Humphries ‘ALP Office Moves on Election Funds’, Sydney Morning Herald (Sydney), 6 July 2000, 3.

[44] Election Funding Act 1981 (NSW) pt 5, div 5.

[45] Election Funding Act 1981 (NSW) pt 6A.

[46] Political Education Fund Determinations of the Election Funding Authority of NSW.

[47] However, the ongoing party register – as distinct from the various registers of candidates and agents for any particular election – is kept by the State Electoral Office, Parliamentary Electorates and Elections Act 1912 (NSW) pt 4A. Cf Election Funding Act 1981 (NSW) pt 4.

[48] JSCEM, Who Pays the Piper Calls the Tune, above n 37, 91.

[49] See Income Tax Assessment Act 1997 (Cth) s 30-15 (Table, item 3).

[50] Australian Taxation Office, Determination 92/114.

[51] See below nn 13 1–2 and accompanying text.

[52] See now Income Tax Assessment Act 1997 (Cth) s 25-60 (parliamentary elections); Income Tax Assessment Act 1936 (Cth) s 74A (local government elections).

[53] See Income Tax Assessment Act 1997 (Cth) s 25-70 (parliamentary elections); Income Tax Assessment Act 1936 (Cth) s 74B (local government elections).

[54] Broadcasting Services Act 1992 (Cth) sch 2, pt 2, cl 4; Australian Broadcasting Corporation Act 1983 (Cth) s 79A; Special Broadcasting Service Act 1991 (Cth) s 70A (broadcasts at any time); and Commonwealth Electoral Act 1918 (Cth) s 328 (print media and videos distributed at federal elections).

[55] These are weak in that, in every jurisdiction bar South Australia, they do not amount to prohibitions on false or misleading political claims that might distort the formation of voting preferences. They only apply to advertising that could affect the actual act of casting a ballot, eg, ‘how to vote’ cards that falsely mimic those of a rival party, Evans v Chricton-Browne [1981] HCA 14; (1981) 147 CLR 169.

[56] Broadcasting Services Act 1992 (Cth) sch 2, pt 2, cl 3A; Special Broadcasting Service Act 1991 s 70C.

[57] They were only struck down in ACTV v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 because in that particular instance they were an inseparable part of an invalid scheme banning all paid broadcasts.

[58] ABC, Editorial Policies (2002) ch 11 <http://www.abc.net.au/corp/edpol.htm> at 15 June 2003; SBS, Codes of Practice (2002) 22 <http://www.sbs.com.au/sbsi/cop.pdf> at 15 June 2003.

[59] See, eg, Editorial, ‘Stop the Spin and Start the Great Debates’, The Australian (Sydney) 4 October 2001, 10.

[60] For a comprehensive, chronological survey of the amendments and debates surrounding them, see Cass and Burrows, above n 11, 461–93.

[61] Commonwealth Electoral Act 1918 (Cth) pt XX, div 4 (‘Disclosure of donations’), div 5 (‘Disclosure of electoral expenditure’) and div 6 (‘Annual returns by registered parties and associated entities’).

[62] Commonwealth Electoral Act 1918 (Cth) s 287 (definition).

[63] Commonwealth Electoral Act 1918 (Cth) s 4 (definition). This comes into play in both the definitions of ‘political expenditure’ (s 3 05(3) – attracting an obligation for ‘third party’ donation disclosure) and ‘electoral expenditure’ (s 308 – attracting an obligation of post-election expenditure return).

[64] Commonwealth Electoral Act 1918 (Cth) s 4 (definition).

[65] Commonwealth Electoral Act 1918 (Cth) pt XX, div 2 (‘Agents’).

[66] Commonwealth Electoral Act 1918 (Cth) s 287 (definition).

[67] Commonwealth Electoral Act 1918 (Cth) s 287 (definition).

[68] $1000 in the case of a group of independent candidates in a Senate election. See Commonwealth Electoral Act 1918 (Cth) s 304 generally for candidate returns of gifts received.

[69] Commonwealth Electoral Act 1918 (Cth) s 305A.

[70] Commonwealth Electoral Act 1918 (Cth) s 305.

[71] Commonwealth Electoral Act 1918 (Cth) s 305(3).

[72] Commonwealth Electoral Act 1918 (Cth) ss 314AB(2)(a), 314AC.

[73] Commonwealth Electoral Act 1918 (Cth) s 314AC(2).

[74] Commonwealth Electoral Act 1918 (Cth) s 305B.

[75] Commonwealth Electoral Act 1918 (Cth) s 306.

[76] Commonwealth Electoral Act 1918 (Cth) s 309.

[77] Commonwealth Electoral Act 1918 (Cth) s 308(1), incorporating reference to ‘electoral matter’, defined in Commonwealth Electoral Act 1918 (Cth) s 4.

[78] Commonwealth Electoral Act 1918 (Cth) ss 314AB(2)(b), 314AEA(1)(b).

[79] Commonwealth Electoral Act 1918 (Cth) ss 314AB(2)(c), 314AEA(1)(c), 314AE.

[80] Commonwealth Electoral Act 1918 (Cth) ss 310–11. The AEC has recommended the repeal of these provisions, reasoning that they add little to the transparency aim of the disclosure laws, except if advertisers donate free advertisements to a party and otherwise neglect to declare this as a gift ‘in kind’. But since the returns require advertisers to disclose their actual charges for particular slots, the returns could act as a valuable source for monitoring the costs of campaigning.

[81] See especially Commonwealth Electoral Act 1918 (Cth) s 316.

[82] See Commonwealth Electoral Act 1918 (Cth) s 315 for offences. By all accounts there have been no convictions for some years.

[83] Commonwealth Electoral Act 1918 (Cth) s 319. Even without this provision, the Act would be unlikely to allow a disputed returns petition, since, although contraventions of the Act are considered ‘illegal practices’, the general rule is that a return can only be disputed if the practice was likely to have afected the election, s 362. Disclosure breaches, per se, do not do that (not least because disclosure generally comes after the poll in question and it would be hard to link the absence of information directly to voting behaviour). The exception might be the acceptance of a large, anonymous (and hence unlawful) donation if there were evidence that it was then used to sway a tight election.

[84] The Constitution Act Amendment Act 1958–2001 (Vic) s 257(1). The maximum penalty of six months or (more likely) a $400 fine, was in any event quite dated, s 264.

[85] Electoral Act 1985 (Tas) ss 195–6.

[86] Electoral Act 1985 (Tas) s 199.

[87] Attorney-General v Liberal Party of Australia, Tasmanian Division [1982] TASRp 8; [1982] Tas R 60.

[88] Australian Constitution s 15.

[89] For an administrators account of this inter-meshing of AEC practice and party realities, see Steve Tully, ‘Party Registration and Preselection: A Minefield for Electoral Administrators’, forthcoming in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003).

[90] Joint Select Committee on Electoral Reform, above n 34, ch 12.

[91] Mulholland v Australian Electoral Commission [2002] FCA 1255; (2002) 193 ALR 710.

[92] This is not purely a relic of the federal compact of 1901, but necessitated by the fact that the Senate is elected along State and Territorial lines. The Australian Democrats are the most ‘nationalised’ party in structural terms, and this is reflected in special provisions concerning the payment of public funding to its principal (ie, national and not branch) agent, Commonwealth Electoral Act 1918 (Cth) s 288A.

[93] This ‘tick a box’ method is not strictly a vote for a party list. Rather, each party nominates a template ballot, giving its preferences as between the candidates. Votes therefore are still tallied by individual candidates. This system has proved very popular with voters (over 90 per cent of Senate voters use it in most States) and has reduced the informal vote. But it has also increased party control at all levels. For example, it has even increased the power – and hence encouraged the formation – of very minor parties, who can now guarantee the flow of their preferences and hence have some bargaining power in the ‘horse trading’ over preferences that occurs once nominations close.

[94] A few parties incorporate under the same legislation as sporting clubs and other civic associations. Whilst smoothing issues of standing to sue and hold property, this does not in itself attract full justiciability. In one very controversial instance, a party per se organised itself as a corporation (along commercial lines), relegating its membership to a ‘supporters association’, to maintain ultimate executive control of its affairs. See Sharples v O’Shea [1999] QSC 190 (Unreported, Queensland Supreme Court, Atkinson J, 18 August 1999) (the One Nation Party Deregistration case).

[95] Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358.

[96] For a review of key cases, see Gary Johns, ‘Clarke v Australian Labor Party’ (2000) 35 Australian Journal of Political Science 137.

[97] Graeme Orr, ‘Overseeing the Gatekeepers: Should the Preselection of Political Candidates be Regulated’ (2001) 12 Public Law Review 89. The JSCEM agreed with AEC recommendations to prescribe minimum conditions of party membership, JSCEM, Parliament of Australia, The 1998 Federal Election (2000) 135–6 (ALP members dissenting at 159–60).

[98] Graeme Orr ‘The Law Comes to the Party: The Continuing Juridification of Political Parties in Australia’, (2000) 3 Constit utional Law and Policy Review 41.

[99] The exception is the small external Territory of Norfolk Island.

[100] Graeme Orr, ‘The Conduct of Referenda and Plebiscites in Australia: A Legal Perspective’ (2000) 11 Public Law Review 117, which details referenda law in Australia. See 123–4, 127–8 for statute and case law affecting referenda campaigns.

[101] Referendum (Machinery Provisions) Act 1984 (Cth) s 11. Even where all federal Parliamentarians and parties support the referendum proposal, it is conventional for a token Member of Parliament to oppose it to ensure that there is an official ‘No’ case.

[102] Referendum (Machinery Provisions) Act 1984 (Cth) s 11(4).

[103] Referendum (Machinery Provisions) Act 1984 (Cth) pt IX.

[104] Comparable, earlier examples include the Tasmanian Dams poll of the early 1980s, and, at federal level, the watershed referendum on the Aboriginal Affairs power in 1967 (overwhelmingly supported), the Cold War referendum to outlaw the Communist Party (narrowly lost) and the non-Constitutional pro-conscription plebiscites during World War I (narrowly lost).

[105] Somes, above n 10; 174, AEC, Funding and Discl osure Report Following the Federal Election Held on 3 October 1998 (2000) pt 5.

[106] See, eg, Laurie Oakes, ‘Labor’s Soft Money Loophole’, The Bulletin (Sydney), 5 September 2000, 24.

[107] Control, or the significance of the party to the entity’s overall activities, are alternative tests for ‘associated entity’ status, Commonwealth Electoral Act 1918 (Cth) s 287(1) (definition).

[108] Allen, above n 15.

[109] Some of these are outlined in Tham, ‘Legal Regulation of Political Donations in Australia: Time for Change’, above n 12, 74–5. See also Tony Harris, ‘One Good Turn Deserves Another, But is Anyone Keeping Score?’, Australian Financial Review (Sydney), 20 April 2001, 72–3 and Michelle Grattan, ‘Money and the Politics of Schmooze’, Sydney Morning Herald (Sydney), 25 August 2000, 16.

[110] Laura Tingle and Toni O’Loughlin, ‘Ruddock is a Man of Discretion’, The Weekend Australian Financial Review (Sydney), 14–15 June 2003, 22–3. This echoes a similar recent controversy involving the British Labour government.

[111] AEC, Funding and Disclosure Handbook for Third Parties (2000) pt 2, 1.

[112] Commonwealth Electoral Act 1918 (Cth) s 17(2).

[113] Standing Committee on Electoral Matters, Electoral Funding and Disclosure Inquiry (2001) <http://www.aph.gov. au/house/committee/em/f_d/index.htm> at 10 June 2003.

[114] AEC, above n 9, [1.2]–[1.5].

[115] Ibid recommendations 2, 3. These recommendations are analogous to anti-avoidance provisions in general taxation law.

[116] Ibid recommendations 4, 5.

[117] Ibid recommendation 7 (‘continued’ means ‘two or more years running’). An earlier recommendation would have triggered deregistration at the end of 12 months, but only for failure to make any return at all; AEC, Submission to the Joint Standing Committee on Electoral Matters Inquiry into Funding and Disclosure, Submission No 7, 17 October 2000, [ 3.1].

[118] AEC, Submission No 7, above n 117, [ 3.1] recommendation 5.

[119] AEC, Submission No 15, above n 9, recommendation 8.

[120] AEC, Submission No 7, above n 117, [4.1] recommendation 7.

[121] AEC, Submission No 15, above n 9, recommendation 10.

[122] Ibid recommendation 14.

[123] Ibid recommendation 11.

[124] Ibid recommendation 12.

[125] Ibid recommendation 13. The NSW Shooters Party controls the federally registered Shooters Party, to the point of being its only donor, and only NSW law imposes effective disclosure requirements. It is feared that other parties could use party shells to circumvent disclosure, given that an entity which controls a party is not defined as an ‘associated entity’. (The reverse is the case).

[126] AEC, Submission No 7, above n 117, [ 3.1] recommendation 6.

[127] Ibid [3.1] recommendation 3.

[128] Ibid [3.1] recommendation 4.

[129] Ibid [4.1] recommendations 9, 10.

[130] Ibid [4.1] recommendation 3.

[131] Electoral and Referendum Amendment Bill (No 2) 1998 (Cth) ($5000 threshold). See Somes, above n 10, 177–8.

[132] The $3000 threshold is a conservative, majority recommendation in JSCEM, The 1998 Federal Election, above n 97, 128. Cf ALP minority report at 158–9.

[133] This is not to say that the law relating to candidates and individual politicians is overly intrusive. It is only limited to their electoral campaigns. Australia does not operate a system of primaries, but battles for internal party preselections can be almost as intense as the public, constituency election. Party members can spend and solicit funds – and favours owed – in such battles with impunity. Questions were raised about why a consultant donating his time to a contender for the Australian Democrats’ parliamentary leadership ballot led to no disclosure obligation, AEC, Submission No 15, above n 9, [2.1.5].

[134] JSCEM, Parliament of Australia The 1996 Federal Election (1997) [8.28]–[8.30].

[135] JSCEM, The 1998 Federal Election, above n 97, 174, 176. See also Senator Andrew Murray and Marilyn Rock, ‘The Dangerous Art of Giving’ (2000) 72(3) Australian Quarterly 29.

[136] Tham, ‘Legal Regulation of Political Donations in Australia: Time for Change’, above n 12, 81–6.

[137] AEC, Submission No 7, above n 117, [8.8]–[8.13].

[138] John O McGinnis, ‘Against the Scribes: Campaign Finance Reform Revisited’ (Working Paper Series No 30, Cardozo Law School, 2000).

[139] Ramsay et al, above n 13, 32.

[140] Cf David Tucker and Sally Young, who, whilst arguing that funding levels are not ungenerous, suggest restricting private fundraising as a prerequisite for public funding, ‘Public Financing of Election Campaigns in Australia – a Solution or a Problem?’ in Glenn Patmore (ed), The Big Makeover: A New Constitution (2000) 60.

[141] JSCEM, Who Pays the Piper Calls the Tune, above n 37, ch 8.

[142] Cass and Burrows, above n 11, 457–60.

[143] This involves a further tilting of the playing field in favour of incumbency. Cf Joseph, above n 38, 54–5 and Robert Manne, ‘Political Advertising’ in Robert Manne (ed), The Barren Years: John Howard and Australian Political Culture (2001) 96, 96–9.

[144] Just as there is evidence of Australian parties using intermediaries, in part to mask donor identity at the expense of the transparency intended by the disclosure laws: Luke McIlveen and Sophie Morris, ‘Fronts Obscure Political Handouts’, The Australian (Sydney), 4 February 2003, 3.

[145] Expenditure limits were not at issue in ACTV v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, which dealt only with a complete ban on the most desirable form of electoral advertising – television. However, if the Australian High Court followed the US Supreme Court, it would subject expenditure limitations to a form of strict scrutiny.

[146] Samuel Issacharoff and Pamela S Karlan, ‘The Hydraulics of Campaign Finance Reform’ (1999) 77 Texas Law Review 1705. No less pithy is Daniel H Lowenstein, ‘On Campaign Finance Reform: The Root of All Evil is Deeply Rooted’ (1989) 18 Hofstra Law Review 301.

[147] Keith D Ewing, ‘Transparency, Accountability and Equality: the Political Parties, Elections and Referendums Act 2000’ [2001] Public Law 542, 556–62.

[148] Electoral Act 2002 (Vic) pt 12 div 3.

[149] Post-election regimes requiring the disclosure of gifts apply to varying degrees in New South Wales, Queensland, Western Australia and the city of Adelaide: Butterworths, Halsbury ’s Laws of Australia, vol 17 (at 31 December 2002) 265 Local Government, ‘I(4) Council Elections and Polls’, [265]–[2125]. In some regimes, elected members may have to make a general, annual disclosure of gifts, but as part of councillor registration of interests rather than electoral obligations as such. (See, eg, Local Government Act 1934 (SA) ss 147–9.) Victoria is planning a relatively comprehensive local government election disclosure regime

[150] A Democrat–Greens amalgamation, or at least a formal alliance to avoid candidate competition, has been mooted on many occasions, usually on the basis of their shared positions and a perceived need to create a united left-wing alternative. The financial argument alone must be enticing. Even if it did not increase their combined vote, it would have been worth approximately $380 000 in public funding for Senate votes alone (1998 figures).

[151] The ONP leader, Pauline Hanson, was reported to have raised approximately $300 000 from supporters to help repay public funding owed to the Electoral Commission of Queensland, following the party’s deregistration in that State.

[152] The JSCEM’s Funding and Disclosure inquiry into whether to adopt AEC recommendations dating from the 1996 and 1998 election reports was begun in 2000, and put on hold for eight months before lapsing on dissolution of Parliament for the 2001 election. See above n 113.

[153] JSCEM, Parliament of Australia User Friendly, Not Abuser Friendly: Report of the Inquiry into the Integrity of the Electoral Roll (2001); Queensland Criminal Justice Commission, The Shepherdson Inquiry: An Investigation into Electoral Fraud (2001); Legal, Constitutional and Administrative Review Committee of the Legislative Assembly of Queensland, Inquiry into the Prevention of Electoral Fraud (2000).

[154] Sisyphus legendarily was doomed to endlessly roll a heavy stone up a hill, only to watch it roll down again.

[155] Income tax is only levied at the federal level, so federal tax law covers the field. Candidate expenditure deductions apply to elections at all levels. However, donor deductibility only applies to gifts to federally registered parties.

[156] NSW alone also allows for a limited advance (ie, pre-election) payment of anticipated public funding.

[157] NSW alone also provides for payments to registered parties out of a ‘political education’ fund.

[158] 2001 figure. The amount increases by increments of $250 annually.