Tham, Joo-Cheong; Grove, David --- "Public Funding and Expenditure Refgulation of Australian Political Parties: Some Reflections" [2004] FedLawRw 19; (2004) 32 Federal Law Review 397
[*] Joo-Cheong Tham is an
Associate Lecturer at the School of Law, La Trobe University and David Grove is
a LLB student at the same
law school. David was responsible for calculating most
of the data in Part II while Joo-Cheong was responsible for the remainder of the
article. Thank you to Graeme Orr for helpful discussion of various aspects
of
this article. Thank you too to the anonymous referees for their useful comments.
Research for this article was also assisted by
a grant from the Faculty of Law
and Management, La Trobe University. The usual disclaimers apply.
[1] Graeme Orr, 'Editorial:
Special Edition on Electoral Regulation and Representation' [1998] GriffLawRw 10; (1998) 7 Griffith
Law Review 166, 166.
[2] Such inquiry has clearly
gained impetus from the Electoral Law Project co-ordinated by the Gilbert and
Tobin Centre of Public Law,
University of New South Wales (see
<http://www.gtcentre.unsw.edu.au>
).
[3] Graeme Orr, Bryan Mercurio and
George Williams, 'Australian Electoral Law: A Stocktake' (2003) 2 Election
Law Journal 383, 396 (emphasis in original).
[4] See, eg, Teresa Somes,
'Political Parties and Financial Disclosure Laws' [1998] GriffLawRw 11; (1998) 7 Griffith Law
Review 174; Keith Ewing, 'The Legal Regulation of Electoral Campaign
Financing in Australia: A Preliminary Study' (1992) 22 University of Western
Australian Law Review 239; Deborah Cass and Sonia Burrows, 'Commonwealth
Regulation of Campaign Finance — Public Funding, Disclosure and
Expenditure
Limits' [2000] SydLawRw 23; (2000) 22 Sydney Law Review 477; Joo-Cheong Tham,
'Legal Regulation of Political Donations in Australia: Time for Change' in Glenn
Patmore (ed), Labor Essays 2002: The Big Makeover: A New Australian
Constitution (2001) 72; Graeme Orr, 'The Currency of Democracy: Campaign
Finance Law in Australia' [2003] UNSWLawJl 1; (2003) 26 University of New South Wales Law Journal
1 and Joo-Cheong Tham, 'Campaign Finance Reform in Australia: Some Reasons
for Reform' in Graeme Orr, Bryan Mercurio and George Williams
(eds),
Realising Democracy: Electoral Law in Australia (2003) 114.
[5] On 22 January 2004, a workshop
specifically devoted towards Australian political finance was organised by
Graeme Orr through the
Socio-Legal Research Centre, Griffith University.
[6] Notable exceptions are Rolf
Gerritsen, Election Funding Disclosure and Australian Politics: Debunking
Some Myths (1995); Ian Ramsay, Geof Stapledon and Joel Vernon, Political
Donations by Australian Companies (2000) (this report was subsequently
published in (2001) 29 Federal Law Review 177) and Sally Young, 'Spot On:
The Role of Political Advertising in Australia' (2002) 37 Australian Journal
of Political Science 81. The New South Wales branch of the Australian Greens
has also undertaken a study of donations to the New South Wales divisions
of the
major political parties (see Democracy4Sale, The Greens
<http://www.democracy4sale.org>
at 15 October 2004).
[7] See, however, Orr, 'The
Currency of Democracy', above n 4, 24–5.
[8] See, eg, Tham, 'Legal
Regulation of Political Donations in Australia', above n 4.
[9] See, however, Cass and
Burrows, above n 4.
[10] See, however, David Tucker
and Sally Young, 'Public Financing of Election Campaigns — A Solution or a
Problem?' in Glenn Patmore
(ed), Labor Essays 2002: The Big Makeover: A New
Australian Constitution (2001) 60.
[11] Tham, 'Legal Regulation of
Political Donations in Australia', above n 4, 78–80.
[12] This focus means that this
article will not consider state regulation of party finance or regulation of
state elections. For a useful
summary of state regulation, see the Appendix in
Orr, 'The Currency of Democracy', above n 4, 30–1.
[13] This limitation means that
this article will not consider UK regulation of European Union elections,
regional elections and referendums.
[14] For an excellent account,
see K D Ewing, 'Transparency, Accountability and Equality: The Political
Parties, Elections and Referendums
Act 2000' [2001] Public Law 542. This
Act largely implements the United Kingdom, Committee on Standards in Public
Life, Fifth Report: The Funding of Political Parties in the United
Kingdom, Cm 4057–I (1998) ('Neill Committee Report'). For a
discussion of the report, see Lisa Klein, 'On the Brink of Reform: Political
Party Funding
in Britain' (1999) 31 Case Western Reserve Journal of
International Law 1.
[15] Justin Fisher, 'Next Step:
State Funding for the Parties?' (2002) 73 Political Quarterly 392,
392.
[16] K D Ewing, 'The Funding of
Political Parties in Britain: Prospects for Reform' [1998] GriffLawRw 12; (1998) 7 Griffith Law
Review 185, 185.
[17] Ewing, 'Transparency,
Accountability and Equality' above n 14, 542. For an excellent review of the development of British electoral
law, see Keith Ewing, 'Electoral Reform in the United Kingdom'
in Graeme Orr,
Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law
in Australia (2003) ch 3.
[18] See Cass and Burrows, above
n 4.
[19] See Tham, 'Campaign Finance
Reform in Australia' above n 4, 119–20, 122 and Ewing, 'Electoral Reform
in the United Kingdom'
above n 17, 27–8. For the purposes of campaign finance law, see Keith
Ewing, The Funding of Political Parties in Britain (1987) 175–8 and
K D Ewing, Money, Politics and Law: A Study of Electoral Campaign Finance
Reform in Canada (1992) ch 2.
[20] The Northern Territory
Country Liberal Party was treated, for the purpose of this article, as part of
the Liberal Party.
[21] For the purpose of this
article, all parties going by the name 'Green' or some permutation of this word
were treated as part of
the 'Greens'.
[22] Electoral and Referendum
Amendment Act 1998 (Cth). It should also be noted that the annual returns of
the parties only disclosed the total amount of expenditure with no breakdown
in
terms of expenditure items: Commonwealth Electoral Act 1918 (Cth)
('CEA') s 314AB(2)(a).
[23] The returns of both the
federal and state branches of the parties were examined.
[24] These categories are
defined in the Appendix.
[25] Tham, 'Legal Regulation of
Political Donations in Australia', above n 4, 79–80 and Tham,
'Campaign Finance Reform in Australia', above n 4, 123–4. See also
Joo-Cheong Tham, The Normalisation of Corporate Contributions to Political
Parties: A Threat to Democracy (2003) Democratic Audit of Australia
<http://democratic.audit.anu.edu.au>
at 15 October 2004.
[26] Gerritsen, above n 6, 21.
[27] Ramsay, Stapledon and
Vernon, above n 6, 23.
[28] Figures calculated from
annual returns for the financial years 1999, 2000–01, 2002.
[29] Ramsay, Stapledon and
Vernon, above n 6, 26.
[30] See text accompanying n
35.
[31] See also discussion in Orr,
'The Currency of Democracy', above n 4, 27.
[34] The campaign expenditure
data for the 1987, 1990, 1993 and 1996 elections were respectively found in AEC,
Election Funding and Financial Disclosure Report: Elections 1987 (1988)
50; AEC,
Election Funding and Financial Disclosure Report: Elections 1990
(1991) 38; AEC,
Election Funding and Financial Disclosure Report: Election
1993 (1995) 52–3; AEC,
Election Funding and Financial Disclosure
Report: Elections 1996 (1997) 7, 29–32. The political broadcasting
data for the 1987, 1990, 1993 and 1996 elections were respectively found in AEC,
Election Funding and Financial Disclosure Report: Elections 1987 (1988)
52; AEC,
Election Funding and Financial Disclosure Report: Elections 1990
(1991) 64; AEC,
Election Funding and Financial Disclosure Report: Election
1993 (1995) 122; AEC,
Election Funding and Financial Disclosure Report:
Elections 1996 (1997) 29–33. The votes cast for the 1987, 1990, 1993
and 1996 federal elections were respectively 9 233 000 (AEC,
Election
Statistics 1987: Full Distribution of Preferences: House of Representatives
(1988) 77); 10 222 927 (figure calculated from Joint Standing Committee on
Electoral Matters, Parliament of Australia,
1990 Federal Election (1990)
1–2); 10 674 805 and 11 294 479 (Joint Standing Committee on Electoral
Matters, Parliament of Australia,
Report of the Inquiry into the Conduct of
the 1998 Federal Election and Matters Related Thereto (2000) 2). The figures
for the Average Weekly Total Earnings for 1987, 1990, 1993 and 1996 were
respectively $381.30; $464.80 (Australian
Bureau of Statistics,
Average
Weekly Earnings Australia, 1941–90 (1992) 6); $512.80 (Australian
Bureau of Statistics,
Average Weekly Earnings, States and Australia
(1993) and $564 (Australian Bureau of Statistics,
Year Book Australia 2003:
Average Weekly Earnings (2003)).
[35] CEA ss 294, 297.
[36] The figure is found at
Australian Electoral Commission
<http://www.aec.gov.au/_content/how /funding_payments/2001_payments.htm>
at 4 December 2002. For the section
providing for indexation, see CEA s 321.
[37] Prior to 1995, the federal
election funding scheme operated as a reimbursement scheme hence, required proof
of electoral expenditure.
This feature of the scheme was abolished by
Commonwealth Electoral Amendment Act 1995 (Cth).
[38] Joint Select Committee on
Electoral Reform, Parliament of Australia First Report (1983)
145–7 [9.3].
[39] For a brief discussion of
these entitlements, see Sally Young, 'Killing Competition: Restricting Access to
Political Communication
Channels in Australia' (2003) 75 AQ: Journal of
Contemporary Analysis 9, 9–11.
[40] Australian National Audit
Office, Parliamentarian Entitlements: 1999–2000 (2001) paras
2–3.
[41] Calculated from Table 1.
Further research is, however, required to determine the amounts that are
received by the various parties
because there is no readily accessible
information indicating how much each party receives of parliamentary
entitlements. Collecting
such information is complicated by the fact that the
use of such entitlements varies according to each parliamentarian: ibid, para
39.
[42] See definition of
'parliamentary office-holders' at Parliamentary Entitlements Act 1990
(Cth) s 3.
[43] Remuneration Tribunal
Determination 2003/14 (consolidated) para 1.
[44] Ibid para 4.
[45] Ibid para 10.4.
[46] Parliamentary
Entitlements Act 1990 (Cth) sch 1, pt 1, item 7 and Remuneration Tribunal
Determination 2003/14 (consolidated) para 9.
[47] Parliamentary
Entitlements Act 1990 (Cth) sch 1, pt 1, items 8–9 and Remuneration
Tribunal Determination 2003/14 (consolidated) para 2 (scheduled commercial
transport); para 3 (car transport); para 5 (provision of vehicle); para 6
(charter transport)
and para 9 (overseas study trips).
[48] See Parliamentary
Entitlements Act 1990 (Cth) sch 1, pt 2.
[49] Parliamentary
Entitlements Act 1990 (Cth) sch 1, pt 2, item 5.
[50] Parliamentary
Entitlements Act 1990 (Cth) sch 1, pt 1, item 9(1)(d).
[51] Remuneration Tribunal
Determination 2003/14 (consolidated) para 8.
[52] Parliamentary
Entitlements Act 1990 (Cth) sch 1, pt 1, item 7 and Remuneration Tribunal
Determination 2003/14 (consolidated) para 9.
[53] Parliamentary
Entitlements Regulations 1997 (Cth) reg 3. A much more limited allowance is
provided to Senators with their entitlement limited to 10 reams of paper per
month:
at reg 3A(2)–(3).
[54] Parliamentary
Entitlements Act 1990 (Cth) sch 1, pt 1, item 3.
[55] Remuneration Tribunal
Determination 2003/14 (consolidated) para 10.4.
[56] Ibid para 2 (scheduled
commercial transport); para 3 (car transport); para 4 (private vehicle
allowance) and para 5 (provision of
vehicle).
[57] Australian National Audit
Office, above n 40, paras 2.61–2.68.
[58] Commonwealth of Australia,
Ministerial and Parliamentary Services, Senators and Members: Entitlements
(2001) 30.
[59] For a good description of
the Short and Cranbourne money, see Neill Committee Report, above n 14, 100–1 and United Kingdom Electoral Commission, The Funding of
Political Parties: Background Paper (2003) 13–4.
[60] PPERA s 12.
[61] Elections (Policy
Development Grants Scheme) Order 2002 (SI 2002/224) (UK).
[62] Representation of the
People Act 1983 (UK) c 2, s 91(1).
[63] With respect to commercial
broadcasters, the ban on political advertising is governed by
ss 321(2)–(3) of the Communications Act 2003 (UK) c 21.
Such broadcasters are also required to provide free broadcast time through rules
made by the Office of Communication: s
333. The British Broadcasting Commission
does not run advertising and its duty to provide free political broadcasts is
found in an
agreement with the government, see generally United Kingdom
Electoral Commission, Party Political Broadcasting (2003) and Ewing, The
Funding of Political Parties in Britain above n 19, 93–5, 108–17.
[64] The amount applies for
2002 given that that was first year such grants were disbursed.
[65] See Ewing, The Funding
of Political Parties in Britain, above n 19, 120 for amounts payable under the Short scheme for 1980–83.
[66] Commonwealth,
Parliamentary Debates, House of Representatives, 2 November 1983, 2215
(Kim Beazley, Minister for Aviation, Special Minister of State and Minister
Assisting
the Minister for Defence, Second Reading Speech to Commonwealth
Electoral Legislation Amendment Bill 1983 (Cth)).
[67] Ewing, The Funding of
Political Parties in Britain, above n 19, 182.
[68] Beazley, above n 66, 2215.
This specific aim is long-standing. When introducing the original Commonwealth
Electoral Bill, Senator O'Connor justified the need for the limits on
electoral expenditure in this fashion:
If we wish to secure a true reflex of the opinions of the electors, we must
have … a system which will not allow the choice
of the electors to be
handicapped for no other reason than the inability of a candidate to find the
enormous amount of money required
to enable him [sic] to compete with other
candidates.
Commonwealth, Parliamentary Debates, Senate, 31 January 1902, 9542
(Senator O'Connor, Second Reading Speech).
[69] Beazley, above n 66, 2213.
[70] Ewing has also noted that
equality of electoral opportunity requires that 'no candidate or party should be
permitted to spend more
than its rivals by a disproportionate amount': Ewing,
Money, Politics and Law, above n 19, 18.
[71] Commonwealth,
Parliamentary Debates, House of Representatives, 8 May 1990, 68 (Mr
Beddall, Minister for Small Business and Customs, Second Reading Speech to
Parliamentary Entitlements Bill 1990 (Cth)).
[72] Neill Committee Report,
above n 14, 93. The committee also noted that campaigning was diverting the
parties' attention from the task of policy development: at 93.
[73] See Neill Committee Report,
above n 14, ch 7. The Neill Committee's position is in sharp contrast
with the Houghton Committee's view that comprehensive state funding should be
introduced: United Kingdom, Report of the Committee on Financial Aid to
Political Parties, Cmnd 6601 (1976).
[74] United Kingdom Electoral
Commission, The Funding of Political Parties: Issues Paper (2003).
[75] See the views canvassed in
United Kingdom Electoral Commission, The Funding of Political Parties:
Background Paper above n 59, 9–11.
[76] Joint Standing Committee on
Electoral Matters, Parliament of Australia, The 2001 Federal Election:
Report of the Inquiry into the Conduct of the 2001 Federal Election, and Matters
Related Thereto (2003) 243.
[77] Joint Select Committee on
Electoral Reform, above n 38, 149–50 [9.11].
[78] See, eg, the Liberal
Party's support of the Electoral Amendment Bill (No 2) 1994 (Cth) which
increased electoral funding by changing
the funding rate for a Senate vote so
that it equalled the funding rate for a House of Representatives vote:
Australia, Parliamentary Debates, House of Representatives, 9 March 1995,
1951 (D Connolly). The Liberal Party has also advocated increases in electoral
funding through
a change in the method of calculating such funding. Instead of
the present system of basing the amount on the number of first preference
votes,
the Liberal Party has recommended that the amount be based on the number of
enrolled voters: Joint Standing Committee on Electoral
Matters, Parliament of
Australia, 1996 Federal Election: Report of the Inquiry into all Aspects of
the Conduct of the 1996 Federal Election and Matters Related Thereto
(1997)
104–5.
[79] See text above Table 4.
[80] Even with robust regulation
of campaign expenditure, public funding is still likely to fuel the parties'
expenditure in other areas,
for example, through the employment of increased
numbers of party staff members and more expensive party events like conferences.
[81] Tucker and Young, above n
10, 67.
[82] Stephen Mills, The New
Machine Men: Polls and Persuasion in Australian Politics (1986)
189–90.
[83] See above, text
accompanying nn 25–9.
[84] See above, text
accompanying Table 3.
[85] Arguments based on
'purification' have been made by UK proponents of increased state funding, see
Neill Committee Report, above
n 14, 90–1 and United Kingdom Electoral Commission, The Funding
of Political Parties: Background Paper, above n 59, 20.
[86] See above, text
accompanying Table 3.
[87] See above, text
accompanying Table 3. Federal electoral funding is provided for votes
gained in the House of Representatives and Senate so this discrepancy would also
be
due to the fact that the Greens do not contest many House of Representative
seats.
[88] For instance, a two per
cent threshold used to apply in relation to the Australian Capital Territory
funding and disclosure regime.
This threshold, however, has been increased to
four per cent: Electoral Act 1992 (ACT) s 208.
[89] In instituting a lower
threshold or pro-rata funding, it might be desirable to have different systems
applying to the House of Representatives
and the Senate.
[90] CEA ss 273 (Senate)
and 274 (House of Representatives).
[91] Figures derived from
Australian Electoral Commission
<http://www.aec.gov.au/_content/when/past/2001/results/>
at 28 January 2004.
[92] Commonwealth
Constitution s 24.
[93] See above, text
accompanying nn 40–1.
[94] United Kingdom Electoral
Commission, The Funding of Political Parties: Background Paper, above n
59, 22. See also Neill Committee Report, above n 14, 91–2. For similar sentiments, see Young, 'Killing Competition', above
n 39.
[95] CEA s
314AB(2)(b).
[96] Electoral and Referendum
Amendment Act 1998 (Cth). This requirement was also removed for the 1993
election but reinstated for the 1996 election, see respectively Commonwealth
Electoral Amendment Act 1992 (Cth) and Commonwealth Electoral Amendment
Act 1995 (Cth).
[97] PPERA s 80.
[98] PPERA s 82.
[99] PPERA s 81.
[100] PPERA s
82(4).
[101] PPERA s 84.
[102] Joint Standing Committee
on Electoral Matters, 1996 Federal Election, above n 78, 102.
[103] Electoral and
Referendum Amendment Act 1998 (Cth).
[104] Commonwealth of
Australia, Inquiry into Disclosure of Electoral Expenditure (1981) 8-9
('Harders Report').
[105] See Cass and Burrows,
above n 4, 484–5, 491.
[106] Schedule 8 of the
PPERA lists eight separate categories of expenses including 'party
political broadcasts' and 'advertising of any nature (whatever the medium
used)'.
[107] PPERA s 72(2). It
should be noted that a party's 'campaign expenditure' does not include any
expenditure that must be reported as the election
expenses of any candidate: at
s 72. Candidates' election expenditure is regulated by the Representation of
People Act 1983 (UK) c 2, see generally K D Ewing, 'Promoting Political
Equality: Spending Limits in British Electoral Law' (2003) 2 Election Law
Journal 499, 501–3.
[108] PPERA s
72(4).
[109] PPERA sch
9(3)(7).
[110] PPERA sch
9(3)(2).
[111] These minimum limits
vary according to the nations of the United Kingdom. In relation to England, the
minimum is £810 000.
The minimum limits for Scotland and Wales stand
respectively at £120 000 and £60 000: PPERA sch 9(3)(2)(b).
[112] PPERA s 79(2).
This provision is supported by strict regulation as to who can authorise the
spending and payment of campaign expenditure:
at ss 75–6.
[113] Ewing, 'Promoting
Political Equality', above n 107, 507.
[114] Neill Committee Report,
above n 14, 116–7.
[115] United Kingdom,
Parliamentary Debates, House of Commons, 10 January 2000, Column 36 (Jack
Straw, Secretary of State for the Home Department).
[116] Ewing, 'Promoting
Political Equality', above n 107, 499, 507.
[117] Neill Committee Report,
above n 14, 116–7.
[118] See above text
accompanying Table 4.
[119] As stated by Chief
Justice Mason, 'the very concept of representative government and representative
democracy signifies government
by the people through their
representatives' Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177
CLR 106, 137 (emphasis added).
[120] This argument only holds
when such organisations have democratic internal structures. Federally
registered unions, for one, are
legally obliged to have such structure:
Workplace Relations Act 1996 (Cth) pt IX.
[121] Neill Committee Report,
above n 14, 36–8.
[122] Electoral Commission
(UK), Elections 2001: Campaign Spending (2002) 17.
[123] Neill Committee Report,
above n 14, 117.
[124] See Young, 'Spot On: The
Role of Political Advertising in Australia', above n 6, 89
[125] Fisher, above n 15, 396.
[126] Young, 'Spot On: The
Role of Political Advertising in Australia', above n 6, 91.
[127] Neill Committee Report,
above n 14, 118.
[128] Note Ewing's comment
that fairness in elections goes beyond the question of resources and embraces
the content of messages: Ewing,
'Promoting Political Equality', above n 107,
499.
[129] See text above Table
3.
[130] Joint Select Committee
on Electoral Reform, above n 38, 172 [10.38].
[131] Harders Report, above n
104, 13.
[132] Joint Select Committee
on Electoral Reform, above n 38, 172 [10.38].
[133] Before they were
repealed, the Australian expenditure limits were, in fact, subject to widespread
non-compliance. For example, 433
out of 656 candidates for the 1977 federal
elections did not file returns disclosing their expenditure: Harders Report,
above n 104, 18.
[134] The key supervisory
committees are the Joint Standing Committee on Electoral Matters and the
Estimates Committees.
[135] Orr, 'The Currency of
Democracy', above n 4, 25.
[136] Neill Committee Report,
above n 14, 118.
[137] The vulnerability of
expenditure limits to arguments based on political freedoms also exist in the UK
but seems to be have been
largely confined to third-party expenditure limits,
see discussion of Bowman v United Kingdom (1998) 26 EHRR 1 in Ewing,
'Promoting Political Equality', above n 107, 505–7 and Andrew Geddis,
'Confronting the "Problem" of Third Party Expenditures
in United Kingdom
Election Law' (2001) 27 Brooklyn Journal of International Law 103,
116–25.
[138] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96, 112.
[139] For a somewhat heroic
attempt to argue that campaign expenditure is not a constitutionally recognised
form of political communication,
see Cass and Burrows, above n 4, 488.
[140] See Australian
Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[141] As proposed by Orr: see
Orr, 'The Currency of Democracy', above n 4, 23. If this method were adopted, other measures would have to be
implemented to bring third parties which do not receive public funding
within
regulatory regime.
[142] See Cass and Burrows,
above n 4, 489–90.
[143] This rationale was
accepted in Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992)
177 CLR 106.
[144] CEA s 287.
[145] For an excellent
description of these limitations and other issues pertaining to the annual
returns, see Sarah Miskin, Political Finance Disclosure: Party and Donor
Annual Returns 2002–03, Parliamentary Library Research Note No.
49/2003–4 (2004).
[146] CEA s
314AC(2).
[147] CEA s
287.
[148] See AEC, Submission
to the Joint Standing Committee on Electoral Matters Inquiry into Electoral
Funding and Disclosure (2000) para 8.4.
