Should the government’s critics be accountable to it?

I was rather surprised this week to receive a letter, in my capacity as editor of Policy, from the ‘Chief Legal Officer’ of the Australian Electoral Commission. Had I forgotten to vote? No, but it seems I may have ‘failed to focus’ on meeting my obligations under section 314AEB of the Commonwealth Electoral Act.

Indeed, until I came to write my criticisms of Brian Loughnane’s National Press Club speech last month, I had no idea that this provision existed, and even then I did not grasp its full implications.

Section 314AEB requires that any person or organisation spending more than $10,300 in a financial year on ‘political expenditure’ – including expressing views on a political party or candidate, or on an election issue, or on an opinion poll asking about voting intentions – has to report that to the AEC. If that spending threshold is crossed, there are also disclosure requirements on ‘gifts received for political expenditure’.

The AEC has done its best to interpret this as narrowly as possible – whether out of democratic concern or merely a desire to avoid being buried in paperwork I don’t know. The ‘primary or dominant’ purpose of the expression has to be of the kind covered in the Act. So a political or policy opinion piece in a newspaper would be part of their normal activity and not covered, but the publication of the same piece on a website intended to influence the election would be covered. And the issue has to be one ‘likely to affect the outcome of the election’, and not just any issue.

Where there is no public money involved, I don’t see what public interest rationale there could be for requiring such disclosure. There is some public interest in disclosure of donations to political parties because of the possibility of secret and improper influence on decision-makers, but in the case of political expenditure on views about a party, candidate, or issue the whole point is to engage in a public act of persuasion. By their very nature, expressed views are automatically disclosed.

So the requirement to send in accounts adds nothing useful to what is already on the public record. What it does do is distract organisations or individuals which make political statements with a time-consuming and costly bureaucratic task. I’ve already spent several hours getting my head around this and discussing it with colleagues.

And if we did have to comply, it would be a big job. There are several Policy articles I have published that fall within the Act, but the CIS does not bother generating useless information like how much we effectively spend on each article (my time, the assistant editor’s time, the production person’s time, the media person’s time, the paper it is printed on, the cost of mailing a few grams of magazine to subscribers, where does it end?). You can see why the AEC did not want every newspaper in the country sending them all that information from thousands of political articles published during the year.

While the AEC has tried to avoid getting returns on issues unlikely to affect the election’s outcome, that puts a significant onus on those engaging in ‘political expenditure’ to decide which issues fall into this category. Would my higher education commentary qualify? The fact that neither party bothered to put out a higher education policy suggests that the answer may be ‘no’. But commentary on election trivia that nevertheless captures the attention of a bored media could well qualify. And since the legislation applies to future elections that haven’t been called, an assessment of what expenditure needs to be declared can only be done in retrospect, rather than as it is incurred.

I suspect this legislation has its roots in misguided work the Institute of Public Affairs did in the first half of this decade calling for NGO ‘accountability’. When foreshadowing this legislation in late 2005, then Special Minister of State Eric Abetz used this notion of accountability:

A development of this [associated entities] issue is how third parties are dealt with during non-election periods.

The Wilderness Society spent over $245,000 targeting 10 marginal electorates, with a television advertising campaign calling on the leaders of both major parties to “save” Tasmania’s forests. In the last week of the campaign, the Wilderness Society welcomed Labor’s forest plan while slamming the Coalition’s. Similarly, the RSPCA spent $98,000 on conducting a “national offensive” against what it called the “unnecessary live export trade” which, it said, “must be stopped”. ….

So, both the Wilderness Society and the RSPCA were not only campaigning to influence the policies of the major parties, they were also effectively campaigning in favour of the ALP. ….

And let’s not forget the new online lobby group, GetUp!, who admit that their primary purpose is to campaign against the current Government , having run anti-Government campaigns on topics such as workplace reform, voluntary student unionism, David Hicks, and Telstra. The ACTU’s dishonest campaign on workplace relations reform is another case in point.

Yet, none of these groups are required to report annually outside of election periods, and blatantly political campaigns such as those run by GetUp! and the ACTU escape accountability.

Therefore, I am examining an accountability regime for third parties.

Yes, people who oppose the government must be held accountable to it!

Pretty clearly this provision was designed to harass the previous government’s opponents on spurious ‘accountability’ grounds. Deputy PM Julia Gillard has already said that the new government will remove provisions restricting the public comment of NGOs with government contracts. In this spirit of democratic free speech, I hope they will remove this provision from the electoral laws so that everyone can freely comment on issues, parties and candidates without having to fill in AEC forms.

16 Responses to “Should the government’s critics be accountable to it?

  • 1
    Andrew E
    January 12th, 2008 16:00

    And if we did have to comply, it would be a big job. There are several Policy articles I have published that fall within the Act, but the CIS does not bother generating useless information like how much we effectively spend on each article (my time, the assistant editor’s time, the production person’s time, the media person’s time, the paper it is printed on, the cost of mailing an extra few grams of magazine to subscribers, where does it end?). You can see why the AEC did not want every newspaper in the country sending them all that information from thousands of political articles published during the year.

    When Mark Latham sent me a personally addressed letter before the 1998 election, I sent it back to him wrapped in a housebrick. I’m sure he defrayed the cost of return postage to the taxpayer/ALP donor, but to this day I have received no further communication from him.

    You have answered your own dilemma: surely there’s a Policy article in this officiousness and the counter-officiousness on your part. Make all postage/courier payments payable to them. This will probably last until another polite communication asks you to desist. Worth a shot.

  • 2
    Jeremy
    January 12th, 2008 16:10

    I’m sorry Andrew, I don’t understand why what is published in Policy falls under the Act, but what is published as an opinion piece in a newspaper doesn’t. Could you please spell it out for me?

    This notwithstanding, I’m astounded by what you’ve told us. Pray tell, what are the penalties associated with breaching the act?

  • 3
    Andrew Norton
    January 12th, 2008 18:44

    Jeremy – I do plan to argue that Policy articles that comment on election issues (such as industrial relations and the size of government) fall within the AEC exception relating to normal activity.

    Though it is not clear that the legislation authorises this exception, I expect the argument that it does is that newspapers/magazines would incur their publishing costs regardless of whether there was an election or not.

    That is true of Policy in that it is a fixed length and that if I had not published these articles I would have published something else.

    Under section 315 this appears to be a strict liability offence, for which I could be convicted and fined $1,000.

    If so, I would keep a running tally of how much I would have donated to the Liberal Party for each election and deduct it until their debt is cleared. An appropriate political expenditure related penalty for passing such stupid and illiberal legislation!

  • 4
    Andrew Norton
    January 12th, 2008 18:52

    I should note that regardless of whether Policy falls within this provision I believe that it should be repealed, and I have commissioned an article on this and an even more outrageous change to NZ electoral law.

  • 5
    iamspam
    January 13th, 2008 08:30

    I agree that in general the act of public advocacy is a sufficient accountability mechanism. But I can see how a shadowy advocacy group with an innocuous sounding title (eg “Australians for a Better Future”) could appear out of nowhere, acting as a front for particular actors with an agenda to push, but without those actors having to disclose their support for that campaign. Alternately, say Optus quietly donates $500 000 to GetUp! for its Telstra campaign.

    Hopefully, the use of front groups like this is normally picked up by the press and exposed. But if there’s a real issue with trying to figure out where the money came from, maybe the accountability mechanism should lie on the other side of the ledger, eg “Did you make more than $10 000 in non-party political donations this year?”.

  • 6
    Andrew Norton
    January 13th, 2008 10:04

    Iamspam – While it is interesting to know whether interest groups are pushing their agenda via other groups (the ‘astroturfing’ that people complain about) I don’t think there is sufficient cause to justify disclosure rules.

    Ultimately arguments have to stand or fall on their merits; that we should be especially sceptical of arguments made by people with a financial interest in the outcome is a good rule-of-thumb, but no guarantee that scepticism is sound. People with a vested interest also tend to have a high level of knowledge.

    And groups that are financially disinterested are generally interested in other ways, such as having ideological concerns, which bring them personal, albeit not financial, satisfaction. They may have low regard for the interests of others.

    On balance, letting debate run as freely and with as few barriers to entry as possible is the best solution to these problems.

  • 7
    iamspam
    January 13th, 2008 19:04

    “Ultimately arguments have to stand or fall on their merits”
    – Potentially. Otherwise they could stand or fall on the skill with which they are put forward. Or their frequency. You need a lot more than a meritorious argument to sway public opinion, particularly if opposing arguments contain an element of ‘truthiness’.
    So given this, I think it’s important that we know who’s trying do the swaying, whether they have an interest that is financial, ideological or otherwise.

  • 8
    Spiros
    January 13th, 2008 20:38

    Ha! Hoist by your own petard (lumping, not unfairly, CIS, IPA and Erica Betz into one indistinguishable group, in this context).

    I’ll bet this isn’t what Erica had in mind.

    Someone, by the way, – Kevin Donnelly perhaps – should remind Erica that she should say ‘none is’, not ‘none are’.

  • 9
    Andrew Norton
    January 13th, 2008 20:49

    On the other hand, how often is the information from disclosure laws even used? We’ve had them in place for political donations for years, yet apart from the AEC release they hardly surface in political discussion. The only recent exception I can think of is the Australian Hotels Association in NSW, but even then their donations were a minor part of a debate that was about the substantive issues. For the most part, donations are – correctly I think – deemed not newsworthy.

    The AEC will release the section 314AEB returns on 1 February. We will see then if anything interesting is revealed – or whether it is just another Howard government bureaucratic extravaganza.

  • 10
    Andrew Norton
    January 13th, 2008 20:56

    Spiros – CIS always regarded the IPA’s actions as folly on this (indeed, not just on the substance of what they said, but in accepting money from the federal government to do a project on it). I don’t think in the end the CIS will fall under the AEC interpretation, as our work is only incidentally related to elections. Indeed, the CIS has no position at all on the election; its works on issues, some of which end up being election issues. The CIS does however have an interest in state interference in civil society, and this seems like an instance worth pursuing. It may find itself with some rare allies in the likes of GetUp! and the other actual targets of the legislation.

  • 11
    Spiros
    January 13th, 2008 21:08

    “CIS always regarded the IPA’s actions as folly on this”

    Did you say so at the time, somewhere on the record?

  • 12
    iamspam
    January 13th, 2008 21:55

    “The AEC will release the section 314AEB returns on 1 February.”
    .
    Who knows, you might get some fun surprises. Did anyone else see the ads urging Howard to get tough on Indonesia over West Papua, which were authorised by the Optical Superstore, or was that just a Canberra thing?

  • 13
    Andrew Norton
    January 14th, 2008 06:30

    Spiros – I can’t see anything on Catallaxy, though a lot of the IPA work was published before I became a regular blogger in 2003. There were few later news hooks to prompt a post. I had thought (wrongly, obviously) that this issue was going nowhere. The IPA has given up on it. I can recall in the early 2000s discussing what the IPA was doing with CIS colleagues.

    You certainly won’t find any record of me supporting such things, or indeed many records of me supporting additional government regulation of any kind. I have a very high threshold before I will support any new laws.

  • 14
    Andrew Leigh
    January 14th, 2008 09:40

    I couldn’t help wondering whether my work on betting markets qualifies. But for the $10,300 limit, I would have thought that it’s research that relates to a major issue in the election (ie. who will win), and which was published online.

    Crazy law.

  • 15
    Andrew Norton
    January 14th, 2008 11:05

    Andrew – Also an issue, at least in the AEC narrow reading, as to whether this is part of your normal work or not. As you have written on betting markets for some years, arguably it is.

  • 16
    Rob
    January 14th, 2008 11:53

    I’m stunned that you were pinged on this. I’m staggered by the wide sweep of the wording in the Act. Tying this provision to the Electoral Act is a dreadful con – a convenient vehicle for the infringement of free speech, where ‘free’ now takes on a whole new meaning. If I ask myself what this provision was meant to achieve, one answer that comes back loud and clear is ‘to make democracy the preserve of those in power’ – we’re in charge and these are the rules. I’ll contribute to your fighting fund …