Strangling political activity with red tape

Just before I was about to finally get my campaign finance paper released, the Queensland ALP rammed through its campaign finance amendments to their electoral act – forcing many revisions. (The Parliamentary Library’s summary is the easiest way in, if you want the detail.)

But far worse than my inconvenience, of course, is that after the changes in NSW this is the second successful assault on political freedom in the last 12 months. The Queensland and NSW laws are generally quite similar in capping expenditure and donations, but with two main exceptions.

The first is that Queensland has largely avoided the particularly appalling NSW complete bans on donors. There is no singling out of disfavoured industries for bans, and while foreign-sourced donations to political parties are banned (as they already were), they have not followed NSW’s lead in banning all non-citizens from donating.

However Queensland is worse than NSW in its regulation of third parties. This is because they have combined NSW-style caps on donors and spending with the federal regime of disclosure. The result is extraordinarily complex – even by the red tape standards of campaign finance law.

Queensland third parties will need to keep in mind three overlapping but different concepts in meeting the legislation’s requirements: ‘electoral expenditure’, ‘campaign purposes’, and ‘political purposes’.

For the purposes of capping and disclosing expenditure in the relevant period (2 years after an election, or when an election is called) ‘electoral expenditure’ is the relevant concept. This is material that advocates a vote for or against a political party or a candidate. For registered third parties, the electoral expenditure limit is $500,000, but no more than $75,000 for any one seat. For unregistered third parties, the limits are $10,000 and $2,000 respectively.

Electoral expenditure has to come from a state campaign account. The only donations that can be placed in a state campaign account are political donations as defined under the act, which are gifts intended to be used by the donor for ‘campaign purposes’. Campaign purposes is a broader concept than ‘electoral expenditure’, as it includes indirectly promoting or opposing a candidate or party or indirectly influencing voting. I expect something like the anti-WorkChoices campaign would come within this provision. Even if an advertisement did not mention Labor or the Coalition, it was clearly designed to push the Coalition from office.

Campaign purposes is the relevant concept for capping donations, to a maximum of $2,000. However, I think the different definitions mean that even though donors are restricted to $2,000 for ‘indirect’ campaigns, the $500,000 spending cap does not apply. Third parties can spend as much as they like, provided only $500,000 directly advocates a vote for or against (a loophole presumably there for the benefit of the ALP’s union allies).

For the purpose of disclosing donations of $1,000 or more, there is a broader concept still, of ‘political purposes’. It ignores the concepts used for capping but the relevant activities are there, through disclosure of gifts to political parties or candidates and publication of ‘electoral matter’. However it also includes the federal provision that requires disclosure of expenditure and donations relating to ‘publicly expressing views on an issue in an election’.

As I noted in my 2009 critique of the federal law, this is very difficult to define. In the federal case, it requires third parties to predict future election issues (disclosure operates all the time, capping only before an election). And because the concept of trying to influence a vote is absent, it covers any raising of an issue that might be an election issue, even without direct or indirect support of or opposition to a candidate or party.

Queensland may have tried to somewhat clarify this point, with a previous sub-section referring to expenditure for the election. But surely it would have been far simpler to use the less ambiguous concepts of ‘electoral expenditure’ or ‘campaign purposes’ (as NSW does, though its definition of ‘electoral expenditure’ is Qld’s definition of ‘campaign purposes’)

Because the broader concept is used, in theory at least donors who did not intend that their money would be used for political purposes could have their names and addresses disclosed to the public (the legislation does not require the QEC to do so). So long as their donation ‘enabled’ the expenditure they are to be disclosed. Given money is fungible, it is hard to see how this can work except in third parties that have only one donor or a very small number of donors.

A similar problem arises from the ban on putting into state campaign accounts money that is not a donation for campaign purposes. Many third parties could simply say that all the money they put in their campaign account was from subscription fees or commercial operations.

But this could leave heavily donor reliant organisations in a real spot – unable to spend any money on ‘electoral expenditure’ until they had carried out specific fundraising.

These provisions apply to very small third parties – with as little as $200 electoral expenditure or $1,000 in spending for political purposes. The idea that third parties on this scale can exercise any improper or undue influence on the political process is completely fanciful (the only redeeming feature of the federal legislation is the much higher $11,500 trigger). The law will catch hapless individuals who did not realise that the needed to employ a lawyer and an accountant before spending any money promoting their political views.

This harassment and deterrence of legitimate political activism is a disgrace.

Queensland’s legislation has been hastily put together and poorly thought through (there were numerous government amendments to fix drafting errors and omissions). As the Opposition pointed out in Parliament, the obvious reason for haste is that a sinking government wanted to cut off a likely funding imbalance in favour of its political opponents (the laws have retrospective effect).

The only redeeming feature from this mess is that unlike in NSW the alternative government smells the rat. With luck, the Newspoll numbers will hold and we will be rid of Bligh and her cronies in the next year or so.

6 Responses to “Strangling political activity with red tape

  • 1
    Factory
    May 17th, 2011 12:15

    “we will be rid of Bligh and her cronies in the next year or so.”
    But prolly not the regulations, if they help the LNP. :(

  • 2
    Susie
    May 17th, 2011 14:12

    Does the ban cover “donations” or funding from Unions??

  • 3
    Andrew Norton
    May 17th, 2011 14:40

    Unions will be able to donate $5,000 each to the ALP for use in their state campaign account (more for other purposes, though given the generous taxpayer funded ‘administration’ money they may not need to). But they will be able to spend $500,000 each of their own money on pro-ALP or anti-LNP campaigns.

  • 4
    TimP
    May 18th, 2011 05:26

    I’m not sure if I’m reading this right, but does this law about “political purposes” cover such things as running a personal political blog or putting up a sign saying “Nuke Free Australia” in your front yard? Most of these wouldn’t hit the $1,000 break-point, but similar things could easily; two or three people could easily run a “campaign” of leaflet drops that exceeds $1,000 in expenditure for their favourite cause.

  • 5
    Andrew Norton
    May 18th, 2011 05:46

    Tim – Good questions – highlighting how hard it is for activists to navigate their way around these rules. If I was a defence lawyer, I would argue that ‘Nuke Free Australia’ is not a reference to an election issue, as no significant party is calling for nuclear power or weapons. Though the prosecution could argue that because the ALP sometimes accuses the Coalition of having secret plans for nuclear power stations it is an election issue. For a blog, some initial advice put out by the AEC after the feds adopted a similar provision said that it was not intended to cover commentary as part of the normal course of business – for example a newspaper, or a union newsletter saying how terrible WorkChoices was. I think a blog would fall into that category, unless it was set up specifically to pursue an election issue. However this AEC interpretation is contrary to the plain meaning of the legislation. The AEC has not repeated its initial advice. Perhaps the best guide to this is that there is mass non-compliance with the law and nobody has been prosecuted.

    But the leaflet drop is clearly within the law. I hope the QEC will exercise common sense, but my basic advice to Queenslanders is do not engage in anything but the most trivial self-organised political activity. It is now a legal minefield, and activists need professional advice.

  • 6
    Andrew Norton » Blog Archive » Bureaucratic overkill on campaign finance law
    June 2nd, 2011 13:09

    [...] and Queensland have extremely complex campaign finance laws. I think the underlying assumptions – that we [...]