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.