Earlier this month the Australian High Court found against a
challenge to NSW laws limiting donations from property developers to political
parties by property developer and former Newcastle Lord Mayor, Jeff McCloy.
Mr McCloy had previously admitted to the NSW Independent
Commission Against Corruption (ICAC) that he had made such donations to local state
Liberal Party members of parliament, leading to his resignation as Newcastle’s Lord
Mayor last year.
The High Court judgement (which can be found at: http://eresources.hcourt.gov.
While the court acknowledged that the impugned laws did place
a burden on the freedom of political communication implied in the Australian
constitution, it found that this was justified, because the laws had been “enacted
for legitimate purposes” and assisted that purpose “by rational means which not
only do not impede the system of representative government provided for by the
Constitution, but enhance it”.
The court found that “there are no obvious and compelling
alternative, reasonably practicable means of achieving the same purpose” and
that “the provisions are adequate in their balance”.
The court judgement rejected the argument put by Mr McCloy that
“the ability to pay money to secure access to a politician” was protected by
the freedom of political communication implied in the constitution.
“To the contrary,” the judgement said, “guaranteeing the
ability of a few to make large political donations in order to secure access to
those in power would seem to be antithetical to the great underlying principle of
the constitution [i.e., that the rights of individuals are sufficiently secured
by ensuring, as far as possible, an equal share in political power]."
The judgement noted that Mr McCloy’s challenge argued that the
NSW laws “restrict political communication by removing the preferential access
to candidates and political parties which would otherwise come to those who
have the capacity and incentive to make large political donations”.
The court branded this argument “as perceptive as it is brazen”, and said that it “goes to the heart of the mischief to which the provisions are directed”.
Tellingly, the judgement says that the reason for limiting
campaign funding in the case of the NSW laws “surely extends to the elimination
of what has there been labelled ‘clientelism’:
"the danger that officeholders will decide issues not on the merits
or the desires of their constituencies, but according to the wishes of those
who have made large financial contributions valued by the officeholder".
The judgement referred to the recognition in countries such
as Canada and the United Kingdom “that preventing wealthy voices from
dominating political discourse so that other voices may be heard ‘is necessary
for meaningful participation in the electoral process and ultimately enhances
the right to vote’".
The High Court also found that targeting corporate property
developers was justified due to both “the nature of the business in which they
are engaged” (i.e. a profit-making business dependent on the exercise of
statutory discretions by public officials that gives them “a particular
incentive to exploit such avenues of influence as are available to them”,
irrespective of how limited those avenues of influence might be) and “the unfortunate
experience in New South Wales … of exploitation of influence leading too
readily to the corruption of official conduct”.
All fascinating enough in itself, but even more interesting (and
disturbing) in context of controversial state government decisions such as closing
the Newcastle rail line, or the route of the proposed replacement tram.
At the same time as the Baird government was declaring its
support for the High Court decision, it was moving full steam ahead with the very
decisions that were the most strongly advocated causes of the practitioners of
what the High Court had identified as “clientelism”.
