The leading constitutional lawyer George Williams has warned Australia’s campaign finance system is “broken” – and he has proposed a major overhaul to ensure the federal system of donations and disclosure is no longer vulnerable to “exploitation”.
In a submission to a parliamentary inquiry into the conduct of the last federal election, and the adequacy of Australia’s donations and disclosure regime, Williams proposed a “holistic” overhaul, including imposing caps of $5,000 on political donations, real-time disclosure, banning foreign donations when the source is “exclusively foreign”, caps on campaign expenditure, and a boost to public funding.
Williams, the dean of the faculty of law at the University of New South Wales, warned it was “widely accepted among experts and others that Australia’s system of political finance law is broken and open to exploitation and undue influence”.
“This can give rise to a form of soft corruption in which money may be given in return for access and the potential to bring about undue influence on decision-making and policy development,” he said.
“Such a system is clearly not in the interests of the Australian community.”
Williams references the two high court cases that are most commonly cited to make the case that it’s constitutionally difficult to limit donations, and he suggests reform can proceed along the lines he proposes, “taking into account the legal constraints”.
He also used his submission to recommended lowering the voting age to 16, and urged the Turnbull government to resist calls to legislate a truth in political advertising provision.
Truth in advertising has been added to the terms of reference for the donations inquiry because that change is being sought by Nick Xenophon. Xenophon was unhappy with some of the advertising directed at his NXT party in South Australia during the 2016 federal election.
The Coalition has also complained volubly about Labor’s Medicare anti-privatisation campaign during the campaign.
Williams argued there were two main problems with truth in political advertising laws – the first was the law might prove unworkable in practice and the second was the law could easily infringe the implied freedom of political communication.
He acknowledged truth in advertising provisions existed in South Australia, the Northern Territory and in some countries overseas, but he said the regimes were very narrowly based.
Williams noted the SA electoral commission wanted the regime repealed on the basis it undermined the independence of the state agency by necessitating decisions about who was right and who was wrong.
“While it may be possible to frame truth in political advertising laws that are both constitutionally valid and enforceable, any such provisions would have to be cast in very narrow terms with only a small scope for application,” Williams said.
“Provisions of this nature would likely serve little more than a symbolic purpose.”
He also argued in favour of two changes widening eligibility to vote.
The first involved lowering the voting age, which would lower some of the barriers to persuading distracted 18-year-olds to enrol to vote at a time when they are leaving school, and leaving home.
“People under 18 can leave school, get a job, drive a car and pay taxes. They can also enlist in the Australian defence forces, become a parent, and, in exceptional circumstances, get permission to marry. If the law permits them to undertake these activities, it is hard to see why they cannot also vote.”
“It is often argued that 16-year-olds lack the knowledge about how government works to enable them to vote ... this can be true, but these problems are not limited to this age group.”
Williams said lowering the voting age would not mean imposing a compulsory vote on teenagers. He suggested participation should be voluntary.
He also said Australians should be allowed to vote even if they live overseas on a long-term basis. Electoral law prevents people voting if they have resided overseas for six years.
“Australia’s electoral system should recognise the reality that Australia is increasingly integrated into global systems, including by way of movement of its citizens,” he said.
“It is desirable that these people have the opportunity to remain strongly connected to Australia, including by voting.”
