Legislative Assembly for the ACT: 2018 Week 13 Hansard (29 November) . . Page.. 5069 ..
conduct or undue influence of profit for property developers on the electoral system in the ACT.
Property developers are distinct from other groups in the community in that their profit depends heavily on decisions made by government in relation to land development applications. Across the border in New South Wales investigations have shown that the risk of those profits influencing elections and government decisions is real. Canberrans are rightly concerned to ensure that government and elections are transparent and not unduly influenced in their decisions by private profits.
Today's bill meets the government's commitment to enhance public confidence in our elections and our government by making it an offence for a property developer to give electoral donations or gifts to political entities. It also makes it an offence for a candidate or party to receive those donations or gifts. Political entities will be required to take reasonable steps to ensure that they are not receiving donations from property developers.
This legislation has been drafted to ensure that it is narrowly targeted at preventing actual or perceived influence. To achieve this, the bill defines a "property developer" as a corporation that carries on the business of commercial or residential development for profit. Further, the bill specifies that the corporation must have at least one current planning application pending or have made three applications in the last seven years to be within the scope of the ban.
Other jurisdictions, such as New South Wales and Queensland, have introduced legislation banning political donations from property developers, and the ACT has drawn on their models and experiences to craft this offence in a way that is legally sound and effective.
There are important human and constitutional rights to consider in this bill. We are mindful that New South Wales legislation has been considered in the High Court of Australia in the case of McCloy v New South Wales. The High Court upheld the validity of New South Wales provisions banning political donations by property developers and recognised that limitations on donations can be an important part of enhancing fair and free elections. In designing this ban the government has taken into account the High Court judgement and drafted the legislation to focus narrowly on the risk of influence on elections and government decisions. Commercial operations whose business depends on planning applications are the focus of this legislation. We have taken care to ensure that the ban on donations goes no further than necessary.
For that reason the definition of "property developer" does not apply to individuals, joint ventures and partnerships. For example, a couple who decided to invest in a block and build a single investment property are not caught by this ban. Incorporated associations and not-for-profit corporations are also excluded. This ensures that community service organisations and other advocacy groups are not prohibited from making donations. Other corporations can be excluded by regulation or may obtain a declaration from the Electoral Commissioner that they are not a property developer.