Legislative Assembly for the ACT: 2015 Week 02 Hansard (Thursday, 19 February 2015) . . Page.. 633 ..
Electoral Amendment Bill 2014 (No 2)
MR CORBELL (Molonglo—Deputy Chief Minister, Attorney-General, Minister for Health, Minister for the Environment and Minister for Capital Metro) (4.18), in reply: I thank members for their comments on this bill. The bill implements the government’s response to the recommendations made by the Select Committee on Amendments to the Electoral Act 1992 in its report Voting matters, June 2014, and the Electoral Commission in its report to the ACT Legislative Assembly Proposed changes to the Electoral Act 1992, September 2014.
The bill, as members have observed, amends the act in relation to campaign finance, including expenditure caps, donations and public funding. It makes several changes to improve reporting requirements. The bill also maintains the currency of the act by addressing developments in privacy law and technology and makes a number of technical amendments to the act to remove ambiguity and achieve consistency.
Two key developments have occurred since the campaign financing provisions of this act were last amended. First, there was the 2013 decision of the High Court in Unions NSW v New South Wales, which found certain New South Wales campaign financing laws were invalid. This case has significant implications for the constitutional validity of electoral finance regulations, particularly within the state and territory context, as it makes it clear that the freedom of political communication provisions contained within the commonwealth constitution also apply at a state and territory level.
The case demonstrates that state or territory regulations limiting donations or expenditure can be struck down in circumstances where they effectively burden the implied freedom of political communication found to exist in the constitution and are not reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible government.
The second key development, which also has significant ramifications for electoral reform, is the New South Wales Independent Commission Against Corruption inquiry into alleged corruption involving political donations and members of the New South Wales parliament.
These ICAC hearings have, as we know, revealed that New South Wales laws that prohibit or limit political donations have been systematically circumvented through a series of secret and illegal donation schemes. These revelations call into question the ability of such laws to provide a meaningful constraint on donations. The efficacy of these laws is also under further question, with a High Court challenge to New South Wales political donation caps currently underway. These key developments show that those undertaking electoral reform must be careful not to create undue restrictions on participation in political communication. To do otherwise clearly risks creating ineffective or invalid legislation.