A concerned politician's guide to donations reform

It seems clear from these and similar remarks that the majority sees this egalitarian principle as an essential part of the justification for the restrictions and bans it will recognize on political donations. Professor Anne Twomey of the Sydney University Law School, in her October, 2015 submission to the final report of the NSW expert panel on political donations, comments:

The High Court gave very strong support to the imposition of limitations on political donations as a means of reducing or removing undue influence and facilitating the equal share of individuals in political power. It also recognized as a legitimate end the imposition of limits to prevent those with wealth from dominating political communication to the exclusion of others.

While the facilitation of an equal share of citizens in political power is an important principle it does not, as the Court makes clear, create a US style jurisprudence of rights. There is, therefore, no right to equal treatment comparable to the equal protection clause of the Bill of Rights, which famously spelled the end of US racial apartheid in 1954 in Brown's Case and subsequent decisions.

The High Court takes this stance out of respect for the doctrine of separation of powers and the idea that unelected judges have no right to legislate social policy. The same concern explains the highly structured process of reasoning required to interpret both the freedom and the equality principle, with an emphasis on transparency and the need to avoid subjective judgments based on a vague sense of fairness.

How likely, then, are low threshold caps, such as the widely discussed $1000 limit, or even a complete prohibition on donations by non-voters, to be ruled invalid because they are in breach of the freedom of political communication?

While this is a question for expert constitutional lawyers, if the implied protection of equal access to political power is as important as the majority says, and as their ruling in McCloy demonstrates, it will be hard to argue this is not a 'legitimate end', as Professor Twomey suggests. And if legislative caps or bans are an effective means to limit the distortion of voting power due to large donations, it will not help to argue they are unreasonable because they target wealthy donors, or because they do not also target corruption.

Whether the High Court may need to further clarify the relationship between these constitutional principles may now depend on the outcome of a Liberal party debate between the conservative views of John Howard and the more progressive views of the Prime Minister, as well as the willingness of major parties to re-assess their commitment to large political donations, whether from corporations, wealthy citizens, trade associations or trade unions.

Finally, and perhaps even more important, is a need to avoid the US situation where, after the Citizens United Case, wealthy donors and 'political action committees' can bypass political parties (to avoid caps on donations) and spend unlimited amounts to directly support those candidates and parties who serve their interests while targeting those who don't. The egalitarian principle stated in Mc Cloy's Case makes it clear the Government can cap or ban this third-party spending without risking a breach of the implied freedom of communication.

In summary, the High Court has now made it possible for politicians across the spectrum to support reforms which respect both the freedom of political communication and the idea that all citizens must be treated as having equal worth, arguably the nation's most important democratic principles.