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The Regulation of Electoral Financing(4) |
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Part C: Other Issues Relevant to the Constitutionality of Political Funding Reform
Several other issues are raised by the overseas authorities, particularly the United States cases, in the context of campaign finance reform, which I now consider.
(1) The Less Drastic Means Doctrine
In several American cases considering First Amendment rights, the Court has considered as one relevant factor in assessing the constitutionality of the law, whether there were less drastic means (in other words, means less intrusive of human rights) that were available to the government to pursue what may be a legitimate objective. So, for example, in assessing whether spending limits on candidates are justified to prevent corruption, the Court might find that they are not justified because they are intrusive, and the government interest in preventing corruption could less invasively be met by introducing a disclosure regime.87
There is some support for this doctrine in the Australian case law. A unanimous court in Lange v Australian Broadcasting Corporation seemed to accept the validity of such an approach, in the current context:
In ACTV for example, a majority of this Court held that a law seriously impeding discussion during the course of a federal election was invalid because there were other less drastic means by which the objectives of the law could be achieved.88
However, Brennan CJ expressly disavowed this approach in Levy:
Under our Constitution, the courts do not assume the power to determine that some more limited restriction than that imposed by an impugned law could suffice to achieve a legitimate purpose. The courts acknowledge that the law-maker's power to determine the sufficiency of the means of achieving the legitimate purpose, reserving only a jurisdiction to determine whether the means adopted could reasonably be considered to be appropriate and adapted to the fulfilment of the purpose.89
I wonder with respect whether such a precise delineation can be made between what is 'reasonably appropriate and adapted' and whether less drastic means are available. In other words, perhaps the fact that less drastic means are available to achieve legitimate ends might suggest that the law is not reasonably appropriate and adapted to achieving a legitimate end. It is worth remembering also that the phrase 'reasonably appropriate and adapted' is itself derived from a United States decision.90
Apart from the comments in Lange cited above, the High Court of Australia clearly has used something akin to (at the very least) the 'less drastic means' test in considering the constitutionality of legislation, though in different contexts to the one now being considered.
For example, in the Castlemaine Tooheys Ltd v South Australia91 decision regarding s92 of the Constitution, the High Court did consider the possibility of other regulatory options:
Where a law on its face is apt to secure a legitimate object but its effect is to impose a discriminatory burden upon interstate trade as against intrastate trade, the existence of reasonable non-discriminatory alternative means of securing that legitimate object suggests that the (law is invalid as involving prohibited discrimination).
In another context considering laws providing for bicentennial celebrations in Australia,92 the High Court refused to accept provisions giving the Bicentennial Authority monopoly use over certain words, given that those words could be used in other contexts for legitimate commercial reasons. The court concluded that protection of the integrity of the bicentennial celebrations did not require such prohibition; that the law was disproportionate to the need to protect the commemoration powers of the authority.93 Though the court did not phrase its reasoning by saying something like 'although the authority has legitimate purposes, there are less drastic powers it could be given in order to effect its purposes that would be less invasive of established commercial freedoms, so the law is unconstitutional', I would submit that the above comments are very similar in effect. As a result, I believe there is some Australian support in the constitutional context for such a test.
Proceeding on the basis that this is a relevant doctrine, we should apply this to the question of limits on campaign funding. It is difficult of course because no specific limits on political donations or expenditure by candidates or parties have been suggested in the Green Paper. However, I would be very sceptical of the need for such laws, and it is submitted a relevant factor in assessing the constitutional validity of such laws, given their interference with the freedom of communication, would be whether other measures are available to achieve the kinds of purposes said to be achieved by such measures.
The alternatives include a register of political donations and full disclosure of donations at a very low threshold, enforcement of criminal provisions dealing with corruptions and bribes, and a system by which some public funding is provided to political parties (which already occurs). To the extent that corruption and equality arguments remain a concern (and I have given my reasons for thinking they are not justifications for further electoral funding reform), clearly measures already exist to deal with them, and it is not clear whether measures more invasive of the freedom of political communication are in fact necessary. I do not believe that we should defer to Parliament's judgment about the necessity or otherwise of laws, particularly in this context where the subject matter being considered is very 'close to the bone' as it were, and where politicians and political parties can be expected to act in ways that they think will advantage themselves, rather than build or maintain a robust democracy.
(2) The Individual/Organisation Distinction
As indicated above, some American cases have drawn a distinction based on whether the donor is an individual or an organisation.94 It is argued that, because freedom of communication (or freedom of speech) is fundamental to the right of an individual to participate in the electoral process, that restrictions on the ability of an organisation to make donations to political candidates or individuals should be more acceptable. As indicated, the recent Canadian reforms completely ban donations by organisations, while allowing some donations by individuals.
The Federal Government's discussion paper canvasses this issue separately from the general question of caps. In considering the question of differential treatment of bans or caps on donations from organisations, the Green Paper considers:
An argument in favour of this approach is that the Government is elected by individuals and is there to represent the will of its citizens, rather than organisational interests. In that case, individuals should be encouraged to contribute to those running for office by allowing them to give donations to their party of choice, whereas organisations should not be allowed to influence candidates or parties running for office. Banning donations from organisations is argued to have the added advantage of preventing wealthy individuals from donating to political parties and candidates through a range of different corporations or organisations, thereby undermining any caps on donations which may be in place.
An argument against banning donations from organisations is that different types of organisations play a variety of important roles in modern society - corporations have legitimate interests in government decisions; trade unions exist to represent the interests of their membership base; while community groups can be formed around important social or environmental issues.95
Given the terms in which the freedom of political communication has been framed in Australia, it is submitted there is a respectable argument that the freedom is limited to individuals rather than organisations.96 The freedom exists because the Constitution is based on the principle of representative democracy. Citizens need to be able to engage in political discussion in order to give effect to this system. On one view, then, the freedom is limited to individuals and thus a law banning political donations by organisations97 would not offend the freedom since such organisations are not necessarily democratic, are not citizens and do not vote at elections. The Parliament does not represent that organisation. It may be argued also that an organisation, particularly a well-resourced one, might be more easily perceived as able to influence government decision making, in other words the strength in numbers argument. This would justify the Commonwealth being able to regulate donations from such organisations.98
However, while it may be accepted that an organisation may not directly have freedom of communication, we need to remember that communication is two-way - it is a right to be heard but also a right to hear. It might be argued that, in order for citizens to be able to participate effectively in a democracy, they must have access to a range of views on political matters, and some of these views might be expressed by organisations. As Mason CJ said in ACTV v Commonwealth
Individual judgment � on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion.99
McHugh J agreed that voters had a constitutional right to convey and receive opinions.100 Deane and Toohey JJ in Nationwide News v Willis said that freedom of political discussion necessarily involved the freedom to maintain and consider claims and opinions about political matters.101 And the Court was unanimous in Lange that 'common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters'.102
I have concluded that no distinction should be made, in terms of the constitutional freedom of communication, between donors according to whether they are individuals or organisations. While it is true that the freedom is cast in terms of democracy and representative government, and an organisation does not have a right to vote nor could it expect Parliament to represent its view, I believe that individual citizens have a right to receive the views of the organisation, in order to best exercise their democratic rights. These views might be expressed directly through payment for political advertising, or indirectly by funding candidates who express (broadly or narrowly) the views of the organisation.
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