Buying power Its legal but is it democratic

August 31, 2021 â€" 5.30am

In announcing his move to the United Australia Party last week, Craig Kelly â€" presumably unintentionally â€" made a persuasive case for campaign expenditure reform. In a surprisingly frank explanation of his reasons for joining Clive Palmer’s UAP, the former Coalition MP boasted: “We have a huge war chest, we can run television commercials, ads, we can finance a proper campaign that no other minor party or independent can.”

Did Kelly, in extolling the capacity of the UAP to lavish enormous largesse on campaigning â€" a capacity unrivalled by other minor parties and independents â€" spare a passing thought for our democracy, and what the consequences are of inequality of opportunity to compete for election? For the reality that the less level the playing field, the more unrepresentative our constitutionally enshrined system of representative government becomes?

Craig Kelly has boasted openly that he joined the UAP to get access to a ″⁣huge war chest”.Credit:Alex Ellinghausen

It is unarguable that our current system of uncapped electoral expenditure has produced a field that is not only not level, but substantially tipped in favour of those with resources. As the situation stands, what are minor parties and independents wishing to compete with the UAP’s ability to dump enormous sums into its campaigns to do? Desperately raise funds to plough into their own campaigns?

For as long as electoral expenditure remains uncapped, there will exist a temptation for parties and candidates to chase donations to fund their campaigns â€" donations that, in some cases, might come with no strings attached; in others, might openly be to buying access (though the High Court has reminded us that the line between ingratiation and access, and corruption, “may not be so bright”); and in yet others, may be for something that poses an even greater threat to our democracy.

Research by the Centre for Public Integrity has concluded that electoral expenditure caps should apply to political parties, associated entities and third parties, and be coupled with specific restrictions on political advertising.

The current arms race, where parties and candidates vie for donations to fund their campaigns, could be replaced by public funding and distribution of advertising space (based on existing models in Britain and New Zealand). This would avoid scenarios such as that in 2019, when the UAP’s digital spend was claimed to have driven up the price of purchasing and boosting digital ads, with the consequence that the ability of less well-resourced parties to access space was impeded.

There is a push to introduce election spending caps to create a level playing field for all candidates.Credit:Andrew Meares

By making the political advertising landscape more equitable, reforms such as these effectively democratise elections.

Kelly’s announcement also puts the issue of truth in political advertising squarely on the agenda, in light of the UAP’s claims during last year’s Queensland election that Labor planned to introduce a death tax â€" a claim Labor vehemently denied and sought to have removed from Facebook and Twitter.

Since the High Court decided in 1983 that a provision of the Commonwealth’s electoral law prohibiting false statements likely to mislead a voter “in or in relation to the casting of his vote” did not extend to statements influencing the voter’s formation of a judgment about the candidate they wished to vote for, there has been a clear case to adopt an appropriate truth in political advertising provision at federal level (and indeed, in the states and territories â€" currently, only South Australia and the ACT require truth in political advertising).

In offering his view that it would be unconstitutional to block his advertisements (presumably in reliance on the implied freedom of political communication), Kelly complained: “Now we are in a society where if you have an alternate [sic] opinion then shut up.” Opinion is one thing; material presented as fact, of course, is entirely another.

As former High Court Justice Mary Gaudron saw it, insofar as the freedom of political communication concerns information and ideas, false or misleading material does not enjoy the same protection. It is not constitutionally impermissible for a law to infringe upon the implied freedom of political communication, as long as â€" among other things â€" the law serves a legitimate end. In a representative democracy, can a law prohibiting citizens from being misled in exercising their democratic right to vote be anything other than a legitimate end? And how many of us would disagree with the proposition, put by Professor Dean Jaensch AO, that electors should have an equivalent “consumer protection” as that bestowed upon parties to commercial transactions?

While many additional reforms are needed to protect the right of citizens to engage with their information environment in a meaningful way, electoral expenditure caps and truth in political advertising are undoubtedly the most pressing.

On Monday, independent MP Zali Steggall unveiled her “Stop the Lies” bill, proposing to ban political advertising material containing misleading or deceptive statements: as she points out, such conduct has a deleterious impact on public trust in political advertising and politicians, and affects the efficiency of electoral participation. Let us hope that the prospect of a disgruntled former Coalition member with access to formidable resources might finally provide some impetus for change.

Catherine Williams is research director at the Centre for Public Integrity.

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Dr Catherine Williams is research director at the Centre for Public Integrity.

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