We will never be able to make even modest changes to what is a modest, institutionally focused Constitution as long as “Don’t know, Vote no” is a simple and effective go-to for opponents of change. That flaw in the rules of our democracy is, however, far from explaining the hefty loss of the Voice proposal.

Yes garnered less than 40 per cent of the vote, despite having recorded more than 60 per cent in opinion polls before the No cause assembled its grab-bag of arguments. It did so despite enjoying the lion’s share of donations and support from high-profile corporations and cultural influencers alike. (This was one reason there were no serious moves from the left to trial expenditure limits in the referendum, even while rightly clamouring for such limits for elections.)

There will be much hand-wringing about the result of this referendum. Friends and family, particularly from overseas, contacted me before referendum night was complete. They bemoaned having once been Queenslanders, or said they wanted to “hide” as Australians.

Unsurprisingly, given the long, deliberative process that gave us the Uluru Statement from the Heart, Aboriginal and Torres Strait people, taken collectively and by large margins, supported the Voice. It is for them to react to this setback: whether in anger or sorrow, and whether with a renewed push for treaties, re-engagement through existing organisations and parties, or disengagement.

For the rest of us, it is time to reflect on what the results might mean. We could, like one senior political scientist, tell ourselves that “Australian politics is at a dead end” because “Australia is a morally backward society.” (This was penned in a progressive blog for public servants and analysts.) Or we could pause to reflect on what the referendum process and voting patterns have to tell us.

On voting patterns, we must await the full results. Even then, at best we will find correlations between polling booths and local demography rather than clear causal explanations. The data will also be clouded by pre-poll voting at giant booths covering numerous localities. Early votes appear to have skewed even more than the rest, partly because younger voters are less likely to vote early and partly, perhaps, because No voters were on the whole more firm-minded than Yes.

Older voters skewed heavily No. The other utterly clear pattern is that the further from the urban, the less likely any region was to vote Yes. Of just over one-in-five seats to register a Yes majority at the time of writing, twelve were in Melbourne, eight in Sydney, three in Brisbane, three in Canberra, two in Perth and two in Hobart. The seats encompassing Newcastle and Wollongong were the only non-capital electorates to support the Voice.

Indeed, Yes electorates were almost all inner-city. The Greens’ seats of Melbourne and Sydney, the prime minister’s electorate around Marrickville, and the Labor stronghold in inner Canberra recorded between 70 and 77 per cent support. Teal seats like Kooyong, North Sydney and Warringah also voted around 60 per cent in favour. My own, diverse Brisbane electorate of Moreton broke nearly 50–50. Its strongest Yes booth was in a leafy riverside area; its strongest No in the well-to-do, but more suburban, Chinese enclave of Sunnybank.

Truly suburban electorates invariably voted No. Beyond that ring, No reached over 75 per cent in all the vast and remote electorates of South Australia, Western Australia and Queensland, topping nearly 85 per cent in Maranoa in western Queensland. Even in Lingiari, the non-Darwin based Northern Territory seat, No prevailed.

While the socioeconomic and ethnic aspects of all this have yet to be teased out, the clearest lesson is that — Indigenous communities excepted — the more distant, culturally and geographically, from the heart of the capitals, the heavier the proposal was rejected.

On the process, the potential for misinformation to swirl at gale-force speed was again shown to be a feature of the internet age. No one knows how to mitigate that. The worst elements of the No movement exploited this. If you muddy the waters, it is easier for confused electors to follow the conservative instinct of “don’t risk it.”

That said, neither the government nor the Yes movement pushed to trial “truth in political advertising” laws at the referendum, even though we are on the cusp of such a law for national elections.

Pragmatically, this was understandable. Such rules only restrain good-faith participants and campaigners with an institutional reputation, not ad hoc movements. They may have led to stories about campaign tactics detracting attention from the underlying referendum question itself. And even the Yes camp wanted to run claims that were less factually true than emotionally reassuring (for example, that such a Voice was “not about race”).

A hallmark of the Australian system, as ANU law professor Geoffrey Sawer observed sixty years ago, is that “constitutionally speaking, we are a frozen continent.” It’s a hot place, but the Constitution is like pack ice. Any change comes glacially, through High Court tweaks and the evolution of less formal intergovernmental arrangements.

This appeals to conservatives, who regard a written constitution as a bedrock document. But geology doesn’t govern sociology. Times change, and the underlying rules of governance need to evolve too. Opposition to change for its own sake is as bad as change for its own sake. Thoughtful conservatives know our 1901 Constitution is rickety, not least in its federal–state imbalances.

The other hallmark of our constitutional system is that it is a “small brown bird,” as High Court Justice Pat Keane put it. It is not a soaring eagle like the United States’s constitution or its rhetorically flourishing Declaration of Independence. Nor is it dense with rights and values, unlike the modern constitutions of, say, South Africa, Canada or Papua New Guinea.

In that company, the Australian Constitution is a thin document. It is focused not on limiting power or emancipating people but on dividing power between branches and levels of government. This very blandness is a strength: very few people project their own fantasies onto it.

But this also means constitutional literacy in Australia is low. Such ignorance is not irrational: in truth, it reflects the constitution’s authors intention to leave the interesting questions of regulation and social norms to the political process.

Where did the Voice fit into this? As the two-pronged official Yes case put it, it fitted at two levels. One dealt with the “why?” of constitutional change? It was about symbolic recognition: actually mentioning Aboriginal and Torres Stair peoples as the First Nations, in a Constitution that effaced them.

The other, more substantive, question was “why a Voice?” Here, the argument was an institutional one about improving politics. The proposal was consciously tailored to appeal to constitutional conservatives: not a bill of Indigenous rights, but an institution to advise the Commonwealth government and parliament.

The first, symbolic element, initially appealed to the majority of Australians. The second, institutional question, elicited something between indifference and disquiet. The indifference was formally rational: why research the potential role or design of a Voice that would merely advise on policy on behalf of a relatively small minority?

The disquiet was another Achilles heel for Yes. “Politics is broke, this will help” is a good argument on its face. But coming from longstanding politicians it risked being an own goal or, worse, inviting the resentful reaction “well, why reform just for Indigenous peoples?” To deal with that reaction then required deep history and socioeconomic lessons.

In the end, it remains a folly to try to force people to have a considered view on this kind of institutional law reform, narrow in scope and topic. The Australian Constitution itself was a product of voluntary voting, and referendums for the first twenty-five years were voluntary.

Years ago, at an academic briefing for MPs on referendums, I put this view. My academic colleagues, bless them, disagreed. All we need is more education, they insisted. Well, educators would say that; but I’m not sure the overwhelmed school curriculum is really to blame.

As for MPs, Mark Dreyfus (now attorney-general) told me gently that voluntary voting at referendums was an interesting idea, worth discussing. But he reminded me that his Labor colleagues were wedded to a belief that compulsion was inherently social democratic.

It is true, as political scientist Lisa Hill has demonstrated, compulsory voting at elections is the best way to avoid politics slipping into exclusivity. If you don’t vote, your interests don’t count for most politicians. A habit of voting at elections is developed, and in the big questions that decide elections such as ideology, “do I trust Albo or ScoMo with the levers” or “are we better or worse off as a society than three years ago,” everyone’s view is equal.

Referendums, unless they engage a general social concern (like marriage equality) or an existential question (like Brexit) are not so engaging. Worse, unlike a regular election, once we say No (or Yes) to a constitutional question, that decision is all but locked-in for a generation or more.

In the end, what have we learnt? Australia is not “morally backward” even if, as a whole, it is no closer to facing up to history. Democracy is hard, and reform even harder, when reliable information is lost in a swirl of misinformation or when reform is perceived as elite-driven or remote from the concerns of the majority.

Above all, it is important not just to pose the right questions, but also not to force the rationally uninterested to wield a power of veto over reform. •

Postscript

After results were finalised, I looked for examples of extreme differences between polling booths. In Queensland, the highest Yes vote, not surprisingly, was in the Far North, where Indigenous communities are often small but tight.

More than 87 per cent of those who voted via the “Other Mobile Teams 1 and 2” wanted the Voice. Those teams serviced 102 voters at the Lotus Glen Correctional Centre, near Mareeba. Its “catchment” runs from Mt Isa in the far west through to the Torres Strait Islands. (Anyone on remand or convicted but serving a sentence of fewer than three years is still entitled to vote.)

The nearest booth of comparable size was Mutchilba, about twenty-five kilometres inland. There, the free men and women voted 90 per cent No. A similar distance away, but towards the coast, of more than 85 per cent of the 8000-plus votes cast in Mareeba were also No.

The No case labelled the referendum inherently divisive. But a more telling or poignant illustration of the existing divide is hard to imagine.

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Kudos if you said that those countries cap the amount anyone may donate to a political party or candidate. Double the kudos if you know that the entire eastern seaboard in Australia also has such caps, not just for state parties but for state electoral purposes too.

It is forty years since the Hawke government begat the regime that still essentially governs the funding of campaigns for federal elections. That regime still rests on twin pillars: public funding for parties or candidates that attract above 4 per cent of the vote, in return for disclosure requirements whose lack of timeliness is redolent of the paper-and-pen era in which they were hatched.

True, the federal “transparency register” has been widened to include lobby groups that campaign at national elections. But the national electoral laws don’t drill deeply into the financial affairs of parties. Compare Britain, where parties’ audited financial accounts must be published annually — and parties there don’t receive public funding for electoral purposes like their Australian counterparts do.

Whether in an absolute sense, or relative to our usual democratic comparators, the electoral funding and disclosure rules in the Commonwealth Electoral Act remain lax. This state of affairs may align with liberal philosophy in the abstract, but it is not merely passé in terms of developments in the field in the last forty years; it is also corrosive of faith in the integrity and political equality in Australian elections.

With a Labor government ostensibly driven by social democratic norms and an expansive crossbench of Greens and independents committed in principle to more fairness in electoral participation, what are the prospects for renewal? To discuss this, we need to consider the three main dishes on the regulatory menu — disclosure, donation caps, expenditure limits — and then ask if reform is imminent after all these years.

Disclosure is broke: time to fix it

Disclosure at the national level needs to be tighter and more timely. Parties must declare “gifts” — donations earmarked to fund national electioneering — only after the end of each financial year. Their declarations don’t then need to be published by the Australian Electoral Commission, or AEC, until February of the next year. So resources given to parties in the lead-up to the May 2022 federal election need not have been made public until between eight and twenty months after they were received.

In addition, parties need only disclose individual gifts above an indexed threshold that now sits at $15,200 per annum. (Donors are meant to keep tabs on whether a series of gifts exceeds that threshold and, if so, disclose the fact annually.) It gets worse: given our federal structure and history, parties can consist of up to nine registered entities — their national secretariat plus their mainland state and territory divisions. The disclosure threshold applies to each of those entities, not to the party as a whole. So the effective threshold for gifts for national electioneering can be well over $100,000 per party.

You might think, “Well at least this annual ‘disclosure dump’ gives the media a deliberative focus.” It is true that having “real-time” disclosure — say on a weekly basis — and at too low a level could simply snow investigators. The answer to that is to improve the presentation of the data by including tools to easily aggregate and map disclosures across time spans, related parties and entities, and geography.

It is also important to bear in mind the inherent limits of any disclosure system. Disclosure is essentially a kind of freedom-of-information tool that allows the media and rival political players to ask questions. By itself it is no guarantee of integrity, let alone a means to political equality. It can even heighten cynicism or normalise unlovable donation practices. Companies may think they need to keep up with the largesse of competitors seeking to ingratiate influence; party treasurers can hit up donors to a rival party and say, “What about us?”

Regardless of such considerations, the national disclosure system is clearly broken: that much has been known for years. But the major parties have also increasingly driven a truck through the system, and the AEC hasn’t stood in their way.

How? The major parties operate business-oriented fundraising arms under names like the Liberal Party’s Australian Business Network and the Federal Labor Business Forum. These outfits charge huge subscription fees: not to be a member of the party proper, but to belong to a kind of exclusive networking club. To magnify the exclusivity, fees have been tiered across “platinum,” “gold” and “silver.” The fee for the highest tier has reportedly inflated from $110,000 to $150,000 in recent years.

When these fundraising arms organise notionally come-one, come-all dinners (like Labor’s $5000-a-head budget dinner hosted by PwC or a $5000-a-head “boardroom lunch” with treasurer Jim Chalmers), the ticket cost is set below the disclosure threshold. This is an old practice; the scandal today is that these large, tiered subscription fees are not being disclosed.

Under electoral law, a political donation is something given for “inadequate consideration.” But the parties happily encourage subscribers to claim they are receiving more than adequate consideration. Quelle surprise! As Woodside Energy’s CEO explained some years back, this leaves it up to people like him to decide whether to make “voluntary” disclosures.

Despite being armed with significant forensic powers, the AEC has taken such assertions at face value. It told the ABC recently that it leaves it up to the subjective — and conflicted — view of those paying for access to the parties. Donations up to ten times the disclosure threshold can therefore be hidden in plain sight.

All this ignores the objective nature of value in most real-world dealings. Parties are hardly in the events industry. The AEC could demand to be informed of the events held by each forum/network and then commission experts to assign an upper market value to the event-as-an-event (including an allowance for the attendance time of ministers or MPs). The AEC could also inspect the accounts of these fundraising arms to see what surplus they generate, per average subscriber, for the party coffers.

In short, the major parties are nakedly soliciting revenue, with a nod-and-wink as to anonymity, in return for selling premium access — and the regulator is standing by. Selling access corrupts basic public law values: politics as a public trust and the franchise as an emblem of the equal worth of all people. Why on earth would an ordinary person voluntarily join one of the major parties today when they are seen as largely superfluous to the electoral machine? As if rubbing salt in the wound, last year the major parties convinced the courts that any membership rights contained in their own rules are legally unenforceable.

Capping donations

Presently, the only “real” limit on national political donations is a ban on “foreign” donors, a recent development driven by concerns about Chinese money. I put “real” in quotes, since nothing is more fluid than international finances. That means the law is not really enforceable offshore, and so assumes that receipts are careful screened by Australian political actors. While the parties have been willing to twist and stretch disclosure law, the opprobrium for breaching a “foreign” donor ban is probably sufficient for the parties to self-police the source of gifts.

That leaves non-foreign, ridgy-didge Aussie donors: a residual category that ranges from citizens (wherever located) and permanent residents through to businesses incorporated here or simply possessing a principal place of activity here. Unlike in the sample of countries listed at the start of this piece, they face no donation limits. Is this a problem?

It may be, for political integrity and equality. If disclosure requirements were more meaningful, and if the new National Anti-Corruption Commission performs to its potential, we might be right to leave political integrity to those regimes.

What then of political equality? Political donations are partly acts of political association. This means they cannot, constitutionally, be banned outright. But they can be limited — in their size and in who makes them. Generally, we should welcome donations from a wide range of sources to help keep parties connected to a broad social base. Indeed, donations to parties and candidates of up to $1500 per annum are tax-deductible for individuals. On the other hand, big donations, even those made on the basis of mateship or ideology, undermine political equality.

Given this pervasive effect on political equality, why are donation caps not more prevalent in Australia? One clue lies in two countries absent from the list of those with caps: Britain and New Zealand. Like Australia, they have a longstanding Labor Party (albeit they spell it properly, as “Labour”).

“Surely these parties of the ordinary worker would support caps?” you say. Well yes, in principle. But when caps are introduced, the law is confronted by the problem of how to deal with the affiliation fees paid by the trade unions that formed those parties and still prop them up in the lean times of opposition. (Modern Labo(u)r parties do okay from corporate donations when they are in power or on the verge of power, but less well when facing the wilderness, thanks to their pragmatism and that of business donors.)

A second hurdle for caps is whether new political forces may need an injection from a sugar daddy in order to challenge the might of the existing major parties. This is less relevant for an eponymous self-funded party like the former Palmer United Party (now the United Australia Party) but very important for a more genuine movement like the teal independents who were turbocharged last year by Climate 200 support.

The key figure behind Climate 200, a progressive entrepreneur who inherited part of the vast mining and corporate raiding fortune of Australia’s first billionaire, has even written a book celebrating the movement. It may be no coincidence that teal candidates did much better in the 2022 federal election — without caps on donations or expenditure limits — than in this year’s NSW election, where both are capped.

Limiting spending

The third option on the menu is expenditure limits, which constrain how much parties, candidates and lobby groups can spend on certain electioneering costs. These limits are now common for state elections in most of Australia, as this table shows. (Victoria and Western Australia are the odd ones out, Tasmania only has them for its upper house elections, and in South Australia they are nominally “opt-in” as a condition of public funding.)

Limits on expenditure drive the British and New Zealand systems, and are a feature across Europe and the Americas. (They cannot be mandated in the United States, and opt-in spending limits there have fallen by the wayside.)

In principle, expenditure limits do several jobs. They squarely address the “arms race” problem, which Mr Palmer has reignited in Australia. In constraining the parties’ demand for money, these limits free up them and their leaders to focus on genuine public business and may reduce demand for dodgy donations. They may also help deliberation by making campaigns less cacophonous, something that is a turn-off for many electors.

Expenditure limits should also be easier to police than donation limits. While donations are inherently behind-the-scenes, campaigning needs to be public to be effective. That remains the case even with the advent of highly targeted online campaigns, although that development requires transparency from social media companies.

When it comes to expenditure limits, the devil lies in the legislative detail. With no fixed terms for federal parliament, the capped period is not easy to define. (At Westminster, it is up to a year ahead of an election.) Exactly what is covered by “electoral expenditure” also needs careful design and definition. And the coordination of campaigns — between trade unions or corporate groups, for example — needs to be controlled to keep caps from being rorted.

Most vexed of all is the question of what limits should be put on lobby group electioneering — not least with some members of the High Court suggesting, in 2019, that the idea of a level electoral playing field limits differential treatment of parties/candidates and lobby groups. If so, this is an odd heresy. Representative elections are necessarily focused on parties and candidates; parties have ongoing reputations to protect, and party leaders and MPs are publicly accountable in myriad ways that lobby groups are not.

Reforming the morass

Fifteen years have passed since the states began modernising the law of money in electoral politics. Yet substantive change has been absent nationally. If inertia had its way, this dual track of state innovation and national enervation would be unlikely to change.

As we have seen, the national transparency net has widened to rope in electioneering lobby groups but has simultaneously frayed. Observers are optimistic, however, that federal disclosure rules will be tightened to include a lower disclosure threshold and more frequent disclosure obligations. None of this is rocket science. Models exist aplenty, from New York City to Queensland, for something approaching continuous disclosure in the internet era. On the question of which income will need to be disclosed, we must pray that the Greens and crossbenchers lean on Labor to deal with the “business forum” loophole it helped manufacture.

Tasmania is on the verge of becoming the latest (and last) subnational jurisdiction to update its law in the area, and its bill is instructive about what not to do. Across 265 pages it weaves an intricate web of registration and accounting requirements. Yet it does little more than bring in a regular disclosure regime, sweetened with generous public funding for elections and for party administration. The Liberal government wants to set the disclosure threshold at $5000 per annum: pretty high for a small state.

After self-inseminating his party with over $200 million over the past two national elections (mostly via Mineralogy Pty Ltd), Mr Palmer’s recent forays into electoral politics may leave one main legacy: some form of donation cap. To have any effect, it will need to include a suturing of that business forum/network loophole.

Any federal cap is likely, I suspect, to be set at a high level. The major party treasurers — along with otherwise “progressive” electioneering groups like Get Up! and Climate 200 — will baulk at setting donation caps anywhere near as low as some states have. (Victoria is the most parsimonious — just $4320 currently over the four-year term.)

This leaves expenditure limits as the main new item on the menu. Again, the shadow of Mr Palmer looms large; but not just his. Finding himself outspent by a teal rival in a previously blue-riband Sydney seat in 2022, a Liberal MHR complained that his opponent’s spending had been “immoral.” Is it too cheap to note that his party could have swallowed its economically libertarian instincts at any time during its three terms in government and legislated limits? Better late than never! Temperance bandwagons were mostly full of recovering addicts; and, as St Augustine ironically put it, “Lord, make me chaste and celibate, just not yet.”

Federal parliament’s Joint Standing Committee on Electoral Matters, a multi-party committee with fourteen members, has held public hearings, including on electoral finance reform, over a seven-month period. (MPs, even more than public lawyers, seem fascinated by electoral law.) Its report is due soon enough. The mix of compromise, competing principles and self-interest manifest in its recommendations will make for compelling reading. •

This article first appeared under the title “Money in Australian Electoral Politics: Reforming the Morass” in AusPubLaw.

The post Follow the money appeared first on Inside Story.

solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, [my] other Realms and the Territories to any of them belonging or pertaining, according to their respective laws and customs.

Having inherited the throne the instant his mother died eight months ago, Charles is not a new king. Decoded, the oath involved him pledging to abide by the most fundamental principle of the rule of law under a constitutional monarchy like Australia’s or Britain’s. It was a “crucial” moment of “commitment.”

If anyone paused during the elaborate forty-page liturgy they may have thought: “Hang on, we’ve had a king for eight months and he’s only now agreed to the rule of law?” Did it matter that Charles waited that long to solemnly pledge not to reassert the Crown’s once limitless powers? The answer is no, and yes. Unpacking this ritual and performance is a lesson itself.

As millions saw at the weekend, a crown (which must sometimes have felt Damoclean to the man formerly known as Charles Philip Arthur George) finally came to rest on a fresh, if greying, head. That lowering of what the Historic Royal Palaces trust calls the “most important and sacred of all the [British] crowns” was the ultimate visual symbol of the ceremony.

Amid all the pomp and pomposity, there was plenty of legal magic and palaver too. In its current meaning, the oath dates back to 1688 — a momentous year in a momentous century, not just for Britain but also for the system of government that Empire brought to this continent.

The Coronation Oath Act of 1688 was passed in the wake of a civil war that had culminated in the first King Charles losing not just his crown but also his head. The act reinforced a Protestant ascendancy whose sectarian ripples irk Charles III and are felt in Northern Ireland to this day.

For the secular world, the Oath Act reinforced the claim of parliament to be not just the ultimate lawmaker but also sovereign over the Sovereign. Charles gets to be King because parliament allows it, not because God ordained his bloodline.

As the monarch, Charles is not subject to legal proceedings. Like his mum, he has deigned to pay taxes on the income from his vast wealth; unlike his local subjects, he has inherited yet more wealth free of estate duties. But his bejewelled crown is a titular symbol: “the Crown” is a virtual space in which the law of the three branches of government reign.

The long delay in holding the coronation seems partly due to Charles’s desire to settle in: to be seen out and about in a job held by his mother since 1953. Partly, also, he wanted to rejig the ceremony and oil the rusty cogs of a logistically complex show not performed for seventy years.

Besides shaking hands and opening fetes, what had Charles done formally to signify and “accede” to his kingship since the Queen’s death on 8 September last? The Westminster parliament happened to be sitting that week, so when it met the next day a kind of mutual obeisance took place. MPs all swore allegiance to Charles and, for his part, he gave his first, brief, King’s Address. In it, he paid tribute to “darling Mama” and said he would “uphold the constitutional principles at the heart of our nation.”

Although parliament must, by law, keep sitting on the “demise” of a monarch, it filled eleven hours’ worth of Hansard with further tributes before adjourning for an extended mourning period. A day later, Charles appeared with “his” Privy Council, whose members publicly proclaimed him King. Before them, he repeated the sentiment that he’d “strive to follow” his mother’s example “in upholding constitutional government” across his realms.

None of those words were a binding oath. An oath is a kind of visible, audible and public contracting. As a University College London report puts it, the coronation oath

requires the sovereign to declare and identify with the effect of the law at a public moment of great solemnity… [It is] performative and affirmative rather than legislative… The weight of the oaths lies overwhelmingly in their symbolic significance and, moreover, in making that symbolism intelligible, acceptable and inspiring to a modern population.

As Prince of Wales, Charles became well known for his public pronouncements on everything from the built environment to the natural environment. He couldn’t help sharing his opinions with the British government as well, via letters he handwrote to ministers in spidery black ink. As a friend, a retired miner, quipped, “Let’s hope he keeps his oath better than his wedding vows.” To be fair, he has been more circumspect as King: a folksier but no less bland version of his mother.

The coronation oath is hardly the only source of the principle of sovereignty under the law. The highest courts in the United Kingdom and Australia have reiterated and applied the idea in various cases. Despite the possibility being imagined in an award-winning 2014 play, if Charles did ever lose his (mental) head and begin directing affairs, governments would pay as much heed to him as plants do when he talks to them.

For Australia’s part, the King’s men in Canberra — the governor-general, flanked by our prime minister — proclaimed him King of Australia on 12 September. Similarly circular instances of viceroys proclaiming the “Roy” occurred at state level too. The “King of Australia” title dates to Whitlam-era legislation, and he is concreted into our 1901 Constitution as our head of state.

Nowhere does Australia’s Constitution explicitly recognise that our sovereign is not our dictator, except in occasional cryptic references to his agent, the governor-general, “acting in Council.” In other words, acting after formally receiving advice from the ministers he appoints. Given that the Constitution doesn’t even mention the office of the prime minister, those appointments are seemingly at his discretion.

We are neither a dictatorship nor a republic, of course, but a constitutional monarchy. The Constitution makes little sense without a brace of unwritten but deeply held conventions. Australians usually feel we are not just less class-bound than Britain but also more modern. At least our governor-general can be of any or no religion. But when it comes to issues of sovereignty we are not always ahead of the Brits.

They may still have a Coronation Oath Act of 1688 that spells its legislature “Parlyament,” but they have several times modernised the words of the ceremony. Flexible convention can even nuance legislation.

In 1688 the United Kingdom was a unitary state, ruled solely from London. Now it has three sub-national assemblies with significant power over the more Celtic countries of Wales, Scotland and Northern Ireland. Indigenous Australia may only later this year gain a merely advisory Voice to Parliament if we embrace the idea by referendum. In 2016 Britain elected to leave Europe; in 1999 we voted to stay in the arms of a distant Crown.

What then is the point of an event like the weekend’s crowning? For many Brits it was an excuse for cheers — for others, boos and jeers — at a fraught time politically and economically. For most Australians it was a sideshow, even a yawn. Yet even a few republicans responded less with curmudgeon than curiosity. Rituals catch something in the spirit. They punctuate and help us measure and remember the passing years.

So, too, do assassinations and wars. This means that rituals have to be more than events, and must embody positive meaning. Simon Schama in the Financial Times mused on whether the coronation spoke to modern Britain. He assayed the colourful (literally and euphemistically), millennium-old traditions surrounding the comings-and-goings of kings and queens. When most surviving monarchies have trimmed down to be more “of” the democratic state than above or apart from it, “our” monarchy looks distinctly odd.

During seventy coronationless years, Queen Elizabeth watched her “family firm” straddle dysfunctional celebrity status and gilded, performative rituals whose traditions are meant to bind. It would have been a wee bit more coherent had Charles not waited so long to bind himself to the democratic principle embodied in his oath.

Yet the demos wants more than promises or traditions, it wants clickbait. Hello! magazine recently featured Charles’s daughter-in-law Kate on twenty-one consecutive covers, all in flattering poses. Its rivals in the media chase his other daughter-in-law, Meghan, like bloodhounds. As the King returns to more mundane duties in the shadow of the rising brood of royals he begat, he might reflect on traditions old and new. •

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Sport, of the type that so many of us consume as spectators, is also nothing if not big business. Retailers, like elite sporting organisations, used to be wary of controversies in case they alienated a swathe of their customers. Modern businesses, however, are often keen to position their brands, adapt to new demographics, or promote issues dear to their owners or chief executives. Think of Qantas and marriage equality. Or Ben and Jerry’s and just about any progressive cause.

Between the brands and the fans, what about the stars of the show? How are the players and coaches who actually “do” the sport implicated in this branding, and do they have any freedom to express their own views? What whips and reins do those who control sport — the club managers and league officials — wield?

Take the Black Lives Matter movement, which began in the United States but has evolved and spread to many countries, Australia included. One of its powerful early tokens in the United States involved NFL players “taking a knee” when the national anthem was played before major games. For his troubles, the leader of this protest, Colin Kaepernick, was pilloried by none other than the US president, and hung out to dry by his sport.

Yet the tide has turned. Kaepernick is now a heroic figure and even President Trump says he should be welcomed back. Police at BLM demonstrations are now “taking a knee” in fellowship with demonstrators. When football restarted in Australia recently, both Australian rules and rugby league teams followed suit, in solidarity with the movement.

The most prominent Australian case of a speaking-out sportsperson has been that of Israel Folau. Folau used his personal Twitter account to condemn gay people in particular, and those he sees as sinners in general. His persistence with such inflammatory remarks led to his sacking from rugby union. Rugby Australia said he had breached its code of conduct on respectful and non-discriminatory behaviour. Folau’s lawyers said his right to religious expression was being stifled. The case settled.

The formal elements of Folau’s case are familiar. An employer-imposed code of conduct is tacitly agreed to by the employee on hiring. But the employee uses his or her social media presence to make out-there comments. Rather than treat the remarks as the inane emanations of someone paid to run fast or jump high, the wider public piles on and the sport’s custodians react with disciplinary force.

Lawyers then parse distinctions like “was the employer trying to suppress the political or religious content of the speech, or was it driven only to protect its image and the values of its code?” Put this way, there is an intractable clash between an individual’s freedom of expression and the freedom of a club or league to dissociate itself from such expression.

Although Folau’s case involved speech outside work hours and workspace, some people will still sympathise with the club or the league. Not only may the sport pay young athletes handsomely, it also gives them leverage into lucrative sponsorships and a platform to speak out from. If the sport pays the piper, these people believe, it should call the tune. But even the most managerialist among us must admit that employers cannot rule over every aspect of our lives. The law must find an accommodation of sorts.

When it comes to speech on the field or at events run by a sport, however, there is little doubt where the law lies. Employers can control virtually all expressive acts on such occasions. To do so they don’t even need binding codes of conduct. They can rely on their general power of control, through the “obedience,” “loyalty” and “proper conduct” owed by employees.

These ancient duties are implied in every employment relationship by judge-made law. So a club can direct players as to how to behave and appear, at games and promotional appearances alike. The leagues themselves, which negotiate and distribute the spoils of broadcasting rights, wield similar control via the clubs and by nailing down codes of conduct.

So far, so-so, you might think. A league may be obliged by its broadcasters to keep games free of gratuitous symbols and expression. If not, what starts as a piquant sideline can quickly become commonplace and annoying. Remember streaking — those nude dashes by spectators across fields, sometimes carrying flags or with slogans emblazoned on their bodies? When streaking began in the 1970s, it felt liberating. But familiarity bred contempt, and broadcasters eventually banned the images. Today, draconian fines apply to any spectator encroaching on the sacred field.

The problem is that nothing really requires sports to wield their power consistently. Consider two instances, illustrated here. They happened some time apart, but they demonstrate the inconsistency point neatly. Each involves a player from the same famous English soccer club, Liverpool FC.

Laurence Griffiths/PA Images/Alamy

Matteo Ciambelli/NurPhoto via Getty Images

The first image shows Robbie Fowler, a Liverpool striker who now coaches in Australia. After scoring in a high-profile match in Europe in 1997, he raised his team jersey to reveal a t-shirt emblazoned with a message supporting dock workers in a long-running industrial dispute. Fowler was publicly disciplined and fined 2000 swiss francs — not for cheekily riffing off the CK (Calvin Klein) trademark but for breaching the European football association’s policy against any political logos or messages.

Contrast the second illustration, which features Liverpool’s current goalkeeper, Alisson Becker. At the end of the most celebrated match in the 2019 calendar, just as his side was raising the European Champions trophy before an audience of hundreds of millions, Becker lifted his jersey to reveal a bespoke t-shirt. His featured a cross and a heart joined by an equals sign. Read it as “Christ is love.” For his religious expression, Becker faced no sanction.

Before sporting contests it is common to see players from different creeds cross themselves, look skywards or kiss the grass. You might say, well, faith is a personal matter and superstition to quell nerves is rife in sport. But Becker’s was no private ritual; he was deliberately capturing the public stage in an identical way to Fowler. Sanctioning political but not religious expression seems an arbitrary distinction. Religion is no less divisive than politics.

The spectre of the lone star seizing centrestage is actually a fair way from the archetypal examples of sport engaging with sociopolitical expression. The more typical case involves clubs and leagues themselves coordinating the expression and requiring players to take part. Exhibit 1 in Australia is the military presence and the bugler at Anzac Day football rounds. Exhibit 2 is the singing of “Advance Australia Fair” at the start of matches. Each of these formal rituals is an expression of a certain strain of nationalism or view of history.

Not everyone in the stands takes part. The charitable view of these rituals is that they are not enforced patriotism but attempts to transcend club-versus-club tribalism by invoking a unifying theme. But critics see Exhibit 1 as a cynical co-option of veterans or, worse, of militarism. Making hay while the sun shines on the sporting field, as if it were a battlefield.

Other expressive branding exercises are more benign. Australia’s best-known rugby league club, the South Sydney Rabbitohs, long had a logo of a white rabbit on the run. More than a decade ago, it adopted a black rabbit as a variant for its home jerseys. This was not just a tweak to sell more merchandise. The club’s traditional home is Redfern and its teams have fielded many of the finest Indigenous players.

Many will say that sport is tribal enough without adding political or religious divisions to the mix. Others will say that sport is ineluctably mixed up with politics and religion. From governments targeting sporting grants at marginal seats through to Olympian-level bribery and corruption, sport is enmeshed with politics, ethno-nationalism and big finance.

From the more sublime aspects of anti-racist causes to the more ridiculous, sport easily merges into current affairs. For an example of the ridiculous, former Collingwood football coach Mick Malthouse recently made headlines accusing the AFL of selling its soul by staging a game annually in China. Malthouse called for the game to be cancelled as some kind of retribution for Covid-19. In turn, in an off-field version of an on-field brawl, he was mocked by at least one current coach and club chief executive.

Sport seems to be a kind of everyperson’s seasoning for political discourse. In return, sociopolitical controversies within sport allow its tendrils to spread from the back page to the front. At the level of the individual player or event, sports want to manage their brand. But whatever the passing effects of any expressive controversy, in the end it is all a form of profile. Oscar Wilde may have said that the only good thing about sport was that it involved special clothing. But as he also said, “There is only one thing in the world worse than being talked about, and that is not being talked about.” •

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Among such high drama, what room is there for the ordinary functioning of electoral democracy? Elections, after all, serve two great roles. They are the seasonal regenerators of legitimacy in representative government, and they are great rituals, the only truly public gathering in a secular society. An unexpected contagion and partial lockdown undermines both roles. Must elections be held? And, if so, when and how?

As to the “must” and “when,” some elections are less constrained than others, and local elections least of all. New South Wales was due to hold its local government elections in five months’ time, in September; like Britain, but unlike Queensland, it has postponed them for a year. Existing councillors and mayors will serve an elongated five-year term, with their successors serving a truncated three-year term.

Queensland, however, ploughed on. Two major councils needed to come out of administration, and the medical advice was that queuing to poll was safer than buying groceries. There are few more orderly places than an Australian polling booth under the secret ballot.

Parliamentary elections, by contrast, are protected by often-rigid constitutional constraints. The federal House of Representatives can only continue for three years from its first sitting. Fortunately, the three-year rule carries Australia through to 1 July 2022. (By-elections are another matter.) None of this, however, guarantees the usual mechanisms of parliamentary scrutiny and debate. Federal parliament has adjourned without a future sitting calendar, though with the potential to meet electronically. Standing orders were hurriedly amended to allow “the manner in which Members may be present… to be determined by the Speaker.” It may be reconvened, ad hoc, as it is for 8 April to pass urgent wage subsidies.

The parliamentary building itself is now indefinitely barred to visitors, and the traditional May budget has been deferred until October. The various executive councils may also now meet electronically. Also meeting virtually is the newly created “national cabinet” of all nine national, state and territory heads of government: a kind of Council of Australian Governments on speed. The machinery of government, then, is proceeding apace, but it is far from politics as usual.

Queensland is one of three jurisdictions due to hold four-yearly general elections later this year: the Northern Territory on 22 August, the Australian Capital Territory on 17 October and Queensland on 31 October. Each date is fixed in law, but in the territories the dates are weakly fixed. The ACT legislature can undo its own election date and federal parliament can rejig the Northern Territory’s cycle to provide flexibility as needed.

Queensland is alone in being locked into an election later this year. Its constitution allows the “last Saturday in October” date to be postponed in “exceptional circumstances” such as “a natural disaster,” provided the leader of the opposition agrees. But this is a one-off option and limited to a five-week delay. Such a hiatus could extend the outgoing parliament to buy time to amend the electoral act to facilitate new processes. (One would hope, however, that such planning would be done well ahead of schedule.)

A longer postponement or cancellation would require a referendum, and it is too cute to imagine holding one statewide vote simply to avoid another. The other extreme scenario would be an extra-constitutional assertion of reserve powers to avoid a dissolution or issuing of electoral writs. If challenged in court, though, such a manoeuvre would hold no water.

What of the “how” of elections in these times? Writing about the US midterm elections held during the 1918 Spanish flu pandemic, Jason Marisam noted that three issues are as important today as then: neutral election administration; election officials’ emergency powers; and disenfranchisement of voters unable to attend the polls.

Unlike in the United States, Australian electoral commissions have legal as well as substantive independence. Coupled with a tradition of career professionalism, this gives us a reassuring foundation. Some of the smaller commissions chafe against size and resource constraints, however, making the sharing of expertise and advice among these agencies crucial. And whatever their funding, all commissions rely on an army of far-flung casual staff to conduct polling and the count at thousands of locations. This creates challenges for consistent application of what we might call “workplace health and safety.”

Ultimately it is up to parliaments to decide which voting avenues will be available. Australia already has a high degree of “convenience” voting via early and postal balloting. (These channels accounted for upwards of 70 per cent of the total turnout at Queensland’s local elections.) Legislating so that electors need give no reason for voting early or by post would be one way of diluting polling day turnout during a pandemic. But predicting and managing early voting would be no less a safety issue than polling day itself.

An alternative would be an all-postal ballot, similar to the marriage-equality survey. All-mail balloting means a delayed count. It also raises significant security issues. If almost every household receives ballots, the risk of theft is magnified. As former election official Michael Maley notes, there are also logistical challenges: ensuring the safety of the additional staff required and handling the flood of extra paper. (Each postal vote involves a physical delivery to the elector, then a physical delivery to the commission of a doubly enveloped ballot.) In a small blessing, the Queensland and territory parliaments are unicameral, with no unwieldy upper house ballot papers to add weight to the problem.

What of remote voting options? For its local elections, Queensland extended voting by telephone to those under isolation, as well as the infirm. Australia’s most advanced e-voting platform is New South Wales’s iVote system, which offers internet or telephone voting facilities to electors who are disabled, remote or outside the jurisdiction. It has never had to handle more than 300,000 votes at an election and experienced teething problems with call centres and downtime at the 2019 poll. Scaling it up, let alone adapting it to another state’s polling requirements, could prove heroic in current circumstances. Nor is it possible to completely secure internet voting any more than any other voting option. Such an experiment in a time of uncertainty could stretch public trust. Voting from home, whether by the internet or post, also endangers the secrecy of the ballot for those in subordinate relationships.

Giving electoral officials emergency powers will involve greater administrative discretion and powers of direction. Yet elections, as with much else in government during a pandemic, will require agency rulings. In ordinary times, commissions would run a mile from such powers, to preserve their perceived independence. They tend to see themselves as administrators rather than regulators: as umpires implementing detailed rules laid down by parliaments, not as designers of the game. To make rules is to invite criticism, especially when the rules have (unintended) partisan effects or (inevitable) impacts on liberties.

An example of such a directive at the Queensland local elections was the strict limits on how-to-vote cards and campaign paraphernalia at polling places. That direction was made by the Electoral Commission Queensland, or ECQ, under direct statutory delegation. Although they are a staple of preferential voting, many people saw how-to-vote cards as wasteful even prior to any concerns about viral transmission. Few eyebrows were raised at what in any other time would have been a draconian directive raising wider questions about electoral freedoms.

A second example was an ECQ direction that limited scrutineering, to the chagrin of some candidates. This direction was made under powers urgently given to the ECQ via ministerial regulations. It may even have contained a typo that suggested it took effect the day after election day.

Neither of these examples is anywhere near as breathtaking as the executive’s power, through overnight fiat, to stringently restrict people’s movement. (A good example is this Home Confinement Direction.) By contrast, in making its directions the ECQ acted in sync with a detailed local government election public health direction made by the state’s chief medical officer. So while there are real concerns about executive accountability in times of “emergency,” there is no lack of a rule of law in the form of chains of delegation and rulings through which expert agencies are working together. We may yet come to see parliamentary drafters as among the unsung public sector workers of these times.

What of disenfranchisement? In a sense, calling off a poll would be the ultimate disenfranchisement. But holding one in an ongoing pandemic will affect turnout. It may be practically or psychologically harder for certain groups — the elderly, the afflicted, those in quarantine and those stuck overseas — to poll. Cynics might say that elections are already skewed by higher turnout among older citizens. But that would not mollify individuals who miss out. How would an all-postal vote pan out, for instance? Will everyone feel safe venturing out to find their nearest red postal portal? Are younger people, stuck at home and relying on online shopping, growing more familiar with the postal service?

The flip side of disenfranchisement is forced enfranchisement. How does compulsory voting stand up in these times? At the Queensland local elections, the ECQ had no choice but to quietly stress the mandate to vote. Turnout approached 75 per cent, a remarkable figure in all the circumstances and proof of how legal compulsion habituates us. Presumably the other quarter of the electorate will receive show cause notices. Will everyone who replies by citing “virus concerns” see the fine waived? The deputy premier is signalling that this should be the case.

There will doubtless also be a few electors who say, “I didn’t realise there was an election on.” Normally such ignorance is unreasonable. But local politics can be easily lost in a barrage of national and international events. Last year the NSW Supreme Court accepted ignorance of a low-profile, out-of-season local election as an excuse for not voting, under the defence of “honest and reasonable mistake of fact.”

Australia is not alone in facing these weighty questions. The United States is already intensely debating them, given it is in the middle of its primary season and has congressional and presidential elections set for November. When Queensland went to its local polls, some wistfully asked if these would be the last democratic elections held anywhere in the foreseeable future. The answer is clearly “no.” Elections to the Irish Seanad proceeded last week. These are low-key at the best of times, being indirect, postal elections for forty-nine members of sectoral “panels” rather than a vote of a mass electorate.

One lesson from Ireland was how the counts, from Dublin Castle and the two university constituencies, were streamed live over several days. (The voting system, akin to the Australian Senate’s, is fiendishly complex.) If you were suffering insomnia as a result of current events, these streams would have had a usefully soporific effect. But their real public benefit lay elsewhere: accompanied by explanations from the returning officer, the streams provided a visual token of openness. Given limits on physical scrutineering, this may be important as a salve for conspiracy theories and a way of keeping candidates and activists informed.

National elections in Mali also proceeded last week. Polling went ahead with in-person voting, overshadowed as much by the kidnapping of the opposition leader as by the early stages of the virus outbreak. Francophonic Mali operates on a two-round system, akin to our preferential ballot but spread over two election days, weeks apart. So the decisive second round of voting on 19 April may occur during an escalation of the virus. Yet, despite the health risks involved, after being long delayed by civil unrest the elections were seen as essential for any hope of political advancement.

This account of challenges to electoral democracy is at best a preliminary one. It is rooted in the contours of the present epidemic in Australia, assuming controllable paths of contagion and continuing social order. It leaves out broader political considerations. Chief among these is whether incumbents have undue advantage in times of upheaval. Not a single ward changed hands in the Brisbane City Council. Will electors become more risk-averse as politics as normal and opposition critiques become muted?.

In his novel The Plague, Camus wrote that “each of us had to be content to live only for the day, alone under the vast indifference of the sky.” This is the existential dilemma we are facing as individuals. Collectively, though, we live under a vast and far from indifferent system of government that is trying to plan for an uncertain future. •

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To be precise, Justice Peter Riordan of the Victorian Supreme Court agreed with the party’s defence team that the constitution of a political party is not enforceable by a court. Unless a party’s constitution declares that it is contractually binding — something they rarely do — it has no more status than the rules of an informal social club drawn up over a few wines and pinned on a noticeboard.

In making this ruling, the judge bypassed more than twenty-five years of precedent set by other courts in Australia. Those courts have held that political parties are not mere “voluntary associations” flying beneath the radar of the ordinary laws of the land.

Setka may appeal. Aware of this, the judge went on to look at the substance of his claims “in case I am wrong” and party rules are enforceable. On the substance, Setka won easily. The national executive is not a dictatorship and can only expel members for a limited set of offences under the party’s state rules.

So Setka has plenty of incentive to appeal, and could yet win his battle to remain a member. But if the bulk of the Labor membership and leadership disavow him, he’ll still be a pariah in the party.

He claims his position as head secretary of the Victoria–Tasmania branch of the Construction Forestry Maritime Mining and Energy Union depends on remaining a Labor Party member. But for the most part, this is a case about face and symbolic power — about opposition leader Albanese versus a controversial union leader.

Regardless of what happens on appeal, either side could then approach the High Court for its view. The court is likely to take the case. Not because the public is interested in the Albanese-versus-Setka show, but because it is in the public interest to resolve how the law conceives of political parties.

The nature of parties and the freedom of association they should enjoy have long been the subject of debate, here and abroad. The nineteenth-century view was that parties were mere factions of ideologically or personally compatible MPs and wannabe MPs. Even as their membership bases grew in the first half of the twentieth century, parties within the Westminster tradition remained (in most instances) unincorporated associations.

In the famous decision of Cameron v Hogan in 1934, the High Court held that party rules were not generally enforceable by the courts. This case also involved Labor, but it was not a mere locking of horns over whether one prominent figure was sullying the party’s reputation. It concerned Ned Hogan, Labor leader and former premier of Victoria, who had been summarily expelled by the party’s executive over his support for the austere, Depression-era Premiers’ Plan. According to the court, the judicial system could only intervene in party affairs to resolve disputes about ownership of property.

That decision was widely criticised in ensuing decades. (Recent critiques appear in works by political scientists like Anika Gauja and lawyers like me.) If even the most senior member of a party could be expelled, potentially in flagrant breach of the party’s own rules, what hope is there that the rule of law will prevail over brute force within these organisations?

In any event, parties are not organised to amass property but to channel or sway political opinion and win elections. They are central to our system of electoral politics and government. Besides these profoundly public functions, parties are also publicly funded. Since the 1980s, they invariably register with the Australian Electoral Commission to receive close to $2.80 for every first-preference vote garnered at national elections. In Victoria, the state division Setka is fighting, they also receive up to $6 per vote plus annual funding to cover administrative costs.

To cynics, such funding shows that parties — who, via their MPs, make the very statute law governing parties — are caught in a circular and self-serving trap. From this position “above” the law, they have been adept at avoiding imposing on themselves the kind of internal democracy they have imposed on, say, trade unions. But cynicism can be taken too far. We have a competitive party system and a critical media, so there is some political accountability for legislation dealing with parties.

Champions of freedom of association caution against undue legal interference with parties’ internal rules or processes. Given they benefit from public funding, the quid pro quo should be that parties are subject to a high level of financial transparency and probity, not a one-size-fits-all set of internal rules.

But Setka’s case, like Cameron v Hogan, doesn’t involve the law meddling with parties’ internal rules. In these disputes, members aren’t asking the courts to treat parties like public bodies that must be run according to a Rolls Royce standard of internal democracy and fair process. A party like the original Palmer United Party can still have a constitution that centralises and entrenches power in its founder and his family. If you don’t like it, join a party with greater internal democracy. In our competitive landscape, you have no fewer than fifty-three different parties to choose from at the national level alone.

Instead, the question here is simply whether members can ask the courts to resolve a dispute about the meaning and application of the party’s own, self-chosen rules. If those rules have not been abided by, why not? The remedies don’t involve monetary compensation. Instead, a court can declare the legal position to guide the party, or give an injunction to do justice between the party and the members concerned, at its discretion and depending on the time pressures and mutual behaviour involved.

In a watershed case in 1993, a Queensland Supreme Court judge decided just that. Party rules were to be enforceable in court and the approach in Cameron v Hogan was to be avoided. (This case concerned the Liberal Party breaching its own rules for vetting candidates for preselection.) Statutory developments like registration and public funding, he said, brought parties within the legal radar. They could no longer be treated as informal social clubs.

In a series of cases since then, Supreme Courts in various states have accepted and refined this approach. Party rules that are vague or deal with ideology, public policy or minor matters are not enforceable. Non-members cannot sue to enforce the rules, allowing parties to robustly repel hostile takeovers. When parties have internal dispute-resolution processes, members should exhaust them first, unless the matter is urgent.

By and large, parties came to accept this degree of judicial oversight. After all, it’s hardly bad practice for parties to abide by their own rules. Today’s dominant faction may be tomorrow’s dissidents. And declining social trust in parties is unlikely to repair if we retreat to a world where parties are not bound by their own rules.

Of course parties don’t like dirty linen being washed in open court, or having maverick members waste resources on speculative litigation. But sometimes internal disputes need to be definitively resolved, as a case this year over the Greens’ NSW Senate ticket demonstrated. Sometimes the party leadership doesn’t even have a dog in the fight and is happy for an independent court to resolve it. And often the party’s powerbrokers have friendly lawyers who will argue their case at mates rates. Not every member is so lucky.

This level of acceptance of court oversight has, until now, been reflected in how parties have responded to litigation. But the spectre of Setka, apparently, has triggered the Labor Party to use the nuclear option, to blast the law back to 1934. The party may be ashamed of Setka, but it will be a real shame for the law if this decision catches on. •

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Clive is treated as both marketing genius and buffoon. His United Australia Party is uniting Australians, we are told, in “infuriation” at his campaign techniques. Meanwhile, he is laughing all the way from the bank. His is a Wildean world, where there is only one thing worse than being talked about.

When media outlets comment on Palmer’s multimillion-dollar campaigning, they have mixed interests. If he spends on newspaper, radio and TV ads, commercial publishers and broadcasters will laugh all the way to their banks. The common lament, however, is that he exemplifies something inauthentic about modern advocacy — as if there were some golden age when politics was embodied in candidates’ doorknocking and public meetings.

When he began campaigning for this year’s election back in the middle of last year, Palmer used a set of nearly ubiquitous yellow billboards, an early twentieth-century technology if ever there were one. A handful of graffitists aside, few objected, though they are more of a blight than easily erasable text messages. This year he is bypassing old media altogether, to focus on social media and attempts at viral messaging.

But gut reactions to new campaigns and speculation about the motivations of their proponents can only take us so far. The debate needs to broaden in two quite different ways. One is to bring in the wider role of money, including the question of political equality and what that term may mean. Last Tuesday, no less an institution than the High Court weighed in on that issue in a case, brought and won by Unions NSW, against laws restricting how much advocacy groups can spend at NSW elections. More on that shortly.

The other, deeper, social issue is the place and manner of advertising and advocacy, both within our political discourse and in the wider realm of marketing in late capitalism. After all, this is the era of “programmatic advertising”: as you click on articles like this, programs that profile you as a citizen and consumer can within milliseconds sell that information to bots that tailor social and commercial messages for your eyes.

On the one hand, we yearn for more communal forms of discourse; on the other, we tend to assume that what we have is the natural state of things in modern democracy — as it is, in a sense, given the ubiquity of the internet. We might even appreciate why political parties (and charities and government agencies) insist on exemptions from the Spam Act, and even the Privacy Act. In a world saturated with commercial marketing, much of it hidden, the political sphere wants a share of our attention.

But culture and law — those interwoven twins — are neither natural nor the same everywhere. During January I was lucky enough to be based in Oñati, in the heart of the Basque country. I was living in another Western democracy and yet, judged by its marketing and public culture, I could have been on another planet. There were almost no billboards in the whole region. Few shops had more than a simple sign, usually in a variation of a common regional font.

This advertising executive’s nightmare exuded an aesthetic calm. It felt blissful compared with Australian landscapes crowded with look-at-me advertising. (There were informational downsides, of course. It took three weeks to find the bottle shop in the main street. It turned out to be a large cellar behind unmarked oak doors unadorned by opening hours, let alone a name.)

Yet there is free political discourse everywhere you turn in the Basque country. Free in both senses of the word. Graffiti, stickers and placards, old and new, about nationalism, feminism, and community and social issues. A sixteenth-century church wall even sports a large slogan, “Gora Nietzsche” (“Up Nietzsche”). In Australia, we would treat this as vandalism to be scrubbed away; otherwise ordered Basque towns choose to respect such social expression. Different cultures, yes, but also different laws and even town planning rules about property and other rights, and different social norms about the role of wealth within liberal democracy.

Which brings us to money and the High Court’s latest foray into electoral law. For close to four decades, New South Wales has led the way among Australian states in grappling with this issue. As a result, the state has a distinctive set of laws regulating election finance and party finance. (I avoid the term “political finance” advisedly, as the laws don’t extend to all political groups, all year round.)

Within these laws — and in common with British, Canadian and NZ elections — New South Wales restricts what parties, candidates and “third party” advocacy groups can spend during a defined election period. For next month’s election, parties will be able to spend about $11.5 million statewide, plus about $120,000 per constituency, for a maximum of around $22.5 million. Until last year, advocacy groups were allowed just over $1 million, but the rewrite of the Electoral Funding Act halved that allowance.

The reasons for this reduction ostensibly included fears that wealthy, coordinated interest groups would drown out other voices and distort policy debates. It’s probably also no coincidence that the change was driven by a conservative government at a time when conservatives are feeling outgunned less by Labor than by GetUp! and unions.

Unions NSW challenged the new $500,000 limit on advocacy groups in the High Court and won, with the seven judges unanimously rejecting the new law. Within that thumping score lie two twists. The first is that the unions sought to tread a fine line. They invoked the “implied freedom of political communication” in the Australian Constitution. The unions did not want to provoke a libertarian jurisprudence — a spending free-for-all — because progressives tend to support caps on political expenditure. Yet the net result is that until the NSW parliament reconvenes and reinstates a third-party limit, political parties will be subject to a spending cap but other interests won’t.

The second twist lies in the interstices of the (five) separate judgements. Where a law imposes on a constitutional value, said all the judges, parliament must have some evidence to justify burdening that value. Parliament had not explored whether $500,000 was enough to mount a statewide campaign on an issue, nor explained why the ratio of party-to-advocacy campaigns was being halved. On its own, that was enough to sink the law.

But four judges tantalisingly suggested a broader principle. They said that there is no constitutional justification for “privileging” parties and candidates, at election time, over other actors. This will be music to the ears of liberals. Potentially it could signal a formal, American idea of equality, where corporations or wealthy citizens are seen to deserve equal privileges to political parties. I doubt that is what the judges intend. But it isn’t clear what their notion of political equality, hatched recently in McCloy’s case — which upheld a ban on property-developer donations in New South Wales — actually is.

For 150 years, Westminster-style democracies have differentiated between parties or candidates, and others, in regulating elections. Differences range from old rules allowing parties free access to school premises to hold public meetings, through to modern rules giving parties public funding but requiring greater disclosure. Justice Gageler, implicitly criticising the other four judges, said that since promoting a level playing field in electoral campaigns is clearly legitimate, it is “obvious that the functional distinction between a political party… and a third-party campaigner” justifies substantial variations in their treatment.

Beyond New South Wales, elections for the ACT Legislative Assembly and the Tasmanian Legislative Council are subject to spending limits. In Canberra, parties can spend $1 million and other groups just $40,000. That ratio of 25–1 is similar to the original NSW law. But whether $40,000 is enough to mount a city-wide campaign on an issue may determine whether the High Court would uphold that law.

Tasmania’s parliament is a real platypus. Its assembly is elected proportionally but with no spending caps. In contrast, its upper house is elected via constituencies, on staggered election days, with only a few seats up for grabs each year. Upper house candidates are allowed just $16,500 to campaign, and no one else is meant to spend anything. The point is to encourage community-based candidates and keep issues regional. Is this a “privilege” the High Court should rule on?

Political campaigning is all about relative influence; but it is also about dialogue and manner. So too is the law. When Mr Palmer speaks, it is not into a void. Social power can respond by mocking the manner of his speech; but it may not bear the sheer weight of it. Parliaments wield power, including over the rules that underpin parliaments. In the spirit of one vote, one voice, one value, it is legitimate for them to rein in the voices of oligarchs and well-heeled interest groups. If parliaments overreach, the High Court should act as a boundary rider, as it did in the NSW case. But the judges are not oracles, and themselves need to self-restrain. •

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This is not the first time the committee’s conservative majority has recommended that voters be required to produce evidence of their identity. The same recommendation was made three years ago. In some US states, voter ID laws have been used as a discriminatory form of voter suppression. As with much in that country’s partisan-tainted electoral administration, voter ID has spawned a cottage industry of campaign consultancies, research and litigation, with the litigation infected by concerns about judicial bias.

To be fair, its Australian proponents are not calling for the most onerous, US-style, government-issued, photographic-only ID. The proposal here is inspired by a short-lived Queensland law enacted by Campbell Newman’s Liberal National Party government and repealed by Annastacia Palaszczuk’s Labor government. In that model, ID could include faceless government plastic (Medicare or seniors cards) or official notices with addresses (a utilities bill or a tax notice), though the latter isn’t as simple as it sounds if you are in a share house or don’t have a printer.

Electors who go to the polls without such ID would be offered a vote via a statutory declaration. That backstop is welcome, but it defers the question of whether such voters would also have to produce ID, after the event, to validate their vote. And will they receive the courtesy of being told whether their vote was accepted? If not, their vote enters a black box rather than the visible assurance of the ballot box.

Research Tracey Arklay and I published on voter ID in Queensland showed a not-unexpected correlation between regional electorates, and those with concentrations of Indigenous people, and problems with voter ID. Younger voters and those from non-English-speaking backgrounds, or NESBs, may face similar challenges, but Queensland data was only available at electorate level. (Electorates do not vary much by age, and NESB electors tend to blend into urban seats.) These discriminatory effects came on top of the natural confusion that accompanies a new measure. Turnout dropped after voter ID was introduced, an odd result given its first and only run was at the passionately contested election that swept Premier Newman from power.

As a matter of principle, as Antony Green and others have noted, voter ID is a solution in search of a problem. It faces three main objections.

First, Australian elections are already very clean by world standards. Voter ID might deter “personation,” where someone votes in someone else’s name. But there’s minimal evidence of personation here and its best prophylactic is clean rolls and high turnout.

We do have an issue with “multiple voting.” But it is a small problem that voter ID cannot cure. Marking voters off in real time, on electronic rolls, might counter this, but at great cost in resources and confusion. (Most “multiple” votes turn out to be administrative errors. Someone is recorded as voting twice while an almost identically named person is recorded as not voting.) Short of CCTV cameras at every polling station, it is hard to police.

Second, voter ID doesn’t sit well with compulsory enrolment and voting. Are we to fine people who don’t bother turning out because they lack the necessary ID? The long history of Australian electoral practice has been to facilitate the franchise, not to hinder it. Think Saturday polling, pre-polling and online and direct enrolment schemes. The place for ID is at the enrolment stage, not polling.

Third, the proposal explicitly discriminates between those who vote in person and those who vote by mail. If I have to produce ID at the polling station, why should I not have to photocopy the same to vouch for my posted ballot? Postal votes, after all, are not 100 per cent secure.

At least as interesting as the legal niceties and electoral effects are the politics of voter ID in Australia. Leading the push is the committee chair, senator James McGrath. McGrath is no stereotypical blueblood; like Wayne Swan and Kevin Rudd, the senator is a product of Nambour High School. He took his first law degree at the nouveau Griffith University, not a sandstone campus. (For the record, I too went to Nambour High and even taught the senator workplace law.)

McGrath cut his teeth in the administrative wing of what is now the Queensland Liberal National Party. He rose to prominence working on Conservative Party campaigns in Britain. There he was both feted as a “heavyweight strategist” and derided as an “arrogant apparatchik.” Boris Johnson sacked him for telling a reporter that disgruntled Caribbean-born Britons should go home. When James himself came home, he became LNP campaign director and deputy federal director of the  party director. Recently he has run numbers for — then against — Malcolm Turnbull. In short, he seems destined for the role of special minister of state, who oversees internal governmental affairs including parliament and electoral systems.

Conservatives, as a rule, mind hurdles to voting less than progressives. This fits the two mindsets: one is less trusting of humanity, stressing individual responsibility, while the other wants the state to achieve substantive equality. McGrath likened voter ID to membership cards to meet licensing laws and buy cheap beer at a surf club, and proof of age/bona fide cards for late entry at nightclubs.

Never mind that nightclub ID cards have upset clubs and revellers alike and, in practice, created a mountain from a molehill. McGrath’s rhetoric is a variant of the now-dated line, “you need ID to hire a DVD but not to vote.” (Every video shop I ever frequented let you borrow if you cited your phone number.) Polling stations are staffed by thousands of casual employees. When we make the process more complex, we risk increasing queuing times and, worse, invite different interpretations of the rules at different booths.

Can the government get voter ID through parliament? Inverting the usual challenge, it may have a better chance in the Senate than the House. The Senate’s crossbench is, at the moment, more conservative than the House’s. Even were the measure to succeed, you can be sure GetUp! will seek to run a judicial review action, given its success on that front in voting rights cases.

Prior to an election, however, such a claim won’t be easy to mount. The High Court may say to any test-case plaintiff, “Why are you here rather than out gathering ID?” A challenge after the event is more feasible. The court will not object to voter ID in principle, given its many variants around the world, including in countries with actual bills of rights. But it has said that hurdles to the exercise of the franchise have to be justified by evidence of a problem and a proportionate response. This is the reason it overturned early closure of electoral rolls, a Howard government initiative.

Given the need for solid constitutional justification, Senator McGrath and his committee may rue taking a scant couple of pages to assert their preference for voter ID, rather than making a cost–benefit case for its necessity. My hunch is that the government doesn’t really care. It is likely to introduce the measure in the lead-up to the election due in the first half of the year. In doing so it may be less interested in making an empirical case for voter ID than in running with this political kite. Labor and the Greens, in opposing the measure, will be labelled as enemies of “common sense” electoral integrity. •

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In the midst of this tumult, Premier Palaszczuk visited her grandmother (and duly tweeted) and then, with media arrayed, called at Government House with news that an early election would be held on 25 November. No, Grandparents Day is not a big thing up north. But the Crown still is. One wonders what its representatives felt about a premier leaking her election decision to a Sunday tabloid before advising the governor.

Unlike the weather, this election promises to be anything but hot. Queensland politics have been rather subdued over the life of the Palaszczuk government: quite a contrast to the stormy days of the decline and fall of the Bligh government (victim to a 15 per cent swing) and the demise of the brief bulldozer that was the Newman government (stopped in its tracks by a 14 per cent swing). The one exception to a flat landscape of 50–50 polling across this term, and the one diversion from discussion of the merits of a “do-nothing” government, has been the recrudescence of One Nation in its ancestral home.

One reason for this quietude lies in the genetics of a government that lacked a gestation period. After the 2012 election, Labor had just seven seats: fewer than a Toyota Tarago, as the joke went. Entering the last election, that rump hardly dared to imagine it could win. But win it did, and entered office with little in the way of a positive agenda.

It did know what it didn’t want to be: a Newman-style bulldozer. The Liberal National Party, newly in opposition, understandably adopted a similar motto. But in pledging to neither raise taxes nor cut services, the government painted itself into a fiscal corner, limiting its ability to advance needed infrastructure. Even where it could have enacted progressive values costlessly, it tiptoed. A push to decriminalise abortion came to nought. Campaign finance reform was limited to real-time disclosure, and a promise to ban property developer donations has been washed away by the caretaker period.

One big issue — the Adani coal mine — has divided urbane electors and conservationists from regional workers and development interests. But even it has been, like a seam of coal itself, a slow burner. Adani’s inability to raise the necessary finance has ensured that.

Little wonder, then, that attention in Queensland has focused on political process rather than substantive policy. A messy part of that process has been the consigning of several Labor MPs to the crossbench. After navigating those rocky shoals, the government has sought to make a virtue of its quiescence. “Stability” is the mantra.

The premier told us on Sunday that she had no option but to end early election speculation… by acceding to it. A similar pirouette didn’t end well for Mrs May in Britain. So Ms Palaszczuk has also run the “no one wants an election spoiling their school holidays.” Her government could have run until early May.

Such rhetoric takes a certain chutzpah. Just last year, Labor and the LNP alike begged electors to pass a referendum not only to lengthen the parliamentary term to four years, but also to fix the election date. As St Augustine once put it, “Lord make me chaste: just not yet.” Indeed, going to the polls in 2017 rather than 2018 means that the next term will be less than three years.

Meanwhile, en route to India, Queensland’s other female political impresario was caught off-guard. Pauline Hanson tweeted that the early election was a “cowardly” attempt to catch One Nation on the hop. Shades of Joh Bjelke-Petersen, who was in Disneyland when Bob Hawke called the 1987 election that buried his “Joh 4 PM” putsch. If Ms Hanson had a sense of electoral history, she might enjoy the analogy with her hero, if not its omen.

Major party slogans were ready for spruiking, however. Labor’s “Putting Queenslanders First” almost revels in hokeyness. The LNP’s “Build a Better Queensland” sprinkles alliteration on blandness. With the withering of federalism, the jurisdiction of state governments, along with their ability to attract talented candidates, declines inexorably. And with it declines the sense of their power.

The real interest lies not in the major parties and their slogans, but in the fortunes and preferences of the major-minor parties. The Greens will poll steadily as usual, while targeting a couple of inner-Brisbane seats. But the lack of an upper house and of proportional representation means that Queensland’s system configures them as a preference cow for Labor. Indeed, in a bid to mop up Green preferences, the government rammed through compulsory preferential voting during one night in April 2016.

This less-than-principled gambit may yet backfire, given One Nation’s subsequent re-emergence. One Nation learnt a lesson in Western Australia, and so it will not openly play footsie with the LNP. It has far better prospects of winning seats than the Greens, and thereby of holding the balance of power if the LNP’s vote holds up. (In spite of the Newman government massacre in 2015, the LNP polled 41 per cent of first preferences, 4 per cent more than Labor.)

In short, this election campaign is of interest for reasons of process rather than substance. Will the government be marked down for the hypocrisy of campaigning for longer, fixed terms and then running early? How will compulsory preferential voting pan out? Will electors back Labor’s meta-appeal (“stability”) or will the cards fall on the conservative side?

In this, Queensland is not alone. National politics, for some years now, has been mired in process — such as leadership speculation and coups — rather than substance. The 2016 federal election itself was an early election, a double dissolution called not so much to decide the bills that triggered it as to shake up the Senate with new voting laws. Deeper issues — like climate change or tax reform — are stalemated. 2017 has been dominated by litigation about two process matters, the “plebisurvey” and the MP disqualification cases.

Not since the mid 70s has litigation so dominated the Canberra stage. But that was at the height of the Whitlam government, which sought to crash through constitutional barriers to enact its positive agenda. Today’s litigation is negative and purely about process. It is hard to imagine the Whitlam (or Fraser) government baulking at a parliamentary vote on marriage equality.

Political process is important. But it shouldn’t be the main game, in Queensland or anywhere else. ●

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Answering the “who” question, as I will argue, is simple. Electors should be able to elect any one of their own whom they choose. But first, to the minutiae of the cases.

A Day in court or a cull of the minor parties?

Last Wednesday, the High Court declared that Bob Day of the Family First Party was not duly elected. The reason? Day was in a position to benefit indirectly, in a pecuniary way, from an agreement involving the lease of his electorate office by the Commonwealth. In the court’s view, this rule is a constitutional bar not just to serving in the national parliament but to being elected.

The premises were once owned by the Day family trust, and subject to a mortgage guaranteed by Day’s family. Before Day took up his original Senate seat, the property was sold to a company controlled by the wife of an associate. From mid 2015, the Commonwealth agreed to pay the rent on Day’s electorate office – as it does for all MPs. The new owner assigned the right to that rent to a trust in which the Days had a beneficial interest. As it happened, the Commonwealth never paid the rent, after the finance department fretted about the effect of the arrangement on Day’s ability to remain an MP.

To a layperson this backdrop will seem byzantine. To the High Court, after hearing from eight barristers (four of them senior counsel), the arrangement meant there were several ways Day might benefit from the lease agreement. Any one of them was enough to trigger the constitutional rule. Day is no saint, but neither was he a Trump Inc.; in any event, he had already resigned his seat to focus on dealing with the fallout of the insolvency of his property development business.

Who will follow Day into the Senate? When an election result is upset, the ballots are recounted as if the miscreant had died during the campaign. Each ballot is treated as if the offending name had never been printed, the count skipping on to the next preferenced candidate. Since people vote for party tickets in the Senate, this means – fairly – that the party should keep the seat.

In this case, Family First’s number two was the Kenyan-born Lucy Gichuhi. Normally progressives would cheer at the unique prospect of a young woman of African background entering parliament. Instead, questions are being raised about Gichuhi’s qualifications to be elected. Was she a dual citizen when she stood last year, which would disqualify her?

She says “no” – her Kenyan citizenship, she contends, was lost at the moment she took out Australian citizenship. But, to blend some metaphors, comparative citizenship law is no cup of tea, so a second lawyer’s picnic beckons. Gichuhi could formally renounce any vestige of her alleged Kenyan citizenship in the coming weeks, before she is sworn in to the Senate. But that obvious solution to any doubts about her fealty to Oz won’t be allowed. In the pure logic of the law, if she had dual citizenship when nominations closed, then she too will be treated as if she had been a dead candidate. And then? All we know is that Family First will be robbed and some other party will luck the seat, because the party only nominated two candidates.

Just two months earlier, senator Rod Culleton of Western Australia was also declared “not elected.” Culleton’s crime, literally, is that during the election he was under conviction, on a trivial stealing charge involving a tow-truck key and a motor vehicle repossession dispute. Culleton’s conviction had been made interstate, in his absence, and he soon had it overturned.

But not soon enough. The High Court ruled, in a judgement of fine-grained legal formalism, that although Culleton’s conviction was annulled, the annulment hadn’t necessarily been backdated. “Voided, not void ab initio,” in the legal jargon. Once again, few in the public seemed to mourn. During his short term in parliament, Culleton had split from One Nation, having been a colourful thorn in the side of its leader Pauline Hanson and the banks against which he railed. Yet One Nation reclaimed his seat on a recount, via its number two Western Australian candidate.

The thicket of MP disqualification law – and its impact

The deck of cards in the Senate has thus been reshuffled. “So what?” you might ask. In truth, several “whats” need consideration.

First, why is the High Court undoing election results nearly a year after the event? Normally, a strict forty-day time limit applies to any attempt to petition their honours, sitting as the Court of Disputed Returns, to upset an election. That time limit recognises the importance of certainty, given that elections are never entirely pure. Yet in “disqualification” cases, the court permits parliament – at any time – to refer the question of whether an MP might have been disqualified when he or she nominated for election. That unlimited discretion was discovered in a late-1980s ruling against a Nuclear Disarmament Party senator, Bob Wood.

For all their virtues, parliaments are highly partisan bodies. Is it any wonder that minor-party MPs are more likely to be referred to the court than major-party figures? Worse, parliaments reserve for themselves the right to waive concerns over qualifications – even those involving an issue arising during the term of an MP, such as when the family of the Coalition’s Warren Entsch supplied cement to the public service.

Strangely, these parliament-to-court referrals can occur whenever it suits the parliament. So a senator might serve faithfully for five years before the Senate decides (perhaps because of a change in numbers) to refer, to the court, a question about his or her qualification at a long-forgotten election.

Beyond such procedural peculiarities, our rules about candidate qualifications have deeper problems. They are archaic, and the High Court’s interpretation of them is often arcane.

Archaic? Why do we ban several million Australians from standing for election just because they hold dual citizenship? Especially given that many people inherit dual citizenships without knowing it, at birth. Why do we force millions of holders of an “office of profit under the Crown” to risk their livelihood by resigning that office before they nominate?

Arcane? Cases like this don’t come up very often. The major parties, accepting the way the roundabout works, tend to avoid suing each other. And when a member of the lower house is declared unelected, the result is a wasteful by-election, at which the member can stand again – as did the Coalition’s Jackie Kelly, attracting a thumping swing, after Labor made the mistake of challenging her airforce reservist status.

With cases coming up infrequently, but via a partisan initiation process, the High Court doesn’t build up much expertise in the area. In Day’s case, it spent nearly ninety pages reflecting on the purpose of the nineteenth-century rule about “indirect pecuniary interest.” It decided the rule existed not just to protect MPs from undue influence from the executive government, but also to avoid MPs’ efforts to favour their own interests over their public duty. That is laudable. But in doing so it upset a longstanding precedent of former chief justice Garfield Barwick in a 1975 case favouring a Country Party senator, which Day’s lawyers thought would save him.

In Culleton’s case, by contrast, the majority didn’t pause to ask about the constitutional purpose or electoral fairness of holding that an annulled conviction was still a conviction (despite earlier principle pointing the other way). Instead, the court put on its blinkers and sought to divine the intention of a NSW criminal appeals law, one whose drafters never imagined its effects on parliamentary candidates.

The court’s rulings, over time, have been piling fertiliser on the thicket of MP disqualifications. Unlike Barwick, few judges have any experience of the practicalities of politics. Thus, in a fit of fastidiousness in the early 1990s, the court declared independent Phil Cleary unelected from the national parliament because he had been a supply teacher, on leave without pay from the Victorian education department. Such a teacher was hardly likely to be under the sway of the Commonwealth executive.

A more rational approach would simply allow candidates to abandon any problematic job, business arrangement or dual citizenship in the grace period after polling day (when they know of their fortune) but before they are formally “returned.”

The way forward? Focus on serious ethical problems, not electoral barriers

Reliance on a musty section of the Constitution of 1900, aggravated by sporadic wrong turns on the judicial road, has resulted in a tangle of disqualification law that indirectly discriminates against minor-party and independent candidates. These outsiders cannot afford legal advice the way the major parties can. Nor are they insulated by any tacit agreement in the parliament.

Most of all, telling electors they cannot elect a Culleton or a Day, a Cleary or a Wood, brings electoral democracy into disrepute. These are electoral technicalities in an age when the media and rivals can be relied on to dig the dirt on candidates at all levels. As long ago as 1981, parliament accepted that these disqualification rules were confusing and rigid. But it has squibbed at reforming them, fearful of being accused of wasting money on a referendum about political process. Yet the argument for a “yes” case is simple: let any elector run for parliament.

We should wipe the slate clean by scrapping section 44 of the Constitution as it applies to elections – especially the barriers to millions of dual citizens and people holding public office offering themselves and increasing electoral choice. Even if electors wish to elect a fellow elector who is in prison, why not let them? It’s unlikely to happen, but the symbolism could be used effectively, as experience showed at Westminster during the Ulster “troubles.” Rules already exist to cause MPs to lose their seat if they physically miss several sessions of parliament.

In its place, we need a rational but firm system dealing with the real integrity problems that arise during the life of a parliament. Draw up a clear list of offices that MPs may not be appointed to. Since the finance department had concerns about Mr Day’s lease, why not empower the auditor-general to rule on the contract, based on a proper code about conflicts of interest and duty? If an MP takes out a new citizenship during their term, he or she could renounce the seat from that date – quite a deterrence to such an unlikely personal decision.

Most of all, we need to clean up the perennial sore of the misuse of parliamentary allowances by allowing a federal court to rule that MPs must forfeit their seat if found to have intentionally rorted benefits. It is these kinds of ethical transgressions that undermine electoral democracy, not technicalities about candidacy. •

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First, to brass tacks. Senator Ludlam was born in New Zealand to Australian parents. He settled in Australia when he was eight years old and underwent a naturalisation process in his teens, which he assumed overrode any NZ allegiance. Senator Waters was born in Canada to Australian parents. They brought her back home at just eleven months of age. She, too, grew up believing that her formal Australian naturalisation overrode any Canadian ties. Canadian law was changed when she was a few days old, and subsequently a renunciation was required. The older law, still common in many countries, was that taking out a new citizenship (in Australia, for instance) automatically revoked one’s birth citizenship.

The idea that Australians who acquire dual citizenship by default – at birth, say, or via their parentage – are too conflicted to run for or serve in parliament is not so much arcane as absurd. The Constitution in this area is musty, dating from values of the 1890s. But even in those days neither Canada nor New Zealand, nor for that matter Britain, was considered legally “foreign.” So, ironically, in a multicultural twenty-first century, the disqualification is tighter in practice than when it was first written.

News outlets reported that each senator had “quit” parliament. In fact, their resignations are premature. The High Court will have to declare their elections void and order the Australian Electoral Commission to conduct recounts. In each case, the Greens candidate below them – by definition, a lesser-known mortal – will inherit the seat.

One is twenty-two-year-old disability activist Jordan Steele-John; the other, fifty-three-year-old former Democrats leader Andrew Bartlett. The party could lean on the two men to resign their windfall seats in favour of Ludlam and Waters, who could easily renounce their dual citizenship in the meantime to remove any theoretical conflict of interest.

Some conservative outlets took to blaming the senators for “forgetting” their nationality. Much more important were family lore and obscure foreign laws. Cases like these reflect a bias in the system: the major parties have the resources and professional advice to vet candidates against such laws; the minor parties are less blessed.

This year alone, four minor-party senators have lost office thanks to section 44’s obscure and often fuzzy rules. And one government member of the House is being sued by a Labor Party “common informer” querying his qualification. His crime? He owns a shop that is leased to an Australia Post licensee.

Given that the Australian Constitution fails even to guarantee a right to vote, all this is an anachronism. My April Inside Story article, “Entitled to Vote? Then You Should Be Entitled to Run,” explained the earlier cases and outlined some long-overdue reform options.

Without reform, we will remain hobbled by these irrational and faintly undemocratic rules. As with all public service positions, any real conflicts of interest that arise during an MP’s career should be dealt with through ethics advice from an auditor-general or integrity commissioner, and the removal of the conflict. Otherwise, electors should be able to elect any other elector they choose. •

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But in a leap into modernity, Queensland has now become a national leader in timeliness and political accountability. The state Electoral Commission’s Electronic Disclosure System, covering both state and local government political donations, went live just a fortnight ago.

The system has two broad aims. The most important is timeliness: it seeks to get as close as possible to “real time” disclosure of donations. (A corollary is that disclosure will also be relatively continuous, rather than annual or biannual.) The other broad aim is ease of access.

The reform converts a paper-based system, onto which had been grafted the reproduction of the paper reports on the web, into a purely online database. This will help donors, parties and candidates make reports. Most of all it will give streamlined access to people in the media and civil society who wish to question or research donations. The Electoral Commission hopes the system will also encourage compliance by improving its own ability to track data.

Queensland versus the rest

The system has been a long time coming. As I described in Inside Story back in 2014, New York City has had online disclosure for decades. In Australia, Brian Costar and other political scientists have been arguing for real-time disclosure for years.

But let’s leave Proust to dwell on all that lost time. How does disclosure in Queensland now compare with the rest of Australia? Ranked in terms of transparency, it looks like Queensland is at the top, with South Australia and the Australian Capital Territory vying for second place. New South Wales lags in fourth, and every other state and territory, together with the Commonwealth, comes a distant last.

Since 2015, the Australian Capital Territory has had disclosure on at least a quarterly cycle: donors who hit $1000 must be disclosed by the recipient within thirty days of the end of each quarter. Things then speed up at the pointy end of the four-year electoral cycle. In the six months or so before the territory’s mid-October election day, disclosure is required within a week of a donor reaching the $1000 mark.

South Australia has adopted a similar system. When a donor hits a total of $5000 in any financial year, that must be disclosed. In non-election years, reports must be lodged twice a year. In an election year, a third report is required by the end of January, and this is followed by weekly updates in the run-up to polling day in mid March.

Over the past decade, New South Wales has developed the most comprehensive political finance laws in Australian history, with caps and bans on donations, and campaign spending limits. Increased disclosure was brought in, on an ad hoc basis, for the 2015 election. At the time of writing, though, the state’s disclosure rules remain very twentieth-century, with disclosure at the $5000 level only on an annual basis.

Elsewhere, disclosure schemes do little more than mimic the Commonwealth rules. The federal government might be moving towards banning foreign donations, as a report released last Friday suggested, but its disclosure system remains rickety. Parties reveal donations or loans of more than $13,200, each year, via an annual form. These reports are not made public until the February after the financial year in question. Last year, Labor and the Greens introduced bills for twice-yearly disclosure of smaller donations; yet, as so often happens, even those suggestions have become caught up in yet another committee inquiry.

Real-time, Queensland-style: in principle and practice

Queensland’s real-time system builds on the twice-yearly disclosure system that has prevailed, at least under Labor, since the late 2000s. Under that model, big contributors were disclosed within a fortnight of reaching the platinum-class level of $100,000. Otherwise, every source that contributed $1000 or more was disclosed twice a year.

Curiously, Queensland’s new scheme is a creature of regulation rather than legislation. Although this allows flexibility, it also leaves the risk that a future minister will be able to backtrack more easily than if the timelines were set in legislation.

At the heart of the scheme is a new rule, and new software. The rule is that disclosure must be made within seven business days of any donor (or lender) hitting a $1000 threshold. This rule also applies to donations to lobby groups conducting political campaigns at state election time. Information from recipients of donations will be published instantaneously, but disclosure by donors will be delayed twenty-four hours. That delay allows parties or candidates to privately rebuff an unwanted gift and avoid the embarrassment of the media reporting any fake donations.

A key feature of the system is not just the publication of raw numerical data, but the display of information via a simple mapping function. This is not a visual gimmick. Geography is a significant issue in a state with no upper house and only constituency MPs. The maps also permit easy identification of out-of-state and international donors.

There are plans, over time, to bring disclosures from previous years into the new format. This will allow the creation of historical maps and easier collation of tables for historical comparisons. The new system will also apply to local government soon, subject to enabling legislation. For councils, the current disclosure threshold is to be nudged up to $500, or half the level for state politics. That figure will always be a compromise, as Queensland councils vary from the largest in the country – the billion-dollar Brisbane City – to tiny, far-flung communities away from the eastern seaboard, like the Banana Shire.

Limits, loopholes and further reform

Electoral commissions cannot guarantee the accuracy of the political finance information they publish. As with tax returns, disclosure is driven by self-reporting obligations. The Queensland Electoral Commission therefore explicitly warns visitors to its site that it “does not verify or validate this data.”

Money is inevitably fluid, too. Across a range of legal domains, thanks to the ease of creating trust funds and shelf companies to act as conduits, the integrity of financial transactions is a cat-and-mouse game. At best, electoral authorities can audit disclosures then insist on corrections. But the resources to do this, and penalties or time limits for prosecuting misleading or late disclosure, remain limited.

Above all, disclosure is not a panacea. Transparency is a necessary but not sufficient condition for a fairer system that balances political liberty, equality and integrity. Queensland, like the Commonwealth, needs to take a leaf out of the NSW statute book and institute caps on donations and, above all, on campaign expenditure.

Whatever its limits, Queensland’s embrace of real-time disclosure is a welcome innovation. The principle has been embraced by a growing number of southern officials, both elected and within parties. These range from minor parties like the Greens, through to party-machine figures such as former Labor senator John Faulkner and current Liberal senator Arthur Sinodinos. NSW Labor pledged it will voluntarily make continuous public disclosure. New South Wales is reviewing its laws after the revelations from ICAC in recent years. Senator Xenophon has even called for the idea of timely online disclosure to apply to MPs’ expenses. Many eyes – media, apparatchiks and reformers – will be on Queensland as its system rolls out and plays out.

We can always question the motivations of politicians, and even the media, when they call for real-time disclosure. The Queensland government was prompted to reform because, as a creature of a hung parliament, it committed to investigate the issue to secure the support of the independent speaker, Peter Wellington. Minor parties receive few corporate and union donations, so they will happily stoke no-smoke-without-fire allegations about donors during election campaigns. And, at Commonwealth level, those who are coming late to the “improve disclosure” party may also be trying to stave off more comprehensive political finance reform.

Principles and partisanship are inescapably linked in the law of politics, and behavioural scientists and cynics can argue over motivations. What matters, ultimately, is the adoption of systems to encourage more open and fair political practices. Advanced democracies are well into the fourth decade of widespread computerisation and the third decade of the internet. Queensland’s pioneering of electronic and real-time disclosure is not a prize-winning development. But it turns the spotlight on the rest of Australia, and especially the Commonwealth. •

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But don’t hold your breath. Any systemic reform faces two hurdles: one real, one largely imaginary. The real hurdle is political will. The perceived hurdle is constitutional. Let’s take them in reverse order.

“Chosen by the people” or “Chosen by the court”?

Fact 1. The Australian Constitution is a thin thing. Scour it and you’ll find no guarantee of anti-discrimination or free speech, or even an explicit right to vote. The Founders, good anglophiles, favoured parliamentary sovereignty. So they framed a “political constitution,” not a judicial one.

Fact 2. Yet the High Court rules the Constitution. With reform by referendum at a perennial stalemate, the court drives evolution on this otherwise constitutionally frozen continent. Until 1992 that meant overseeing federalism, typically by expanding Commonwealth power.

In 1992, though, the court began “discovering” implied constitutional values that act as limits on parliamentary power. The first was an implied freedom of political communication. Then came an implied universal suffrage. And then, most recently, it discovered an implied equality of political opportunity.

The court reasoned that these values necessarily underpin the phrase in the Constitution decreeing that parliament is to be “chosen by the people.” Fair enough. It would be a paradox if a modern parliament could abolish the free press or disenfranchise groups based on gender or race.

But the Founders wanted a different value read into the Constitution. Their value was “trust the political branches” rather than “trust the High Court” – even on basic political “rights.”

Liberté, egalité, intégrité

If money makes the world go round, politics is meant to make that world fair. Money and politics are in tension. One vote, one value ought to make citizens more equal by smoothing out the inequalities of fortunes and misfortunes. Yet money and politics are inextricably linked.

Money helps lobby groups translate interests into influence. And political campaigns and organisations need resources. Here lies a central democratic conundrum: how to regulate to improve political integrity and equality, without unduly restraining political liberty and activity?

In 1992, the High Court alighted, like a butterfly, on one of those values, and began exalting freedom of communication. It began by striking down a Hawke government law to replace paid broadcast ads at election time with free airtime for policy statements. The model drew on Britain and New Zealand but was deemed too “unfree” by the High Court.

In a brace of recent cases, however, the court has nuanced its position. Two of the cases grew out of reforms introduced in New South Wales. There, both sides of politics have rejected the laissez-faire approach to political finance. The NSW system is now the most comprehensive of control over political money in Australian history. Coupled with the powers of the Independent Commission Against Corruption, or ICAC, and an emboldened NSW Electoral Commission, the state is working itself clean.

New South Wales has limits on electioneering expenditure, bans on donations from the property and vice industries, and caps on donations. The spending limits and caps also apply to lobby group campaigns during elections.

But the limits don’t apply to union affiliation fees. The O’Farrell government sought to remedy this by banning corporate and union contributions to parties. But in a 2013 case brought by Unions NSW, that solution was struck down. The High Court reasoned that limiting donations to citizens/electors hurt the freedom of community groups and permanent residents, and for little benefit. After all, if donations from everybody were capped to $5000 per year, the corruption risk was minimised.

A more significant decision in 2015 upheld caps on donations and bans on developer donations. This case was brought by Jeff McCloy, a developer caught up in ICAC’s investigations of unlawful donations to NSW Liberals. McCloy argued that donation limits hobbled political expression unnecessarily, and that the disclosure of donations and a nimble media could deal with integrity concerns. The court disagreed. But instead of undoing freedom of political communication, it doubled-down, discovering a second fundamental principle, the “equality of opportunity” to participate in politics.

This is like swallowing a spider to catch a fly. The Court grounded the principle in early commentary about the Constitution as a document to share political power. This was ironic, because the point was that parliamentary government should be trusted to express a popular will, rather than relying on a bill of rights to empower the highest court.

Be that as it may, here we are. The judicial bird has two wings: liberty and equality. And it has made clear that caps on donations, selective bans and, by implication, reasonable limits on the size of political campaigns are all constitutional. As long as regulation is based in evidence and reason, it will be respected by the court.

Union dollars and public funding

If the High Court is no hurdle to reform, what is? The simple answer is a lack of political will. This isn’t insuperable. Regulatory experiments not only in New South Wales but also in Queensland, South Australia and the Australian Capital Territory show that.

But achieving a national consensus has proved less easy. The status quo – a system with annual disclosure, and public funding worth around $5.50 per voter per three-year term – has been in place since 1983.

A major stumbling block remains union contributions to the Labor Party. Limiting union affiliation fees would limit freedom of political association. Labor is the paradigm case, but it is not alone: the original Country Party and the Shooters and Fishers Party have relied on institutional members.

But whatever the democratic arguments for not touching union fees, not touching them leads to an imbalance. Unions protect Labor’s financial base, especially in the drought of opposition. With corporate donations staunched since the global financial crisis, the ICAC scandals and increased shareholder pressure, the Liberal Party lacks such guarantees. That corporate money follows power more than ideology was shown during the barren decade of Liberal Party opposition in New South Wales from the mid 1990s until 2011.

The favoured conservative position is to ban organisational contributions to parties. Confining contributions to individuals sounds simple: parties just need to check the electoral roll or ask donors for evidence of permanent residency. This is the Canadian and (roughly) the US model.

It’s a model that would benefit the Liberal Party, which embraces a network of well-heeled individual donors. And within the party, it would further empower MPs in well-off electorates. It is problematic in terms of principle rather than law, for politics is not just about individuals, it’s a collective enterprise. On the other hand, unions might do better to spend their money directly on campaigns over issues, to attract more members.

If we did go down the path of limiting donations, some of that shortfall would have to be made up with “clean” public funding. Not long ago, the idea of expanding public funding for elections was anathema. But sentiment goes in waves. If parliament embraced limits on the size of election campaigns, the public would see that the parties are serious about self-limiting the arms race. •

This article first appeared in Pearls and Irritations.

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But elections are not abstract instruments. Above all, they are something we experience as citizens. Indeed that is reflected in much of the media attention given to elections – at least the coverage that is not just horse-race treatment of opinion polls. Elections are profound events in the life of every nation, state or locality.

We experience each election as a great ritual, made up of smaller rituals. Those rituals play out through their rhythms: they are patterned, recurring events conveying social meanings, demarked by the parliamentary term. The electoral ritual may be grandiose, as in the summonsing of a parliament or inauguration of a president. Or it can be subtle and everyday, as when the voter retires quietly to cast his or her ballot.

How we run elections encompasses myriad decisions – decisions about how frequently elections are held, about the rhythm of the campaigns, about how much money can lawfully be poured into them. Then there are the communities and communal settings in which we poll. Electoral systems even extend to the social realm and the way people hedge their emotional investment in politics. So we have special rules for alcohol and electioneering (once a problem, then a no-no, now okay) and we regulate betting on elections (once criminalised, now a mini-industry).

Topping it off is the climactic theatre of election night. Britain rushes to declare the result in each electorate in the wee hours of election night – a feat that is only possible because of a simple voting system and an early deadline for postal votes. There is even an informal race to see which declaration can be made first, usually by the local mayor in a town hall with the candidates standing in a row. In Australia, by contrast, all eyes are on the rising tide of data and Antony Green’s computerised modelling of how postal votes and preferences may play out.

That thinking about elections as theatre and ritual might be a fruitful way to understand electoral democracy occurred to me, however dimly, sometime between the ages of six and nine. I recall being taken by my mother to the local polling booth, roughly every year, for a national, state or local poll. We would mingle with neighbours and greet or dodge the party activists who formed a kind of honour guard through which electors passed.

Even – or perhaps especially – as a child, I could sense a restrained excitement among those milling about to vote, or canvassing for votes, before entering the gentler confines of the hall. My mother would let me watch her vote, and even (naughtily, I now realise) let me help her fill in the nether regions of the voluminous Senate ballot.

Afterwards I would look at the how-to-vote cards, discarded in their hundreds, and wonder at the tribalism in the colours of the different political parties, reminiscent of sporting teams. That night, the results would emerge from the national tally room to be broadcast, complete with mock pendulums to illustrate swings. The mathematics was inescapable. Yet this was more than an arithmetical game, as could be seen in the elation or desperation on the faces of candidates and onlookers alike.

“The act of voting has all the glamour of queuing for a wee at a school jumble sale.” So wrote Carol Midgley, columnist for the London Times, on the eve of the 2010 British election. This sounds like a whinge, but Midgley was not complaining. On the contrary, she continued, this “pedestrian ritual is one of the few things in the slick, stage-managed modern election that doesn’t feel fake.” Marking a paper ballot with “something resembling the runty crayon you find at the bottom of your kid’s colouring box,” we were told, feels authentic.

By tradition, we Australians vote in schools, and by law on a Saturday. Schools remain central to the construction of civic identity, emblemising “common responsibility and opportunity” not just through the mandating of years of compulsory education, but also through the curriculum. Civics, literature, social studies, science, art and sport: here lies a hope, or conceit, about the development of the literate, rounded citizen.

School is also central to the transition between childhood and adulthood. It is no coincidence that the franchise begins in most places at eighteen years, just after schooling is designed to end. Leaving school and entering political maturity are two sides of the same rite of passage. Through voting at schools, the rhythm that returns us to the polls every several years reminds us of a bigger rhythm or transition. This is the staged passage of life from the relative coverture of childhood and youth to the responsibilities and rights of adulthood. Chief among these rights and responsibilities, especially symbolically, is the franchise.

But it need not be this way. The United States is a freer but less egalitarian place. Is it any surprise that American citizens vote on a working day, a Tuesday? And, in the scramble to hire venues, that polling places include private businesses and even residences?

There is a shift, too, to “convenience voting,” in Australia and elsewhere. This shift, encouraging people to vote early as of right, threatens the communal experience of polling day. The next step, we are told, is e-voting. Voting from anywhere, anytime. These shifts entail a leap in our understanding of public and political “space.”

Electoral reform agendas too often overlook considerations of ritual. To give a simple example, in my home state of Queensland the Newman government considered banning all canvassing outside polling stations on election day. The discussion was narrow. Would this improve the integrity of the polling place or would it unconstitutionally limit freedom of political speech and demonstration? Yet voting and public behaviour in Australia is not unruly, and last-minute canvassing has little effect on voting outcomes.

The subtler and overlooked question raised by Newman’s plan was the ritual one. Would such a ban leach further colour and life from the most archetypal electoral occasion? Or would it be the ultimate extension of the polling “booth” as a place of repose, a “closet of prayer,” to borrow Les Murray’s poetic description?

In 2000 the US Congressional Quarterly published the first edition of its encyclopaedic Elections A to Z. Its final entry was “Zzz.” This onomatopoeia, used by cartoonists to signify sleep and snoring, was there to symbolise public indifference about electoral democracy. Such a state of alleged lassitude is frequently bemoaned by political commentators and scientists. In itself, such bemoaning is nothing new.

Politics implies anti-politics, and lampooning politicians is just as much a part of the theatre of electoral democracy as any solemnity or ceremony. Those people emblemised by the “Zzz,” however, are neither political animals nor anti-political animals. The “Zzz” emblemises the apolitical: those for whom elections have ceased to matter at all and those who, whether out of trust, contentment or ennui, just leave the system to itself.

Electoral democracy, being representative rather than directly participatory, does much to accommodate that kind of apathy. To those for whom the electoral experience has become meaningless or nugatory, the notion of electoral “ritual” may seem foreign. Whether people welcome elections as colourful times of political focus and renewal, or recoil at the palaver and partisanship, is up to them.

Yet the ritual aspect of electoral democracy should surely be an element in dealing with that kind of disengagement. As political scientist Ron Hirschbein put it, some of that disengagement is attributable to a decline in the affective, and not just the effective, element of modern elections. Disengagement is not simply a product of an instrumental sense that a single vote has little practical effect in a mass electorate. It is also a product of a decline in the subjective experience and “ritual gratification” of electoral democracy. •

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Tuesday 10 February was the last day for postal votes to be received and counted. (Perhaps a few were trickling in from outer Peru.) Short of recounts and double checking of ballots, the results appear clear. Labor has forty-four seats, including the unresolved seat of Ferny Grove, plus the support of long-term independent Peter Wellington; the Liberal National Party has forty-two; and the Katter Party has two.

Campbell Newman has had the unenviable (and unusual) role of acting as a “zombie” caretaker premier, having lost his own seat ten days ago. No one should be manacled to that role indefinitely. He has resigned, but that resignation is not taking effect until a new premier is appointed.

The convention is for the governor to consult LNP leader Lawrence Springborg and his opposite number, Labor’s Palaszczuk, about their ability to form government. The Ferny Grove result will probably end up in the court of disputed returns because the Palmer United Party candidate, an undischarged bankrupt, was ineligible to “be a candidate and be elected a member” under the Parliament of Queensland Act. In a politically understandable gambit, Springborg argues he should be appointed caretaker premier for the next several months. The LNP would rather the public became used to “Premier” Springborg than to “Premier” Palaszczuk.

The rather large insect in this ointment is that the LNP has only forty-two seats. With counting complete, Labor plus Peter Wellington adds up to forty-five, a majority. Springborg could only reign as caretaker premier by not calling together parliament, a move that would be virtually without precedent. The whole point of an election is to renew parliament democratically.

Any court case over Ferny Grove will take at least a month. There is a guaranteed right to appeal that decision on points of law and that could be taken up by any party to the case. And if the outcome is a by-election, that would take a month. If all these “ifs” fall its way, the LNP might then do a deal with the Katter Party to garner a majority.

To lay out this scenario – a caretaker LNP administration, governing without the support of parliament for some months, unable to make any significant decisions – is to see how little stability it offers.

The caretaker conventions, covering a period in which governments undertake not to make major decisions, evolved to cover the month to six weeks between a parliament being dissolved and a majority of the newly elected MPs coalescing to form a new administration. It wasn’t designed to enable a government that has lost its majority to hold onto formal power for months, unable to make any contentious decisions or pass legislation.

Much has been said about Ferny Grove and a “likely” fresh election. Having studied electoral law for twenty years, it seems to me that the LNP has an uphill legal argument to force a re-election on the good burghers of Ferny Grove.

Those who voted for the Palmer United Party candidate in Ferny Grove did so fully entitled to express a preference between Labor and the LNP. With optional preferential voting we have the fairest voting system, in terms of maximising citizen choice, in the world.

Under preferential voting, according to the High Court (in Re Wood 1988), if a losing candidate is subsequently disqualified the election is not affected. The best argument the LNP lawyers have is to argue that anyone who simply voted “1” for Palmer might have voted LNP had the Palmer candidate not been on the ballot. They then need to argue that there were many more of them than Labor’s winning margin of over 400 votes.

The Electoral Commission has said it will refer the matter to the Court of Disputed Returns. It’s a reasonable, if unusual, position to take. The LNP will at least not have to pay the costs. Fair enough; this is a legal issue that concerns all Queenslanders. The law and precedent is clear that the member for Ferny Grove, like any other MP, is entitled to sit, vote and represent that constituency until such time as he is  unseated by a court.

So far, after a short campaign, we have not been in caretaker mode longer than at a national election. No one has a crystal ball, but in politics the numbers, finally, are all. •

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Acres of ink and gigaloads of bytes have been spilled in recent times over “free speech.” Sadly, the debate has mostly been self-serving. Much of it has been driven by right-wing voices opposed both to vilification laws and to a now-defunct proposal to strengthen the press complaints system. Left-wing voices, while less prominent, have focused on gags on public servants and moves to stop grant funds being used to advocate for policy reform.

Balancing liberty of expression with civility and equality is not simple. True conservatives emphasise the need for respectful debate and defend the concern for reputations embodied in defamation laws. Progressives fret about power, and the need for marginalised voices to have an equal share of the stage. Small “l” liberals want to leave things to the marketplace and see the internet as a liberating agent. These are all principled positions. Freed of posturing, most people would agree we need to find some balance among them.

The current debate has largely been driven by self-described liberals – “self-described” because they tend to have motes in their eyes. Either that, or they are aroused by passing controversies or old cultural battles as much as any deep commitment to liberty.

Two causes célèbres have animated the George Brandises and the Tim Wilsons (the attorney-general and his human rights commissioner are the best exemplars) to declare themselves to be the living embodiments of J.S. Mill. One was the civil suit against columnist Andrew Bolt for vilifying prominent “light-skinned” Indigenous figures. After Bolt was required to apologise by the Federal Court under the Racial Discrimination Act, senior Liberals and the Institute for Public Affairs campaigned relentlessly to gut the law. But then, in a volte-face last week, the prime minister abandoned the idea, not because he felt that the law was necessary to modulate aggressive racialism but because he risked too much political capital to have it repealed.

The other agitation was provoked by the Gillard government’s interest in regulating the press rather than persisting with a system of self-regulation, which newspapers enjoy but broadcasters do not. After a public inquiry, and echoing similar British proposals, Justice Ray Finkelstein recommended a speedy conciliation process for complaints against newspapers and a new body with the power to order apologies and corrections. As in the Bolt controversy, News Ltd led the opposition. One irony is that Bolt could have been sued for defamation rather than judged against the Racial Discrimination Act, which would have cost his employer News Ltd much more than an apology; another irony is that Finkelstein’s recommendations would have bypassed defamation law, with its expensive lawsuits and chilling effects.

There is undoubtedly a principled ground for objecting to racial vilification laws. Where vilification falls short of incitement or intimidation, such laws may do more harm than good. They may martyr bigots, and suppression may breed more prejudice. The pragmatics of press regulation were different: Finkelstein’s approach to complaints was rational but it was twenty years too late, impractical in an era of lightning-fast, decentralised internet news sources.

But we should judge these new Millian liberals not just on what they say, but also on what they don’t say, and on what they do. Last year, in Monis’s case, the High Court upheld charges against two Muslim Australians who had used the postal service in an “offensive” manner by sending spiteful letters to the families of servicemen who died in Afghanistan. The principal defendant, Monis, saw that war as a Western invasion.

Bolt’s was a civil matter, involving a journalist publicly traducing reputations. Monis’s was a criminal case, involving private communications. It was spiteful behaviour, to be sure, but also speech with a political point. The silence about Monis’s case and the underlying law, not just from Liberal politicians but from Labor as well, was deafening. Neither Millian liberals nor the tabloids invoked the principles of free speech to defend a Muslim Australian. Similar offences also apply at state level and to the internet. It would take a Stasi-like police force and an American-size prison capacity to enforce criminal laws for every “offensive” online communication.

The mote-in-the-eye goes beyond just the problem of selective outrage. The Abbott government has introduced measures to restrain the public political speech of two groups: public servants and certain non-government organisations receiving Commonwealth funds. Both measures are the result of executive fiat rather than parliamentary deliberation. The new public service rules warn public servants against expressing even anonymous opinions on social media if they could be regarded as treating government or opposition policy in a “harsh or extreme” manner. Public servants with professional or community roles, such as in an environmental group, are also warned about criticising government policy on, say, wind farms.

A dictate against NGO advocacy is now included in the “service agreements” these organisations must sign with the government. Some 140 community-based legal centres, for example, will be banned from using any of their funding for law reform advocacy. This might be understandable if there were any sign that the government was committed to better funding of services in the longer term; after all, in times of fiscal constraint, directly helping clients is more of an imperative than longer-term lobbying. And, as Indigenous arts advocate Wesley Enoch said recently, NGOs that rely too heavily on government money are always at risk of capture.

But as the Productivity Commission has observed, and ombudsmen everywhere recognise, social problems can’t be dealt with only by applying bandages. They often require a systemic push for reform. In a case involving the foreign aid organisation Aid/Watch in late 2010, no less a body than the High Court held that charities ought not lose their charitable status simply because they also act as public advocates. Informed public debate – in this case about the best measures to advance charitable relief through government aid – is in itself a contribution to public welfare.

The underlying issue, of course, is that the government sees ideological enemies everywhere: in the public service, in NGOs and in the ABC. The tendency to compromise principles out of partisan concern is hardly a new one. Liberals in the past have been willing to compromise their liberal instincts to advance their incumbency, just as Labor governments have. When compulsory voting was introduced a century ago by the last Liberal government in Queensland, for instance, a big part of the motivation was conservatives’ jealousy of the ability of unions to mobilise electors under voluntary voting.

Libertarians reflexively object to taxpayer funds supporting any form of political or policy-related speech. But that pure ideological position is not practised by any government in Australia. Tax law allows corporations to deduct the cost of campaigns against laws and policies that affect their business. Trade union dues are tax-deductible, too, as are donations of up to $1500 to political parties – a nice subsidy to the political leanings of higher-income earners. And tens of millions of dollars of public funding of parties, as well as unlimited government advertising budgets, are justified in the name of “clean money” and “public information.”

The Liberal National Party government in Queensland has just awarded itself the lion’s share of a new, annual stream of “policy development funding” for the major parties in that state. This came just months after it had legislated to hamstring unions seeking to spend $10,000 or more on “political” speech. (That anti-union law is now repealed, not on principle but because the government feared an adverse High Court ruling.)

Part of the problem is that modern-day liberals conceive of freedom of speech in a stunted way, as merely a negative liberty. It is the freedom of magnates to run a political party or a multimillion-dollar campaign against the mining tax. But what if you lack the resources for such megaphone speech, if you are one of the disaggregated voices of the unemployed or micro-business? To paraphrase Anatole France, in its majestic equality our law allows everybody, equally, to own a media empire or to risk arrest holding a placard at a demonstration.

The other problem is less philosophical. In an environment more partisan than principled, that old dictum of another French writer, Voltaire, has been recast. Today, it is less a case of “I disagree with what you say, but will defend to the death your right to say it” and more a case of “If I don’t agree with what you say, I will defend to the death my right to be a hypocrite.” •

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What would a rational system for financing political parties and elections look like? It would have three facets. Timely disclosure of donations, to shine a light on possible graft. Limits on gifts to parties and candidates, to stymie wealthy interests buying favours. And modest public funding tied to expenditure limits, to advance fair competition.

On those metrics, Australia scores nil out of three. We have the Australian Electoral Commission’s annual “disclosure dump,” which doesn’t happen until about seven months after each financial year. We have no caps on the size of donations. And we give the parties $5 per voter in government funding with no strings attached.

New York City is hardly a byword for efficient and clean governance. So it is eye-opening to find a public service here that is at once reliable, democratic, and an pace-setter. This black swan is the New York City Campaign Finance Board, which oversees donation caps, continuous disclosure of campaign finances and an innovative model of public funding.

As its director Amy Loprest puts it, its overarching aim is to “improve the role of citizens in New York elections.” It does this by seeking to educate and empower the public, diminish the political influence of private money and promote electoral competition. On the metrics of a rational system, NYC bats three from three.

American government is complex and multilayered, and not everything works as it should. Visitors to New York first notice this in the city’s labyrinthine and dilapidated subway. Then there is the venerable post office, a chain of bomb shelters with queues snaking out of the door, yet nearly bankrupt for all that. While it’s risky to generalise about such a vast, patchwork land, it’s fair to say that Americans mistrust institutions less out of ideological suspicion than from a self-fulfilling cycle of neglect. On top of their underwhelming experience of everyday services, they live with corruption in the business–politics axis.

Once emblemised in Tammany Hall, such corruption persists. Just look at the unfolding scandal involving the Democratic state senator who, with his business backers, allegedly bribed Republican party bosses to advance that senator’s bid to run as the city’s mayor. Integrity agencies like the Campaign Finance Board work in tougher thickets than their Australian equivalents.

Before diving into the details of New York’s campaign finance scheme, it’s worth taking in the bigger picture of this city. Australian local governments handle rates, roads and rubbish; American cities tackle much more. New York’s mayor and its council run emergency and health services, and public housing and schools, and even maintain the nation’s largest urban university. As its recent ban on e-cigarettes shows, the city has many social and regulatory tendrils.

New York City famously marries five boroughs or sub-cities into a single administrative entity, more like the City of Brisbane than Sydney or Melbourne’s small, CBD-focused councils. It is not an isolated metropolis, and forms the heart of a “tri-state” district almost as populous as Australia. As a regional magnet, many more folk have a stake in NYC’s economy, culture and governance than enjoy its electoral franchise. In size, scope and complexity, this is a city-state, not a city council. So political legitimacy and integrity are big issues.

The Campaign Finance Board oversees fifty-nine elected offices. At the apex is an elected executive made up of the mayor, comptroller (or treasurer), public advocate (uber-ombudsman) and five borough presidents (playing advisory roles). Then there is a legislative council of fifty-one ward-based members. The new mayor, leftist Bill de Blasio, succeeded the term-limited billionaire Michael Bloomberg on 1 January this year, and Democrats so dominate the city that only three Republican councillors survived the recent low-turnout landslide. To Australian eyes, though, electoral politics here seems more candidate-oriented than rigidly party-controlled.

The Campaign Finance Board was founded in 1988 during mayor Ed Koch’s reign, by a referendum amending the city’s charter. This was part of a broader integrity drive, following a series of general corruption scandals. The Board is overseen by five members, two appointed by the mayor, two by the speaker of the council, and one jointly. Neither the mayor nor the speaker can appoint more than one affiliate of the same party. In the American way, then, the risk of partisanship is not ignored, but managed. The outgoing chair, Joe Parkes, was a Jesuit priest and medieval historian; the incoming chair, Rose Gill Hearn, is an anti-corruption prosecutor. The Board enjoys budgetary guarantees that open it to estimates-style questioning by councillors.

Legislation assigns the Board two broad roles. One is to engage electors, by promoting voter registration and education, and so it distributes millions of voter guides, broadcasts candidate videos and holds leadership debates. But as its name suggests, its key remit is to oversee political finances in the primary and general elections for all fifty-nine elected offices. Here, the Board’s powers pivot on two points: disclosure of campaign finances and opt-in public funding.

It is in its comprehensive disclosure system that the Board is a leader ly. To Australians used to only annual or post-election disclosure, the cycle is breathtaking. In the 2013 election year, there were sixteen regular disclosure deadlines. On top of this were daily disclosure obligations during the fortnight before each primary and general election day. (Daily disclosure is triggered when a campaign receives more than $1000 from, or spends more than $20,000 with, a single source.) Electronic disclosure, through a secure, purpose-built system, has been available since 1993.

Such regular and real-time disclosure serves two purposes. One is to reveal who is backing whom and which campaigns are spending big. The other is auditing, so that matching public funding is not rorted and donors don’t game the system. Sizeable media and tech units ensure information is published in various, value-added formats, including full audits of each campaign, maps showing the geographic concentration of donors, and name-and-shame lists of candidates who miss deadlines. The Board’s press office tweets real-time data about each campaign, and in a land with a real diversity of online and newspaper-based political coverage, media interest is insatiable.

The public funding system is a mirepoix of carrots and sticks. In Australia, public funding is a gift to parties that poll well. In New York, turbo-charged matching funding is the order of the day, working as an incentive to generate grassroots donations. If a candidate can meet a threshold of small donations from adult residents, she gets $1050 in public funds for the first $175 from each donor – a six-fold leverage. That single reform, says Amy Loprest, has done more than any other to encourage “small-donor democracy” and encourage candidates to opt-in to public funding.

In return for public funding, candidates must abide by year-round expenditure limits. For mayor, these are $6.4 million for each of the primary and general elections, and $303,000 over the preceding three years. This prevents “permanent campaigns” buying a march on rivals. To balance public and private sources, no candidate, however popular, can receive public funds in excess of 55 per cent of the campaign expenditure limit.

For constitutional reasons, expenditure limits cannot be mandatory. So an Achilles heel is the right to opt-out. Millionaire candidates, like Bloomberg, can self-fund, without any spending limit. Still, in recent cycles, upwards of 80 per cent of candidates have enjoyed public funding. Most of the rest were minnows who did not meet the thresholds, rather than millionaires or Obamaesque fund-raising maestros.

Millionaires and fundraising maestros, in any event, face the same contribution limits and disclosure and auditing rules as other candidates. Contribution limits are tight. The maximum an individual can currently give a mayoral campaign is $4950, and $2750 to a councillor. (These are low, given the cost of living, although a donor may also give to a winner’s inauguration fund.) Corporations and business partnerships have been prohibited from donating altogether, since 1998. Bans on lobbyists and their families followed in 2006. From 2007, “pay-per-play” contributions by individuals with business dealings with the City have been capped to a few hundred dollars per candidate.

Political finance is an issue worldwide, and especially so in the United States. Campaigns need resources, but mixing money and politics risks two types of corruption. Most obvious is the buying of favours. No less important is the systemic corrosion caused by political inequality and unfair competition. No regime is perfect, and erecting elaborate mechanisms creates incentives to game the rules.

The major scandal emerging from the 2013 elections brought down the mayoral campaign of incumbent comptroller, John Liu. Liu’s campaign treasurer and a key fundraiser were imprisoned for conspiracy and attempted fraud involving illegal “nominee” donors. They had tried to channel donations via straw-men, on behalf of others, to circumvent contribution limits and artificially inflate matching public funding. The ruse was uncovered, Liu was stripped of public funding and he ran fourth in the Democratic primary.

Australia could learn much from the city’s campaign finance regime. But before learning the happy lessons, there are a few less positive ones. The regime is hobbled by the opt-in nature of expenditure caps. Disclosure is so tight it drills down to very small donations, which may chill the political freedom of public servants in particular. And, thanks to the Supreme Court’s decision to recognise corporate “free speech” in the Citizen’s United case, uncapped “independent” expenditures now risk dwarfing candidate and party campaigns. In response to that threat, the Board lobbied for and recently won the power to at least disclose real-time spending by such third parties.

The underlying law also reflects inevitable legislative biases. New York is a Democratic oasis, so while corporate bodies are not allowed to donate to candidates, unions and sole traders can. Union contributions are subject to the four-figure cap, but there are many unions in town and they can donate to every member of a bloc of favoured candidates.

Amy Loprest relates how the Board lobbied for a citizen-only donation rule from its inception, arguing from principle and fairness. Its arguments keep falling on deaf legislative ears. (In contrast, the Australian High Court recently struck down as unfair a law allowing four-figure donations from electors but not businesses or unions.) But Loprest also acknowledges a virtuous circle in which incumbents, for over twenty-five years now, have largely supported a scheme that promotes electoral competition against them.

The positive lessons of the New York model are many. The chief one is timely disclosure. In Sinatra’s cliché, the city never sleeps, so neither does its political finance law. Daily disclosure might seem like overkill, if the low cap on donations is respected. But the fact that it works seamlessly shows what is possible in the internet age, making a mockery of the staleness of disclosure in Australia.

Continuous disclosure, especially of high-value donations, is essential in Australia. We won’t fully know what the miners gave the Coalition or the unions gave Labor, in the lead-up to the 2013 national election, until February 2015. South Australia has bitten the bullet and will, from 2015, require immediate reporting of donations over $25,000, plus weekly disclosure of donations over $5000 in the election period. (Queensland had biannual disclosure and the Newman government toyed with monthly reporting, but citing some peculiarly timid advice it is about to revert to annual disclosure.)

Continuous disclosure might not benefit every local government in Australia, especially not towns and shires dominated by independents running part-time candidacies. The New York regime is complex: its online toolbox for campaigners has twenty-five guideline documents; its user-friendly candidate handbook runs to 125 pages. But at the parliamentary level, where electoral politics is full-time and professional, we need full-time and professional disclosure obligations.

The New York City approach to public funding is comprehensive and conditional. Public funding can only be spent on legitimate campaign costs; in Australia it can be used on anything. New York shows that donations can be capped yet campaigns not starved. Campaigns must disclose on time and accurately to earn funding. If not, the Board can levy civil fines or reduce the funding of miscreants. In a typical election year this amounts to over $2 million worth of fines and funding foregone.

The Board also promulgates rules that flesh out its governing legislation, and issues rulings that interpret the law. So while Australian electoral commissions just administer the law, by temperament and power the Board is also a regulator and instigator of reform.

Finally, the Board is a focused and empowered agency. Walk into its unassuming offices just west of Wall Street (where the real money lurks behind pillared edifices) and you might doubt this. But it boasts a staff of one hundred, split roughly equally between campaign finance and voter education. It is not busy running elections, so it can focus on those core jobs, and especially on political finance auditing and enforcement.

In Australia, meanwhile, the will to cap political expenditures and donations has been lacking at the national level, and even where present, in Queensland for instance, is receding. We pay lip service to campaign finance disclosure, but disclosure delayed is disclosure denied. To justify continuing to dish out public funding, we need to reform a system that is nine parts “trust the parties” and one part regulatory teeth. The New York system offers a tighter and more modern model. Certainly it is intricate. But it takes a well-developed spider to catch a highly evolved fly. •

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VISITORS to the valleys and downs west of Brisbane often note the region’s religiosity, reflected in billboards decrying abortion or proclaiming the Gospel. Though he’s as fecund as any biblical patriarch, Toowoomba father of seven Ron Williams doesn’t drink from the same philosophical well. Late last week, he succeeded in having the national school chaplaincy program declared unconstitutional, at least in its present form.

Williams was offended that the secular status of his children’s public school was diluted by a program established by the Howard government and continued by Kevin Rudd and Julia Gillard. Politically, the scheme represents third-way thinking: churches delivering social welfare. Economically, it is canny. While hundreds of millions of dollars have been invested so far, chaplains are not well-paid. Desperate for whatever help they can get, few public schools have stood on secular principle in the face of the program’s lure.

Williams’s primary argument, however, was from that very principle. He wanted to buttress a separation of church and state.

In Queensland, the school chaplaincy program is run through the Scripture Union. The mission of this “inter-denominational” movement is to evangelise among young people, mixing “Christian service” with “Bible ministry.” But chaplaincy is more than (and different from) a vocation. School chaplains are not meant to proselytise, and require at least a modicum of training in youth counselling. Education minister Peter Garrett extended the scheme so that schools can go it alone and look for a secular counsellor.

Nine months after hearing the case, the High Court delivered its 217-page verdict last week. Although Williams won – ostensibly – by six justices to one, atheists, agnostics and anti-establishmentarians have little to cheer about. All seven justices rejected the argument that the scheme breached a church–state divide.

The Constitution only prevents the Commonwealth from establishing or prohibiting a religion, or erecting religious tests for Commonwealth office. It does not restrict funding of services delivered by religious bodies, and school chaplains do not hold a federal “office.” (Even if they did, the states could fund them.) It took the judges barely a page each to conclude that Australia is not the United States when it comes to church–state sensitivities.

So how did Williams “win,” and what of the other 210 pages of judicial rumination? The court decided that – with some fuzzy exceptions – the Commonwealth has no business directly funding any activity that falls outside its list of legislative powers. As set down in 1901 and amended only twice since then, those powers focus on things like defence and immigration, corporations, commerce and trade, and certain welfare benefits and family matters. There’s no mention of key areas such as “education,” “environment” or “hospitals.”

Yet the Constitution, envisaging that the Commonwealth would end up with more money than it needed for those limited purposes, does explicitly allow it to “give financial assistance to any state on such terms and conditions as the parliament thinks fit.” In short, the federal government may give state governments as much pocket money as it likes, with as many strings attached as it likes.

Fans of federalism seem delighted with the decision. As in the United States, Australian federalists tend to be traditional, small-government conservatives: they want to dilute public power by dispersing it. But the decision is more a boon for the arcane worlds of public sector finance, accountancy and legislative drafting than it is for genuine federalism. It does nothing to redress the “vertical fiscal imbalance” under which the Commonwealth raises around 80 per cent of all public revenue. Nor does it affect the historical trend for the High Court to read specific Commonwealth legislative powers very widely. In the WorkChoices case, for instance, the court held that the power to regulate corporations permitted a national takeover of most of employment law.

The power of government, of course, is not exhausted by the power to legislate. The person in the street thinks that sovereign power is the power to legislate. But the power to decree commands in the form “thou shalt/shalt not” is just the tip. The bulk of the governmental iceberg is the power to garner resources through taxation and distribute them on good deeds, or at least to coax and cajole social progress.

The contracts for chaplaincy services will be easily resuscitated if the Commonwealth chooses to funnel the money via state education departments. Indeed, within hours of the decision, government and opposition leaders were queuing to pledge their allegiance to the program. Expect soon to see a State Grants (School Chaplains) Bill on a Commonwealth parliamentary agenda near you.

Why then did another Williams – Professor George rather than Mr Ron – describe the judgement as the most significant the High Court will deliver all year? As he rightly says, the judgement threatens to require a major, long-term overhauling of the form and even nature of Commonwealth government activity in many areas. Attorney-general Nicola Roxon even speculated on whether a referendum might be needed to counteract any ill-effects of the decision.

George Williams cites the federal “Roads to Recovery” program as one example of a scheme now in doubt. That’s a pun masquerading as another continuing Howard government scheme, in this case to administer grants to councils to improve road surfaces. There are untold other schemes with similar structures: a Commonwealth agency administers a pool of funds, making conditional grants and contracts to various bodies other than state governments. The momentum for such schemes dates to the Whitlam government’s Australian Assistance Plan, which sought to bypass state governments by creating Regional Councils for Social Development to plan and fund social welfare and development.

The High Court has said that such programs cannot simply exist by executive fiat, however much taxation money the Commonwealth has to spend. This may come as a surprise to those who have grown used to the expansion of Commonwealth activity across the twentieth century, especially to politicians from Whitlam to Abbott who want problems with a national dimension to be governed by national policy.

The Commonwealth can still raise revenue on anything it likes, and for whatever purposes it likes, whether purely fiscal, or to provide micro-economic, social or environmental incentives. But the court has reinforced its view that the Commonwealth lacks a reciprocal freedom to budget and spend revenue on anything it likes. Ordinarily, it will have to point to specific legislative power – and perhaps pre-empt novel schemes with actual legislation (the court did not speak clearly on this) – to validate expenditure. The judges seem less motivated by a federalist desire to corral Commonwealth spending than by the view that involving parliament in more of the executive’s programs befits responsible government.

Pre-empting this, Nicola Roxon has had a bill ready and waiting to validate as many programs as possible. En masse validation is hardly the sort of parliamentary oversight the court intended. At the time of writing it is also unclear how such legislation will protect schemes (like chaplaincy) that fall outside Commonwealth legislative power, short of providing for the moneys to be channelled via the states.

AS FAR as knocking over windmills goes, Ron Williams rode the trail blazed by Bryan Pape. Pape, another tablelander (from over the border, in New England) challenged the $900 “cash splash,” the Rudd government’s first response to the initial effects of the GFC. Pape, a tax law academic and avowed states’ rightist, tried to stop the payments as beyond Commonwealth power. The High Court almost agreed with him, but rescued the stimulus by treating the economic crisis as something special.

In Pape’s case, the court did not want to be seen as wreaking economic vandalism through legal pedantry. It avoided this by labelling the GFC as a national urgency, if not emergency, necessitating the might of the national executive to achieve a direct response. The court has also recognised a related “nationhood” power, allowing the Commonwealth to establish the flag or hold a party for a national birthday like the 1988 bicentenary. (These two powers are distinct from the almost unfettered power to act internationally, by waging war, acting diplomatically, and entering and implementing treaties.)

Between the obvious and bespoke (national symbols) and the unexpected and all-encompassing (overwhelming events washing across the nation), no one has any idea what else this “national executive” power might extend to. Could it preserve the largesse spent on sporting prowess, simply because Australian athletes might one day glorify us all in green and gold?

More significantly, does it cover the $7 billion allocated annually to universities under the Higher Education Support Act? University research and accredited degrees may be seen as an inter-related national project, in a way that school chaplains are not. The question, however, invokes the chicken-and-egg problem. Prior to Menzies in the 1950s, universities were not a national affair, but a sleepy corner of each state’s bailiwick. The High Court has hinted at its position: not everything the national government is interested in, or can afford, is necessarily a matter of national interest.

All these questions will exercise bright and wonky minds, especially in Canberra, over the coming weeks and months. Vulnerable projects will be identified; risk assessments will be made. Some funding schemes will be shored up, a tad inefficiently perhaps, by simply channelling the money via state agencies. Grants to private schools may fall in this bag.

In other realms, the Commonwealth may seek to coordinate with the states, as partners in a cooperative scheme. And in still other instances, it will make a considered bet that no one has sufficient political or legal interest to upset a particular apple cart. Thoreau may have famously refused to pay a poll tax on pacifist grounds, but individual Australians cannot legally object to government expenditures just because some portion of “their” taxes is involved. In the chaplaincy case, Ron Williams had to rely on the fact that his children were implicated and that his primary argument was about church–state affairs, not governmental accountancy.

Yet the states do have “standing” to argue, before a court, that Commonwealth spending is unconstitutional. Last week’s ruling would have been a godsend to that states’-righter, the one-time Queensland premier Joh Bjelke-Petersen. Latter-day premiers may be tempted to threaten to bring down some pillars of the temple of Commonwealth expenditure, if only as a bargaining tool.

How the Commonwealth re-jigs its affairs to adjust to this latest High Court intervention into other branches of government, only time will tell. Federalists, as I have noted, may yet wonder how pyrrhic their victory will prove. Centralists will see an irony in the fact that the Commonwealth can engage in whatever nation-building it likes abroad, but will have to find accounting tricks and state conduits to fund similar things at home. In the meantime, Ron Williams’s children will have to live with a chaplain in the playground with God’s glint in her eye. •

Graeme Orr is a Professor of Law at the University of Queensland.

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“LABOR Plan to Control the Media.” Or so ran the lead headline in Saturday’s Australian Financial Review. The trigger was the release of the Report of the Independent Inquiry into the Media and Media Regulation, commissioned by communications minister Stephen Conroy. The report was prepared by former Federal Court judge Ray Finkelstein, assisted by Professor Matthew Ricketson.

The report’s central recommendation is for a single, publicly funded agency, the News Media Council, to handle complaints about the news media, whatever the type of media. The council would screen and conciliate complaints and, if necessary, hold a hearing, usually without either party present or represented. It could then order the publication of a clarification or a right of reply. But the council would have no power to levy a fine or award damages. Indeed, anyone seeking the council’s assistance would have to forsake any right to litigate against the media outlet, say for defamation.

In other words, an independent inquiry has recommended the creation of an independent agency to conciliate mild remedies to enhance media accountability, with the independent courts having backstop powers to enforce (or overturn) any remedy. For a newspaper that is normally Australia’s most accurate and analytical to spin this into the headline, “Labor Plan to Control the Media,” is telling in itself.

Following Finkelstein’s model, the News Media Council would be structured similarly to the newspaper industry’s current self-regulatory body, the Australian Press Council. It would be overseen by a part-time board evenly balancing members of the public with candidates representing media owners and journalists (via their union). Finkelstein rejected more intrusive models, such as a system of licensing print or online news providers the way broadcasters are licensed, or an enforceable right of access to the media. A “right of reply” would be reserved for harmfully misleading pieces. His proposal would only cover broadcasters, print outlets selling at least 3000 copies per issue, and online outlets with 15,000 internet hits per annum (admittedly an unduly low number).

And Finkelstein proved to be no Frankenstein. As if to prove wrong those who think inquiries always develop a life of their own and seek to expand their terms of reference, Finkelstein shrunk his. Invited to consider the “effectiveness of the current media codes of practice” in general, Finkelstein’s recommendation is confined to “news” media. Because of its importance to democracy, his avowed interest was in news and current affairs rather than “the business of entertainment.”

Yet the report attempts no more than a fuzzy definition of “news.” Finkelstein’s model does not extend to those who report irregularly, or to a confined, private audience. But as to what the “news media” is, outside of the paradigm of current affairs journalism, this is left unclear. This is not an insignificant failing, given the blurring of boundaries between reporting and celebrity gossip and the myriad of websites that aggregate information for public consumption.

Perhaps unsurprisingly, the print media has led the charge against the inquiry and report. Newspapers have long enjoyed a privileged position compared to the broadcast media. Television and radio have, virtually since their inception, been subject to a far more prescriptive and broad-ranging regulatory regime than Finkelstein’s proposed council.

The Australian Communications Media Authority, or ACMA in its familiar acronym, oversees legislated licence conditions (such as classification standards). It can run a “fit and proper person” test over holders of broadcast licences. Recall Alan Bond’s problems when that entrepreneur briefly controlled Channel 9. ACMA also inquires into alleged breaches of industry-developed codes of practice, covering norms laid down by legislation. An example of such a norm is the ideal of “promoting accuracy and fairness in news and current affairs programs.” Recall the “cash for comment” findings against various commercial radio stations.

The press could, of course, argue that its broadcast cousins are too shackled – except that this would draw attention to the fact that ACMA, and its predecessor the Australian Broadcasting Authority, have hardly oppressed broadcasters. The press could also appeal to more rivalrous cousins in the new media and blogosphere for an example of a domain that is flourishing without regulation. Except that, for all it has done to open up the field of opinion and commentary, the internet has hardly helped raise the standards of reporting. The press’s best riposte is to ask whether, if an independent complaints model is so good, it will be applied to abuses of privilege in parliamentary debate.

There is no strong explanation why the press was never regulated like the broadcast media. One rationale is that anyone can set up a press, whereas the costs of broadcasting are much higher. But that misses the point: media regulation is not aimed at those distributing photocopied pamphlets. Indeed, by offering an efficient alternative to the chilling threat of defamation litigation, Finkelstein’s model may save small or community based outlets some sleepless nights.

Another rationale for the historical disparity between oversight of broadcasters and the press, has been that the airwaves are a limited resource. Naturally, scarce resources must be rationed. But the fact of licensing has merely been a regulatory peg. What matters is the nature of any regulation hung on such pegs. When stories are misreported badly, it does not matter whether the report emanated in print, through the airwaves, or online. (Today, typically, the same report will bounce around all three media within the same day.) The question is what redress, if any, is to be available.

Despite their relative decline, the leading print outlets possess significant power, are oligopolistically controlled across our capital cities, and have not created a system of self-regulation that works well. The Australian Press Council recently admitted that its press masters starved it of the funds required to do its job properly – so much so that it used the inquiry to appeal for a taxpayer top-up. An agency like the proposed News Media Council can be publicly funded, yet still be free of government influence in any meaningful sense: take the independence of the ABC and the Australian Electoral Commission, to name just the first two on the alphabetical list.

The press’s position seems to be that the nineteenth-century common law represents the best of all worlds. As Finkelstein observes, the idea that the laws of defamation and contempt make the media accountable is preposterous. One offers a monetary salve for the reputation of a privileged few who can afford to sue. The other relates to narrow aspects of court and tribunal proceedings. Neither has much to say about issues such as privacy, nor about quintessential journalistic duties such as fact-checking and seeking more than one view on an issue.

It is little more than a constitutional quirk that one level of government has had the power to regulate print media, and another level has regulated all other media. Colonial and later state parliaments could amend the law and regulate the press. But the Commonwealth was given power over “postal, telegraphic, telephonic and other like services,” which included broadcasting and, now, the internet.

Finkelstein’s one-stop national shop for all news media will therefore have to rely on a mix of federal parliament’s power over broadcasting and the internet, and – when it comes to the press – its power over corporations. (In theory, a newspaper or magazine could avoid the proposed regulation altogether by restructuring so that it is owned by a trust rather than a company.)

THE Finkelstein report arrives in the middle of interesting times for the media industry. Indeed, it was a product of the ongoing ethical and criminal scandals involving News Corporation tabloids in Britain. The bigger conundrums in Australia include the declining profitability of newspapers and future resourcing of investigative journalism. On this problem Finkelstein makes observations, but only a negative recommendation: no public funding of news outlets just yet.

The other major regulatory questions in Australia concern the diversity and depth of media ownership, and the integration of delivery platforms in times of media convergence – issues involving big dollars and megawatts of social power. Alongside these, the right of a person or group who has been treated unethically or unfairly maligned by the news media to seek a clarification or reply is a humble step forward. That it became a matter for a 470-page report is a blight caused by a failure of self-regulation, not some example of nanny state overreach.

More broadly, the report emerges during an ongoing debate about the inter-relationship of power, wealth, politics and accountability (or its lack) in contemporary Australia. The treasurer, Wayne Swan, recently used an essay in the Monthly to make some pointed but innocuous claims about the power of billionaires, especially those who have inherited or made billions in the mining boom.

The prime targets of his critique were Gina Rinehart, who is on a quest to buy a sizeable share of Fairfax Publishing to accompany her share of Network 10; Clive Palmer, a major political donor and media attention-grabber who just last week declared war on Football Federation Australia; and Andrew Forrest, who was at the forefront of anti-tax campaigns despite being the benefactor of favourable taxation laws. As if to prove the treasurer’s complaint, Forrest’s company responded with a splash: not by making a public statement or offering a reply, but by buying national newspaper space to attack Swan and promote itself and Forrest. •

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ONCE a year, on the first day of February, the Australian Electoral Commission publishes, verbatim, the political finance disclosures of the political parties and of some donors and third party or lobby groups. The timeliness of this annual data dump – the figures relate to the previous financial year, making the information up to a year and a half old – is a serious problem that has been tackled overseas successfully but is only slowly being recognised here.

The usual media focus is on the size of corporate donations and the total amount of money being burnt in the boiler rooms of political campaigns. This time round, the amounts are certainly big – around $230 million in total receipts for the four biggest parties – and the resources were relatively evenly shared between the two majors: around $115 million to the Coalition and just under $100 million to Labor (with $12 million to the Greens). The total three years earlier was $210 million, with Labor ascendant. But 2010–11 was a little different: inflation aside, the year included three major election campaigns, nationally and in Victoria and New South Wales. After a couple of decades of growth that fitted the “arms race” metaphor, things flattened out a bit in the last cycle.

Several causes are likely. Endless growth is unsustainable, of course, especially with some corporations and industries – whether because of the GFC or for public relations reasons – being less interested in donating to parties. And Labor’s fundraising capacity seems to have declined: having poured in $60 million to elect Kevin Rudd, it received considerably less for the Gillard campaign. A third, if only emerging, factor is that at last, at least in New South Wales (and in the upcoming Queensland elections) there have been caps on the size of campaigns.

The most notable thing in contemporary politics is the rise in large-scale, third party campaigns, especially by corporate interests. In the United States, the Supreme Court’s decision in the Citizens United case has created “Super PACs” – political action committees that are spending freely in the current Republican primaries. Of course, similar (if much smaller) groups have existed in Australia, notably during the campaign against bank nationalisation in the 1940s, and more recently against Medibank and WorkChoices. But their number and relentlessness appears to be on the rise.

Tobacco and mining money still found its way into the Coalition’s pockets, and the alcohol industry money to both sides of politics, in an effort to buy influence or access. But these industries also mounted direct campaigns. The Alliance of Australian Retailers appeared like a mushroom as a cover for the three tobacco giants, dispersing $9 million. Imperial Tobacco and Philip Morris spent a further $4.5 million under their own names. It all went on an essentially fruitless campaign against plain packaging laws.

More successful were the big miners and the pubs and clubs. The Minerals Council of Australia reported $4 million and the Association of Mining and Exploration Companies $2.2 million. But this was just the tail-end of the anti-mining tax campaign, the bulk of which (over $22 million more in advertising) had been spent in the previous financial year and helped bring down Rudd’s prime ministership. Curiously, only the NSW Clubs Association reported expenditure on federal politics in 2010–11, and then at under $1 million.

On the union front, the largest direct campaigner was the ACTU, spending around $6.5 million mostly to reheat the campaign against WorkChoices. Otherwise, the only major campaigns were by the Australian Education Union and the NSW Nurses, each in excess of $1.5 million. These two are public sector unions, of course, and while they are often accused of being vested interests in the public policy sphere, their primary focus is in garnering public support as leverage in industrial campaigns. In contrast, one of the wealthier – and traditionally hard-edged – private sector unions, the CFMEU, eschewed direct public campaigning. Its Forestry Division gave the advocacy group GetUp over $1 million.

At first glance, a blue collar, Labor affiliated union dating a trendy progressive outfit seems an unlikely combination. (The donation was reportedly earmarked for an ad deriding Tony Abbott as a chauvinist.) But there are practical as well as ideological attractions for a left-wing union to support such a group. GetUp’s profile and large supporter base generate value for its marketing resources in the causes it champions. Moreover, while anti-conservative to its core, GetUp also acts as a countervailing force to pull Labor to the left on a variety of issues. Finally, the CFMEU is a many-headed hydra. For good measure, the union’s Mining and Energy Division donated $1 million to Labor’s national office, and its Construction and General Division reported $30,000 gifts to both Labor and the Greens.

Party indebtedness is another important variable. Parties are not private companies for which insolvency planning is at some stage inevitable. They are public entities existing for the most public of purposes: elections and representative government. If they are to die, we would want it to be for lack of voter support rather than financial support.

That three major elections occurred last financial year was bound to strain party balance sheets. Despite that, the federal parties emerged in reasonable health. Labor’s national office owed just $1.8 million on $37 million of annual receipts; the Liberal national office owed $4.7 million on $36 million.

The same can’t be said for the NSW divisions of the major parties. Labor declared indebtedness of $12.36 million on annual receipts of $18.2 million; the NSW Coalition had debts over $10 million on $29 million. A common mistake is to see organisational budgeting through a household’s eyes: a total mortgage smaller than annual income would be welcome to many families. But parties aren’t buying a one-off dwelling or asset: they are splurging cash, predominantly on advertising, every three or four years.

The minor parties, having little access to power, especially executive power, almost never attract corporate largesse. They rely heavily on public funding, membership efforts and the cream of the occasional ideological sugar-daddy. As was widely known for some time, WotIf.com founder Graeme Wood provided the Greens with over $1.7 million. Family First, by contrast, made it through the federal election year with a $750,000 injection from Adelaide-based B&B Day Pty Ltd, which accounted for more than half its receipts and nearly double the public funding it received. This contribution was recorded not as a donation but as part of a $1 million indebtedness to a “non-financial institution.”

Often such loans end up being waived. It is hard to know because – unlike in Britain – the law doesn’t require parties to publish audited accounts. To be accountable to members, and to the public for the public funding received, parties should be required to publish these accounts. The thornier issue for regulation is the question of what effect capping contributions, as recently introduced in New South Wales and which the O’Farrell government wants to extend, may have on minor parties. The Queensland solution is simply to cap the money that can go into campaign accounts, although that leaves the likes of mining magnate Clive Palmer or the Australian Workers’ Union free to bankroll a party’s administrative needs.

ONE of the two glaring deficiencies in Australia’s campaign finance laws is that no donation of $11,500 or less needs to be declared. Indeed, a canny donor can exploit this loophole – by divvying up the donation among the federal, state and territory branches of the party – to donate $103,500 to the party of her dreams and not declare a cent of it.

The second deficiency is the tardiness of the disclosures. Under current law, the various players only need to furnish financial disclosure returns to the Australian Electoral Commission at the close of each financial year and these are not made public until the following February. Depending on which month a federal election is held, nineteen months can go by before voters are made aware of who spent campaign money on what. A current plan to require the parties to report twice a year will only barely improve this situation.

What is needed is an internet-based graduated, real-time accounting system of disclosure similar to those that have been in operation in jurisdictions in the United States for many years. If a large lobby group takes the plunge during an election campaign, there is no reason why voters shouldn’t – and many reasons why they should – be made aware of this fact at the time, rather than months later. For this to happen requires political will on the part of government and parliament and adequate funding of the commission to implement it. Australian democracy deserves nothing less. •

Graeme Orr and Brian Costar research electoral law and systems at the University of Queensland Law School and the Swinburne Institute for Social Research respectively. With Joo-Cheong Tham of Melbourne University, they are working on an ARC project on political finance.

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WE CRADLE them in our palms, to listen to music. We cup them to our ears, to converse with people far away. We nestle with them in bed, for entertainment. You may even have one in your lap to read this article. These gadgets seem ubiquitous, and many were either made by Apple or borrowed from them.

The reaction to the death of Steve Jobs, the co-founder of Apple, was like a flood: swift and overwhelming. Within hours, gigabytes of commentary and tributes were flashing around the world. The ABC even set up an online obituary – a webmento mori with ten sub-sites. It was not an obituary in the traditional sense of a sober reflection on Jobs’s personal and work history. Rather, according to the tenor of the times, it was an interactive multimedia site with “infographics,” “inspirational” video and a tributes page.

Much of the hagiography has been boilerplate. Prime Minister Gillard intoned that “all of us would be touched by products that he was the creative genius behind, so this is very sad news and my condolences go to his family and friends.” A little has been raving. Retailer Gerry Harvey compared Jobs, in a single sentence, to Einstein, Atilla the Hun, Alexander the Great and Moses. Some has come from rivals and colleagues searching for a personal tone, but unable to avoid boosterism for their industry. Bill Gates said that “the world rarely sees someone who has the profound impact Steve has had, the effects of which will be felt for many generations.”

But the bulk of the tributes have spilt from the mouths and fingers of everyday folk. Like the fan – one of the many who spontaneously gathered outside Apple stores – who lamented that “it feels like the end of the innovators.” Jobs’s death has instantly transformed him from a real person, who spent his adult life helping design and sell gadgets, into the emblematic hero du jour: a “genius entrepreneur.” What sense, if any, can we make of this? What does it tell us about the centrality of electronic devices to an age richer in communication than reflection? And what does it reveal about the human need to mythologise, even in a time of supposedly rational markets, technologised science and information exchange?

There are two easy explanations, though each is too easy to withstand scrutiny. One is that people, especially those of us living comfortably, are easily arrested by premature death. Material success and fame are the allures of a secular market economy, to the point that we forget they cannot guarantee a long and peaceful life rather than one ended painfully in its prime. Yet Jobs’s demise was hardly unexpected. He had endured pancreatic cancer for some years, and recently relinquished his position as chief executive in recognition of the irresistibility of the disease.

Another facile explanation is that the adulation of Jobs is an essentially American phenomenon, albeit one rubbing off on the wider West. The United States, as its politics reveals, is in the thrall of individualism, and the image of the single, almost Olympian, entrepreneur or inventor is one manifestation. But Jobs was not a mere celebrity, celebrated for being celebrated. He was truly at the forefront of an industry that has altered, irrevocably, the way many people communicate, and transformed our idea of the media.

Jobs was at the forefront of this development because the influence of Apple was disproportionate to the numbers of devices it sold. Leaving aside its original raison d’être, the Mac computer (which remains a distant second fiddle to the standard PC) Apple has sold only around 30 million iPads and 130 million iPhones, although its 300 million iPods have formed a quasi-monopoly. These are big numbers for devices that are not bottom of the range. But they have not changed the world; rather, they have enhanced the lives of some people (mostly the under fifties) within one class (the middle class) in some regions of the world (the industrialised rather than developing nations).

Those numbers do go some way to explain another big number. Apple’s shares recently exceeded US$350 each, so that it rivals Exxon as the most highly valued corporation in the world. Its real value, however, lies in its brand, resurrected in the 2000s and now standing at the intersection of good design and cool. Apple is mainstream hip. Jobs deserves the lion’s share of the credit for that marketing transformation.

We don’t normally lionise the people who are the best marketers. We could adapt the old saying about propaganda: “Fool me once, shame on you; fool me twice, shame on me.” Sell me a gadget once, that’s the market; sell me that gadget twice and I’m hooked and you’re rich. The digital world is a disposable world, with some owners upgrading their mobile devices annually. The iPhone, Apple’s signature product, has been through four “generations” in barely as many years. Many of those 300 million iPods were sold to folk like “SamCostello,” who went through seven of them.

Despite its hip badge and wholesome, fruity logo, Apple is one of the more controlling corporations in the field, a fact that increasingly riles not just smaller innovators, but also former acolytes who fret that the promise of the internet as a communal environment is being lost. Mega-businesses such as Apple and Facebook seek to monopolise content and access, to compartmentalise and monetise what began as an open and free space.

Less well acknowledged is the exploitation – not just by Apple but by the wider industry - of Asian, especially Chinese, labour. This problem is not complex and it is well understood. But it confronts us with the uncomfortable realisation that the toys facilitating our entertainment and productivity, and Apple’s inflated profits, are the product of working conditions that we would never endure, as well as designs that we cherish.

Jobs created nothing genuinely transformative. He did not invent the internet: that was done by relatively unhailed researchers in US universities and its defence force. Nor did he lay out the essential fabric of the web, as Tim Berners-Lee and Robert Caillau did at CERN, in France, in 1990. Now knighted, Berners-Lee has also been elected to the American Academy of Arts and Sciences, but he is no household name compared to Silicon Valley moguls such as Gates, Zuckerberg and Jobs.

What Jobs did do was build a vast company around principles of good design, both in hardware and appearance and, more importantly, in software and usability. The term “entrepreneur” is often misused. Recall George W. Bush allegedly claiming that “the French have no word for entrepreneur”? Besides the etymological irony, Bush seems to have wrongly imagined entrepreneurship to mean “risk-taking.” This common mistake is a conceit of individualistic capitalism. As Malcolm Gladwell wrote recently in the New Yorker, the successful entrepreneur is less a grand risk-taker than a methodical organiser and leader. She is someone who adroitly refines existing inventions and processes, packaging them cleverly in ways that fit or create a market. Apple and Jobs were more creative and less predatory than the examples Gladwell gives, but the description still fits. As lawsuits reveal, others seek to piggyback similarly on Apple.

Ultimately, Jobs was the human face of the often-dehumanised world of computer science and consumer electronics. People realise that gadgets like smartphones have transformed aspects of their lives, for both better and worse. Their insistent buzz intrudes on relationships and the experiences of the moment. They appeal to our banal desire to broadcast ourselves as much as they bring us together. But most who enjoy them forgive their addictiveness and cannot remember a life without them. Others find intimacy in their gadgets: in the simple physical presence of devices that engender a sense of ever-connectedness. It is these people who have led the rush to immortalise Jobs, because they want to thank someone for the gift of technology. Label this a “cult of personality,” as Mark Cohen did in The Drum, and see how personally offence is taken.

Though they may be distracting us to the point of decentring us, these gadgets are not transforming humanity in any fundamental sense. We still live by rituals and stories. The act of plugging into or checking these devices is so ingrained into the routines of millions that it has become an unconscious ritual. And chief among the stories we live by are myths, notably the myth of the great man, whose individual drive and genius changes the world. It is easier to pay homage to and heroicise Steve Jobs than to make sense of, let alone give thanks for, something as complex as the world of patents, geeks and corporate mergers that make up the computing revolution. •

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THE simplest advertising trick is the non sequitur. Promoting something dull like banking? Use comedy. Selling junk food? Use sexy actors. Wanting to raise awareness of a complex issue? Employ a celebrity.

We celebrate celebrities – until we realise that they’re no humbler than the rest of us, and then the secateurs come out. Take Cate Blanchett, who turns out to have an opinion, alongside 90 per cent of the population, about climate change and how to respond. Blanchett is starring, free of charge, in an advertisement supporting a carbon tax, part of an estimated $1 million campaign cobbled together by groups such as Greenpeace, GetUp! and the ACTU.

Spying the opportunity for a populist attack to defend its rejection of a carbon price, the opposition responded by playing the woman, not the ball. News Ltd brought out its loud-hailers to sing along. The “Carbon Cate” headlines carried echoes of “Typhoid Mary” and “Tokyo Rose.” Suddenly, class envy was in vogue again, subtly communicated via images of Blanchett’s mansion alongside estimates of her wealth in bold type.

Sensing counter-outrage in its upmarket readership, the Fairfax press rode up to defend their Cate. Not unreasonably, it was pointed out that billionaires routinely gain airtime to opine about taxes and environmental policy. Isn’t it precisely the case that media owners use their wealth as a soapbox under the guise of “editorial freedom”?

Fretting about a high-profile actress’s “right to speak” is, however, beside the point. So, too, is whether Blanchett might, like Fairfax, be preaching to a limited group of converts. All that, as Lindsay Tanner would have it, is a sideshow. What really matters is the politics being conducted through duelling advertising campaigns. Is this constant massaging of political opinion a new phenomenon and is there any relief in sight?

Advertising by “third parties” – lobby and issue-based groups – is not new. As far back as 1973–74, Gough Whitlam’s Medibank and Government Insurance Office reforms confronted hefty campaigns financed by doctor’s organisations and insurance groups. The AMA alone assembled a $2 million fighting fund.

Nor are political campaigns on television new. Indeed, it was the Labor Party’s It’s Time campaign that ushered in the era of commercialised, saturation advertising promoting political causes. What has changed is the emergence of a tendency, first among governments and lately among third parties, to mount these campaigns at the drop of a policy hat, regardless of when an election is due. While they usually centre on a specific issue, the motivations behind these campaigns are more diffuse. The ultimate goal is to massage public opinion, and hence to reshape the landscape in which governments and MPs work.

In the late 1940s, the Labor prime minister Ben Chifley announced his momentous bank nationalisation policy late one evening in a short press release. For months, perhaps naively, his government focused on drafting the legislation rather than arguing its case in public. No one thought of raiding the budget to buy advertising space. The banks were cannier, and a subdued labour movement also responded, but even then their method was to recruit a bottom-up movement rather than buy a top-down campaign. Over the subsequent half-century the media paradigm has been inverted. The Keating government had the late Bill Hunter front its Working Nation campaign. The Howard government used Joe Cocker to implore us to “unchain our hearts” and embrace the GST.

Government advertising tends to be feel-good (“look how surprisingly decent our health/police/other services are!”) or reactive, designed to mollify antagonism towards troubled policies like Work Choices. Third-party campaigns pushing a positive agenda, such as the pro–carbon tax advertisements, are unusual. More common are those defending a well-defined self-interest, such as the unions’ anti–Work Choices campaign and the 2010 mining tax blitz. The success of these two mega-campaigns (costing around $20 million each) lay in their size and aggressiveness.

Tempered by public-sector guidelines, government campaigns must avoid direct partisanship and present positive, factual material. Third-party campaigns are untrammelled by such niceties. There is no requirement to avoid misleading the public and nor are there restraints on negative advertising. The pubs and clubs’ campaign against poker-machine reform is a good illustration: under the clichéd “It’s UnAustralian” banner, the industry has exaggerated and perhaps even lied by portraying the reform proposal as a “licence to punt.”

HOW should we, as a polity, respond? We might not regulate at all, and rely on our vigilant use of bullshit detectors. But that response risks inflating cynicism. Regulating content, as opposed to controlling the form or amount of political advertising, is theoretically an option, but a fraught one. Content is culturally, not legally, determined: no one has yet devised rules to foster informed deliberation. We could extend consumer protection rules to political advertising, at least to cover factual or descriptive claims that are materially misleading. An independent panel could then receive complaints. A few costly orders to pull and re-film material would encourage advertisers to err towards reasonable material.

Many see broadcast advertising as an inherently distorting medium – when it comes to public opinion, they believe, the medium is the message – and some people call for limitations that single out this form of media. For many years the British have banned paid political advertising on television; our High Court would not accept that. Apart from the potential to infringe the freedom of political communication, a more substantive difficulty with broadcast-centred regulation is that the very meaning of “broadcast” is fragmenting. Television’s dominance is disintegrating and the internet is not as ripe for regulation as commercial media oligopolies. For at least a few years to come, viral political advertising will present opportunities for aesthetic ingenuity, at least until the internet becomes more hierarchical and proprietorial.

The more typical regulatory model marries disclosure with expenditure limits. Australia really only has experience of disclosure. Under Howard government reforms, “political expenders” have been required, alongside parties and candidates, to disclose large donations. But this kind of disclosure often comes too late (generally well after an election) to be useful. Worse, disclosure on its own does nothing to tackle the risk unrestrained advertising poses to political equality, let alone deliberation.

Realising that, Britain and Canada also cap political-party and third-party expenditure. In Britain, the limit is around £1 million per third party during an election year. In Canada, the limit is much lower, close to A$200,000. New South Wales, in time for its recent election, and Queensland, in legislation about to pass, are also limiting large-scale campaigns on “state issues.” In New South Wales, for instance, a cap on “electoral communication expenditure” of just over $1 million statewide (including no more than $20,000 in any electorate) applied before the March 2011 state election. It’s likely that an all-party committee of the federal parliament, to report in September, will recommend a similar system for national elections.

In each case, the regulated period is not the whole of the parliamentary cycle but a window before an election is due. (In New South Wales it’s six months; in Queensland it will start once the parliament enters its third and final year.) This fails to recognise the emergence of the “permanent campaign,” assuming instead that election years are particularly prone to a spending arms race and that election campaigns should focus on the party and leadership contest more than on issue advertising. It also assumes government advertising will be modest before the caretaker period cuts in; if not, governments can swamp third parties as well as oppositions during the phoney campaign that tends to start several months before an election is called.

For a while, New Zealand borrowed the British system and capped election-year spending at NZ$120,000. But the National-led government recently repealed that cap, citing concerns about political freedom. While wealth should not act as a political bludgeon via the airwaves, concerns about communicative freedom are not mere abstractions. If caps are set too low, “front” organisations could proliferate. Or, as Andrew Norton argues, modest civic groups might unnecessarily be caught in the regulatory thicket.

The pact between the independents, the Greens and Julia Gillard promised comprehensive political finance reform. Designing comprehensible laws that balance the values of accountability and political equality without strangling civil society’s political voice will be a task in itself. And that’s without the juggling act involved in gaining cross-party agreement.

ASKED about Cate Blanchett and the carbon tax advertisements, Treasurer Wayne Swan said he admires people who speak out. In this instance, his principles and self-interest coincided. He also quipped that issue groups like GetUp! and Greenpeace had as much right to promote environmental concerns as mining companies had to use shareholder funds to fight taxes.

The language of rights is seductive. But it says something about the liberalism of modern Labor that the treasurer missed a deeper point. A campaign by a coalition of democratically organised groups, giving modest voice to the values of their memberships, must surely be less of a concern for Australia’s democratic system than a campaign financed by corporate interests. Sectoral campaigning by corporations – and for that matter unions or governments seeking to entrench their institutional power – is relatively unaccountable. Compared to Cate, their coffers and self-interest are much deeper, and hence in greater need of regulation. •

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IMAGINE Bob the Builder declaring that he’d had enough of the freedom of Bobsville and wanted the reins of the outlying areas as well, right up to the borders. Plausible scenario, or a case of gonzo script-writing? Well, something like that storyline gripped Queensland politics last week, as Brisbane’s Lord Mayor Campbell Newman executed a swift coup d’etât against the state Liberal National Party’s parliamentary leadership, announcing he will seek the premiership from outside parliament. Formally, the LNP has recycled an erstwhile leader, Jeff Seeney, but Seeney is happily portraying himself as a puppet to Newman’s puppeteer.

Newman’s manoeuvre has attracted every imaginable reaction, from initial bewilderment and guffawing comparisons with the Joh-for-PM experiment to more neutral but still astonished adjectives such as “audacious.” This week has brought the predictable honeymoon, celebrated by News Ltd’s Courier-Mail and Sunday Mail in headlines such as “Can He Do It? Yes He Can!” (Apologies, reader, I did not invent the concept of politics-as-childish-metaphor.)

Will it succeed? Time will not only tell, but as W.H. Auden reminded us, “Time only knows the price we have to pay.” Time, in this case, could be measured in many months. An election need not be held until June 2012, and recent speculation that Premier Anna Bligh would call a snap poll to capitalise on opposition instability has proved ill-founded.

The Labor administration, led by Bligh since late 2007, entered its thirteenth calendar year adrift in the midst of a protracted economic slump and electoral dissatisfaction. Then, down came the rains and, like Incy-Wincy, the government climbed up the spout again. The performance of its ministers, and especially Bligh, during the floods and cyclone – in tandem with the tendency of disasters to engender community spirit and remind us that government isn’t such a bad thing – saw a rapid revitalisation of electoral respect, especially as measured in the latest Newspoll.

Some say the premier cannot call an unduly early election without appearing completely opportunistic. After all, she only recently pledged to avoid electioneering until the rebuilding was complete. Yet any breach of faith by Bligh has already been outflanked by a double breach committed by Newman. Just two months ago he promised not only to serve the final year of his second four-year term as mayor (council elections are due in March 2012), but also to run again for that position.

Bligh, however, is unavoidably in Campbell’s stew. Newman is already on the state hustings – even before resigning as mayor – and the media is already allocating online space to the “Queensland election.” In the febrility of such campaigning, normal governmental processes will only be able to last so long.

The premier needs to wait-and-see: to wait out Newman’s honeymoon and to see if an inevitably tough budget will be received as responsible rather than mean-spirited. More significantly, Labor has to trust that structural flaws will appear in the LNP’s unprecedented arrangements. It must hope that Newman will make policy demands that the LNP party room can’t accommodate, or that Seeney will make pronouncements in parliament that Newman repudiates.

In searching for an analogy for a leader-outside-parliament like this one, electoral expert Antony Green had to reach into Canadian practice. There, party leaders are elected by a “closed primary” of party members, and can therefore be any party member, although the leader is quickly found a seat in parliament if need be.

A better analogy is the directly elected executive. Newman’s political career has been forged in direct, mayoral elections, and this deeply shapes his methods and presumptions. His whole approach channels the United States’ style of direct appeal to “the people,” with bare lip-service to the traditions of party democracy, let alone parliamentary government.

A core element of our British inheritance is the principle of cabinet government. The premier is first amongst equals and responsible to parliament; the office of opposition leader, and his shadow cabinet, mirrors those roles. Of course, parliamentary democracy weakened over the early twentieth century, and was more or less supplanted by strong party democracy. Nowhere has this been more apparent than in unicameral Queensland. In recent decades party democracy itself has weakened, through a mixture of ideological drift, eroding party bases and a media suffering from a very short attention span. On the 1997 reckoning of American political scientist Bernard Manin, ours has become an age of “audience democracy,” a personalisation of politics in the form of a focus on the individual and above all the leader. It is almost as if mass democracy became too complex, so we are returning to the more colourful, and discretionary, ways of monarchical power.

If this makes Newman a politician of the times, it is not without risk. The possibility of splits between Newman, as leader in waiting, and parliamentary leader Seeney or his party room, is the most obvious. In a sane world, dissension within a party should be accepted as natural, even healthy. But Newman’s authority within the state party is not organic, and he lacks even the representative mandate of having been elected as an MP.

A host of other formal impediments flow from the awkwardness of the position Newman has created. The most obvious is that he will take the profile of party leader without the salary. He will not even receive an MP’s pay or electoral allowance. Newman has already insisted that the party machine, or rather its donors, make that good. Seeney, meanwhile, will possess the resources and staff of the leader’s office. In Queensland, this even includes public money for policy advertising, to partly offset government advertising. Newman will want the puppet strings to be taut.

An irreducible element of responsible government is the opposition’s role in holding the government to account. Ventriloquism may have to occur during Question Time. Labor MPs will be able to attack Newman under the absolute freedom of parliamentary speech; Newman will not only have no right of reply, he will enjoy no such counter-freedom. He and the party director will also have to be careful in using any threats to enforce party solidarity; while a parliamentary leader is permitted to insist on cabinet solidarity, outsiders from the party machine are technically in contempt if they threaten pre-selections to limit MP dissent.

Comparisons between Newman’s move and the (ill-fated) Joh-for-PM tilt of 1987 – when Premier Bjelke-Petersen sought to mount a Queensland takeover of the federal Nationals and the Coalition from outside parliament – are wishful thinking by Laborites. Newman’s is less a hostile takeover and more a case of a party being merged into one man’s ego and bandwagon.

A more enlightening parallel lies in Kevin Rudd’s deposal. In both instances, a party that had been cruising in the polls for a long time encountered leadership wobbles. This precipitated a putsch from within the machine (rather than the party room) on the back of limited internal polling. Et voilà! A new leader, minted overnight, not out of any policy debate or difference, but from assumptions about style.

Except there is one difference. Gillard entered promising a consensual style within her party and cabinet; she is a creature of party democracy and compromise. Newman enters demanding complete control. Indeed, without it the arrangement may founder. The fűhrerprinzip is not only the internal logic of his manoeuvre, it is the external logic as well.

Newman’s appeal begins and ends in the energetic “Can-Do Campbell” slogan, a slogan he has played on for years as mayor. It owes as much to perceptions (his background as an army engineer, his direct manner of speech) as reality. (Newman’s drive has been for big infrastructure, projects, especially those involving tunnelling, to address Brisbane’s traffic snarls. One of these is now bankrupt and residents have experienced years of rate increases well above the CPI.)

Will Newman succeed? For the sake of what is left of parliamentary and party democracy, we might hope not. Certainly, there’s nothing intrinsically wrong with the idea of multiple leaderships. The Green Party of Aoteoroa/New Zealand, for instance, has accommodated, simultaneously, leaders within and outside the parliamentary team. But that is on a genuine, long-term, co-leadership model.

On the other hand Labor, at heart, is as weak in Queensland as elsewhere. The volatility of the post-flood polls implies no renaissance for the government. Political lore, pre-dating Professor Manin, has it that Queensland is particularly susceptible to the “strongman” leader. The state has urbanised dramatically in the decades since Bjelke-Petersen, but even Beattie’s success owed something to playing up to that role. Bligh is intelligent, if bureaucratic, with her roots in community organisations and the public service. Newman radiates blokeyness. One suspects Newman will succeed but, as Auden said, “If I could tell you, I would let you know.” •

The post Over the top with Campbell Newman appeared first on Inside Story.

PARTY membership has been in decline in liberal democracies for some time, and this trend is no more apparent than in Australia. The concern is not whether parties, like AFL clubs, can boast masses of staunch season-ticket holders. In the Facebook age, people everywhere are less inclined to bind themselves to the rules of organisations and prefer to opt in and out of causes fluidly, on the basis of individual issues.

The real concern is the unhinging of parties from their social bases, which has caused a drift of politics away from substantive debate. This trend is played out in the mirrored halls of knee-jerk reactions to opinion polls and media management. The major parties sense they are adrift without a compass.

Nonetheless the party system in Australia remains entrenched, lending politics a structural stability despite declining voter attachment. Think Labor, the Coalition and Greens, and think Woolworths, Coles and Aldi.

One answer to the dilemma would be to free up the party system by moving to proportional representation. For reasons of stability and self-interest, no established voice is calling for that. The ALP Review has instead called for a system of primary elections, which are North American in origin. In a system of primaries, any elector, and not just party members, can vote to select the candidates to face the general election.

Proponents argue that primaries will improve candidate pre-selection by opening the process to outsiders. Given the moribund nature of party branches and factionalism, this may increase voters’ sense that election results have legitimacy. And it might also enhance participatory democracy.

Advocating primary elections is not exactly new. The Nationals and Victorian Labor have trialled them, as have the British Tories. What the ALP Review has done is to lay out a model. The model is nothing like the public, US primary, though. In the United States, most primaries only involve outsiders. Anyone can register as a “Democrat” or a “Republican,” and in some states even “independents” can vote in either party’s primaries.

The US system is governed by state law: primary days are like mini election days. It was designed in the nineteenth century to weaken parties by curtailing the influence of “party bosses” (and later helped to limit racial discrimination by the monopolistic southern Democrats.)

By contrast, the Labor proposal would be run internally. It would not involve the spectre of the law, as in the United States, dictating how parties run their affairs. In that sense it would not be an imposition on freedom of association.

While local papers would take an interest, prospective candidacies would generally be low key. This would limit the likelihood of our replicating the prohibitively expensive American primary elections, which tilt the odds in favour of millionaires and carpet-baggers. Most of all, the Labor model would give only 20 per cent of the say to “registered supporters.” Sixty per cent would remain with paid-up members, and the remainder with union affiliates.

So Labor’s model would avoid features of the US system that are at variance with our traditions, such as the triumph of charismatic individuals over the party system and the expensive and lengthy razzamattaz. Of course, it does so at the expense of diluting the strength of the US system – its level of public participation. Electors in safe seats in Australia feel their vote is irrelevant and that factional hacks are gifted such seats. In the United States, electors decide whom each party is to nominate.

Registering as a Republican or Democrat is a public process. Under the Labor proposal it would be a private one, protecting people who do not want to broadcast their partisan sympathies. But this feature of the proposal presents a big problem. How can a party screen the “supporters” to whom it is giving a direct say in its affairs?

Activists in Australia have shown that they love playing dirty tricks on rival parties, including issuing fake party leaflets or stealing placards. Could Labor stop conservatives, who will wish to help preselect the least appealing candidate, from becoming involved?

Worse, stacking a primary election could prove even easier than stacking a branch. Branch memberships cost money and are subject to restrictions, such as waiting periods or limits on monthly recruitment. Something of value is given on both sides, with at least the expectation that the member is entering an ongoing relationship that is communal. Registering as a supporter would cost nothing and the supporter might never be seen.

The ALP review’s proposal is experimental rather than revolutionary. Its chief effect might be to stimulate sympathisers to register as supporters, creating a penumbra to which the party can reach out – just as movements like Get Up! draw on a wide but loose group of people who at root are just an email list.

But such privately run primaries would face significant practical hurdles in Australia. They are, at most, a second-best option for revivifying parties’ bases in the community. •

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IN 1902, when Australian electoral democracy was taking its first, nappy-clad steps and many women had been newly enfranchised, an electoral roll had to be built for a nation. The new Commonwealth looked to the state police to compile a roll, which they did by canvassing households one by one. Within fifteen years, individuals were compelled to enrol. As Professor Marian Sawer has argued, this showed a progressive yet highly managed form of liberalism: a heavy hand guided by an open heart.

A century later, our electoral rolls are managed by computers and checked against vast swathes of data held by governments about our identities and whereabouts. Yet while enrolment remains mandatory, over one million people are not enrolled. A part of the problem may be that, unlike many other “transactions,” it’s impossible to enrol online.

Until today, that is. In another voting rights case mounted by GetUp!, the courts have again come up with a surprise decision. In Get Up Ltd versus the Electoral Commissioner, Mr Justice Perram of the Federal Court agreed with GetUp!’s argument that cyber law trumped the more traditional assumptions of the Australian Electoral Commission, or AEC.

The Electoral Act has long required people to submit a signed application form to enrol. How could it be otherwise? Signatures are a longstanding way of verifying identities, and the integrity of the roll is as crucial to its accuracy as ease of enrolment. And the AEC needs to keep original signatures to guard against later fraud, such as someone impersonating you by claiming a postal vote in your name. The AEC was not luddite about this, however: it has accepted faxed or even scanned enrolment signatures.

Young people are disproportionately represented among those who are not enrolled, and they are also disproportionately computer savvy. GetUp! combined these insights to create its Ozenrol website. Ozenrol permitted people to enter their details online. It then automatically entered that data into a template form, and submitted it electronically. On its own, this would not have been enough to make a valid enrolment. In some circumstances if you email information to a government department and type in your name, that can be deemed to be an electronic certification or signature. But it would hardly be appropriate to underpin the right to vote.

Cleverly, Ozenrol also allowed people to use a digital pen, their finger on a laptop trackpad or even a humble mouse to describe their “signature” on a screen. It was this techno-fix that the court had to rule on. The AEC argued that the 1999 Electronic Transactions Act gave it the discretion to decide if such an e-signature were “appropriate.” The judge disagreed.

Justice Perram did not even defer to the AEC’s expertise in the field of enrolment. Instead, he relied on evidence from a GetUp! campaigner, who swore that with practice one can execute an e-signature with “great precision.” The judge looked at the e-signature of the test-case plaintiff, Sophie Trevitt, and her witness. To him, they looked as good as a faxed signature. Two other plaintiffs, whose e-signatures were variable, were dropped from the case. But the judge nonchalantly observed that two physical signatures can differ as much as two e-signatures.

The case comes exactly a week after GetUp!’s more significant victory in Rowe versus the Electoral Commissioner, which I discussed in Inside Story a week ago. That case invalidated the law requiring new voters to be on the roll by 8pm on the day the electoral writs are issued.

So, round two to GetUp! Historically, courts have not played much role in the shaping of the electoral process in Australia. Nor has litigation been a common weapon to push the law. Indeed, GetUp! was founded – on the model of MoveOn.org – to push progressive values through cyberspace and the broader political process. But it has now flexed its muscles as a promoter of test-case litigation, in the mode of organisations like the Brennan Center for Justice in New York. Are we entering a very American world in which civic groups, of whatever hue, will use litigation not merely strategically, to exert indirect political pressure, but tactically and directly to sidestep parliamentary roadblocks?

Today’s decision is far from the final word, however, even on electronic enrolment. It emanated from the honourable, but relatively lowly, mouth of a single judge. The Electoral Commissioner has an automatic right to appeal to the Full Federal Court. Of course he might not wish to bother, having bigger fish on his plate for the next several weeks. Since the Ozenrol site was not live for long, there cannot be many people who will immediately benefit from the ruling, unlike Rowe’s case, which has enfranchised tens of thousands for the upcoming election.

The ruling is not set in stone for another reason. Even if it had come from the High Court, our nation’s “Supreme Court” under the Constitution, it didn’t raise any constitutional issue. It hinged merely on the interpretation and interaction of two very technical bits of legislation.

The federal parliament can revisit this issue – possibly as a result of lobbying by the AEC – in a few months’ time and overturn the result if it so desires. Without a doubt, conservative MPs will be arguing for this course of action. Even Justice Perram admitted that a forged paper signature was easier to detect, at least by handwriting experts, because it captured the pressure and thickness of a pen stroke.

The Commonwealth’s legal advisers will be looking at this decision for any wider ramifications for citizen-to-government communications. While the decision advances the 1999 law’s purpose of easing the path to electronic transactions, the finding that a court can so easily dismiss the expertise of the relevant government agency – in this case, as to when e-signatures are “appropriate” – will surprise many in government. It is quite arguable that the Electronic Transactions Act was meant to enable government agencies to accept e-signatures, rather than be a source of individual rights. If this decision stands, will the passport office have to accept e-signatures, even if the resulting passport doesn’t meet the customs rules of some nations?

Enrolment, of course, underpins the right to vote. It is not just a mechanism for communicating with government. It underpins the franchise, perhaps the most fundamental of all rights (apart from the right to the necessities of life). Electronic enrolment is now firmly on the political agenda. Unless there is clear expert evidence that electronic signatures are less trustworthy, there is no reason for the incoming government to undo GetUp!’s victory. On the contrary, it should be looking beyond online enrolment to automatic enrolment in a renewed quest for a comprehensive franchise. •

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FOUR YEARS AGO, in controversial circumstances, the Howard government legislated to close the electoral roll significantly earlier once an election was called. After the election campaign formally began, new voters had only until 8pm on the day the electoral writ was issued to lodge their enrolment form. Those voters who needed to update their addresses were allowed a bare three days. Given that our quaint Westminster heritage gives prime ministers the right to call an election when it suits them, it was hardly a democratic measure. New Zealand electors, for instance, can enrol up until polling day. Canadians can enrol on polling day.

Early roll closure did not even have the support of electoral bureaucrats. In the past, the Australian Electoral Commission, or AEC, has handled hundreds of thousands of roll changes in the first week of the campaign, and uncovered no systemic attempts at fraudulent enrolment. But an attempt by Labor to reverse the 2006 legislation was blocked by the Senate and this month’s election kicked off under the Howard-era rules.

Barely a fortnight ago, the progressive lobby group Get Up! launched a challenge to this law. The case is named after the test-case plaintiff, Shannen Rowe. As if to show the other branches of government that leisurely approaches are inapt when fundamental rights are involved, the High Court rushed the case on for hearing. And within a day it brought down its verdict.

The majority ruling in Rowe’s case has struck down early closing of the roll. Shrewdly, the head of Get Up!’s pro bono legal team, Ron Merkel QC, did not ask the Court to take a step into the unknown, so the Court has not ruled that enrolment cut-off days are entirely unnecessary, as in Canada. Nor has it ruled that in a 24/7 society paper-based enrolment is unreasonable. Instead the law has simply jackpotted back to the pre-Howard rule, dating back to 1983, that electors have seven days’ grace to organise their enrolment.

The immediate effect is that approximately 100,000 enrolments will be processed that otherwise would have lain in abeyance. Some of these are not new enrolments: just a matter of getting people into their correct electorates. The figure could have been much higher: we will never know how many people were deterred from trying to enrol because they thought they were too late.

The longer-term effects of the decision are hard to assess. The Court rushed down its orders, but will take some weeks to craft its reasons. It is not yet clear whether the majority was a clear or paper-thin one. Unless four judges agree not just on the outcome but also on the basis for it, the case may be confined to roll closure rather than influencing future disputes over voting rights.

By judicial standards, the Court is full of relatively new members. As in some other key cases, one suspects a plurality opinion, if not a single majority opinion, will be crafted around the Court’s older, centrist judges, Justices Gummow and Hayne.

Regardless, the outcome is surprising. The High Court can be hard to predict, but in recent years it has generally been conservative in methodology and outlook. Until four years ago, it was not even clear that the Constitution protected the universal franchise at all, let alone the machinery that gives it life.

It took another piece of Howard government overreach – the disenfranchisement of all prisoners – to stir the sleeping giants on the bench. In a case involving an Indigenous prisoner, Vicky Roach, a majority finally agreed with old and long-gone Labor judges, such as Lionel Murphy and Edward McTiernan, that the rule that federal parliament be “chosen by the people” means that parliament may only limit the franchise in ways that are reasonable or proportionate to representative democracy. The result of Roach’s case was not radical. Only “short term” prisoners benefited from that ruling.

But Roach’s case, along with the political broadcasting, or ACTV, case of 1992, gives the Court a backstop role. It has no place micro-managing electoral law, but it has reserved to itself a power of veto over unnecessary restrictions on voting rights or political communication. To what extent do such rulings empower the judicial branch over others? Discussion from the bench in Rowe’s case suggests that at least one judge is interested in the very American idea of applying “strict scrutiny” to legislation that affects fundamental political rights at least where parliament may be motivated by self-interest.

None of this means the Court is boot-strapping a Bill of Rights, however, let alone turning itself into a vanguard of the civil-rights movement, like the Warren Court in the United States. The Australian judicial tradition of deferring to parliamentary expertise or discretion remains immanent in many other decisions. The majority opinions in Rowe’s case will probably be narrowly crafted.

They will highlight the fact that early roll closure was not evidence-based legislation: the Howard government merely asserted a risk of fraud, without giving reasons or evidence to support itself. The opinions will also rely on the fact that Australia does not have fixed parliamentary terms.

Some judges will point to compulsory enrolment and voting as a reason to ensure that enrolment procedures are not too burdensome. Contrarily, it is likely that judges in the minority will take the conservative view that compulsion should work the other way – that it is the individual’s responsibility to maintain their enrolment, and giving them thirty-five out of thirty-six months in an electoral cycle is plenty of time.

Curiously, the Commonwealth did not argue the case by analogy with United States law. There, despite a much stronger judicial interest in voting rights, the Supreme Court has accepted registration cut-offs of between thirty and even fifty days. Perhaps the Commonwealth thought that appealing to American practice in electoral legislation would not smack of best practice. Perhaps their lawyers reasoned that the United States has fixed terms and primaries, so electors have year-round notice of when elections are due. Or perhaps in the hurried hearing, they simply overlooked comparative law.

What does the case mean politically and institutionally? Julia Gillard rushed to an election, which she announced back on Saturday 19 July. She could have delayed the writs – and hence roll closure. Indeed for a long time that was the practice in Australia. Prime ministers of old would delay issuing the writs from anywhere between five and sixty-three days. Gillard did not. She wanted the writs out urgently to give the opposition the shortest possible campaign (thirty-three days), a decision she may now be regretting.

Nonetheless, in enrolment terms the Labor government has now had its cake and eaten it too. It got the short campaign it thought it wanted, and yet is getting back some of the first-timers who would have missed out on a ballot but for the High Court. The AEC has even said it will phone or contact every lucky enrollee affected by the decision.

There has been speculation that the AEC and the government, as official defendants to the case, deliberately ran dead. While neither will be unhappy with the result, that speculation lacks credence. As an independent agency, the commission never takes a stand on the validity of the law it works under. And since the case was launched while the government was in caretaker mode, the solicitor-general would not have received riding instructions from any minister.

For civil society there is another lesson from this case. Australia does not have a strong history of civic associations using the law to run test cases or to keep law reform on the front-burner. Get Up!’s success may be changing this. It is also mounting a Federal Court case to argue that electronic submission of enrolment forms is permitted under legislation enabling “e-signatures.” [Graeme Orr’s analysis of the decision in that case, given on 13 August 2010, can be read here.]

Institutionally, the ball is back in the parliamentary court. If Labor wins the election, it is likely to push on with its preference – backed by an AEC concerned about the bigger issue of the million or so people “missing” from the roll – to implement automatic enrolment. New South Wales has moved in that direction for state elections, and Victoria also, at least for school-leavers. Unless those state trials tank, there will be pressure on the Coalition to stop simply saying “no” to any electoral modernisation. Victoria is going so far as to trial a form of election-day enrolment, by allowing unenrolled people to claim a provisional vote at the polling station. (“Provisional” on their entitlement to vote being checked.)

The number of electors who will benefit from the High Court’s decision is not insignificant. Yet spread across 150 electorates, they are unlikely to affect the outcome in any but the most ultra-marginal seat. The poll analyst Possum Comitatus, who blogs for Crikey, assessed early roll closing as costing Labor less than 0.1 per cent of the two-party vote. If so, its undoing will at most be worth a bit of extra funding for the parties (votes being worth $2.30 each), especially the Greens.

But political effect is not the point. In principle every vote is sacred and the whole purpose of the roll is accuracy and comprehensiveness, not being a hurdle to the ballot. The High Court has struck a modest blow for those principles. •

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MR RUDD launched a health plan, focused on public hospitals. Then he demanded that the owners of those hospitals, the states, all sign up. Some were keen, some relieved, some doubtful. One in particular was very negative.

Mr Brumby reckoned Victoria’s system led the way and suggested a different model. A few states joined in, chanting “more money.” Others joined Mr Rudd to paint Mr Brumby as a potential wrecker of policy unity. Mr Rudd didn’t want to take over public hospitals nationwide, but he wanted to put the Commonwealth in the driver’s seat.

Now imagine you ran a loose but supposedly cooperative enterprise. Say a company with factories in different places that were used to doing things differently. Imagine everyone agreed that things needed to be improved, but there was no consensus as to how. You, the overall manager, proposed a model, but another factory, which had been doing okay, asserted that its model was better.

The logical thing would be to trial your model in those factories that were ready for it, and let the factory with its own model do things its way. Then, in a few years time, you could compare performance.

In political science it’s called competitive federalism, but we could also call it governmental diversity. In a federal system, we tend to look for diversity between states at the same level – different rates of stamp duties, for instance, or different drink-driving limits. We used to see it culturally, outside government, too. (Remember the strict divisions between which football code was followed in which state?)

In any complex federation there’s also a lot of overlap between national and regional government – especially in Australia, where the states are powerful in theory but Canberra now has most of the money. This overlap is usually labelled a problem, a cause of the “blame game” where there aren’t clear lines of accountability. But given cooperation, the overlap can be used to accommodate, even to embrace, competitive federalism.

There’s plenty of precedents for this kind of two-track approach. Years ago Jeff Kennett ceded Victorian industrial relations to Canberra while the other states retained a mix of state and federal laws. Today, that balance is inverted. All the states bar Western Australia have ceded their private sector industrial laws to Canberra.

Of course, it’s election year, both federally and in Victoria. Mr Rudd was goaded into attempting to appear decisive by an opposition leader who has caught attention with his own he-man act. So what we saw in both the politics and reporting of the health debate were the politics of posturing. Sure, through Commonwealth eyes it would be cleaner to have a single model for public hospitals nationwide. But if one or two states really wanted to hold out, the answer was to sign up the states that were convinced and negotiate a distinct model for the hold-outs. As long as no state wields a veto power, competitive federalism can avoid state-specific gouging of benefits.

The posturing we’ve witnessed has its roots in “anti-politics” – not Pauline Hanson–style, bring-the-temple-down anti-politics, where someone new plays politics by feigning that they are not a professional politician – but a more routine kind of anti-politics. It’s the politics of putting down other politicians while scrambling for a moral high ground. Negative politics can be a turn off, but it can also work when the electorate is grumpy. And this one is grumpy (hardly surprisingly after an economic downturn). The grumpiness is evidenced by oppositions becoming more oppositional lately, which further stokes the grumpiness.

Anti-political politicking – also known as finger-pointing – has actually been endemic in Australian politics since the first fleet. After all, the colonial governors had Whitehall, and the colonial parliaments had each other. Since Federation it has been institutionalised in stoushes between Canberra and the states, or stoushes among the states. It is especially useful because it permits members of the same party to “stand up” to each other, and thereby appear non-partisan.

Anti-politics particularly flourishes in federations because leaders can criticise each other across party lines. By rights that shouldn’t work: doesn’t it project disunity? It may, but in standing up to your own kind, you appear above partisan politics.

Of course, some of the posturing was just a negotiation tactic: hard bargaining over money, more pecuniary than policy. Of course this was theatrical as well. The spigots opened and extra money flowed – as it was always likely to – so everyone could claim credit (the states for “forcing” the money, the Commonwealth for providing it).

That still leaves Western Australia’s Mr Barnett, who doesn’t mind the plan and wants the extra funding, but objects to adjusting the 1999 agreement that the GST will flow, no strings attached, to the states. Of course he is the only Liberal premier and he’d not want to hand Mr Rudd an easy, bipartisan consensus. But let’s take Mr Barnett at face value: he sees the 1999 GST agreement as a fundamental principle.

At law it is not. It’s not enshrined in the Constitution. It is not a binding contract. It is a “framework” of “principles.” The GST, at root, is just another Commonwealth tax. But Mr Rudd would need Senate approval to re-cast it. After all, both Howard and Rudd governments enshrined the intergovernmental agreements in legislation.

Politically – and in the spirit of cooperative federalism – the agreement should only be reworked by consensus. The current agreement was expressed to “operate indefinitely from 1 January 2009 unless the Parties by unanimous agreement in writing revoke it.” Mr Barnett is free to hold onto his principle and hold out against such a rewriting.

But to do so would hardly be in the spirit of federalism. If the majority of states wish to sign on to a Commonwealth plan, it would be hypocritical for one state to hold that up in the name of “states’ rights.” Provided Western Australia is left in no worse position than when the negotiations started, it is entitled to preserve its status quo in a new intergovernmental agreement, but not to object to other states choosing a different path.

If there really is an important policy or principle difference underlying the Western Australian position then the ideal federal outcome would be for its model to apply to it alone, and a different model apply elsewhere. But perhaps there is no policy at stake, and money will trump any posturing over principle. If so, while this pudding is still cooking, expect everyone to soon be tucking into it. •

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