NEW CONTRIBUTOR | Removing the influence of big money in politics: another attack on free speech?

On November 18, the Albanese Labor government introduced the Electoral Legislation Amendment (Electoral Reform) Bill 2024 into Parliament. In his second reading speech, Patrick Gorman, Assistant Minister to the Prime Minister said that the proposed legislation delivers on the government’s “commitment to strengthen and enhance the integrity of federal elections through improved transparency and accountability” and that the proposed law aims “to remove the influence of big money in politics.” He added that elections “are a contest of ideas, not bank balances.”

The proposed legislation provides for a gift cap of $20,000 from the same donor to the same recipient. The Bill also establishes caps on electoral expenditure, including campaign spending. The federal electoral expenditure cap for all political parties is set at $90 million. Independent Members of Parliament are disadvantaged by the changes because they will be subject to an $800,000 annual spending cap for House of Representatives candidates. In addition, the Bill also increases “the amount of public election funding provided to political parties and candidates that receive at least 4 per cent of the total formal first preference votes in an election”. Not surprisingly, a survey conducted by the Australia Institute reveals that more than four out of five voters believe that the proposed changes should be reviewed, rather than hastily rammed through Parliament.[1]

Companies sometimes make sizable donations to political parties for the furtherance of these parties’ political causes. I dislike this practice because it is often incompatible with the expressed functions of the donating companies – to maximise profits, to serve the interests of their shareholders, and to provide services to society. Nevertheless, companies have been increasingly involved with political matters, which disregard the interests and voting intentions of even most of their clients and shareholders. For example, this happened in 2017 when Qantas promoted same sex marriage, and in 2023 painted ‘Yes 2023’ on their airplanes to support the enshrinement of the Voice in the Constitution even though this would have cemented institutionalised racism in Australia by singling out Indigenous Australians for preferred treatment – an outcome which, fortunately, was overwhelmingly rejected by 60.1 per cent of the electorate in the referendum in October 2023.

Nowadays, major retail stores, sporting organisations, and even churches donate huge sums of money to finance the promotion of the government’s favourite political projects. In this context, it is noteworthy that the donating companies may well seek to serve their interests by insulating them against intrusive governmental oversight. If so, the aim of the proposed legislation is to ensure that rich people and corporations do not have an inordinate influence on the legislative process, the function of which is to adopt laws of general applicability.

However, although I do not support the corporate practice of donating money to political parties and causes, I do not support a ban. My reluctance to support the proposed legislation stems from the fact that banning the practice trivialises and diminishes the importance of free speech in Australia. Specifically, the practice constitutes a form of ‘symbolic speech,’ which involves the communication of ideas by conduct. Indeed, in banning political donations, the legislator is in effect selecting for less favourable treatment a form of free speech which, although it may not involve spoken words, is nevertheless an effective way of communicating political ideas to the electorate. Hence, the banning of corporate donations is an unacceptable attempt to disembowel ‘symbolic speech.’

Moreover, it is disingenuous for promoters of the Bill to rely on the appealing, but discredited, idea that the democratic process should not be distorted by those who have deep pockets, intent on skewing the outcome of a political contest by throwing money to their favoured political recipients. Indeed, the claim, that the outcome of elections would be distorted, is weakened by the fact that, in Australia, the United Australia Party, heavily subsidised by Clive Palmer – rumoured to be around $123 million in the 2022 election – only resulted in the election of one Senator.

[1]  The Australian Institute, ‘New polling reveals overwhelming opposition to rushing through political donation laws’, Media Release, 18 November 2024.

In 2010, in Citizens United, v Federal Election Commission, the United States Supreme Court, in a 5-4 judgment, decided that the practice of political donations is a form of free speech protected by the First Amendment to the American Constitution.[2] In its relevant part, the Amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press.” This Amendment is a formidable obstacle to banning the practice of donating money to political parties because it protects symbolic speech that involves the communication of ideas through conduct. Specifically, in Citizens United, Associate Justice Kennedy, writing for the majority, wrote:

… the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.

Citizens United is relevant, not only because of the discernible influence of American Supreme Court decisions on comparable developments in Australia, but because the High Court has discovered in the Commonwealth Constitution an implied right to free speech in the context of political communication. Indeed, donors may well be covered by this implied constitutional right because, in donating money to their favoured political operators, they communicate their electoral preferences to the electorate.

The proposed legislation is evidence of the veracity of the claim that, when governments tinker with free speech, they enter a slippery slope which, inevitably will end up in the total control, or even loss, of free speech. This is evidenced by the recent, but unsuccessful, attempt to ram through the Parliament the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2024, which many organisations and commentators have described as an egregious attack on free speech because it would enable government to censor any speech on digital media that the government does not like. Also, a proposal to ban young people under sixteen from using the digital media is before the Parliament – a blanket measure which adversely affects the education of these young people who, in any event, should be guided by their parents. And now the government wants to ban political donations! Australia is well and truly on a slippery slope because once certain expressions of free speech are prohibited, there is no stopping other modes of expression from being attacked, whether intentionally or unintentionally. Whilst reasonable people may applaud each single measure as a measured, even desirable, response to a perceived societal problem, they may not like the aggregated results caused by the numerous restrictions on free speech. Hence, it behoves the press to draw a red line in the sand to prevent the further erosion of a basic building block – meaningful free speech – of a mature democracy.

Thomas Jefferson, the third president of the United States, reportedly said:

“Our liberty depends on freedom of the press, and that cannot be limited without being lost”.

Jefferson also commented on the media’s perceived dishonesty and corruptibility, saying:

“Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle.”

In Australia, we should heed the message of Jefferson because without free speech, our democratic system of government would inevitably falter and, over time, even disappear.

[2] Citizens United v, Federal Election Commission, 558 U.S. 310 (2010).

Gabriël Moens is an Emeritus Professor of Law at the University of Queensland, and during his distinguished career he also taught extensively in the United Kingdom, Germany, Belgium, Italy, Austria, Indonesia, Thailand, Singapore, China, Hong Kong, Japan and the United States. He served as Pro Vice Chancellor and as a Dean at Murdoch University. He also served as Head, Graduate School of Law, The University of Notre Dame Australia.

In 1999 he received the Australian Award for University Teaching in Law and Legal Studies. In 2003 the Prime Minister of Australia awarded him the Australian Centenary Medal for services to education. Prof. Moens is also an extensively published author and serves on the Editorial Board of Locke Press.