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High Court excels in McCloy's case

By Max Atkinson - posted Friday, 12 February 2016

Readers interested in US politics will be aware of the appalling 2010 decision by the Supreme Court in the Citizen's United Case, in which the majority ignored long-settled precedent to rule that corporations and unions have the same First Amendment right to free speech as citizens, and this right permits to unlimited spending on election candidates. [Article edited 23/2/16. Words in bold were added.] President Obama, shortly after, used his State of the Union address to condemn the decision as a catastrophe for American democracy,

'ith all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests - including foreign corporations - to spend without limits in our elections.

Chief Justice John Roberts, who helped write the majority judgment, publicly criticised the President for these remarks, and Obama's press secretary explained,


The President has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response.

But Obama could do little to mitigate a decision which treats political power as a commodity to be bought and sold on the open market. It was, however, merely the latest in a series of rulings in which the right-wing cabal of the Court made a conscious decision to ignore legal precedent and constitutional principle in order to advance their own political views.

The Australian political process also has serious defects. We suffer from weak electoral funding laws, a dysfunctional Senate election system, the distorting role of lobbyists, a print media largely dominated by one owner and other flaws. But there have been no legal barriers to the reforms needed to protect the nation from going down the US path; in the absence of a bill of rights there was no protection of free speech upon which to hang a similar claim to privilege big money and devalue the votes of ordinary citizens.

This changed in 1992 when the High Court stated a principle of freedom of speech on public and political matters which it said was implicit in provisions the Constitution makes for representative government. In the words of Professor Anne Twomey of the University of Sydney Law School:

The basis for the implied freedom... is that (sections of) the Constitution require that the Houses of Parliament be directly chosen by the people. To be a genuine choice, it must be a free choice that is capable of being an informed choice. Hence, political communication is impliedly necessary to allow the people to make a free and informed choice.

It was then a matter of time before the US arguments were put to Australian courts, notably by Jeff McCloy, a politician, civil engineer, property developer and former Lord Mayor of Newcastle who regularly made political donations - he said of the state's politicians 'they all come to see me for money, I feel like a walking ATM some days.' But because NSW laws ban property developers making donations, he risked being found by ICAC to have engaged in "corrupt conduct". To pre-empt this he argued in the High Court that the ban was invalid by reason of the implied freedom of political speech.


The Court found that the NSW laws did in fact limit this freedom but rejected his bold argument that, in the absence of a corrupt ie. 'quid pro quo' bargain, the freedom permitted him to make donations to secure the access he needed to influence politicians. This is, in fact, the US position - so long as there is no actual 'corruption', donations cannot be banned or capped.

In a major contribution to constitutional jurisprudence, the judgment of French CJ, Kiefer, Keane and Bell JJ used the same logic as the freedom of speech cases to state an egalitarian principle to complement it. This principle meant it was not necessary to prove a corrupt deal - a 'linkage' - to validate the NSW bans

guaranteeing the ability of a few to make large political donations … to secure access to those in power would seem to be antithetical to the great underlying principle of representative government that involves equal sharing in political power (emphasis added).

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About the Author

Max Atkinson is a former senior lecturer of the Law School, University of Tasmania, with Interests in legal and moral philosophy, especially issues to do with rights, values, justice and punishment. He is an occasional contributor to the Tasmanian Times.

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