One of the principles which has long underpinned free, fair and informed elections in Australia is that where a person or organisation spends a substantial amount of money in an effort to influence the way people vote, the process should be transparent.
There is no law against people or organisations spending as much as they want to in order to promulgate their message. In a free society, any person should be able to spend as much money as they can muster in order to promulgate their message or increase their political influence. The requirement is simply that we should know who is paying the piper when they are calling the tune.
This requirement is expressed in law in several ways. The two most well known are the requirement that election advertisements be accompanied by information identifying the person who authorises the comments (Commonwealth Electoral Act 1918 s.328) and the requirement that those incurring "electoral expenditure" must declare that expenditure. This requirement extends to third parties, who are not actually contesting the election but who seek to influence its outcome (Commonwealth Electoral Act 1918 s.309).
The idea of the third-party requirement is to regulate the spending of what is called in the USA "soft money": money which would not ordinarily need to be declared as a political contribution, but which has the same effect as such a contribution. If I provide a donation to a political party in order for the party to make a commercial, I am donating hard money. If I pay for the commercial to be made, then I am donating soft money.
In Australia, until recently, it appeared that s.309 of the Commonwealth Electoral Act dealt with soft money reasonably effectively. Until, that is, the political activities of the group known as the Exclusive Brethren came to light. The Exclusive Brethren are, according to their website a worldwide Christian fellowship with 40,000 adherents. Their approach to government, again according to their website, is as follows (edited for length but not, I trust, emphasis):
Exclusive Brethren believe in Government and are subject to it […] Their approach is non-political. They do not vote , but hold Government in the highest respect as God's ministers, used by Him to restrain evil and provide conditions for the promotion of the glad tidings. […] Contact with members of parliament or congress is encouraged to express a moral viewpoint of legislation in relation to the rights of God and this ongoing communication is found to be acceptable and productive.
Until recently, the group has only been mentioned in the Australian Senate three times, in 1982 and twice in 1993, in relation to an exemption which enabled members to refrain from union membership (in line with their teachings). Following the 2004 election, however, their political involvement became contentious following allegations that they funded political advertising opposing the Greens' policy on the medicinal use of cannabis. Greens Senator Christine Milne stated:
In the last federal election, in which I was a candidate for the Senate, I was attacked by brochures appearing in the media which were authorised with a single name and address in Sydney. We were unable to establish even whether that person lived at the address. Even if we had, we could not have known at that time that the person concerned represented the Exclusive Brethren. They paid for extensive print advertising which misrepresented entirely the views of the Greens in that election. We then discovered that exactly the same pamphlet, just changed from “Australia” to “New Zealand”, was used to try to discredit the Clark government and the Greens in New Zealand. It has been used throughout the country. What we later discovered was, of course, that the Exclusive Brethren had had meetings with the Liberal Party in the context of that election. None of that will turn up in the political disclosures (Senate Hansard, June 16, 2006).
The Greens, as you might expect, tried to follow the chain of political responsibility for the campaign against them. In doing so, they ran into a brick wall. Responsibility was taken by a private company, Willmac Enterprises. The Sydney Morning Herald has reported that the company is owned by an Exclusive Brethren member. According to SMH, it was incorporated three weeks before the election, had assets of $10 in cash, and yet managed to spend $370,461 on election campaign material (Sydney Morning Herald, January 20, 2007).
The Australian Electoral Commission, following a 12-month investigation, concluded:
Expenditure on all seven advertisements and pamphlets was disclosed in a third party return by Willmac Enterprises following the 2004 federal election, and that consequently no outstanding disclosure obligation exists in relation to these advertisements and pamphlets. Further, there is no evidence that Willmac Enterprises received any gifts or donations from other sources that contributed to the costs of the advertisements and pamphlets (AEC advice, December 19, 2006, available at www.aec.gov.au).
Let me be clear at this point: frankly, I do not care whether the Exclusive Brethren fund political campaigns against the Greens. Good luck to them - it is a free democractic country and the more voices involved in political discussion the better.
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