A concerned politician's guide to donations reform

It is interesting to contrast this ideological response with the very different approach by Malcolm Turnbull, as reported by Sabra Lane:

I have argued that ideally donations to political parties should be limited to people who are on the electoral role, voters. And so you would exclude not simply foreigners but you would exclude corporations and you'd exclude trade unions. I have always felt that would be a good measure.

Speaking to reporters on the sidelines of the Australia-ASEAN Summit, he agreed this would be problematical - there would be 'big legal issues and indeed some constitutional issues' involved in reform. 'It is … something that the Joint Standing Committee on Electoral Matters should look at very carefully'

While this difference between conservative and progressive views will increase party tensions Turnbull's response, based on a conviction that such problems can and should be settled by rational discussion, helps clarify what each man brings to politics. Turnbull is reflective, uncertain and open to argument, like a judge listening to arguments of legal principle. By contrast, Howard is confident and decisive, just as he was on the Apology, the Iraq War and same-sex marriage.

However that may be, the PM is clearly an in-principle advocate of the radical reform most experts favour. Prominent among these is Michael Yabsley, a former Liberal politician who also believes that large political donations are morally sleazy and wrong in principle. His knowledge is unrivalled, having been NSW corporate fundraiser from 1999 to 2003 and treasurer of the federal Party from 2008 to 2010.

When Turnbull's view was put to shadow attorney-general Mark Dreyfus, however, he appears to have thrown a legal spanner into the works - in an interview with ABC reporter Hayden Cooper 0n 8^th September, Cooper asked:

Well, you've seen what the Prime Minister said there, and that is that, sure, he's prepared to consider it as long as you also ban donations from corporations and unions. Would Labor come at that? Would you consider banning donations from unions?

Dreyfus:

The High Court has already looked at this a couple of years back and has said absolutely clearly that you can't, within our Constitution, ban corporations from making donations or ban unions from making donations.'

On its face this would rule out substantive reform, given the core of the problem is the ability of big donors, primarily business corporations and unions, to influence government to serve their interests rather than the public interest.

But the shadow minister's opinion would appear to be based on the High Court's 2013 decision in Unions New South Wales v New South Wales, which has since been superseded by a far more important decision the High Court handed down in October, 2015 - a decision which may well provide the kind of shock - of seismic constitutional importance, which Professor Warhurst is calling for.

The High Court decided Unions NSW v NSW on December 18, 2013, ruling that NSW laws on political donations and expenditure were invalid because they were in breach of an important but rarely argued implied constitutional freedom of political communication. This freedom had been recognized since 1992, but this was the first law struck down since that time for its breach. Professor Anne Twomey of the University of Sydney Law School explains the reasoning: