Recent revelations surrounding the Abbott-controlled ‘Australians for Honest Politics’ Trust (AHP Trust) and the involvement of Harold Clough, a wealthy Liberal supporter, in funding litigation against the Western Australian Division of the Democrats indicate that litigation is increasingly becoming another means of politics.
The use of litigation for party-political purposes throws up two significant issues.
Firstly, there is the secrecy surrounding the financiers of political litigation. A crucial issue is whether entities set up to engage in political litigation like AHP Trust are required to disclose the identities of their financiers under the Commonwealth Electoral Act. It is most likely that they do as ‘associated entities’; a concept that embraces entities operating to a significant extent for the benefit of one or more registered political parties.
In the case of AHP Trust, newspaper accounts suggest that Abbott controlled the activities of the fund. Moreover, while the key purpose of the trust was to fund anti-One Nation litigation, such litigation was simultaneously directed at advancing the Liberal Party’s interests. Moreover, the adverse impact of the litigation clearly conferred an electoral advantage on the Liberal Party. In other words, the combination of control, motivation and effect meant that the AHP Trust was operated by Abbott for the benefit of the Liberal Party. It was, therefore, an ‘associated entity’ under the Electoral Act and should have been required to disclose the identities of its financiers. The solution then for the secrecy surrounding the financiers of political litigation is reasonably clear: a robust interpretation and enforcement of the Electoral Act.
Secondly, political litigation sharpens the inequalities between the parties. As it stands, the monies available to the parties vary greatly largely because of the corporate contributions received by the major parties. For instance, the 2001/2002 party returns lodged with the Australian Electoral Commission reveal that the amount of private monies received by the federal ALP was more than 30 times greater than that received by the Greens. In the case of the federal Liberal Party, this ratio doubled to 60. Such disparity is astounding and bears no relationship to the electoral support these parties enjoy.
Such inequality is clearly felt during elections especially given the prohibitive cost of radio and television advertisements. At the ballot box, however, such inequality is tempered by the democratic discipline of the vote.
A different logic prevails in the legal arena. This is an arena where lawyers battle with appeals to the law. In this forum, the costs of proceedings can be very substantial. The unequal resources available to the parties, however, mean that they are not able to bear the burden of such costs to the same extent. It is this that makes political litigation a particularly potent tactic against minor parties. If political litigation becomes the norm, it will then become another way of insulating the major political parties against less well-off competitors.
The solution to this issue does not lie with prohibiting political litigation. There is no good reason for immunising any political party from the rule of law. Proper disclosure and ensuing publicity, however, will go some way to moderate any aggressive use of political litigation. At the same time, a key source of the minor parties’ vulnerability to political litigation must be tackled, that is, the unequal resources available to the parties. This must mean tougher measures relating to corporate contributions to political parties.
Joo-Cheong Tham, Associate Lecturer, School of Law and Legal Studies, La Trobe University, wrote a chapter on campaign finance reform in ‘Realising Democracy: Electoral Law in Australia’ Federation Press, forthcoming.