ELECTION FUNDING, EXPENDITURE AND DISCLOSURES CONSEQUENTIAL AMENDMENT BILL 2014

Second Reading Speech, NSW Legislative Assembly, Wednesday 28th May 2014

Mr GARETH WARD (Kiama) [4.23 p.m.]: I speak in debate to the Election Funding Expenditure and Disclosures Consequential Amendment Bill 2014. Before I do I will respond to some of the comments made by the Leader of the Opposition. When this legislation was introduced in its original form, its intent was to ban third party contributions from corporations and unions. The Parliament sought to do that to clean up political contributions and donations for deals in New South Wales. After listening to the Leader of the Opposition, I am now convinced that his residential address is in a parallel universe and one would need to use Dr Who’s TARDIS to locate its location. I remember being in the building when the member for Toongabbie was knifed. He was knifed because he had the courage of his convictions to ban donations from developers. Joe Tripodi, Eddie Obeid and the right faction of Labor then took to him with the sharpest axe they could find. At a press conference at Governor Macquarie Tower, the member for Toongabbie said:

Should I not be Premier by the end of this day, let there be no doubt in the community’s mind, no doubt, that any challenger will be a puppet of Eddie Obeid and Joe Tripodi.

Labor introduced a section of the planning Act known as part 3A, which was consistently used to funnel donations into Labor for decisions.

Mr Robert Furolo: Where is your evidence?

Mr GARETH WARD: I acknowledge the interjection from the member for Lakemba. Where is the evidence? In fact, it is in my electorate in the Calderwood development. The Department of Planning and Infrastructure stated this development should not progress. Months later after donations were received from the applicant, Kristina Keneally, who was the then Minister for Planning and Infrastructure, agreed to planning approval. Tony Kelly approved rezoning. This particular development was to receive approval for the concept stage when, as the Liberal candidate for Kiama, I exposed the donation and the fact that that particular development had not been presented to the Planning and Assessment Commission. In an embarrassing public backdown, Tony Kelly had to say there had been an administrative error. There was no administrative error. There was a culture of donations for deals within the former Government and the Liberal-Nationals Government has sought to clean it up. If one is not on the electoral roll, why would one want to make a contribution? Clearly something is wanted in return, which is why this was sensible legislation.

Mr Ron Hoenig: It was unconstitutional and you knew it.

Mr GARETH WARD: I acknowledge the constitutional question from the member for Heffron. He knows how free speech cases began—Theophanous, Stevens and Langley. I am sure he could regale us about the attempts by the Keating Government in 1991 to ban paid advertising by political parties on the basis of a pre-elected Parliament. Rightfully, the legislation was struck down by the High Court because of the way the Parliament of Australia sought to gerrymander political advertising to benefit political parties. The legislation sought to limit contributions to people on the electoral roll. Labor opposed it because their union masters control everything it does in every way every day.

This side of the House is not captive to the interests that Labor is. We do not have business councils on our preselections mandated by our constitution. The Liberal Party and The Nationals will not be bought by any one interest, unlike the Labor Party which is owned wholly and solely by the trade union movement. I will not be lectured by members of such a party. Labor’s attempt to mount a case with any degree of intellectual expression is beyond the pale in the extreme. I now turn to the Election Funding, Expenditure and Disclosures Consequential Amendment Bill 2014.

Mr Clayton Barr: About time, 4½ minutes in.

Mr GARETH WARD: I can come back to the member for Cessnock. As chairman of the Joint Standing Committee on Electoral Matters, I am delighted to speak in debate to this bill, which will address the gap in election funding regulation that has arisen following a recent High Court decision. As a result of this bill, all disclosure obligations that previously applied to corporate donations will be restored. This bill will ensure that corporate donations made since the corporate donations ban was struck down on 18 December 2013 do not simply slip through a regulatory loophole. It is an essential step in the regulation of political donations in this State.

Under the Election Funding, Expenditure and Disclosures Act 1981, political parties, elected members, candidates, groups, third party campaigners and major political donors are required to make certain disclosures in relation to political donations and electoral expenditure over the course of an annual disclosure period ending on 30 June each financial year. The amendments contained in the bill will apply to donations made or received during the current disclosure period, that is, before 30 June this financial year. So that affected individuals and other entities have adequate notice of these amendments, it is important that the passage of this bill is not delayed. For fairness, I note that the bill allows extra time for compliance for certain affected obligations until 28 days after the commencement of the amending Act or for such longer period as the Electoral Commissioner may allow. There is already a time buffer for other obligations, as most disclosures are required to be made within 12 weeks after the end of the disclosure period ending 30 June 2014.

In the case of a disclosure made by a major political donor, other than a donor who was also a third party campaigner, these disclosures must be made within sixteen weeks after the end of the disclosure period. It was originally intended that the amendments in this bill would form part of the Government’s rewrite of the Parliamentary Electorates and Elections Act 1912, which was announced in 2013. Work on that rewrite is well advanced. However, the Government decided to progress these particular amendments in a stand-alone bill.

As has been explained already, the amendments in this bill will operate retrospectively to ensure that no corporate donations fall through any regulatory gap. For fairness, the bill does allow extra time for compliance with certain affected obligations, as I mentioned earlier. There is already a buffer, and I have mentioned the buffer in relation to the context and framework of the bill. Unless the amendments contained in this bill operate retrospectively there will be a gap in corporate donations made between 18 December 2013 and the commencement of the amendments. This will be a significant loophole in election funding regulation. Applying these amendments retrospectively will help to enhance the transparency and accountability of election funding and expenditure.

For fairness, the bill does allow extra time for compliance with certain affected obligations as mentioned. There is already the buffer for other disclosure obligations, as most disclosures are required to be made within 12 weeks after the end of the disclosure period on 30 June 2014. In the case of a disclosure made by a major political donor, other than a donor who is also a third party campaigner, these disclosures must be made within 16 weeks after the end of the disclosure period.

In Unions NSW v State of New South Wales the High Court found the 2012 reforms to be invalid because they impeded freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution and its conventions. The effect of a High Court decision that a law is constitutionally invalid is that the offending provisions are taken to have been invalid from the outset and therefore were never law at all, that is, sections 96C and 96D. On this basis, it may be suggested that the bill should be completely retrospective to 2012. However, this would result in an unusual situation whereby the disclosure requirements under the Election Funding, Expenditure and Disclosures Act would apply to corporate donations that were not permitted under the law as it then was. Therefore, there would be little utility in making this bill retrospective to the date of the 2012 amendments as outlined.

There also may be practical difficulties in lengthening the period within which the bill will be taken to have retrospective operation, given that the amendments would apply to disclosure periods that have since concluded. The date of the High Court’s decision in Unions NSW v State of New South Wales is the date on which people became aware that the ban on corporate donations did not apply. It is sensible that the associated consequential amendments are only reversed to this date as a result. Retrospectivity to the date of the High Court’s decision closes a loophole without creating unworkable new rules for past disclosure periods.

This is a sensible amendment. The Premier is committed to greater transparency and accountability in relation to donation laws. We remember the donations-for-deals culture of those opposite, which cost a former Premier his tenure. We remember the way in which government was used to benefit the interests of those opposite. I will always stand up to whoever is in government and whatever party is in control to ensure that we have transparent and accountable provisions. Currently there is a feeling in the community that all of us in this place are the same. I know that is not true not only of those on my side but also of others opposite. It is up to those of us who believe in transparency, accountability and good government to stand up for those principles today.

– ENDS –