Democracy is a dynamic system of governance that places everyone in a position of influence. It’s only natural, too, for individuals in a democratic society to exercise their influence as best they can. But there are some limits on that. A lot of those limits apply in commercial contexts, as well. The underlying precept of democracy is that each member of society has equal capacity to determine who is elected to government. If some commercial entities in a democratic society then use their resources to gain undue influence over electoral results, that precept is undermined. To prevent any such democratic deterioration, laws have been enacted prohibiting certain behaviour in the context of campaign and election finance.
However, it’s important to recognise that business, and more importantly business owners, have rights as well. Furthermore, those rights extend to activities such as campaign donation, and support. So how can business give weight to their democratic influence, without crossing the line of illegality? To answer that question, you need to know the relevant electoral laws, and their purposes.
The Commonwealth Electoral Act governs campaign finance and electoral laws in Australia
Getting to know any law means going to its source. And in the case of campaign finance laws, the source is the Commonwealth Electoral Act. That act is the source of almost all electoral law in Australia. Its origins are traceable to the Constitution, as well, which is the most prominent guide to Australian government, and its powers. The Electoral Act offers numerous different provisions relating to campaign finance. Some of those provisions are centred on bribery, while others take a more regulatory approach. Importantly, though, many are offence-making provisions. That is to say, contravening those provisions can result in criminal punishment, including imprisonment. That really underscores the importance of taking steps to remain in line with electoral laws.
So how do campaign finance laws differ from broader laws against bribery?
Bribery is a criminal offence, dealt with primarily under the Criminal Code. It has its own criteria, which must be met to establish an offence. So how does that offence interrelate with the ones set out in the Electoral Act? The Electoral Act has a very specific purpose: the administration of democratic elections. As a result of the purpose, the Act is constrained, to some degree, in its extent. Essentially, the Act is operative only where certain behaviour is done with a view to affecting or dealing with elections.
Bribery under the Code, on the other hand, is far broader. It pertains, quite widely, to activities undertaken with a view to gaining favour with officials, elected or otherwise. In addition to that, bribery under the Act is a little more complex. That is due to the accepted system of political donation, which is found in most democratic countries. The Electoral Act has to prevent bribery, without affecting the right of individuals and business to donate to their preferred political candidates. To that end, bribery provisions in the Act are something of a balancing act.
Improper influence is a central focus of the Electoral Act’s campaign finance laws
To set parameters around the electoral offence of bribery, the Act has taken the notion of undue influence and applied to electoral settings. The most notable example of that is section 326. In that section, undue influence is indirectly defined as influence that extends over such factors as votes, candidature, and political support. By covering those factors, the Act seeks to preclude votes, candidature, and political support from becoming a tradeable currency. That is understandable, too, having regard for the purposes of democracy. If votes become a tradeable commodity, then democratic influence will skew dramatically in favour of well-resourced members of the community.
Bribery under the Criminal Code is also connected to electoral laws – here’s how
Bribery under the Criminal Code may lack certain features of bribery under electoral law. But it still warrants a mention in the Electoral Act. Specifically, in section 386 of the Act, anyone convicted of a bribery offence under electoral law, or the Criminal Code, cannot sit as a member of parliament or senator for a period of two years, following their conviction. That is a unique extension of liability, which underlines the importance of accountable electoral finance in healthy democratic systems. According to the Act, campaign finance and bribery offences are of such gravity that those who commit them should be precluded from parliament.
Of course, for those who donate to political candidates in a transparent and honest way, there is no cause for concern. Those donations, though, ought to be well considered and completed according to the relevant electoral laws and regulations. That’s where professional legal advice is important.
By Finian McGrath
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