AIP v ECQ update: judgment

Lost a battle but ahead in the war

Dear ,

"Prohibited donor". It sounds sinister, particularly when you hear about a Queensland think tank that wants to be able to take donations from such people. Who could possibly want to do such an 'ethically bankrupt' thing? Us, that's who.

"Prohibited donor" is a bit of clever legal marketing that stigmatises fellow citizens who are involved in the property development industry, who should be able to support an organisation like ours, just like any other citizen.

Which is why we took the Electoral Commission of Queensland to court.

You may have seen a Courier Mail article saying we lost our action against the Electoral Commission.

As with the term "prohibited donor" understanding the result in AIP v ECQ requires a little nuance. We asked the judge, Mr Justice Peter Applegarth, to make a declaration. He refused because he said it was too hypothetical. However he proceeded to interpret the Electoral Act, as we asked, and confirmed that we are able to take money from 'prohibited donors' contrary to the ECQ's ruling.

The only restriction on this is that we must not use, or have the intention of using, that money to campaign for the election of a party, elected member, or candidate, and neither must the donor. To read his judgment, click here, or to read the court summary of the judgment, click here.

We argued in the first instance that a proper construction of the act meant they could donate to us for electoral expenditure; or that, in the alternative, they should be able to donate to us for anything but electoral expenditure. Our case failed on the first argument but succeeded on the second.

So we lost a battle, but so far we are ahead in the war, although it may cost us some of our treasure.The judge has not made an award of costs, and when he does, he may make them against us, in which case we will need to crowd source some funding.

When I was interviewed yesterday on Steve Austin's ABC program Steve seemed to think we were challenging the legislation. (Click here to listen. Interview starts at 1:37:58.) While we would love to do that, in this instance all we were doing was seeking to have it interpreted in a way that least restricted the rights of "prohibited donors".

What the decision means is we can continue to use our office, which has been donated by Lyn Brazil, a farmer and investor who happens to be a "prohibited donor" because he is subdividing some land he inherited. And Bob Tucker, a full-time developer who has contributed enormously to the political life of our state, can continue as our chair, and continue to solicit support from others, as long as he doesn't do it for any electoral expenditure.

It also means that other members and supporters, like the three medicos, who also have an interest greater than 20% in the sale or lease of land, can continue to come to our functions as well as another of our members who is a "prohibited donor" because he is in partnership with his son building dwellings for the NDIS.

This legislation is bad legislation. It brands people involved in a whole industry as corrupt and prevents them being fully engaged in political life when there is no evidence they are any more corrupt than people in any other industry.

In fact, Operation Belcarra, the Crime and Corruption Commission report from which this legislation came, didn't find any evidence of actual corruption, just a "perception" that there was, which was never quantified by research and was purely anecdotal, and therefore unscientific.

Since then, the only prosecutions for corruption have not been for political donations, but favour curried the old-fashioned way – with brown paper bags full of cash – and most of those charged have come from industries other than property.

Unlike the CCC we did conduct a scientific survey, and found that not only did voters think donations from the property industry might be corrupt, but also those from gaming, unions, alcohol and legal industries. However, they didn't want whole industries banned from donating, they wanted the perpetrators prosecuted instead, which is the correct approach.

This legislation is just about giving the ALP an electoral advantage. They don't receive many property developer donations, and property developers are significant donors to other political parties, so they want to shut down this source of funding for their opponents.

Why do developers give mostly to the LNP? Well I suspect it is because property development is a high-risk industry that attracts individualistic free-enterprise types who support reward for hard work, risk and investment and are successful enough that they have money to go with that support.

As an organisation that fights for those principles it is no wonder that some of our best supporters are also in that industry. We're also an organisation that has done some significant work in the property area as well, including our quarterly housing affordability index (latest one can be downloaded here).

Thanks for your support. If you have any questions, please call me on 0411 104 801, or email me on And if you are a property developer you can relax – the Supreme Court says it's OK to support us.



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