Judge reserves his decision

Dear ,

We appeared in court on Thursday March 12 in our action against the Electoral Commission of Queensland, but the matter was adjourned until Monday March 16 at 1:15 pm when it was heard.

Originally the Queensland Human Rights Commission was not going to intervene, but by Monday morning it had decided it should. This is the first court action which has involved the Queensland Human Rights Act.

His honour, Justice Peter Applegarth, has reserved his judgment. He indicated he would get to it as quickly as he could, but that he had other matters that he could not necessarily pass on to other judges, so it would not be immediately.

You can click here to go to a page on our website which has the various documents you need to follow this case in detail. The hearing took three and a quarter hours.

The action is about the right of people who are classed as “prohibited donors” to donate to organisations that are involved in political advocacy. The Electoral Commission thinks they have no right under the legislation, we believe that as long as the donee is not a political party they have every right.

Being a “prohibited donor” does not mean that you are a full-time property developer. It could easily be a parent who has “grub-staked” their child to go into business building townhouses for the NDIS (this is not hypothetical, it is one of our members).

There is undoubtedly some corruption in the property development industry, as there is in many other industries, but that doesn’t justify criminalising the political activities of the whole industry, which is what the ECQ interpretation would do.

Court cases are not generally about the ethics, they are about the law. From a legal point of view there were four things at issue, although we were only relying on the first two and other parties introduced the others:

• Whether the matter was hypothetical and therefore beyond the ability of the court to issue a declaration
• What the proper construction of the statute was which broke down to:
• Definition of “electoral expenditure” (there are three definitions in the act)
• Definition of “campaign”
• Surplusage (technical, but a statute has to be read in such a way that the least number of words are wasted).
• Whether the Queensland Human Rights Act was engaged, and how this affected the statute
• The implied right of political communication in the Australian Constitution

We await Justice Applegarth’s judgment with interest to know how these played out in his mind, and I will not be trying to second guess him.

However the judgment will not be the end of the story. What it will do is define what we are able to do in the context of the next state election.

Holding this government to account has now become much more important with the potential prorogation of parliament for six months. While the government has used the excuse of COVID-19, many other services companies are continuing to operate because they have worked out how to do it.

If the parliament does not want members gathering for meetings, perhaps they could discover Skype (it’s only been going for 17 years) or video conferencing, which has been in operation for even longer.

But that’s not what the prorogation is about, or what the “prohibited donors” scheme is about.

The scheme was never about stopping corruption. (The CCC Belcarra Report, which recommended it for councils, didn’t find any corruption by property developers at all, anyway.) It was always about reducing the ability of political and civil society organisations to hold the government to account by taking away one stream of income.

We refuse to see democratic rights stripped away from us and others and will carry on the fight however we must.

Regards,



GRAHAM YOUNG
EXECUTIVE DIRECTOR
AUSTRALIAN INSTITUTE FOR PROGRESS