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The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors

 
Unreported Citation: [2020] QSC 54
EDITOR'S NOTE

The applicant, Australian Institute for Progress Ltd (“AIP”), advised the respondent, Electoral Commission of Queensland (“Commission”), that the AIP intended to conduct activities in the State election, including potentially recommending a vote for or against particular parties or candidates. The AIP noted that its funding sources included “prohibited donors” under the Electoral Act 1992, and asked the Commission whether it was legal for prohibited donors to donate to the AIP if it conducted its foreshadowed activities. After the Commission advised the AIP would likely be committing an offence by accepting donations from prohibited donors and incurring electoral expenditure, the AIP sought declaratory relief. In support of its application, the AIP argued that, on its proper construction, s 274(1)(b) Electoral Act 1992 was concerned only with expenditure “on behalf of” entities in s 274(1)(a), being a political party, an elected member, or a candidate in an election. Applegarth J dismissed the application.

Applegarth J

30 March 2020

Background

The applicant, the Australian Institute for Progress Ltd (“AIP”), advised the respondent, the Electoral Commission of Queensland (“Commission”), that the AIP intended to conduct activities in the State election, including potentially recommending a vote for or against particular parties or candidates. [1], [6]–[7]. The AIP noted that its funding sources included “prohibited donors” under the Electoral Act 1992, and asked the Commission to advise whether it was legal for prohibited donors to donate to the AIP if it conducted its foreshadowed activities. [7].

After the Commission informed the AIP that it would likely be committing an offence by accepting donations from prohibited donors and incurring electoral expenditure, the AIP sought declaratory relief, including in respect of the proper construction of s 274(1)(b) Electoral Act 1992. [8], [10]–[11]. Relevantly, s 274(1)(b) defines the term “political donation” (for the purposes of the prohibitions in s 275) to include “a gift to another entity … to enable the entity to … incur electoral expenditure”. [4], [78].

In support of its application, the AIP submitted that s 274(1)(a) is only concerned with “electoral expenditure” (relevantly, “expenditure incurred for the purpose of a campaign or election”), “on behalf of” the entities in s 274(1)(a), being a political party, an elected member, or a candidate in an election. [4], [18]. It also contended that the word “campaign”, in the further definition of “electoral expenditure”, was similarly confined. [94]. Finally, it argued that the interpretation of the Electoral Act 1992 adopted by the Commission creates surplus words in s 274(1)(b), and offends the principle of legality. [100], [102].

The proper construction of s 274(1)(b)

Applegarth J observed that the construction of s 274(1)(b) promoted by the AIP required words to be read into the section which might easily have been added by Parliament. [80], [140]. His Honour explained that rather than being confined to prevent electoral expenditure “on behalf of” the entities in s 274(1)(a), the section also applies to campaigns by other entities which have “the election of a party because the party supports policies for which the entity advocates” as their objective. [94]–[99], [141].

Construing s 274(1)(b) in its context, his Honour highlighted that, if given the construction preferred by the AIP, s 274(1)(b) would add nothing to the section, because any relevant gift would already have been captured by s 274(1)(a). [81], [142]. Contrary to submissions by the AIP, His Honour did not consider that such an interpretation rendered any words within s 274(1)(b) surplusage. [100]–[101], [143]. Rather, the words of the provision apply to enable an entity to make a donation to a political party, an elected member, or a candidate in an election, where the gift is for a purpose other than electoral expenditure. [101], [143].

His Honour noted that the proper construction of s 274(1)(b) also did not offend the principle of legality, because it did not have the effect of entirely precluding prohibited donors from participating in the political process. [103], [144]. Applegarth J identified that prohibited donors are free to engage in political discussion in other ways, including by running political advertisement and engaging in political discussion on their own behalf. [103]–[105], [145]. In the circumstances, his Honour concluded that s 274(1)(b) should not be construed in the way argued by the AIP. [145].

Application of s 48 Human Rights Act 2019

While the AIP did not press submissions regarding s 48 Human Rights Act 2019, Applegarth J considered the Act relevant to the construction of s 274(1)(b). [76]–[77], [112]–[113]. His Honour accepted that while the AIP does not have such rights, the application of the Electoral Act is capable of affecting human rights by limiting the freedom of expression and right of individuals to take part in public life by funding the AIP. [119]–[120]. However, in his Honour’s view, the limitations imposed were justifiable “in a free and democratic society based on dignity, equality and freedom”. [135].

Declaratory relief

Applegarth J also made clear that the question raised for the purpose of seeking declarations were not appropriate. [46]–[51], [152]–[156]. His Honour observed that as presented, the answer to the questions remained dependent on additional variable factors. [47]–[48], [153]–[154]. In those circumstances, Applegarth J concluded that the declarations lacked utility, such that it would be inappropriate to grant any of them. [53]–[54], [155].

Disposition

In the result, Applegarth J dismissed the application. [158].

B McNamara