In the green paper, the Special Minister of State says:
[W]e rightly value core democratic values: fairness, transparency, political integrity. Australians also want a healthy political system, with impartial umpires and processes underpinning our electoral system, keeping our campaigning fair and transparent and ensuring our systems are free from corruption and improper influences.[24]
This is an argument for better political governance. Greater fairness, transparency and political integrity require improved political governance.
Political governance includes how a political party operates, how it is managed, its corporate and other structures, the provisions of its constitution, how it resolves disputes and conflicts of interest, its ethical culture and its level of transparency and accountability. As the green paper implicitly acknowledges, electoral reform also requires attention to aspects of political governance such as transparency and accountability.
All registered political parties should be obliged to meet minimum standards of accountability and internal democracy. Given the public funding of elections, the immense power of political parties (at least of some parties) and their vital role in our government and our democracy, it is proper to insist that such standards be met.
At present, there are two governance areas in politics that are regulated by statute to a degree: the registration of political parties, and funding and disclosure. The statutory registration of political parties is well managed by the Australian Electoral Commission (AEC), as a necessary part of election mechanics, but the regulation of funding and disclosure is weak.
Although they are private organisations in terms of their legal form, political parties by their role, function, importance and access to public funding are of great public concern. The courts are catching up to that understanding.[25] Nevertheless, the common law has been of little assistance in providing necessary safeguards. To date, the courts have been largely reluctant to apply common law principles (such as on membership or preselections) to political party constitutions, although they have determined that disputes within political parties are justiciable.
The AEC dealt with a number of these issues in Recommendations 13–16 in the AEC Funding and Disclosure Report Election 98. Recommendation 16 asks that the Commonwealth Electoral Act 1918 (CEA) provide the AEC with the power to set standard, minimum rules, which would apply to registered political parties where the parties’ own constitution is silent or unclear. This is a significant accountability recommendation.
The Joint Standing Committee on Electoral Matters’ (JSCEM) 1998 report recommended (no. 52) that political parties be required to lodge a constitution with the AEC that must contain certain minimal elements. This recommendation was a significant one, but it did not go far enough. In their report into the 2004 election, in Recommendation 19, to its credit, the JSCEM again recommended that political parties be required to lodge a constitution with the AEC that must contain certain minimal elements.
Political parties exercise public power and the terms on which they do so must be open to public scrutiny. The fact that most party constitutions are secret prevents proper public scrutiny of political parties. Party constitutions should be publicly available documents updated at least once every electoral cycle. (The JSCEM was once told by the AEC that a particular party constitution had not been updated in its records for 16 years.)
To bring political parties under the type of accountability regime that befits their role in our system of government, the following reforms are needed:
The Commonwealth Electoral Act should be amended to require standard items be set out in a political party’s constitution to gain registration, similar to the requirements under corporations law for the constitution of companies.
Party constitutions should specify the conditions and rules of party membership; how office bearers are preselected and selected; how preselection of candidates is conducted; the processes for the resolution of disputes and conflicts of interest; the processes for changing the constitution; and processes for administration and management.
Party constitutions should also provide for the rights of members in specified classes of membership to: take part in the conduct of party affairs, either directly or through freely chosen representatives; to freely express choices about party matters, including the choice of candidates for elections; and to exercise a vote of equal value with the vote of any other members in the same class of membership.
Party constitutions should be open to public scrutiny and updated on the public register at least once every electoral cycle.
The AEC should be empowered to oversee all important ballots within political parties. At the very least, the law should permit them to do so at the request of a registered political party.
The AEC should also be empowered to investigate any allegations of a serious breach of a party constitution and be able to apply an administrative penalty.
Changes to political governance such as these do not need COAG approval, although its support would be welcome. Such reforms to Commonwealth law would inevitably flow onto the conduct of state political participants, since nearly all registered state participants are also registered federal parties.
[24] Donations, Funding and Expenditure, p. 1.
[25] Baldwin vs Everingham, (1993) 1 QLDR 10; Thornley & Heffernan, CLS 1995 NSWSC EQ 150 and CLS 1995 NSWSC EQ 206; Sullivan vs Della Bosca, (1999) NSWSC 136; Clarke vs Australian Labor Party, (1999) 74 SASR 109 and Clarke vs Australian Labor Party (SA Branch); Hurley and Ors and Brown, (1999) SASC 365 and 415; Tucker vs Herron and others, (2001), Supreme Court QLD 6735 of 2001.