Turnbull’s 18C on steroids

Rahm Emmanuel, one-time Chief of Staff in the Obama Administration, once said: ‘You never let a serious crisis go to waste… It’s an opportunity to do things you think you could not do before.’

It would seem that the Turnbull government is using the perceived crisis of ‘foreign influence’ in our political system to tweak federal electoral regulations in its favour. In doing so, the government has unleashed 18C on steroids. It is not only compromising freedom of speech, but also opening up a range of unintended consequences for a swag of civic groups unrelated to the political process.

The Electoral Legislation Amendment (Electoral Funding and Disclosure) Bill was rushed into Parliament late last year, ostensibly in response to the Sam Dastyari affair. Its supposed purpose is to ban political donations from foreign sources, which it does.

But critically, there is more to the bill than that. Not only does it tighten the existing provisions of the Commonwealth Electoral Act, but it also vastly extends its application to a range of new entities.

Currently, electoral law applies almost entirely to political parties, their associated entities, and candidates. In its bill, the government is seeking to apply many of the Act’s requirements to ‘non-party political actors’. That is, groups other than political parties that actively campaign in elections.

Clearly, the government is going after political irritants. Many within the Coalition are adamant that their electoral woes are the fault of increasingly energetic ‘non-party actors’.

But using the power of the state to silence political opponents is something one would expect from a left-wing government, as the Gillard government attempted to do with Stephen Conroy’s draconian media laws. As was the case with Section 18C of the Racial Discrimination Act, conservatives, classical liberals and libertarians alike should be extremely concerned at the restrictions on freedom of speech in this bill.

A Liberal government worthy of its name should aim to increase freedom of political communication, not restrict it. Instead, the government’s bill is the latest in a series of electoral ‘reforms’ made over the years that have chipped away at free speech in the political sphere. Electoral regulation is necessary, but it should be limited to establishing the structures through which free and fair elections take place. But over time, electoral law has become less concerned with regulating the conduct of elections and more preoccupied with ‘managing’ the broader political debate. Dressed up in motherhood buzzwords like ‘transparency’ and ‘accountability’, these laws presume that voters, if left to their own devices, will make impulsive or misguided decisions at the ballot box. To encourage ‘informed’ choices, it is argued, the state must keep debate ‘fair’ by enforcing rules about the way in which political parties disseminate their message. This notion is as dangerous as it is erroneous. Freedom of communication is indispensable in a truly free electoral system. To regulate speech is to regulate the very essence of democracy.

Worse still the bill, as currently drafted, will go far beyond its intentions. The vast majority of the entities that will be affected have absolutely no engagement with the political process. Under the bill, an organisation will need to register as a ‘politcal’ and ‘third party campaigner’ if it incurs a certain amount of ‘political expenditure’. Such expenditure may include ‘[t]he public expression, by any means, of views on an issue that is, or is likely to be, before voters in an election’.

Of course, every conceivable issue may be ‘before voters’ at an election, given that people cast their vote for all manner of reasons. This means that any organisation expressing an opinion on any public policy matter whatsoever could end up being brought within the remit of the Electoral Act. The bill could affect, for example, a charity expressing a view on homelessness, an indigenous organisation opining on the state of remote communities, or a sporting club lobbying council to upgrade parks and leisure facilities.

The bill will therefore impose a substantial compliance burden on civil society. Requirements include registration with the AEC, filing annual financial returns and all manner of red tape surrounding the acceptance of donations. Non-compliance may attract criminal penalties, and many requirements are duplicated from those that already exist under charities and non-profits law. The result will be a substantial ‘chilling effect’ on public debate, one that will not be limited to the Left.

The Catholic Archdiocese of Sydney, for example, claims that the bill ‘will adversely affect the practice of its religion in material ways.’ The church warns that ‘accepting anonymous donations… will be impractical, engaging in advocacy… will be limited and curtailed and… the freedom of priests to preach the word of God and speak to relevant issues of social significance will be undermined.’

Curiously, media organisations are among the few exemptions to the new requirements. That means that an opinion expressed by, say, the head of a religious charity would be considered ‘political activity’, but the opinion of a presenter on the ABC would not. A blog post on the website of an industry association like the National Farmers Federation would be caught by the Electoral Act, but not an opinion piece in the Guardian. There is no good reason for this arbitrary double standard.

Perhaps the worst aspect of the bill is the precedent that it sets. For the first time, civic groups will be forced to register with a government statutory authority for no other reason than mere speech. This is fundamentally undemocratic. Genuine democracy means more than just the ability to cast a vote every few years. It means the freedom to express an opinion on public policy matters without interference from the state. Upon toppling Tony Abbott in 2015, Malcolm Turnbull promised a ‘thoroughly liberal government, committed to freedom’. If the Prime Minister had a shred of sincerity back then, he would abandon this thoroughly illiberal law now.