Universities might still be caught in the campaign finance net

A Commonwealth campaign finance bill introduced late last year was strongly opposed by the university and broader NGO sectors. Most organisations commenting on a federal political issues were going to have to report on their donations and implement  highly bureaucratic systems to prevent ‘foreign’ donations to political causes. The bill would also have affected think-tanks such as the Grattan Institute, where I work.

The bill’s overly broad definition of political activity — public expression of views on an issue in an election by any means and/or public expression of views on a political party, MP or candidate by any means — was a longstanding problem in the law. I wrote a paper about it nearly a decade ago. Compared to the existing rules, the bill slightly improved on the status quo by creating some exceptions, including expressing views solely for genuine academic purposes. But in practice, the new campaign finance regulations were likely to lead to a much worse state of affairs than now.

Under the old regime, the AEC did not enforce the letter of the law.  Only organisations engaged in traditional campaign activities ever complied, and nobody was punished for not submitting the required reports on political expenditure and donations. During debate over the government’s bill it became clear that many NGOs in technical breach of the current law had no idea that it existed. But now they know, and MYEFO gave the AEC extra funds to implement the government’s ‘electoral integrity reforms’. That money could be used to increase compliance.

After near-unanimous opposition to its original bill, the government released a draft revision for comment. This seems to have satisfied Universities Australia, but I am not convinced that, despite its improvements, that universities should support the bill in its current form.

The most important positive change is that comment on a federal election issue would not of itself trigger regulation, as it (technically) does now. Regulated electoral matter has to be about influencing the way electors vote by promoting or opposing a party or candidate in the context of a federal election. There is also a dominant purpose test, so that incidental comment would not be covered.

The specific exemptions for university-related activities have also been improved, so that something is not electoral matter if its dominant (rather than sole and genuine) purpose is ‘satirical, academic, educative, or artistic’, taking into account considerations including the dominant purpose of other communication by the same person (emphasis added).

For universities, however, I think this more clarifies than expands on the changes to the general scope of the law. The examples of exempt activity in the explanatory memorandum refer to a journal article on negative campaigning by a political party and a (school) classroom evaluation of party policies. Even without the exemption it would not be hard to argue that the dominant purposes were research and teaching rather than influencing voting (any AEC pursuit of the school teacher would also probably fall over because the school students are unlikely to be voters).*

The clarification does not provide any general exemption for universities or academics, and other aspects of the bill and its explanatory memorandum provide reasons for thinking that they will still be caught in the campaign finance system.

While comment on a potential election issue is no longer within the system by definition, one matter to be taken into account in determining the dominant purpose of a communication is whether it contains an ‘express or implicit comment’ (emphasis added) on a party or candidate. Implicit comment can include issue-related statements.

For instance, the explanatory memorandum says that a billboard opposing a race track in an electorate would be more likely to be classified as electoral matter if some candidates have ‘well-known positions’ on the track. Another example refers to an ‘association of retired economists’ distributing posters and flyers criticising a policy that ‘is a signature part of the legacy of a political party when it was in government’. This is more likely to be electoral matter because it ‘includes implicit opposition to a party that is running for election’.

Almost every day, I hear academics offering their views on issues that by implication could influence people to vote one way or the other. The topic may have little or nothing to do with their research or teaching, and even if it is related to their academic work the communication style and audience may be the same as any other person offering their opinions on the issue of the day. And that is before we get to academics directly supporting, or more likely denouncing, a political party. In these cases of direct mentions, the onus of proof on a dominant purpose would move from the AEC to the person offering the view.

In their individual capacity, most academics will escape the law because they spend less than $13,800 a year promoting their opinions. But it creates interesting issues for their employers, the universities. For most employees, public comment on political matters is clearly not part of their job, and their employer would not be regarded as paying them under campaign finance law to make political statements.

But in universities, this is a grey area. For example, the University of Melbourne’s policy on academic freedom of expression says: ‘The liberty to speak freely extends to making statements on political matters … Scholars may hold their own views and speak freely on all topics, even outside their expertise, and even identifying themselves as members of the University. However, if they speak in public on topics outside their expertise, they should consider whether it is reasonable in the circumstances to link their comments to their association with the University’ (emphasis added).

So the University’s policy seems to be that although they would rather not be associated with comments outside an academic’s expertise, they are permitting it. Does that make those comments part of the academic’s job, and make the university liable for them? If so, does the ‘academic’ exception in the bill’s latest draft cover the views of a scientist on the human rights of refugees, or the views of an arts academic on the science of climate change? Based on the explanatory memorandum example of an article in an academic journal, these comments might be too far from their academic work, even if that work gives them a university-sanctioned platform.

If this kind of commentary is deemed electoral matter and is done on work time, then it potentially counts towards the university’s electoral expenditure. The calculation of electoral expenditure is one aspect of the revised bill that looks worse than the current legislation or the original reform bill. While it has never been entirely clear how expenditure should be calculated, the emphasis on ‘public expression’ implied that spending was on communication. But the revised bill defines electoral expenditure as spending ‘creating or communicating’ electoral matter (emphasis added). That implies that costly staff preparation time should be counted, as well as direct communication costs.

Although the law contains uncertainties, and the AEC has a history of overlooking laws it thinks are impractical, there is an argument that each university is responsible for substantial ‘electoral expenditure’. If they hit $500,000 in a year they become a ‘political campaigner’, which means extra checking on whether donors are ‘foreign’ (they can relax about international students, their fees are not donations), extra management of domestic donors so that they are not exposed to fines for not disclosing university gifts to the AEC, and public disclosure of any political party memberships of senior staff.

Including ordinary university activities in the campaign finance regime would not serve any useful or legitimate purpose. Although rules applying to non-party political activity are sometimes there to harass government opponents, their main respectable justifications are to limit avoidance of the rules governing political parties, and in the case of campaigns with obscure origins to provide some heuristic information via donor disclosure.

These rationales don’t apply for universities. They have their own distinct role in the political system, and were clearly not established to get around the campaign finance laws applying to political parties. Their funding sources are usually too diversified and already too well known to provide any useful additional information via AEC disclosure. They typically have internal mechanisms to limit donor influence. University senior staff don’t have enough control over academics for their political party membership to tell us anything meaningful.

A general exemption for higher education institutions would be sensible, just as the bill already has a general exemption for news media, recognising their particular role in the political system.

A general exemption for universities would still leave academics personally within the scope of the law, if their political activities are too far from their core academic work and cost $13,800 or more. I don’t think academics should have any special political status outside their professional capacity, but the bill needs further amending to clarify that general issue, policy and political analysis and commentary is not within the scope of campaign finance law.

One way to do this would be to more narrowly define the regulated expenditure. This is what NSW law does now, covering traditional written-and-authorised type campaign advertising along with clearly defined other expenditures supporting election campaigns. The existing provisions in the Commonwealth Electoral Act around what has to be authorised would be a starting point for this kind of regulation.

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* This is another of the system’s complexities – although proximity to an election is one factor in deciding what is the dominant purpose, electoral matter directed to people who could be voters by the next election, so aged 15 or more for an election due in three years, is potentially covered.

 

 

 

 

 

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