Analysis: What happens next with Tasmania’s political donations disclosure law?

The success of the Tasmanian Liberal and Labor parties in pushing through Australia’s worst state-based political donations disclosure legislation may well come back to haunt them.

The Liberal government angered all seven independent Legislative Council MPs by refusing any significant concessions or detailed explanations of its position on critical provisions in the bill.

The Labor party, having talked up its determination to strengthen the flawed bill over the past year, abandoned its proposed amendments at the last minute and ruled out supporting any others. Labor has burnt a lot of goodwill with independent MPs and civil society.

First, a quick recap. The Electoral Disclosure and Funding Bill requires the disclosure of donations to a registered party or candidate of more than $5000 in a year. Disclosures will be made public every six months outside an election period, and up to two weeks after the receipt of a donation within one. The bill authorises public funding of $6 per vote for parties and candidates that attract more than 4 per cent of the primary vote in House of Assembly elections but – unlike most other states – does not set a campaign spending cap. The Tasmanian Electoral Commission will provide administrative funding to parties and candidates running in House of Assembly elections but not for the Legislative Council.

During the Legislative Council debate, the government agreed to three amendments. The first addressed flaws in the public funding methodology identified by election analyst Kevin Bonham. Another amendment moved by the member for Hobart, Rob Valentine, sought to ensure that advocacy by community groups would not be classified as electoral spending. The third change was a proposal by the member for Nelson, Meg Webb, to require an independent review of the operation of the new legislation after the next election. The government agreed to support this change only if the mandatory review was after two state elections.

The only defeat for the government came when all seven independents voted against the proposed revocation of an existing ban on the unauthorised use of candidates’ names or images during an election campaign. With the vote locked at seven all, the proposed amendment was lost. The government brought this defeat on itself. Several independent MPs indicated they would have been more inclined to support the change if the government had supported an amendment requiring truth in political advertising.

Labor MPs sat silently through the debate on all these amendments.

Labor’s strategy was self-serving: it sat on the sidelines while the independents struggled to persuade the government to accept improvements, and then absolved itself of all responsibility for the flaws in the bill they voted for without a whisper of dissent.

Initially, Labor had said it wouldn’t support any amendments, claiming this could give the government an excuse to either not bring the bill on for finalisation in the house or stall its implementation until after the next election. After the government made clear it would support amendments to address Bonham’s concerns, Labor changed its position from opposing all amendments to supporting only amendments the government agreed to.

Labor’s justification for its position is flimsy. Would the minority Liberal government really have stalled the bill if Labor had supported a mandatory review of the act in 2025, after one election, rather than in 2029 after two?

What if Labor had supported lowering the public funding rate from the unexplained $6 per vote to the $3.35 per vote proposed by MP Tania Rattray? What other amendments would the government have agreed to if Labor MPs had raised their voice?

Labor’s strategy was self-serving: it sat on the sidelines while the independents struggled to persuade the government to accept improvements, and then absolved itself of all responsibility for the flaws in the bill they voted for without a whisper of dissent. It is important to note that Labor has a financial stake in the passage of the bill: it can reap the benefits from pre-election public funding that will give it a financial advantage over independent and minor party candidates.

Plenty of flaws remain in the bill. It includes a loophole that means donations made in the last two weeks of the campaign – such as the $57,000 contributed by the Tasmanian Hospitality Association two days before the 2018 election – may still not have to be disclosed before people vote. No business sector has been banned from donating, leaving tobacco companies, property developers and gaming interests eligible to fund parties and candidates. Truth in political advertising is still not a legal requirement.

What happens next?

After the Legislative Council finally passed the bill, Attorney-General Guy Barnett told the House of Assembly it was expected the act would come into effect before the next election. But he warned it would take time for the Tasmanian Electoral Commission to recruit new staff, develop an online disclosure portal and speak with affected political parties and candidates.

There seems to be little prospect that the new scheme will be in place ahead of the May 2024 Legislative Council elections for the seats of Hobart and Prosser. The current member of Hobart, Rob Valentine, is retiring. Liberal MP Jane Howlett is recontesting in the seat of Prosser.

The Liberal government was always a reluctant convert to electoral reform, and Labor has revealed it is, at best, a fair weather friend of ensuring Tasmania comprehensively regulates political donations.

Under current rules, spending in 2024 Legislative Council campaigns is capped at $19,500, but no disclosure is required. A single donor could contribute the entire campaign budget for a candidate but the public would not have to be told.

In the absence of mandatory disclosure, will candidates voluntarily reveal their donors? The Greens voluntarily disclose donations over $1500 on their website. Ahead of the snap May 2021 state election, Premier Gutwein sought to deflect concern about the lack of the electoral reform promised in 2018 by committing to the voluntary disclosure of donations over $5000. Labor matched Gutwein’s commitment. Will they do the same again? Despite Gutwein’s voluntary disclosure commitment, Liberal campaign posters soon sported “we love our secret donors” stickers.

Asked by the ABC if Labor would disclose all donations over $1000, Rebecca White said it would be “complying with the law” and that voluntary disclosure was a matter for the organisational wing of the party. Tasmanian Inquirer sought clarification from Labor State Secretary Simon Benson, but received no response. (Benson has been preselected as a candidate for the state seat of Clark.)

The major parties’ position may ultimately fuel a public backlash. The Jacqui Lambie Network, which is aiming to field candidates at the state election, has joined the independents in backing the voluntary disclosure of donations over $1000, and EMRS polling suggests voters may be drifting to alternatives from the status quo. The pressure on all players to voluntarily disclose donors of more than $1000 will likely intensify.

Concern is likely to be further stoked if existing parties win approval for hundreds of thousands of dollars in pre-election public funding, further privileging incumbents ahead of first-time candidates.

There may yet be another twist in this story. In her final comments in the debate on the amended bill, the Shadow Attorney-General Ella Haddad foreshadowed that Labor would introduce a private members bill to lower the disclosure threshold to $1000, set a campaign spending cap and increase the reporting frequency. Adopting these amendments before the next election will be contingent on winning the support of former Liberals turned independents Lara Alexander and John Tucker. Haddad said Labor is committed to further but unspecified reforms “in government”.

In response to questions from ABC journalist Adam Holmes at a November 26 media conference, White said Labor was hoping to release a draft private members bill on its preferred electoral reforms for consultation later this year and introduce it in early 2024. Tasmanian Inquirer sought clarification on which house the bill would be introduced in, but did not receive a direct response.

At this point it is hard to know what to make of this. It is unclear whether Labor would support amendments from independent MPs. Does Labor support a ban on tobacco industry donations? Does it back a review of the new law after the next election? What about Rattray’s proposed reduction of public funding from $6 per vote to $3.35 per vote? Labor did not comment on any of these amendments in the Legislative Council debate and voted against them.

If the new act remains unchanged before the next state election, Tasmanians will likely discover how little disclosure is actually achieved with a $5000 threshold. In South Australia, a similar threshold has resulted in the disclosure of less than one-third of Liberal party income. It is also likely to become apparent that providing public funding without imposing a campaign spending cap extends the financial advantage given to incumbents.

Since the passage of the government’s bill through parliament, the Liberal and Labor parties have been busy claiming credit for their respective roles. The Liberal government claimed the final bill “brings Tasmania in line with other jurisdictions” when it doesn’t. The Labor party acknowledges the bill means Tasmania has the “worst donation laws in the country” but suggests voters should be thankful to them for what was adopted.

More than 17 years after the shadowy Tasmanians for a Better Future campaign against the Greens ahead of the 2006 election triggered calls for electoral reform (see an explainer here) and five years on from the 2018 pro-pokies gambling industry advertising blitz, Tasmania still has a long way to go in ensuring voters know who is donating to candidates and parties before polling day.

The Liberal government was always a reluctant convert to electoral reform, and Labor has revealed it is, at best, a fair weather friend of ensuring Tasmania comprehensively regulates political donations. Once again, whether Tasmania graduates from being a donations disclosure laggard to a leader will come down to the sustained efforts of the coalition of civil society groups and MPs exasperated with the slow progress made in enacting basic good governance standards.