The Times Australia
The Times World News

.

South Australia’s plan to ban political donations raises big risks as well as benefits

  • Written by Anne Twomey, Professor Emerita in Constitutional Law, University of Sydney

The South Australian government has proposed[1] banning political donations because of the risk and the perception that they buy undue influence and fuel corruption. Premier Peter Malinauskas said[2] the aim was to “give South Australians confidence that decisions are being made because they’re the right thing to do”, rather than reciprocation for donations.

Malinauskas also said legislation had been challenging[3] to draft, with much thought given to how it would hold up if tested in the High Court.

So what is this law proposing? How likely is it to withstand legal challenges? And what might it mean for democracy?

What would the law do?

The proposed law[4] would ban political parties and candidates (other than new entrants) from receiving political donations. Instead, they would be provided with public funding for both campaigning and party administration. Campaign spending by political parties and candidates would be capped during the period prior to a state election to keep the cost of public funding down.

Political parties could still receive party membership fees of up to A$100 per member. This is intended to encourage parties to engage with the community and seek to broaden their membership. Otherwise, there is a real risk that if parties are fully supported by government handouts, they lose touch with the community.

Outside influence on campaigns

One of the biggest difficulties with political donation reform is the dilemma of how to treat third-party campaigners. These are the people and organisations that are not running for election themselves, but have a political interest to push. They include environmentalists, charities, miners, welfare groups, business groups, trade unions, pubs and clubs, and Indigenous bodies. If they spend more than a certain amount on political expenditure in the period prior to an election, they need to register.

Attempts to muzzle third-party campaigners, such as trade unions, from communicating their views during election campaigns have previously been struck down[5] by the High Court. This is most likely[6] why this new scheme would not place any caps on political donations to third parties or on their electoral expenditure. All third parties will have to do is meet disclosure requirements of donations, debts and spending. They will also have to use a “state campaign account” for receiving donations and for political expenditure.

The risk is once political parties and candidates are banned from receiving donations and have capped spending, political donations will instead flow to third parties, which can receive and spend as much as they like.

This gives significant political power to third-party interest groups, which can use their spending power to pressure parties and candidates to support their causes. It has the potential to distort election campaigns, with well-funded interest groups dominating the discourse and forcing political parties to dance to their tune.

A better approach may be to impose carefully calibrated expenditure caps on third parties, which allow them to communicate their political views effectively, but not to dominate the campaign at the expense of parties and candidates.

Rules around ‘associated entities’

When spending caps are applied, it is necessary to prevent parties from subverting them by establishing associated entities as third parties with their own separate caps, or in the South Australian case, no expenditure cap at all.

The proposed law prohibits arrangements between a political party and a third party to circumvent the expenditure cap. In addition, any donation to an “associated entity” is treated as a donation made to the party with which it is associated.

Controversially, the definition of an associated entity expressly excludes “registered industrial organisations” (trade unions). However, affiliation fees by trade unions are treated as donations and would fall within the donation ban.

The back of a man speaking into a megaphone in front of a large crowd of protestors with flags
Trade unions are not considered associated entities under the proposed South Australian legislation. ROY VANDERVEGT/AAP[7]

Favouring the incumbents

Another problem with public funding schemes is that they are usually skewed towards major parties and incumbent politicians. This is because they are tied to the number of first-preference votes candidates receive and/or the number of seats a party wins at the election.

For example, once donations are banned, the SA scheme will provide funding for party administration between elections. Funding will be allocated to a registered political party according its number of MPs. The funding therefore not only favours incumbents, but also has the effect of favouring the government (which ordinarily has the most MPs) over the opposition and minor parties, even though all parties face many of the same administrative costs.

While 50% of this funding must be used for administration, the rest may be used for election expenditure. This effectively boosts the amount available to incumbent parties and favours the party that won the most seats at the previous election.

Independent MPs are given a smaller administrative assistance amount, which can be used for any purpose. In addition, MPs have staff and various allowances that give them a significant campaigning advantage.

New political parties and new independent candidates don’t get any of this support. Their only compensation is that they are exempt from the ban on political donations, so they can raise donations capped at $2,700.

A red carpeted room from above with people sitting at desks South Australia’s government of the day would receive the most funding as they’d have the most sitting MPs. Morgan Sette/AAP[8]

There are also distinctions regarding advance funding for election campaigns. Under the SA scheme, registered political parties can claim a portion of their election campaign funding in advance, calculated by reference to first preference votes given to the party’s endorsed candidates at the previous general election.

As new entrants have no previous election results, they only have advance access to a relatively small fixed amount per endorsed candidate. They also cannot claim it unless they can list sufficient numbers of electors who endorse them (100 for a House of Assembly candidate and 500 for a Legislative Council candidate). If they don’t gain at least 4% of first preference votes at the ensuing election, they are entitled to no public funding at all.

Why does this matter? First, because a healthy democracy needs to accommodate newcomers, competition and disruption. A law that protects and supports existing parties only is likely to result in political stagnation and the loss of public engagement in politics.

Second, the High Court in the Australian Capital Television case[9] struck down the validity of a law concerning political advertising on the grounds that it unfairly favoured incumbents. The law banned political advertising on electronic media, except for free political ads, 90% of which were allocated to parties with elected members, based on their proportion of first-preference votes at the previous election.

The exterior of a square-ish, concrete building shot from below The High Court has previously made rulings about political advertising. Lukas Coch/AAP[10]

Only 10% of the free airtime was allocated to new and independent candidates. This was insufficient to save the law. Justice McHugh argued one cannot seek to justify a law as levelling the playing field if it “favours the sitting members and their political parties at the expense of the views of those who do not hold political power”.

Whether the SA scheme has done enough to support new entrants will be a matter for the High Court to assess if the scheme is challenged.

Constitutional challenges

Any law that has the effect of limiting political advertising is vulnerable to challenge for breaching the constitutionally implied freedom of political communication. In addition to the risk the law might be too skewed in favour of incumbents, the High Court has also previously struck down[11] a law that sought to ban political donations from any organisation or person other than an enrolled voter.

In that case, however, there was a gap between the amount of public funding provided and the expenditure cap, which the party had to fund, including by donations. Whether a ban that goes even further (prohibiting all political donations) would be valid may depend upon the relationship between the expenditure cap and the various types of funding payable to parties, independents and new entrants.

Read more: Political donations rules are finally in the spotlight – here's what the government should do[12]

Could this happen federally?

The federal government has signalled[13] its interest in electoral reform. We don’t yet know its plans.

But one of the advantages of the federal system is reform experiments can be undertaken by states on a smaller scale. The rest of the country can then see whether they work and should be adopted elsewhere.

The SA proposal is one such experiment. If it passes, survives any constitutional challenges and fulfils its aims, others may well adopt it. But it needs to prove itself first.

References

  1. ^ proposed (yoursay.sa.gov.au)
  2. ^ said (yoursay.sa.gov.au)
  3. ^ challenging (www.abc.net.au)
  4. ^ proposed law (yoursay.sa.gov.au)
  5. ^ struck down (www.austlii.edu.au)
  6. ^ likely (www.indaily.com.au)
  7. ^ ROY VANDERVEGT/AAP (www.photos.aap.com.au)
  8. ^ Morgan Sette/AAP (www.photos.aap.com.au)
  9. ^ Australian Capital Television case (www8.austlii.edu.au)
  10. ^ Lukas Coch/AAP (www.photos.aap.com.au)
  11. ^ struck down (www.austlii.edu.au)
  12. ^ Political donations rules are finally in the spotlight – here's what the government should do (theconversation.com)
  13. ^ signalled (theconversation.com)

Read more https://theconversation.com/south-australias-plan-to-ban-political-donations-raises-big-risks-as-well-as-benefits-232383

Times Magazine

Headless CMS in Digital Twins and 3D Product Experiences

Image by freepik As the metaverse becomes more advanced and accessible, it's clear that multiple sectors will use digital twins and 3D product experiences to visualize, connect, and streamline efforts better. A digital twin is a virtual replica of ...

The Decline of Hyper-Casual: How Mid-Core Mobile Games Took Over in 2025

In recent years, the mobile gaming landscape has undergone a significant transformation, with mid-core mobile games emerging as the dominant force in app stores by 2025. This shift is underpinned by changing user habits and evolving monetization tr...

Understanding ITIL 4 and PRINCE2 Project Management Synergy

Key Highlights ITIL 4 focuses on IT service management, emphasising continual improvement and value creation through modern digital transformation approaches. PRINCE2 project management supports systematic planning and execution of projects wit...

What AI Adoption Means for the Future of Workplace Risk Management

Image by freepik As industrial operations become more complex and fast-paced, the risks faced by workers and employers alike continue to grow. Traditional safety models—reliant on manual oversight, reactive investigations, and standardised checklist...

From Beach Bops to Alpine Anthems: Your Sonos Survival Guide for a Long Weekend Escape

Alright, fellow adventurers and relaxation enthusiasts! So, you've packed your bags, charged your devices, and mentally prepared for that glorious King's Birthday long weekend. But hold on, are you really ready? Because a true long weekend warrior kn...

Effective Commercial Pest Control Solutions for a Safer Workplace

Keeping a workplace clean, safe, and free from pests is essential for maintaining productivity, protecting employee health, and upholding a company's reputation. Pests pose health risks, can cause structural damage, and can lead to serious legal an...

The Times Features

Exploring the Curriculum at a Modern Junior School in Melbourne

Key Highlights The curriculum at junior schools emphasises whole-person development, catering to children’s physical, emotional, and intellectual needs. It ensures early year...

Distressed by all the bad news? Here’s how to stay informed but still look after yourself

If you’re feeling like the news is particularly bad at the moment, you’re not alone. But many of us can’t look away – and don’t want to. Engaging with news can help us make ...

The Role of Your GP in Creating a Chronic Disease Management Plan That Works

Living with a long-term condition, whether that is diabetes, asthma, arthritis or heart disease, means making hundreds of small decisions every day. You plan your diet against m...

Troubleshooting Flickering Lights: A Comprehensive Guide for Homeowners

Image by rawpixel.com on Freepik Effectively addressing flickering lights in your home is more than just a matter of convenience; it's a pivotal aspect of both home safety and en...

My shins hurt after running. Could it be shin splints?

If you’ve started running for the first time, started again after a break, or your workout is more intense, you might have felt it. A dull, nagging ache down your shins after...

Metal Roof Replacement Cost Per Square Metre in 2025: A Comprehensive Guide for Australian Homeowners

In recent years, the trend of installing metal roofs has surged across Australia. With their reputation for being both robust and visually appealing, it's easy to understand thei...