Date: 21 February 2020
Court: Supreme Court of Queensland
Judicial Officer: Applegarth J
HRA Sections: ss 8, 13, 48
Rights Considered: freedom of expression; right to take part in public life
Other Legislation: Acts Interpretation Act 1954 (Qld), s 14A; Electoral Act 1992 (Qld), s 222, s 273, s 274(1), s 275, s 276, s 282A; Judiciary Act 1903 (Cth), s78B

Keywords: Interpretation; Proportionality; Statutory Interpretation; Political communication

A political think tank argued that provisions of the Electoral Act 1992 (Qld) limited the freedom of expression and the right to take part in public life contained in the Human Rights Act 2019 (Qld). Applegarth J held that the limitations were proportionate and reasonable.

The Australian Institute for Progress (AIP) is a think tank organisation which undertakes research and advocacy on federal and state political issues.  Most of the AIP Board is connected to the Liberal National Party, and according to its Executive Director, the AIP is ‘ideologically centre-right’, with its criticisms favouring right-wing political parties: at [1]. The AIP receives funding from property developers, who are classed as ‘prohibited donors’ under the Electoral Act 1992 (Qld) and are therefore prohibited from making a ‘political donation’.

In February 2020, the AIP wrote to the Electoral Commission of Queensland and advised that it intended to participate in the State election later that year by advocating for a particular political party and conducting political research. It sought clarification as to whether it was legal to accept donations from ‘prohibited donors’ if it conducted such activities.  In response to this, the Commission advised that it considered the AIP to be a ‘third party’ within the meaning of the Electoral Act 1992 (Qld) and confirmed that was not lawful for prohibited donors to make gifts to other entities which incur electoral expenditure. The Commission requested further information from the AIP so it could consider appropriate action.

The AIP did not respond to this request and instead began these proceedings seeking declaratory relief as to the construction of certain provisions of the Electoral Act 1992 (Qld). The AIP argued, inter alia, that section 48 of the Human Rights Act 2019 (Qld) meant that the provisions of the Electoral Act 1992 (Qld) ‘must be interpreted, to the extent possible that is consistent with their purpose, in a way that is “compatible with human rights”’: at [117]. The Human Rights Act 2019 (Qld) applies only to individuals and not to the AIP or other corporations. However, Applegarth J found that the relevant provisions of the Electoral Act limited the rights contained in sections 21 (freedom of expression) and 23 (the right to take part in public life) of the Human Rights Act 2019 (Qld) by prohibiting property developers from making certain donations to political parties: at [119].

Applegarth J then considered whether this limitation was reasonable and justifiable in accordance with the proportionality requirement of section 13 of the Human Rights Act 2019 (Qld). His Honour considered that the purpose of the provisions of the Electoral Act 1992 (Qld) is to reduce ‘the risk of actual or perceived corruption related to developer donations in State elections and improving transparency and accountability in State elections and State government’: at [122]-[123]. This purpose ‘is consistent with “a free and democratic society based on human dignity, equality and freedom”’ and is important because it enhances the democratic system: at [124], [127].  His Honour found that whilst preserving the rights contained in sections 21 and 23 was important, the limitation in this case was proportionate and reasonable: at [128], [133].

Visit the reported judgement: The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors [2020] QSC 54