Blue Sky Democracy, Part 10: Regulating political parties properly

Parties in Australia are in a privileged position of getting special placement on ballots, access to extra funding and better pay for their MPs.

But parties aren’t particularly well-regulated — with the idea that they’re somehow just voluntary associations of likeminded fellows like the local Rotary Club, not a key part of how our democracy work.

This third little idea is on how we can regulate our political parties better — by setting up a new commission for democratic participation.

Australia’s approach to party regulation has historically been a bit hodgepodge, mostly bringing in regulations reacting to a public scandal.

The approach has mostly been to tack new functions onto the Australian Electoral Commission, or expect each party to self-regulate in accordance with whatever the new rules are.

Rather than go through the odd and extensive history of party regulation in Australia, conveniently Anika Gauja and Marian Sawer did a whole book on the regulation of parties in Australia in 2016: Party Rules?.

It’s free, so give it a read. Go on.

Anyway, the two little tweaks I’d make to party regulation are entirely possible under the existing regulatory framework.

The first is removing the “parliamentary representative” exemption from party regulation. The reason for this is pretty obvious. The current system means that sitting MPs with no provable support base, having split from parties that got them elected in the first place, are put in a privileged position over other independents and minor parties. It also puts every party on an equal footing, having to prove they meet a minimum standard to be registered.

The second is to require, as a condition to be eligible for public election funding, political parties publish annual reports on the electoral commission’s website with disclosures on operational budgets, receipt of grants, affiliations to other organisations, membership figures and fees, internal election results and changes to governance structures. This would go some way to opening up the arcane and opaque world of party self-regulation.

But I would argue Australia needs a more fulsome rethink of how we regulate political parties.

As an international benchmark (which Graeme Orr more comprehensively outlines here), the most robust law on the internal regulation of political parties is the German Parteiengesetz, which goes so far as to require parties to present a written policy programme, establish regional branches across the country and a high standard of internal democracy: the supreme decision-making body of the party must be a members’ assembly, party executives and candidates must be democratically elected, and all members have equal voting rights. German parties are seen as more than free associations of like-minded citizens contesting elections in a free market of democracy.

The law sees the function of the party as “bringing their influence to bear on the shaping of public opinion; inspiring and furthering political education; … promoting an active participation by individual citizens in political life; training talented people to assume public responsibilities;… [and] ensuring continuous, vital links between the people and the public authorities”. Total and provable compliance with these laws are preconditions for contesting elections, receiving public election funding or receiving any of the regulatory or tax privileges being a party brings. Perhaps unusually, the German law is enforced by the Office of the Speaker of the Bundestag, Germany’s Parliament, rather than by any independent regulatory authority.

Even New Zealand decided to introduce a minimum standard for internal party democracy and require candidates be selected either by a vote of party members or through delegates to a party convention, following the 1986 Royal Commission into the Electoral System that led to the adoption of the mixed-member proportional system. The standards ensure a minimum standard while providing a broad scope within it, allowing parties to “organise selection processes as they wish, acknowledging the political reality that selection decision often need to be made quickly by a centralised body, and may often override majoritarian tendencies within the party to install candidates from minority backgrounds”.

Once again, the question comes down to who administers. I’m personally a little worried about scope creep for electoral commissions into things like party regulation (like the politically-fraught 2021 party names regulations). Electoral commissions are meant to be independent, neutral, impartial and focused on delivering elections. Party and campaign regulation, with the messiness that comes with it, is often outside their expertise. Parties are self-evidently incapable of self-regulating, and leaving this to the Office of the Speaker (or potentially the Clerk) privileges Parliamentary parties over those without current representation, and opens up the possibility of partisan manipulation of the process.

My suggestion is that we set up a new regulatory authority: a democratic participation commission.

This new agency could coordinate everything from existing electoral commission functions like party registration, disclosure of donations, paying public election funding and paying additional grants, to more substantial regulations like publishing parties’ annual reports, resolving inter- and intra-party disputes enforcing a minimum standard of internal democracy and transparency, enforcing campaign codes of conduct and running election debates.

The minimum standard of internal democracy is one of the most important possible reforms in my mind. If how “democratic” a preselection was was suddenly far more relevant to someone’s legitimacy as a candidate, they’re incentivised to have a bigger, more active membership. Surveys of Australian voters suggest that parties’ internal democracy (or the lack of it) is one of the big drivers of growing distrust in Australia’s democracy at large.

These minimum standards should include, now their regulatory role has been moved, the Australian Electoral Commission conducting major internal elections, specifically preselection of candidates and the election of party executives. It should also include the public and proactive publishing eligibility for candidacy, eligibility criteria and total figures for electors and any results of a vote as part of nomination.

In Part 11, we’re going to look at our fourth little idea: a real-time database of every political ad — ever.