ARE POLITICAL PARTIES LEGAL?

ARE AUSTRALIA'S POLITICAL PARTIES EVEN LEGAL?

Why aren’t all votes taken on the floor of parliament conscience votes whereby each Member of Parliament votes according to their own view of the legislation, or should I say the will of those who elected them?

“Towing the party line”, of course, is used as a euphemism for the commands that come from the party’s caucus or its leader, in some cases from voices that never bear the burden of public scrutiny, others are those who help finance the party machine.

Australia is a democracy and has laws against forcing or manipulating the votes of any person, which ought to apply politicians in parliament.

So one has the right to ask if Australia’s political parties have an exemption from particular pieces of legislation, legislation that does not allow the manipulation of ones vote, such as the Crimes Act and Criminal Code Act, the Electoral Act and others that deal with the crimes of Interfering with political liberty.

Unwarranted Demands placed on, or from, a politician, Bribery, Corrupting Benefits (given to, or received by a politician), Abuse of Public Office, and the Obstruction (of a politician’s functions)?

To answer these questions, the history of Australia’s political parties has to be considered and the legislation that affects them has to be examined.

Australia took from England the basic Westminster system of democracy, with that came the concept of political parties (groups of like-minded candidates) pooling their resources for the purposes of campaigning.

In Australia the emergence of political parties took some time, until then Parliament was confined to independent voices working in the best interests of their electorate, now a days the political duopoly that all but control election processes, electoral law and the media coverage of election cycles will try and convince you their way is the only way.

There is no particular instance where legislation was created in order to bring political parties into existence and to give them legitimacy. Political parties simply happened.

In Australia, political parties were not even mentioned in The Australian Constitution until 1977 and the referendum on casual Senate vacancies, representative democracy was not about parties, it was all about members working for their electorates.

Australia’s political parties are social groups, regulated by common law that relates to any associations, as well as some State and Federal laws that deal with things like taxpayer funding for elections, political broadcasting and advertising, and disclosure of donations.

Amazingly, there is no enabling act or legislation that makes Australian political parties legal; that gives them legitimacy. There are sections in the Commonwealth Electoral Act 1918 which deal with the registration of political parties and give brief interpretations or descriptions of a political party and an eligible political party but they do not provide legitimacy; they are simply rules governing something that already exists, albeit illegitimately.

The current way in which Australia’s political parties force their members of parliament to vote according to the demands of ‘the party’, when voting on legislation in parliament, is not only morally reprehensible but according to the following laws, illegal, as there is no overall exempting legislation or specific exemptions listed for political parties.

The only mandate a representative ought to have is to represent the wishes of those who elected them.

CRIMES ACT 1914

PART II—OFFENCES AGAINST THE GOVERNMENT

Sect 28. Interfering with political liberty

Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty, shall be guilty of an offence.

Penalty: Imprisonment for 3 years.

CRIMINAL CODE ACT 1995 – SCHEDULE

Section 3

Part 7.5 – Unwarranted demands

139.1 Unwarranted demands of a Commonwealth public official

A person is guilty of an offence if:

(a) the person makes an unwarranted demand with menaces of another person; and

(b) the demand or the menaces are directly or indirectly related to:

(i) the other person’s capacity as a Commonwealth public official; or

(ii) any influence the other person has in the other person’s capacity as a Commonwealth public official; and

(i) obtaining a gain; or

(ii) causing a loss; or

(iii) influencing the official in the exercise of the official’s duties as a Commonwealth public official.

Penalty: Imprisonment for 12 years.

139.2 Unwarranted demands made by a Commonwealth public official

A Commonwealth public official is guilty of an offence if:

(a) the official makes an unwarranted demand with menaces of another person; and

(b) the demand or the menaces are directly or indirectly related to:

(i) the official’s capacity as a Commonwealth public official; or

(ii) any influence the official has in the official’s capacity as a Commonwealth public official; and

(i) obtaining a gain; or

(ii) causing a loss; or

(iii) influencing another Commonwealth public official in the exercise of the other official’s duties as a Commonwealth public official.

Penalty: Imprisonment for 12 years.

Part 7.6—Bribery and related offences

140.1 Definition

In this Part: “benefit” includes any advantage and is not limited to property.

140.2 Obtaining

(1) For the purposes of this Part, a person is taken to have obtained a benefit for another person if the first-mentioned person induces a third person to do something that results in the other person obtaining the benefit.

(2) The definition of obtaining in section 130.1 does not apply to this Part.

141.1 Bribery of a Commonwealth public official

Giving a bribe

(1) A person is guilty of an offence if:

(a) the person dishonestly:

(i) provides a benefit to another person; or

(ii) causes a benefit to be provided to another person; or

(iii) offers to provide, or promises to provide, a benefit to another person; or

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b) the person does so with the intention of influencing a public official (who may be the other person) in the exercise of the official’s duties as a public official; and

(d) the duties are duties as a Commonwealth public official.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the duties were duties as a Commonwealth public official.

Receiving a bribe

(3) A Commonwealth public official is guilty of an offence if:

(a) the official dishonestly:

(i) asks for a benefit for himself, herself or another person; or

(ii) receives or obtains a benefit for himself, herself or another person; or

(iii) agrees to receive or obtain a benefit for himself, herself or another person; and

(b) the official does so with the intention:

(i) that the exercise of the official’s duties as a Commonwealth public official will be influenced; or

(ii) of inducing, fostering or sustaining a belief that the exercise of the official’s duties as a Commonwealth public official will be influenced.

(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1) or (3).

Penalty for individual

(5) An offence against subsection (1) or (3) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.

Penalty for body corporate

(6) An offence against subsection (1) or (3) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:

(a) 100,000 penalty units;

(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence—3 times the value of that benefit;

(c) if the court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.

(7) For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:

(a) supplies made from any of those bodies corporate to any other of those bodies corporate;

(b) supplies that are input taxed;

(c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999 );

(d) supplies that are not made in connection with an enterprise that the body corporate carries on.

(8) Expressions used in subsection (7) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.

(9) The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001 .

142.1 Corrupting benefits given to, or received by, a Commonwealth public official

Giving a corrupting benefit

(1) A person is guilty of an offence if:

(a) the person dishonestly:

(i) provides a benefit to another person; or

(ii) causes a benefit to be provided to another person; or

(iii) offers to provide, or promises to provide, a benefit to another person; or

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b) the receipt, or expectation of the receipt, of the benefit would tend to influence a public official (who may be the other person) in the exercise of the official’s duties as a public official; and

(d) the duties are duties as a Commonwealth public official.

Penalty: Imprisonment for 5 year.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the duties were duties as a Commonwealth public official.

Receiving a corrupting benefit

(3) A Commonwealth public official is guilty of an offence if:

(a) the official dishonestly:

(i) asks for a benefit for himself, herself or another person; or

(ii) receives or obtains a benefit for himself, herself or another person; or

(iii) agrees to receive or obtain a benefit for himself, herself or another person; and

(b) the receipt, or expectation of the receipt, of the benefit would tend to influence a Commonwealth public official (who may be the first-mentioned official) in the exercise of the official’s duties as a Commonwealth public official.

Penalty: Imprisonment for 5 years.

Benefit in the nature of a reward

(4) For the purposes of subsections (1) and (3), it is immaterial whether the benefit is in the nature of a reward.

142.2 Abuse of public office

(1) A Commonwealth public official is guilty of an offence if:

(a) the official:

(i) exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or

(ii) engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or

(iii) uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and

(b) the official does so with the intention of:

(i) dishonestly obtaining a benefit for himself or herself or for another person; or

(ii) dishonestly causing a detriment to another person.

Penalty: Imprisonment for 5 years.

(3) Paragraph (2)(a) applies to a cessation by a person:

(a) whether or not the person continues to be a Commonwealth public official in some other capacity; and

(b) whether the cessation occurred before, at or after the commencement of this section.

149.1 Obstruction of Commonwealth public officials

(1) A person is guilty of an offence if:

(a) the person knows that another person is a public official; and

(b) the first-mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and

(d) the functions are functions as a Commonwealth public official.

Penalty: Imprisonment for 2 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the functions were functions as a Commonwealth public official.

(3) For the purposes of this section, it is immaterial whether the defendant was aware that the public official was performing the official’s functions.

(4) Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against subsection (1).

(5) The definition of duty in section 130.1 does not apply to this section.

(6) In this section:

“function” :

(a) in relation to a person who is a public official—means any authority, duty, function or power that is conferred on the person as a public official; or

(b) in relation to a person who is a Commonwealth public official—means any authority, duty, function or power that is conferred on the person as a Commonwealth public official.

Electoral law contains many sections that mimic the above laws, and although amended on a regular basis to suit the major parties, and written as 2 party laws, neither party has considered legislating themselves into legal existence.

COMMONWEALTH ELECTORAL ACT 1918 - SECT 326 Bribery

COMMONWEALTH ELECTORAL ACT 1918 - SECT 327

Interference with political liberty etc.

(1) A person shall not hinder or interfere with the free exercise or performance, by any other person, of any political right or duty that is relevant to an election under this Act.

Penalty: $1,000 or imprisonment for 6 months, or both.

I note that electoral legislation leans towards actions that take place during elections, but I have made mention of it as it shows politics in general is not exempt, and I am sure the politicians ought to be well aware of this fact.

So why then doesn’t Australia have a parliament where each individual politician, regardless of whether they belong to a party or not, vote according to their own consciences?

We continuously hear the words “2 party system” but no such thing ought to exist, in fact it is my view that the political parties and the parliament ought to distance itself from electoral law in terms of any future and past reform.

The last thing Australian democracy needs is the structural biases that result for allowing those with the most to gain form such biases to write electoral law.

Politicians believe they are the law, maybe even above the law, yet they try and convince us they are representing our best interests, while it is easy to see they are more interested in their own.

The trouble is the laws listed above are not applied and for these laws to be applied they would need to be tested in a court of law, and our courts of law are overseen by judges chosen by our politicians.

So, while there is not an enabling act or any legislation that gives Australian political parties legitimacy and there is legislation that prohibits political parties from forcing their members of parliament to vote in accordance with the ‘party line’ and against the members’ own consciences, any attempt to have these laws, or lack of laws, tested and actually applied to our political parties would be left in the laps of the gods, or at least those that think they are gods.

Mark Aldridge

Some details taken from a post by Christopher Purcell

MARK ALDRIDGE