Donor ban denies foreign students

by Andrew Norton

Published by The Australian, Tuesday 4 December

With a ban on foreign political ­donors passed by parliament last week, international students will soon have fewer political rights in Australia. They could be banned from donating to campaigns to protect their interests in ­education, employment and ­migration.

Exactly when foreign individuals can and cannot donate will ­depend on the interpretation of vague rules, complex distinctions between similar activities, and subtle differences between organisations.

With foreign donors facing fines of up to $42,000 for making a political donation, these laws will have a deterrent effect well ­beyond their actual legal scope.

Donations from foreigners are generally prohibited when the dominant purpose of the funded activity is influencing the way electors vote by promoting or ­opposing a political party or candidate in a federal election.

A statutory note clarifies that publicly raising a policy issue is not in itself regulated, as it could have been in the legislation’s first version. But a communication expressly stating that one party’s policies are better or worse than another party’s policies is likely to be regulated “electoral matter”.

Omitting mention of a party would be legally advisable but not a guarantee of immunity, as ­“implicit comment” can fall within the law. The more a policy is identified with a party, the likelier it is that activism on it will be regulated electoral matter.

As a result, international ­students soon will need to avoid potentially illegal donations for controversial issues, such as climate change or refugees. But they probably still can donate for their own causes, ­especially if framed in a nonpartisan way. Right now, I doubt the political parties are divided enough on matters directly concerning international students for related issue campaigns to be an electoral matter.

But the political situation, and with it the legal situation for ­donors, could change rapidly. The interests of international students intersect with hot-button issues including visa conditions, long-term migration opportunities and employment rights.

This year, higher education students will add more to net overseas migration than new permanent residents. Sooner or later, that is likely to have political implications.

International students still can have a say when the political environment changes. They can protest in the streets. They can comment in news media, which is exempt under the legislation. They can write to politicians and make submissions to parliamentary inquiries. They can hire lobbyists to present their case. They can volunteer their own labour and pay membership fees to an international student association, as these are not gifts in electoral law. They also can donate money if their association spends less than $13,800 a year on an electoral matter. But if the association crosses that spending threshold, foreign donations are permitted only if the money won’t be spent on electoral matter.

As these examples of activism suggest, a focus on donations is ­arbitrary. Donations are a political tactic for people who can’t afford their own lobbyists or advertising, or lack the time, skills or expertise to present their policy and political concerns. Donations are not inherently better or worse than the permitted activities.

Although banning foreign ­donors has near unanimous support in the parliament, it is a mistake. “Foreign” influence is too weak a proxy for bad influence. Australia benefits greatly from foreign influence through ideas, migration, overseas investment and international trade.

In this tradition, we encourage international students to come and participate in Australian life. Despite the setback of this legislation, hopefully some international students will experience the advantages of a freer and more democratic system than they have at home.

Other parts of the foreign donor legislation recognise that people with what MPs called a “meaningful connection” to Australia should be able to donate. Permanent residents are unaffected by the foreign donor ban, as are New Zealanders resident in Australia after a late amendment. With a few exceptions foreign businesses still can donate if they are registered as a company in Australia. But not people on long-term temporary visas, who are treated like tourists. But spending years living, working and studying in Australia makes long-term temporary visa holders more like permanent residents.

Donations regulation before this legislation could already deal with questionable foreign connections. Disclosure of large donations identified individuals with alleged connections to the Chinese government. None of these donors are affected by the foreign donors bill, as they are citizens or permanent residents. Political parties and other political organisations have long been careful with controversial donors.

No worthwhile purpose is served by preventing international students, or other foreign residents in Australia, from presenting their political concerns in any format they choose. This in no way compromises the political system’s capacity to make decisions in Australia’s best interests. It will still be up to Australian governments, and Australian voters, to decide what policies to adopt.