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A further option for dealing with Government political ads.
Kevin Rudd has another option for dealing with the Government's use of public funds for political purposes &emdash; he could introduce legislation allowing for the funds to be recouped from the intended beneficiaries of political advertising funded by the Government. Such legislation could even be retrospective, and there is even a High Court precedent confirming this &emdash; former Labor Minister Andrew Theophanous was stripped of his parliamentary superannuation after being convicted of corruption. The High Court upheld this, indicating that retrospective laws stripping politicians of benefits after corrupt conduct were within powers and did not offend the "just terms" provision of the Constitution.
A law that achieved this might look something like this:
- Where the Minister forms the opinion that a Government advertising campaign has been waged for a partisan political purpose, having regard to ..., he may issue a certificate declaring that named persons who authorised that campaign have engaged in corrupt conduct under this section.
- Where a certificate has been issued under section 1, the Minister may issue demands for reimbursement to any person named in that certificate, or to the current officials any party of which that person was a member at the time of the conduct.
- A person receiving a demand under section 2 commits an offence if they do not make full reimbursement of the funds within 30 days. (penalty: 10 years imprisonment)
- It is not a defence to an offence under section 3 that the person does not have sufficient funds to make the payment.
- A person named in a certificate under section 1 shall forfeit all post-service benefits provided in respect of service in Government or in Parliament and shall be obliged to repay any post-service benefits already received.
Sections 2 and 3 would likely pass the "just terms" test anyway since all they do is make somebody pay for the value of the benefit they have taken. Section 4 does not require passing that test thanks to Theophanous v Commonwealth.