This article is more than 1 year old

This article is more than 1 year old

Queensland laws banning developer donations are discriminatory because they deprive the Liberal National party of a “materially greater amount of donations” than Labor, the former LNP president Gary Spence has argued.

Spence has taken a case to the high court arguing that the ban on Queensland state and local council politicians taking developer donations breaches the implied freedom of political communication.

The Queensland government has said the law is justified because it is designed to reduce the risk of undue or corrupt influence on planning decisions and will argue that the donation ban should apply even if developer money is spent on federal campaigns.

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In submissions to the court published on Tuesday, Spence’s lawyers argued that there is “nothing to show that donations to political parties, members or candidates for election … have had any effect upon the integrity of the political process of [Queensland]”.

Spence argued that campaigning was an “essential part of political communication” and a restriction on funds to political parties would “substantially diminish the extent of political communication”.

The developer donation ban “imposes a discriminatory burden with respect to one disfavoured group of persons” which was “antithetical to the [implied] freedom”, he submitted.

Spence – who quit as LNP state president in December after the Labor government passed the law in May – noted it prevented a person who was a director of a company that makes development applications, who was also an officer of a political party, from seeking donations on behalf of the party.

A party which espoused political ideas favoured by developers “could not engage in fundraising insofar as the individuals concerned were prohibited donors themselves, nor could they seek or receive funds from the very types of person whose interests they were seeking to promote, and who would naturally constitute their support base”, he complained.

Spence’s submission noted that in the three years before the law took effect the LNP “received a materially greater amount of donations than the other major party, the Labor Party (Queensland), from entities that are involved in the development of property”.

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The major hurdle for Spence is the high court’s decision in 2015 in McCloy, which upheld a ban on developer donations in New South Wales because of “the potential for corruption and undue influence” posed by those donations.

But Spence argued that the NSW Independent Commission Against Corruption had made eight adverse reports with “actual findings of corrupt conduct” relating to planning decisions since 1990 when “no such history or factual basis exists in Queensland”.

“There is no support for a conclusion that the legislative and political processes at the state level in Queensland are prone to corruption at the hands of developers.”

Spence’s submission noted that three Crime and Corruption Commission investigations cited by the government to justify the bill centred on local councils and “no finding of corrupt conduct was made” in those inquiries.

He argued that the “great preponderance (96.95%) of planning decisions in Queensland are made by local governments” so the state government had a “limited” role.

Spence also argued that the law “intrudes impermissibly into an area of exclusive federal power” because it would prevent political parties seeking and receiving developer donations “regardless of whether such donations might be intended or directed for use for federal electoral purposes”.

The federal Coalition government has attempted to fix the alleged inconsistency by passing new measures that specify state laws such as the developer donation ban do not apply where money is used in federal campaigns or is kept separately from state donations.

Spence’s submission confirms that the Queensland government is set to argue that this new federal law is invalid.