«The amendments proposed by the ACT Greens would, without any evidence base, ban nearly all clubs in the territory from engaging in political campaigns. They would also expand the definition of who is a property developer to capture non-profit community groups,» Mr Ramsay said.
«These amendments, by targeting a wide swath of community groups and an entire industry with no such evidence, are extremely unlikely to withstand constitutional scrutiny. And that is not limited to the attempt to expand the ban on who can and cannot make a political donation.
«These amendments would introduce a new special expenditure cap for non- party candidates, just weeks after the High Court found differential spending caps without strong justifications in NSW to be unconstitutional.
«As the First Law Officer of the territory, I cannot in good conscience recommend that we knowingly consider legislation that would breach the implied freedom of political communication in the Australian constitution or the rights enshrined in our Human Rights Act.»
The government’s bill would stop property developers and their close associates giving money to members of the Legislative Assembly, political parties, political candidates and their associated entries.
It defines property developers as someone who has made at least one planning application which is under consideration or three or more applications in the seven years leading up to the donation, although does not include not-for-profit organisations and incorporated groups.
It introduces a fine of $8000 for individuals who ignore the ban and $40,500 for corporations, six months’ jail time or both.
It also shortens the timeframe for reporting donations over $1000 to the ACT Electoral Commission to seven days all year round, to allow for more real time public oversight.
Mr Ramsay said the developer donation ban was required as: «Canberrans are entitled to know that political donations cannot unduly influence decisions about land».
«Property developers are distinct from other businesses in that their profit depends heavily on decisions made by government in relation to land development,» Mr Ramsay said.
Labor and the Greens stopped taking property developer donations at the 2016 election, although the Canberra Liberals received money from developers as recently as last year.
However Ms Le Couteur said gambling venues also had the potential to have undue influence through their donations, as gaming is tightly regulated by the ACT government too.
Annual returns from September show ACT Labor accepted more than $33,000 in free room hire from the Gungahlin Lakes club, the Canberra Labor Club, the Dickson Tradies, the Statesman Hotel, and the Burns Club.
Ms Le Couteur said the NSW ban also included donations from gaming and alcohol companies, and she believed such a prohibition could withstand a constitutional challenge based on a test set out in the Lange vs ABC case.
The test asks whether the law restricts freedom of communication about political matters, and if so can that restriction be justified.
«It would be reasonable to say these industries potentially could have an undue influence and thus it would be reasonable to restrict donations from them,» Ms Le Couteur said.
Ms Le Couteur also said the government’s definition of property developer did not capture entities the public normally associated with the development industry, and would instead net architecture and planning firms that filed lots of development applications as part of their business.
The bill will return for debate next month, delayed by new parliamentary rules that now force opposition and crossbench amendments to go through the Assembly’s scrutiny committee.
Katie Burgess is a reporter for the Canberra Times, covering ACT politics.