Even with this funding stitch-up, the major parties should brace for a ballot-box shock

If the electorate thinks you are a lot of self-serving, bums-on-seats obsessives, what better way to validate the electorate's view of you than by stitching up an electoral funding deal which is totally skewed in favour of the major parties?

That's what happened last week. The two major parties ganged up against the independents or any newcomer to politics to squeeze their funding while allowing the coffers of the major parties (or in fact any registered political party) to be filled with corporate slush.

That's this week's obvious story. The long-term pattern and the legal ramifications are more important. The law is constitutionally suspect to say the least. More on that anon.

More importantly, the new laws have stirred the (mainly) teal independents into outrage. It has given them a lot of media coverage and probably more votes.

Rather than arrest the trend against the majors, the new electoral funding law is more likely to contribute to that trend.

And what is that trend? An inexorable rise of the non-major party vote. It began with the creation of the Australian Democrats in 1977. The non-majors vote went from 4.1 per cent in 1975 to 12.3 in 1977. It then went up and down with the Greens replacing the Democrats as the main third party.

Since 2007, the non-major-party vote has gone up in successive elections as follows: 14.5 per cent (2007); 18.4 (2010); 21.5 (2013); 23.7 (2016); 25.2 (2019); and 32.7 (2022).

We got another indication of the strength of the trend with this month's byelection in the hitherto Labor stronghold of Werribee in Victoria. The Labor primary vote collapsed from 45 per cent in 2022 to just 29 per cent. Where did those 16 percentage points of vote go? Not to the Liberal Party, which got less than a quarter of them. The Liberal vote went up from 25.3 per cent to just 29.0 per cent.

The two majors together got just 54.3 per cent of the vote. The minors and independents got an unprecedented 45.7 per cent of the primary vote.

With Labor on the nose, voters flocked to Independents, Socialists, Animal Justice, Family First, and anyone but Major Party First.

The Australian political system is now much more "roundabouts" with lots of horses than "swings" with just two players.

Sorry for the statistics, but it is the only way to show the inescapable trend. We got majority governments in 2016, 2019 and 2022 by a series of flukes. It is unlikely to happen again.

That is why the major parties have gone into a panicked conspiracy over electoral funding. Their thinking was that if they could stiff the independents on fundraising the creaking old two-party dominance in Australian politics would continue.

The major parties assume that the way to seize the imagination and support of voters is to respond to pressure with a bit of (admittedly worthwhile) tinkering with more timely reporting of political donations while essentially leaving intact the whole stinking mess of big corporate money capturing whichever party is in government.

I think the major parties will be told otherwise at the next election. Money can't buy them love.

To the contrary, reliance on the money and the system which generates it prevents the major parties from making so many changes wanted by the broad mass of voters because it would offend those corporate donors - gambling; food labelling; climate; integrity; the list goes on.

The new law caps donations by individuals to a "political party" at $50,000. But the $50,000 can be repeated to each state and territory and federal branch of the party, totalling $450,000. The cap has nine lives (pardon the pun).

The cap on a candidate's advertising is $800,000 in each electorate. That will be the limit for independents, but party candidates can get the benefit of general party advertising (that does not mention a specific seat or candidate) in addition to this.

So, the major parties can bring in millions to spend on general advertising in any seat threatened by independents.

This is the constitutional sticking point. The High Court has held that the constitution's framework of representative democracy implies a freedom of political communication to inform voters so that the system works.

A law can only burden that freedom if its purpose and means do not undermine representative democracy; that it is suitable and necessary; and that the aims and the means are in balance.

The new statute does not state what its aim is. But the government says it is to reduce the ballooning cost of elections. That argument is unlikely to pass muster given that the law actually increases taxpayer funding of political candidates.

A well-informed voter could easily conclude that the purpose of this law is to make it harder for independents to get elected. The High Court could easily conclude that the law undermines representative democracy; that it is neither suitable nor necessary to achieve its purpose because there are many other more balanced ways to achieve that end.

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The times-nine cap smacks of contrivance and self-serving mala fides. The exclusion of general party advertising (of up to $90 million) from the $800,000 electorate cap is a targeted tipping of the playing field against independents because political parties can move masses of money from safe seats to swamp the media in seats threatened by Independents, whereas the independents have no access to those type of funds. It is in the nature of being an independent that you do not belong to a political party.

It is utterly undermining of the representative democracy envisioned by the constitution. Fortunately, it does not become law until 1 July 2026. On that day, the legal challenges can begin - unless, of course, the law has been extinguished along with the toothless National Anti-Corruption Commission as part of the process of forming a minority government after the next election.