By Anthony Whealy, originally published in the Guardian 7th October 2019

The revelation that 13 companies failed to declare sizeable donations to the major political parties when seeking approval to develop property in New South Wales throws up very serious concerns.

Since 2008, NSW law has required the public disclosure of donations or gifts when lodging, being involved in or commenting on development proposals.

This law is important because, under threat of a serious criminal conviction and heavy penalties, it creates a heightened transparency around the entire planning process. It identifies potential conflicts of interest for those involved in the approval process and provides a public check on the undue influence of money in relation to planning decisions.

But in numerous instances these important laws appear to have been ignored. The number and extent of the transgressions uncovered by the Guardian is alarming.

In one case, for example, Woolworths failed to declare more than $100,000 in donations to the NSW Liberals and Nationals while seeking to secure minor approvals for a supermarket.

NSW laws prohibit political donations from property developers themselves, but for other persons or corporations, donations or gifts are generally permissible. However, if they exceed $1,000 in total and constitute reportable donations, they must be declared at the outset of the approval or commentary process. This obligation relates to payments made within the preceding two years.

As a general rule, councils publish details of these disclosures on their websites.

The result is that if the laws are properly observed, councillors, bureaucrats, ministers and the general public know in any particular case whether money or its equivalent has been paid.

The scale and nature of the non-disclosures raise a second issue: is the regulator – in this case the NSW Department of Planning and Environment – falling down on its task of catching out corporations and individuals who have failed to make timely and accurate disclosure?

If effective vigilance is not maintained, there is a real likelihood that those involved in the planning process will become careless about their obligations. This is as much a concern as the delinquency of those organisations which have, for one reason or another, failed to observe this important law.

This issue is but one segment of a broader concern with state and federal laws surrounding political donations, political campaigns, political advertising and lobbying irregularities.

For example in 2016, NSW Icac uncovered significant misconduct in Liberal party ranks involving breaches of the prohibition on property developer donations and blatant disregard for the caps placed on political donations. Generally, there was a serious disregard of election funding laws.

Currently, NSW Icac is examining serious allegations of wrongdoing in Labor party ranks, involving secretive and misleading conduct around cash donations.

At the federal level, our political donations and lobbying systems are out of control, with donation campaign and reporting laws considerably lagging behind the state laws. Importantly, we do not have an effective federal integrity agency with wide powers to uncover serious wrongdoing in relation to donations and improper lobbying – nor, it seems, is a truly effective body in contemplation.

Unsurprisingly, the public are somewhat cynical about the integrity of the planning process, especially where big money is involved. The erosion of public confidence in the planning system will only increase if the undue influence of money is allowed to proliferate unchecked.

Anthony Whealy QC is the chair of The Centre for Public Integrity and former assistant commissioner to ICAC