French CJ
Hayne
J
Crennan J
Kiefel
J
Bell
J
18.
possibility of undue or corrupt influence being exerted. However, it is the
plaintiffs' submission that s 96D does nothing calculated to promote the
achievement of those legitimate purposes. There is no purpose to the prohibition,
other than its achievement. It is therefore simply a burden on the freedom
without a justifying purpose. These submissions should be accepted.
52
The terms of s 96D do not reveal any purpose other than that political
donations may not be accepted from persons who are not enrolled as electors, or
from corporations or other entities. The context of the other provisions of Pt 6
does not illuminate the purpose of s 96D, rather they point up its absence of
evident purpose and lack of connection to the scheme of Pt 6.
53
In contrast to the general, practical provisions for capping of political
donations and electoral communication expenditure, s 96D is selective in its
prohibition. Yet the basis for the selection was not identified and is not apparent.
By contrast, the connection of the other provisions of Pt 6 to the general purposes
of the EFED Act is evident. They seek to remove the need for, and the ability to
make, large-scale donations to a party or candidate. It is large-scale donations
which are most likely to effect influence, or be used to bring pressure to bear,
upon a recipient. These provisions, together with the requirements of public
scrutiny71, are obviously directed to the mischief of possible corruption. The
same cannot be said of s 96D, in its wide-ranging prohibition on the sources of
donations.
54
In argument, the identification by the defendant of a relevant purpose for
the nature and scope of s 96D's prohibition proved elusive. The defendant
pointed to the general purposes of the EFED Act, but was not able to explain
how the prohibitions effected by s 96D were connected to them, let alone how
the prohibitions could be said to further them. The defendant could point only to
corporations as a justifiable target of s 96D. In its defence it pleads that, by
reason of their character and size, corporations are more likely to represent a
threat to integrity. It alleges that corporations are more likely to pursue selfinterest and that their boards are obliged to act in that way. Further, a
corporation may do so in a manner inconsistent with the views of its members.
55
If the latter is a concern of the EFED Act, it in no way expresses or
addresses it. It does not, for example, seek to regulate the making of donations
by requiring the concurrence of shareholders. If corporations were in truth the
71
See above at [6].
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents