French CJ
Hayne
J
Crennan J
Kiefel
J
Bell
J
19.
sole target of s 96D, questions might arise as to whether a complete prohibition
respecting donations of any amount from any corporation was justified. But
clearly the purpose of s 96D cannot lie in regulating corporate activities. The
terms of s 96D are not directed to corporations alone. They extend to any person
not enrolled as an elector, and to any organisation, association or other entity.
General concerns about corporate activities, as distinct from specific concerns
about the activities of any entity (or individual) who is prepared to exert
influence corruptly in pursuit of self-interest, cannot explain the purpose of
s 96D.
56
It is not evident, even by a process approaching speculation, what s 96D
seeks to achieve by effectively preventing all persons not enrolled as electors,
and all corporations and other entities, from making political donations. It might
be assumed that many of them will have a legitimate interest in political matters,
as discussed earlier in these reasons 72. Why then was it considered necessary to
prohibit donations from these sources, but not from electors? More importantly,
how does it further the anti-corruption purposes of the EFED Act?
57
Section 96D is not the only prohibition on the persons or entities from
whom donations may be accepted. Division 4A of Pt 6 contains provisions
which make it unlawful for a "prohibited donor" to make a political donation and
for a person to accept a donation from such a person. A prohibited donor is a
property developer, or a tobacco, liquor or gambling industry business entity73.
Division 4A was inserted in 2009 74. The prohibition on donations from property
developers which it contained was extended with effect from 1 January 2011 75 to
the other prohibited donors listed above, at the same time as provision was made
for caps on electoral communication expenditure. But the EFED Act does not
identify corporations, industrial organisations and other entities and persons not
enrolled as electors as having interests of a kind which requires them to be the
subject of an express prohibition. And there is nothing in the EFED Act which
permits an assumption of that kind to be made.
72
At [30].
73
Election Funding, Expenditure and Disclosures Act 1981, s 96GAA.
74
Election Funding and Disclosures Amendment (Property Developers Prohibition)
Act 2009 (NSW).
75
Election Funding and Disclosures Amendment Act 2010 (NSW).
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