French CJ
Hayne
J
Crennan J
Kiefel
J
Bell
J
15.
and the existence of expenditure caps are beside the point 59. Questions as to the
extent of the burden and whether it is proportionate to the legitimate purpose of a
statutory provision arise later in connection with the second limb enquiries 60.
The question at this point is simply whether the freedom is in fact burdened.
41
It must be acknowledged that the general scheme of the EFED Act also
effects burdens on the freedom because it places a ceiling on the amount of
political donations which may be made and on the amount which may be
expended on electoral communications. But the provisions having these effects,
and their connection to the general anti-corruption purposes of the EFED Act, are
not in issue. Conversely, the connection of ss 96D and 95G(6) to those purposes
is. Indeed, as will be seen, that is the critical issue concerning the validity of
those provisions.
42
The existence of s 83 in the EFED Act and the enactment of cl 34A in the
Regulations 61 in an attempt to quarantine political donations made for federal
election campaign purposes acknowledge that s 96D in its operation and effects
will burden the freedom. Given the many contexts in and levels at which
political communication occurs, as previously discussed 62, these provisions
cannot effectively prevent that burden. That they may ameliorate it to some
extent is not an answer.
43
The defendant concedes that the provisions effect a burden because it
must. Its principal argument is that s 96D meets the conditions for validity stated
in the second limb of the Lange test.
Section 96D – its purpose
44
Where a statutory provision effectively burdens the freedom, the second
limb of the Lange test, upon which the validity of s 96D may be seen to depend,
59
Monis v The Queen (2013) 87 ALJR 340 at 370 [124], 396 [277]-[278]; 295 ALR
259 at 293, 329.
60
Monis v The Queen (2013) 87 ALJR 340 at 407 [343]; 295 ALR 259 at 344-345.
61
See above at [15].
62
At [20]-[25].
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