French CJ
Hayne
J
Crennan J
Kiefel
J
Bell
J
21.
circumvented. Implicit in the notion of circumvention is that s 95G(6) is
concerned with expenditure derived in fact by a single source, notwithstanding
that it may be made by two legally distinct entities. The criterion chosen to
identify the single source is affiliation in the way defined: namely, that an
organisation is authorised under the rules of the party to appoint delegates to the
governing body of the party or to participate in the preselection of candidates for
that party76.
63
It may be wondered how, logically, it could be said that affiliation of this
kind is effective to identify an industrial organisation as the same source of funds
for the making of electoral communication expenditure. Moreover, it would
appear to assume that the objectives of all expenditure made by the party on the
one hand and the organisation on the other are coincident. The criterion applied
for the operation of s 95G(6) may be useful to identify industrial organisations as
affiliates of political parties, but it does not reveal why or how they are to be
treated as the same organisation for the purposes of expenditure on electoral
communications. These observations may, however, be put to one side.
64
It may be inferred that it is the purpose of s 95G(6) to reduce the amount
which a political party affiliated with industrial organisations may incur by way
of electoral communication expenditure and likewise to limit the amount which
may be spent by an affiliated industrial organisation. What cannot be deduced is
how this purpose is connected to the wider anti-corruption purposes of the EFED
Act, or how those legitimate purposes are furthered by the operation and effect of
s 95G(6). Industrial organisations are identified in the EFED Act as potential
donors to political parties or candidates, and as likely to themselves expend
monies on political communication. They are not identified as prohibited donors
and the defendant did not seek to justify s 95G(6) and the targeting of industrial
organisations and the parties with whom they are affiliated by analogy with the
provisions of Div 4A. There is therefore nothing in the provision to connect it to
the general anti-corruption purposes of the EFED Act.
65
Absent a legislative purpose for s 95G(6) which is conformable with those
of the EFED Act, no further consideration can be given as to whether the
provision is justified. The provision is invalid.
76
Election Funding, Expenditure and Disclosures Act 1981, s 95G(7).
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