Keane
J
24.
67
KEANE J.
In 2012 amendments were made to the Election Funding,
Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act") to impose
restrictions on political donations, and limits upon expenditure, in relation to
elections to the New South Wales Parliament.
In these proceedings, the plaintiffs challenge the validity of:
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s 96D, which proscribes political donations to political parties by
corporations, industrial associations and individuals who are not on the
roll of electors for State, federal or local government elections; and
s 95G(6), which aggregates a political party's expenditure on electoral
campaign funding with the expenditure incurred by that party's affiliates
for the purposes of determining whether a political party has exceeded the
applicable cap on electoral campaign expenditure.
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Pursuant to s 18 of the Judiciary Act 1903 (Cth), questions as to the
validity of these provisions were reserved by order of the Chief Justice for the
determination of the Full Court. The material facts are set out in the Special
Case agreed by the parties.
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The plaintiffs submitted that s 96D and s 95G(6) impermissibly burden
political communication contrary to the Constitution. For the reasons that
follow, that submission should be accepted, and the questions reserved for
determination by the Court should be answered accordingly.
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The plaintiffs also argued that the impugned provisions of the EFED Act
infringe a limitation on freedom of political communication implied by the
Constitution Act 1902 (NSW), and that they are invalid under s 109 of the
Constitution by reason of their inconsistency with electoral laws of the
Commonwealth. Because the plaintiffs' principal submission should be accepted,
it is unnecessary to deal with these additional arguments.
The impugned provisions
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Sections 96D and 95G(6) are contained in Pt 6 of the EFED Act.
Section 83 states that Pt 6 "applies in relation to: (a) State elections and elected
members of Parliament, and (b) local government elections and elected members
of councils".
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The provisions of Pt 6 deal with four related topics: the disclosure of
political donations and electoral expenditure; the capping of political donations;
the proscription of political donations by certain persons; and the capping of
expenditure on election campaigns. Some brief reference to the provisions of the
EFED Act relating to each of these topics, as well as to the provisions of Pt 5
relating to public funding of State election campaigns, is necessary for an
appreciation of the arguments agitated by the parties.
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