Keane
J
32.
Donation as communication
97
The plaintiffs submitted that making a political donation constitutes a
political communication on the basis that "actions as well as words can
communicate ideas." 85
98
Decisions of the United States Supreme Court were cited by the plaintiffs
to support the propositions that, from the perspective of the donor, a political
donation "serves as a general expression of support for the candidate and his
views" 86, and from the point of view of the donee, the acceptance of a donation is
an expression of the willingness of a candidate to be associated with, and to
accept the support of, the donor. Thus, in Colorado Republican Federal
Campaign Committee v Federal Election Commission 87, Thomas J observed:
"Whether an individual donates money to a candidate or group who will
use it to promote the candidate or whether the individual spends the
money to promote the candidate himself, the individual seeks to engage in
political expression and to associate with like-minded persons."
99
In relation to sub-ss (1), (3) and (4) of s 96D, the plaintiffs relied upon
Citizens United v Federal Election Commission 88 to argue that political
communications by corporations and industrial organisations should not be
treated differently from those of enrolled voters simply because such
organisations are not natural persons entitled to vote.
100
This ground of the plaintiffs' challenge to the validity of s 96D should be
rejected for reasons which reflect a substantial difference in the constitutional
arrangements of the Commonwealth and the United States.
101
The First Amendment to the United States Constitution provides that
"Congress shall make no law … abridging the freedom of speech". The First
Amendment guarantees a right of free speech 89. It is a personal right to express
one's views on any topic, whether that be to participate in the market place of
85
Levy v Victoria (1997) 189 CLR 579 at 594; [1997] HCA 31.
86
Buckley v Valeo 424 US 1 at 21 (1976).
87
518 US 604 at 638 (1996).
88
175 L Ed 2d 753 (2010).
89
New York Times Co v Sullivan 376 US 254 (1964); Citizens United v Federal
Election Commission 175 L Ed 2d 753 at 782, 815, 867 (2010).
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