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French CJ Hayne J Crennan J Kiefel J Bell J 7. point which had been made in other judgments upon which the defendant relies. In APLA Ltd v Legal Services Commissioner (NSW) 25, Gleeson CJ and Heydon J observed that the freedom was not a general freedom of communication of the kind protected by the United States Constitution. The point sought to be made in Lange and in APLA 26 was that legislation which restricts the freedom is not invalid on that account alone. It will be invalid where it so burdens the freedom that it may be taken to affect the system of government for which the Constitution provides and which depends for its existence upon the freedom. Lange confirmed that if certain conditions concerning the operation and effect of the legislation or the freedom are met, legislation which restricts the freedom may nevertheless be valid. 20 That contextual correction having been made, it remains necessary to consider the defendant's contention. The defendant concedes, as well it might, that there may be an overlap in the discussion of political and governmental matters at a State and federal level and that it may be difficult to separate those kinds of issues. In Hogan v Hinch 27, it was also argued that the freedom of political communication is limited to communication at the Commonwealth level. French CJ noted 28 that this may appear, logically, to be a consequence of the source of the freedom, the Commonwealth Constitution, but that it is not of great practical assistance. The reality is that there is significant interaction between the different levels of government in Australia and this is reflected in communication between the people about them. 21 That political communication at a State level may have a federal dimension may be seen from provisions of the Commonwealth Constitution itself. Section 96, which provides for funding by the Commonwealth to the States, is perhaps the most obvious example 29. Issues about whether the federal 25 (2005) 224 CLR 322 at 350 [27]; [2005] HCA 44. 26 See also Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 244-245 [179] per Gummow and Hayne JJ; [2004] HCA 41; Monis v The Queen (2013) 87 ALJR 340 at 367 [103], 394 [267]; 295 ALR 259 at 289, 327; [2013] HCA 4. 27 (2011) 243 CLR 506; [2011] HCA 4. 28 Hogan v Hinch (2011) 243 CLR 506 at 543 [48]. 29 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 75; [1992] HCA 46; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 (Footnote continues on next page)

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Union NSW v. New South Wales

Judgment

Question Presented: Whether Election Code s 96D, and 95G6 are inconsistent with the Australia Constitution.

Alleged Acts: The aforementioned provisions require that all political donors enroll and caps donations. The culmination of these two provisions limits donors to eligible voting individuals. NSW, a organizaiton, not eligible to vote filed suit alleging that framework violated the implied freedom of communication on political and governmental matters set forth in the Australia Constitution.

Summary: The state argued that the provisions were enacted to combat electoral corruption. However, the court considered the restriction overly broad to support the alleged threat to electoral integrity.

Conclusion: The court determined that because both sections 96D and 95G6 failed to meet the Lange test that the provision reasonably served a legitimate end without a reasonable alternative, the provisions were invalid.

Legal Issue(s)

Campaign Finance

Region: Asia-Pacific

Country: Australia

Language of Decision

English

Court: Supreme Court

Election Type: Review of law

Date of decision: Dec 13, 2013

Geolocation

Latitude: -35.29772788

Longitude: 149.0992955

: Geolocation

Primary Documents

NSW v. New South Whales.pdf
English
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Election Judgments - IFES

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Union NSW v. New South Wales

Primary Documents

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