Keane J 35. particular way. As Hayne J observed in APLA Ltd v Legal Services Commissioner (NSW) 98: "in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication". 111 Accordingly, one may say that, if s 96D is not an effective burden on political communication within the federation, the circumstance that it prevents a supporter of a candidate or party from expressing that support by making a political donation will not render it invalid. As Brennan J said in Australian Capital Television Pty Ltd v The Commonwealth ("ACTV") 99: "[T]he extent of any relevant limitation of legislative power is the scope of the relevant freedom. But, unlike freedoms conferred by a Bill of Rights in the American model, the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left for legislative regulation". 112 Section 96D leaves open many (and more explicit) ways for support for a candidate or party to be expressed by those minded to do so other than by the making of a donation. Section 96D proscribes the making of donations, not publicising the support which the making of donations might be taken to imply. Viewed from the perspective of the donor, the proscription hardly seems a significant restriction upon the donor's ability to express support for a candidate or political party. But that is not the relevant perspective from which to consider the issue. The constitutionally protected interest is that of the people of the Commonwealth in the free and informed exercise of the political choices required of them by ss 7, 24 and 128 of the Constitution; and the relevant question is whether the flow of pertinent information to and from them might be diminished by a restriction upon the making of political donations. How that question is to be answered does not depend on the proposition that a political donation is a form of political expression by the donor. Disfavoured donations 113 The plaintiffs' challenge to the validity of s 96D on the ground that it proscribes political donations by certain classes of donor requires consideration of two broad and related issues: first, as already noted, whether s 96D impermissibly burdens the freedom of political communication within the federation; and, secondly, whether the provisions of the EFED Act which purport 98 (2005) 224 CLR 322 at 451 [381]. 99 (1992) 177 CLR 106 at 150.

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents