By Dr David Tomkins -
Snapshot
- In the recent case of McCloy v New South Wales [2015] HCA 34, the High Court upheld the constitutional validity of relevant sections of the Election Funding, Expenditure and Disclosure Act following a challenge on the basis of the implied freedom of political communication under the Constitution.
- The majority applied a different, more European style proportionality test. In the future, the High Court may seek to unify the various approaches to proportionality across a range of constitutional law areas such as interstate trade, defence and religion.
On 7 October the High Court handed down its much anticipated judgment in the case of McCloy v New South Wales [2015] HCA 34. The High Court upheld the constitutional validity of ss 95A, 96GA and 96E of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (the ‘EFED Act’) following a challenge on the basis of the implied freedom of political communication under the Commonwealth Constitution.
Background
Section 95A of the EFED Act imposes a cap on all political donations, s 96GA prohibits political donations from ‘prohibited donors’ (defined to include property developers as well as entities in the liquor and gambling industries), while s 96E outlaws certain indirect (ie non-pecuniary) campaign contributions.
In August 2014, during the course of ICAC hearings, it was revealed that two state Members of Parliament – Tim Owen, the Member for Newcastle, and Andrew Cornwell, the member for Charlestown – had as candidates in the 2011 state election accepted political donations from Jeffery McCloy, a local property developer (who at the time of the ICAC hearings was the Lord Mayor of Newcastle), contrary to the EFED Act. In light of these revelations Messrs Owen and Cornwell resigned their seats in Parliament as did Mr McCloy the Lord Mayoralty. Together with two related companies Mr McCloy then launched a High Court challenge to the constitutional validity of ss 95A, 96E and 96GA in a bid to clear his name.
