HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJJEFFERY RAYMOND McCLOY & ORS PLAINTIFFS
AND
STATE OF NEW SOUTH WALES & ANOR DEFENDANTS
McCloy v New South Wales
[2015] HCA 34
7 October 2015
S211/2014
ORDER
The questions stated by the parties in the special case dated 28 January 2015 and referred for the opinion of the Full Court be answered as follows:
Question 1
Is Division 4A of Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid (in whole or in part and, if in part, to what extent) in its application to the plaintiffs because it impermissibly burdens the implied freedom on communication on governmental and political matters contrary to the Commonwealth Constitution?
Answer
In so far as Division 4A prohibits the making by a property developer of a political donation or acceptance of a political donation from a property developer, it is not invalid. It does not impermissibly burden the implied freedom of communication on governmental and political matters contrary to the Constitution.
Question 2
Is Division 2A of Part 6 of Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid (in whole or in part and, if in part, to what extent) in its application to the plaintiffs because it impermissibly burdens the implied freedom of communication of governmental and political matters contrary to the Commonwealth Constitution?
Answer
No.
Question 3
Is s 96E of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid in its application to the plaintiffs because it impermissibly burdens the implied freedom of communication of governmental and political matters contrary to the Commonwealth Constitution?
Answer
No.
Question 4
Who should pay the costs of the special case?
Answer
The plaintiffs.
Representation
D M J Bennett QC with I D Faulkner SC, A K Flecknoe-Brown and B A Mee for the plaintiffs (instructed by Toomey Pegg Lawyers)
M G Sexton SC, Solicitor-General for the State of New South Wales and J K Kirk SC with A M Mitchelmore for the first defendant (instructed by Crown Solicitor (NSW))
Submitting appearance for the second defendant
Interveners
J T Gleeson SC, Solicitor-General of the Commonwealth with C L Lenehan for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
G R Donaldson SC, Solicitor-General for the State of Western Australia with K A T Pedersen for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
P J Dunning QC, Solicitor-General of the State of Queensland with A D Keyes for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
M G Evans QC with D F O'Leary for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
K L Walker QC with A D Pound for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the…
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- Case
- [2015] HCA 34
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the impugned provisions of the New South Wales Act were invalid because they placed an impermissible burden on the implied freedom of communication on governmental and political matters. This required the Court to consider the proportionality of the legislative restrictions, specifically whether they were suitable, necessary, and adequately balanced against the legislative purpose.
The Court reasoned that the purpose of the challenged provisions, particularly Division 4A, was to reduce the risk of undue or corrupt influence in planning decisions, a purpose considered legitimate. The Court found that the means adopted to achieve this purpose were also legitimate and that the provisions were not invalid. While acknowledging the plaintiffs' arguments regarding potential deficiencies and alternative means, the Court concluded that these did not sever the connection to the anti-corruption purpose of the Act. The Court applied the principles established in cases such as *Lange* and *Unions NSW*, assessing whether the legislative restrictions were a suitable and necessary means of achieving a legitimate legislative objective, and whether less restrictive alternatives were reasonably practicable.
The Court answered the questions stated in the special case. It held that Division 4A of Part 6 of the *Election Funding, Expenditure and Disclosures Act 1981* (NSW), in so far as it prohibited property developers from making or accepting political donations, was not invalid as it did not impermissibly burden the implied freedom of political communication. Similarly, the Court found that Division 2A of Part 6 and section 96E of the Act were also not invalid. The plaintiffs were ordered to pay the costs of the special case.
Orders
Orders of the court
The questions stated by the parties in the special case dated 28 January 2015 and referred for the opinion of the Full Court be answered as follows:
Question 1
Is Division 4A of Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid (in whole or in part and, if in part, to what extent) in its application to the plaintiffs because it impermissibly burdens the implied freedom on communication on governmental and political matters contrary to the Commonwealth Constitution?
Answer
In so far as Division 4A prohibits the making by a property developer of a political donation or acceptance of a political donation from a property developer, it is not invalid. It does not impermissibly burden the implied freedom of communication on governmental and political matters contrary to the Constitution.
Question 2
Is Division 2A of Part 6 of Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid (in whole or in part and, if in part, to what extent) in its application to the plaintiffs because it impermissibly burdens the implied freedom of communication of governmental and political matters contrary to the Commonwealth Constitution?
Answer
No.
Question 3
Is s 96E of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid in its application to the plaintiffs because it impermissibly burdens the implied freedom of communication of governmental and political matters contrary to the Commonwealth Constitution?
Answer
No.
Question 4
Who should pay the costs of the special case?
Answer
The plaintiffs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, KIEFEL, BELL AND KEANE JJ, GAGELER J
The purpose of Div 4A is to reduce the risk of undue or corrupt influence in an area relating to planning decisions, where such risk may be greater than in other areas of official decision-making. This purpose furthers the general purpose of Pt 6 of the EFED Act and is "legitimate" within the meaning given to that term in Lange, as are the means adopted to achieve it.No rational connection to purpose? The plaintiffs submit that Div 2A and Div 4A have no rational connection to the purpose of targeting corruption. In the language of proportionality analysis, discussed later in these reasons, that is a submission that the impugned provisions are not "suitable". By analogy with the reasons of the joint judgment in Unions NSW, the plaintiffs submit that it is not explained why Div 4A targets only corporations and their close associates who are property developers and not individuals or firms. Other deficiencies are pointed to in Div 2A such as a failure to distinguish between corrupt political donations and those made without a corrupting purpose, and a failure to capture personal gifts. These factors bear no similarity to the problem associated with the provisions at issue in Unions NSW. In that case, s 96D(1) prohibited the acceptance of a political donation unless it was from a person enrolled as an elector. Section 95G(6) effectively aggregated the amount spent by way of electoral communication expenditure by a political party and its affiliated organisations for the purposes of the capping provisions in Div 2A. Unlike other provisions in Pt 6, it was not possible to discern how these provisions could further the general anti-corruption purpose of the EFED Act. The provisions of Div 2A and Div 4A do not suffer from such a problem. New South Wales submits that it may be expected that most commercial land developments will be undertaken by corporations, but it does not matter whether that was the reason for excluding other entities and persons from the operation of Div 4A. If there is a deficiency of the kind contended for by the plaintiffs, it is not one which severs the connection to the anti-corruption purpose of the EFED Act. The same may be said of the other alleged deficiencies in Div 2A.An equally practicable alternative? – necessity In Lange[77] it was observed that the law in question in ACTV was held to be invalid because there were other, less drastic, means by which the objects of the law could have been achieved. In Unions NSW[78] it was said that the Lange test may involve consideration of whether there are alternative, reasonably practicable means of achieving the same purpose which have a less restrictive effect on the freedom. If there are other equally appropriate means, it cannot be said that the selection of the one which is more restrictive of the freedom is necessary to achieve the legislative purpose. This method of testing mirrors, to an extent, that which has been applied with respect to legislation which restricts the freedom guaranteed by s 92 of the Constitution.[77](1997) 189 CLR 520 at 568.[78](2013) 252 CLR 530 at 556 [44].