McCloy v New South Wales

In *McCloy v New South Wales*, the plaintiffs challenged the validity of certain provisions of the *Election Funding, Expenditure and Disclosures Act 1981* (NSW) on the grounds that they impermissibly burdened the implied freedom of political communication guaranteed by the Commonwealth Constitution. The provisions in question included restrictions on political donations, a prohibition on property developers making such donations, and limitations on indirect campaign contributions. The case was heard by the Full Court of the High Court of Australia.

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.