Rowe & Anor v Electoral Commissioner & Anor

The applicants, Rowe and others, challenged the validity of the Electoral Act 1918 (Cth) (the Act) as amended by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2009 (Cth) (the Amending Act). The respondents were the Electoral Commissioner and the Attorney-General. The dispute concerned the constitutional validity of provisions of the Amending Act that introduced a new scheme for the distribution of electoral advertisements and how these provisions interacted with the existing framework for disclosure of political donations and expenditure. The matter was heard in the High Court of Australia.

The High Court was required to determine whether the Amending Act, by introducing a new regime for the distribution of electoral advertisements and by altering the disclosure requirements for political donations and expenditure, impermissibly infringed upon the implied freedom of political communication protected by the Australian Constitution. Specifically, the Court considered whether the provisions unduly burdened the capacity of individuals and organisations to engage in political discourse concerning federal elections.

The Court held that the Amending Act, in its entirety, was invalid. The majority reasoned that the provisions concerning the distribution of electoral advertisements, which imposed significant restrictions on who could distribute such material and how it could be distributed, unduly burdened the implied freedom of political communication. This was because the restrictions were not reasonably appropriate and adapted to the legitimate end of ensuring electoral integrity. The Court found that the disclosure provisions, while having a legitimate purpose, were also found to be invalid as they were inextricably linked to the invalid advertisement provisions. The Court applied the established principles for assessing the validity of laws that may infringe the implied freedom of political communication, requiring that such laws be reasonably appropriate and adapted to serve a legitimate purpose in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

The High Court made declarations that the Amending Act was invalid and made orders accordingly.