McCloy v New South Wales [2015] HCA 34

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

JEFFERY 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)