Mccloy Case Summary

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Introduction

McCloy considered the validity of provisions in Election Funding, Expenditures and Disclosed act 1981 (NSW) ("the EFED Act.") and it has been accepted that restrictions on donations to candidates and parties is constitutional. This paper analyses the implications of the McCloy for the implied freedom of political communication.

In Unions NSW v New South Walese the argument was about the rational connection between the challenged provisions (EFED act) and the legitimate end. McCloy case however was more focused on political donations and preventing undue influence and corruption of the government.

The most significant implication of the McCloy case is about re-writing of the test in Lange v Australian Broadcasting Commission
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McCloy tried to argue that political donation is part of political participation which is protected by implied freedom of political communication. His argument has been rejected by all judges based on the model of representative government.

because of the high risk of corruption the joint judgement argued that discrimination between property developers and general public in terms of political donation is legitimate. Despite the ICAC report on cases of corruption of property developers and the fact that the property developers directly benefit from the decisions made by government, Nettle raise the discrimination factor to argue that the restriction on property developers should be

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