Mccloy V New South Lewis Case Study

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I Introduction

In McCloy v New South Wales, the High Court upheld the validity of provisions in the Electoral Funding, Expenditure and Disclosures Act 1981 (NSW) that imposes caps on political donations, prohibits donations from property developers and restricts indirect campaign contributions in New South Wales.

The majority did so on the grounds that whilst each of the provisions burdened the implied freedom of political communication, they had been enacted for legitimate purposes and hence, did not impermissibly infringe upon the implications within the Commonwealth Constitution. The relevant sections were enacted for the legitimate end of preventing the reality and perception of undue influence and corruption of the government, and ensuring equality from a political standpoint. This, they maintained, preserved and enhanced the constitutionally prescribed system of
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They all held a presumptive stance against laws that impose a discriminatory burden on the implied freedom.
However, the question must be asked: when is a law said to discriminate in the context of the implied freedom? The caps on political contributions under the EFED challenged in McCloy should seemingly constitute discrimination as the caps had different maximums for different groups of people (s95A(1)), and hence had proportionately different impacts on them, but was ruled otherwise. Another implication within the judgment extended to why laws that discriminate in the sense of providing for differential treatment be presumptively illegitimate? The argument by the majority in McCloy was that the caps were necessary to ‘level the playing field’ despite discriminating against the wealthy because political ‘capital’ is unequally
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