This article is from the Australian Property Journal archive
THE High Court has unanimously upheld a New South Wales law prohibiting property developers from making political donations.
The case was brought by former Newcastle lord mayor and developer Jeff McCloy after revelations were made before the Independent Commission Against Corruption inquiry, that he made over $30,000 in donations, by stuffing envelopes with cash and giving it former Liberal candidates Tim Owen and Andrew Cornwell inside his Bentley.
ICAC also heard that former mining magnate Nathan Tinkler’s donated $45,000 to the Nationals party and $66,000 to an alleged Liberal party slush fund, Eightbyfive, while his property development company Buildev was seeking for approval for a new coal- loader on the former BHP steelworks site at Mayfield, Newcastle.
The High Court’s decision paves the way for ICAC to release the findings of its inquiry into political donations, dubbed Operation Spicer, which had been delayed due to the High Court action.
In court, McCloy’s lawyers argued that the ban contravened “the freedom of political communication by restricting funds available to political parties” and that the ban does not prevent corruption.
The law also caps political donations of up to $2,000 per person each financial year to one candidate and individual can donate up to $5,000 to a registered political party per year.
McCloy also sought to have the cap lifted.
The freedom of political argument was rejected the High Court and found that:
“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,”
The court also said:
“The provisions are a legitimate means of pursuing the legitimate objective of removing the risk and perception of corruption and undue influence in NSW politics.
“The court held that the provisions in fact enhance the system of representative government which the implied freedom of political communication protects.”
The court also rejected the argument to lift the cap, stating that:
“The risks that large political donations have for a system of representative government have been acknowledged since Federation.
“Capping of political donations is a measure which has been adopted by many countries with systems of representative government. It is a means that does not impede the system of representative government for which our Constitution provides.”
McCloy was ordered to pay all costs.
Australian Property Journal
