Spence v Queensland

HIGH COURT OF AUSTRALIA 


KIEFEL CJ,

BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN
JJ


GARY DOUGLAS SPENCE PLAINTIFF


AND


STATE OF QUEENSLAND DEFENDANT


Spence v Queensland 

[2019] HCA 15 

Date of
Order: 17 April 2019 

Date of Publication of Reasons: 15 May
2019 

B35/2018


ORDER 


The questions raised by the special case and the answers that must be
given to them are as follows: 


[1] Are
the amendments made to the Electoral Act 1992 (Qld) by part 3 of the
Local Government Electoral (Implementing Stage 1 of Belcarra) and Other
Legislation Amendment Act 2018 (Qld) invalid (in whole or in part and, if in
part, to what extent) because they impermissibly burden the implied freedom of
political
communication on governmental and political matters, contrary to the
Commonwealth Constitution ? 


Answer: No. 


[2] Are
the amendments made to the Electoral Act 1992 (Qld) by part 3 of the
Local Government Electoral (Implementing Stage 1 of Belcarra) and Other
Legislation Amendment Act 2018 (Qld) invalid (in whole or in part and, if in
part, to what extent) because they are beyond the power of the Parliament of
Queensland
to enact on the basis of an implied doctrine of intergovernmental
immunities or on the basis that they impermissibly intrude into
an area of
exclusive Commonwealth legislative power? 


Answer: No. 


[100] Are
the amendments made to the Local Government Electoral Act 2011 (Qld) by
part 5 of the Local Government Electoral (Implementing Stage 1 of Belcarra)
and Other Legislation Amendment Act 2018 (Qld) invalid (in whole or in part
and, if in part, to what extent) because they are beyond the power of the
Parliament of Queensland
to enact on the basis of an implied doctrine of
intergovernmental immunities or on the basis that they impermissibly intrude
into
an area of exclusive Commonwealth legislative power? 


Answer: No. 


[4] Is
section 302CA of the Commonwealth Electoral Act 1918 (Cth) invalid (in
whole or in part and, if in part, to what extent) because it is beyond the
Commonwealth's legislative power? 


Answer: The section is wholly invalid. 


[5] Is
section 302CA of the Commonwealth Electoral Act 1918 (Cth) invalid (in
whole or in part and, if in part, to what extent) because it purports to operate
in a manner that is contrary to
the principle derived from Melbourne
Corporation v Commonwealth [1947] HCA 26 ; (1947) 74 CLR 31? 


Answer: Does not arise. 


[6] Is
section 302CA of the Commonwealth Electoral Act 1918 (Cth) invalid (in
whole or in part and, if in part, to what extent) because it purports to operate
in a manner that is contrary to
the principle derived from University of
Wollongong v Metwally [1984] HCA 74 ; (1984) 158 CLR 447, namely that a Commonwealth law
cannot override the operation of section 109 of the Constitution ?


Answer: Unnecessary to decide. 


[7] Are
the amendments made to the Electoral Act 1992 (Qld) by part 3 of the
Local Government Electoral (Implementing Stage 1 of Belcarra) and Other
Legislation Amendment Act 2018 (Qld) invalid (in whole or in part and, if in
part, to what extent) pursuant to section 109 of the Commonwealth
Constitution by reason of their being inconsistent with the
Commonwealth Electoral Act 1918 (Cth)? 


Answer: No. 


[8] Are
the amendments made to the Local Government Electoral Act 2011 (Qld) by
part 5 of the Local Government Electoral (Implementing Stage 1 of Belcarra)
and Other Legislation Amendment Act 2018 (Qld) invalid (in whole or in part
and, if in part, to what extent) pursuant to section 109 of the
Commonwealth Constitution by reason of their being inconsistent with the
Commonwealth Electoral Act 1918 (Cth)? 


Answer: No. 


[1] Who
should pay the costs of the special case? 


Answer: The plaintiff. 


Representation 


J K Kirk SC and P A Hastie QC with M J Forrest for the plaintiff (instructed
by ClarkeKann Lawyers)


P J Dunning QC, Solicitor-General of the State of Queensland, with
S J Keim SC, G J D del Villar and F J Nagorcka for the defendant
(instructed by Crown Solicitor (Qld))


S P Donaghue QC, Solicitor-General of the Commonwealth, and
P D Herzfeld with C J Tran for the Attorney-General of the
Commonwealth,
intervening (instructed by Australian Government Solicitor)


M G Sexton SC, Solicitor-General for the State of New South Wales, with E S
Jones for the Attorney-General for the State of New South
Wales, intervening
(instructed by Crown Solicitor's Office (NSW))


P J F Garrisson SC, Solicitor-General for the Australian Capital Territory,
with H Younan for the Attorney-General for the Australian
Capital Territory,
intervening (instructed by ACT Government Solicitor)


M E O'Farrell SC, Solicitor-General for the State of Tasmania, with
J L Rudolf for the Attorney-General for the State of Tasmania,
intervening (instructed by Solicitor-General for the State of Tasmania)


C D Bleby SC, Solicitor-General for the State of South Australia, with
K M Scott for the Attorney-General for the State of South Australia,
intervening (instructed by Crown Solicitor's Office (SA))


K L Walker QC, Solicitor-General for the State of Victoria, with
M A Hosking for the Attorney-General for the State of Victoria,
intervening
(instructed by Victorian Government Solicitor)


J A Thomson SC, Solicitor-General for the State of Western Australia, with
J M Misso for the Attorney-General for the State of Western
Australia,
intervening (instructed by State Solicitor's Office (WA))


Notice: This copy of the Court's Reasons for Judgment is subject to formal
revision prior to publication in the Commonwealth Law
Reports.


CATCHWORDS 


Spence v Queensland 


Constitutional law (Cth) – Powers of Commonwealth Parliament –
Federal elections – Severance – Where s 51(xxxvi) in application to
ss 10 and 31 of Constitution conferred legislative power on
Commonwealth Parliament with respect to federal elections – Where
Commonwealth Parliament enacted
s 302CA within Div 3A of Pt XX of
Commonwealth Electoral Act 1918 (Cth) – Where s 302CA 
relevantly conferred authority on person to make, and on "political entity" to
receive and retain, gift not prohibited by Div 3A
provided that gift or part of
it was "required to be, or may be" used for certain purposes relating to federal
elections –
Where s 302CA provided for displacement of such authority
in circumstances including where State or Territory electoral law required gift
or part
of it to be kept or identified separately to be used only for purpose of
State, Territory or local government election – Whether
Commonwealth
legislative power with respect to federal elections exclusive or concurrent
– Whether s 302CA within scope of Commonwealth legislative power with
respect to federal elections – Whether possible to sever s 302CA to
preserve part of its operation within scope of Commonwealth legislative
power.


Constitutional law (Cth) – Inconsistency between Commonwealth and State
laws – Gifts to political parties – Where
Queensland Parliament
passed amendments to Electoral Act 1992 (Qld) and Local Government
Electoral Act 2011 (Qld) prohibiting property developers from making gifts
to political parties that endorse and promote candidates for election to
Legislative
Assembly and local government councils – Whether Queensland
amendments inconsistent with s 302CA or framework of Pt XX of
Commonwealth Electoral Act – Whether s 302CA invalid for
infringing principle in University of Wollongong v Metwally (1984) 158
CLR 447; [1984] HCA 74. 


Constitutional law (Cth) – Implied freedom of communication about
governmental and political matters – Where amendments
to Electoral Act
1992 (Qld) substantially replicated provisions in Election Funding,
Expenditure and Disclosures Act 1981 (NSW) upheld in McCloy v New South
Wales (2015) 257 CLR 178; [2015] HCA 34 – Whether amendments invalid
for infringing implied freedom.


Constitutional law (Cth) – Relationship between Commonwealth and States
– Doctrine of inter-governmental immunities –
Whether implication
expounded in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31;
[1947] HCA 26 operates reciprocally to protect States and Commonwealth
from impermissible interference by law of one polity with operations of
government
in another – Whether s 302CA invalid for contravening
Melbourne Corporation 

principle – Whether Queensland amendments
invalid for contravening Melbourne Corporation principle.


Words and phrases – "bare attempt to limit or exclude State power",
"concurrent power", "electoral expenditure", "electoral
matter", "exclusive
power", "federal elections", "federalism", "immunity from State laws",
"incidental", "inconsistency", "inter-governmental
immunities", "political
entity", "political party", "required to be, or may be, used for the purposes of
incurring electoral expenditure,
or creating or communicating electoral matter",
"severance", "State elections", "structural implication", "sufficient
connection".


Constitution , ss 7 , 9 , 10 , 29 , 31 , 51 (xxxvi), (xxxix), 109 .

Acts
Interpretation Act 1901 (Cth), ss 13 , 15A , 15AD .

Commonwealth
Electoral Act 1918 (Cth), ss 4AA , 302CA , Pt XX. 

Election Funding,
Expenditure and Disclosures Act 1981 (NSW), Pt 6 , Div 4A.

Electoral
Act 1992 (Qld), Pt 11 , Div 8, Subdiv 4.

Local Government Electoral Act
2011 (Qld), Pt 6 , Div 1A.

Local Government Electoral (Implementing
Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld), Pts 3 ,
5 .


[1] KIEFEL
CJ, BELL, GAGELER AND KEANE JJ. This special case in a proceeding in the
original jurisdiction of the High Court raises questions
concerning the
constitutional validity and operability of State and Commonwealth electoral laws
each purporting to apply to the making
of gifts to political parties. 


[2] The
impugned State and Commonwealth electoral laws are framed against the background
that political parties in Australia are typically
unincorporated associations
organised geographically by State and Territory. The objects of a political
party typically include
to endorse and promote candidates for election to the
Commonwealth Parliament as well as to endorse and promote candidates for
election
to State Parliaments and Territory legislatures and to local government
councils. Because registration of a political party brings
benefits, which
range from identification of a candidate's party endorsement on ballot papers to
having access to public funding
for expenditure on elections, political parties
endorsing and promoting candidates for election to the Commonwealth Parliament
typically
choose to be registered under Pt XI of the Commonwealth
Electoral Act 1918 (Cth) ("the Commonwealth Electoral Act "), and those same
political parties or State or Territory branches or divisions of them endorsing
and promoting candidates for election
to State Parliaments and Territory
legislatures and to local government councils typically choose also to be
registered under corresponding
provisions of State and Territory electoral
laws.


[3] The
impugned State electoral laws were introduced by the Local Government
Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act
2018 (Qld) ("the Queensland Amending Act "). They are provisions of the
Electoral Act 1992 (Qld) ("the Queensland Electoral Act ") and of the
Local Government Electoral Act 2011 (Qld) ("the Queensland Local
Government Electoral Act ") framed to prohibit property developers from making
gifts to political parties which endorse and promote candidates for election
to
the Legislative Assembly of Queensland and to local government councils in
Queensland.


[4] The
impugned Commonwealth electoral law is s 302CA of the Commonwealth
Electoral Act , which was inserted after the Queensland Amending Act by the
Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act
2018 (Cth) ("the Commonwealth Amending Act"). The section is framed to
permit a person to make a gift to a political party registered
under the
Commonwealth Electoral Act , and to permit that political party to receive and
retain that gift, despite any State or Territory electoral law, if the gift, or
a part of the gift, is required to be used or might be used to incur expenditure
for the dominant purpose of influencing voting in
an election to the House of
Representatives or to the Senate. The section, if valid, would render the
impugned State electoral laws
inoperative by force of s 109 of the
Constitution in their application to a property developer making a gift
other than for the purpose of use in a State or local government election
to a
political party that endorses and promotes candidates for election to the
Legislative Assembly of Queensland or to a local government
council in
Queensland and that is also registered under the Commonwealth Electoral
Act .


[5] The
questions raised by the special case, and the answers to those questions, are
set out at the conclusion of these reasons. The
gist of those answers is as
follows. The impugned Commonwealth electoral law extends beyond the reach of
Commonwealth legislative
power to the extent that it purports to immunise from
State law the making of a gift which merely might be used to incur expenditure
for the dominant purpose of influencing voting in a federal election. It is
incapable of severance, and it is on that basis wholly
invalid. The impugned
State electoral laws are not invalid or inoperative on any of the various bases
identified in the questions
raised in the special case. The impugned State
electoral laws, in short, stand valid and operative.


[6] Those
answers are arrived at through a process of constitutional analysis which is now
to be explained. In the same way as has been
seen to be important in other
cases [1] , it is
important to emphasise that this process of constitutional analysis is the
outworking of the conception of federalism that
has prevailed since
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ("the
Engineers'
Case ") [2] . 
The Engineers' Case "exploded and unambiguously
rejected" [3] the
doctrines of "reserved powers" and of "implied prohibitions" which had been
dominant in the first two decades of our constitutional
history. The conception
of federalism that has prevailed throughout the century since the Engineers'
Case , to use the language of its exposition by Dixon J in Melbourne
Corporation v The Commonwealth ("the Melbourne Corporation
Case ") [4] , is
essentially that of "a central government and a number of State governments
separately organized" in which "power itself" forms
no part of "the conception
of a government" and in which the distribution and inter-relation of legislative
power is effected chiefly
through the operation of ss 51 , 52 , 107 , 108 and
109 of the Constitution .
The proceeding and the special
case 


[7] The
plaintiff was formerly the president of the Liberal National Party of
Queensland, an unincorporated association registered as
a political party under
both the Queensland Electoral Act and the Commonwealth Electoral Act . Members
of the Liberal National Party currently sit as members of the House of
Representatives, as senators, as members of the
Legislative Assembly of
Queensland and as councillors of the Brisbane City Council.


[8] The
plaintiff commenced the proceeding against the State of Queensland by writ and
statement of claim filed after the enactment but
before the commencement of the
relevant parts of the Queensland Amending Act . By his statement of claim, as it
came to be amended following the commencement of the relevant parts of the
Queensland Amending Act , the plaintiff sought declarations to the effect that
the amendments introduced into the Queensland Electoral Act were invalid as
infringing the implied freedom of political communication, and that the
amendments introduced into both the Queensland Electoral Act and the Queensland
Local Government Electoral Act were invalid as purporting to exercise power
exclusively vested by the Constitution in the Commonwealth Parliament or
infringing the doctrine of inter-governmental immunities or, in the alternative,
were inoperative
as inconsistent with certain provisions of the Commonwealth
Electoral Act as it then stood. 


[9] The
subsequent enactment of the Commonwealth Amending Act added a new dimension to
the proceeding. The plaintiff further amended
his statement of claim to expand
his challenge to the amendments introduced into the Queensland Electoral Act and
the Queensland Local Government Electoral Act to claim that they were also
inoperative by reason of inconsistency with s 302CA of the Commonwealth
Electoral Act . Queensland in turn amended its defence to assert the invalidity
of that section. 


[10] The
Attorney-General of the Commonwealth, although formally no more than an
intervener in the proceeding under s 78A of the Judiciary Act 1903 
(Cth), became in those altered circumstances a principal protagonist. The
Commonwealth supported the validity of s 302CA of the Commonwealth
Electoral Act . The Commonwealth chose also to support some aspects of the
plaintiff's independent challenge to the validity of the amendments
introduced
by the Queensland Amending Act . The Attorneys-General of each of the other
States and for the Australian Capital Territory also intervened. Each provided
a measure
of support for the position taken by Queensland. Some advanced
important arguments beyond those advanced by Queensland.


[11] The
special case came to be agreed between the plaintiff and Queensland with the
active participation of the Commonwealth. The numerous
questions raised in the
special case were no doubt formulated to accommodate the plenitude of the
arguments sought to be put by them
and by the State and Territory
interveners.


[12] "[P]re- Engineers 
ghosts" [5] 
whispered to both sides of the dispute, confusing its resolution with competing
arguments of exclusive Commonwealth and State legislative
powers and with
exaggerated claims to the protection of the doctrine of inter-governmental
immunities expounded post- Engineers in the Melbourne Corporation 
Case . 


[13] To
attempt to catalogue all of the arguments advanced on behalf of the parties and
the interveners at the outset would be unrewarding.
More productive is to
concentrate on the principal arguments of the Commonwealth and of the plaintiff
concerning the reach of and
relationship between Commonwealth and State
legislative powers in relation to federal and State elections. Resolution of
those arguments,
as will be seen, has the consequence that a number of other
arguments do not need to be addressed and that some of the questions
raised in
the special case do not need to be answered.


[14] The
structure of analysis adopted in these reasons is therefore to address in
sequence arguments advanced by the Commonwealth and
the plaintiff concerning the
exclusivity of Commonwealth legislative power, the scope of Commonwealth
legislative power, and the
severability of s 302CA of the Commonwealth
Electoral Act to the extent that the section travels beyond the scope of
Commonwealth legislative power. Those arguments having been dealt with,
most of
the defensive arguments advanced by Queensland and the State interveners fall
away. Remaining arguments advanced by the
plaintiff alone as to the validity
and operability of the amendments introduced by the Queensland Amending Act , on
the basis of the implied freedom of political communication and the doctrine of
inter-governmental immunities, are able to be
addressed discretely and with
relative brevity.


[15] To
provide context for the requisite analysis, it is useful to recount a little
more of the legislative history of the Queensland Amending Act and of the
Commonwealth Amending Act. It is appropriate to give some further explanation
of the provisions introduced into the Queensland Electoral Act and the
Queensland Local Government Electoral Act by the Queensland Amending Act . And
it is imperative to examine with precision the legal and practical operation of
s 302CA of the Commonwealth Electoral Act . 
The Queensland
Amending Act 


[16] The
Queensland Amending Act was enacted on 21 May 2018. Parts 3 and 5 of the
Queensland Amending Act commenced on 2 October
2018 [6] . Part 3 
inserted Subdiv 4 into Div 8 of Pt 11 of the Queensland Electoral Act . Part 5 
inserted Div 1A into Pt 6 of the Queensland Local Government Electoral Act .


[17] The
Queensland Electoral Act , as its name implies, makes provision in relation to
elections to the Legislative Assembly of Queensland, including in Pt 6 in
relation to the voluntary registration of political parties. Within the meaning
of the Queensland Electoral Act , a "political party" is "an organisation whose
object, or [one] of whose objects, is the promotion of the election to the
Legislative
Assembly of a candidate or candidates endorsed by it or by a body or
organisation of which it forms a
part" [7] .


[18] Subdivision
4 of Div 8 of Pt 11 of the Queensland Electoral Act substantially replicates Div
4A of Pt 6 of the Election Funding, Expenditure and Disclosures Act 1981 
(NSW) ("the New South Wales Electoral Act "), the operation of which was
considered in McCloy v New South Wales 
(" McCloy ") [8] 
in the context of rejecting an argument that it infringed the implied freedom of
political communication. The other challenges to
constitutional validity
advanced in the present case were not advanced at all in McCloy . 


[19] The
centrally relevant operation of Subdiv 4 is to prohibit the making and receipt
of a gift by a "property developer" to or for
the benefit of a political
party [9] . The
subdivision similarly prohibits the making and receipt of such a gift to or for
the benefit of an elected member of the Legislative
Assembly or to or for the
benefit of a candidate in an election to the Legislative
Assembly [10] . 
As in the legislation considered in McCloy , the expression "property
developer" is defined to mean a corporation engaged in a business that regularly
involves making statutory
applications for planning approval in connection with
residential or commercial development of land with the ultimate purpose of
sale
or lease of the land for profit, and to extend to a close associate of such a
corporation [11] .


[20] The
Queensland Local Government Electoral Act , as its name implies, makes provision
in relation to the election of Queensland local government councillors. A
"political party"
within the meaning of the Queensland Local Government
Electoral Act is "an organisation or group whose object or activity, or [one] of
whose objects or activities, is the promotion of the election
of a candidate or
candidates endorsed by it, or by a body or organisation of which it forms a
part, to an office of councillor of
a local
government" [12] .


[21] Division
1A of Pt 6 of the Queensland Local Government Electoral Act follows the same
pattern as Subdiv 4 of Div 8 of Pt 11 of the Queensland Electoral Act and adopts
an identical definition of "property
developer" [13] .
The centrally relevant operation of the Division is to prohibit the making and
receipt of a gift by a property developer to or for
the benefit of a political
party [14] . The
Division likewise prohibits the making and receipt of such a gift to or for the
benefit of a councillor of a local government
or to or for the benefit of a
candidate or group of candidates in a local government
election [15] . 

The Commonwealth Amending Act 


[22] The
Commonwealth Amending Act was enacted on 30 November 2018. It introduced
amendments to the election funding and financial disclosure
regime set out in Pt
XX of the Commonwealth Electoral Act , most of which commenced on 1 January
2019 [16] . 


[23] The
election funding and financial disclosure regime set out in Pt XX of the
Commonwealth Electoral Act is framed against the background of the provision
made in Pt XI of that Act for the voluntary registration of political parties,
the operation and validity of which were considered in Mulholland v
Australian Electoral
Commission [17] .
Within the meaning of the Act, a "political party" is "an organization the
object or activity, or one of the objects or activities,
of which is the
promotion of the election to the Senate or to the House of Representatives of a
candidate or candidates endorsed
by
it" [18] and a
"registered political party" is a party that is registered under Pt
XI [19] . 
Together with a candidate for election to the Senate or to the House of
Representatives and with a member of a group of candidates
for election to the
Senate, a registered political party in the terminology of the Act is a
"political entity", as is any branch
or division of the registered political
party that is organised on the basis of a particular State or
Territory [20] .


[24] Divisions
4, 5 and 5A of Pt XX of the Commonwealth Electoral Act combine to set out a
financial disclosure regime applicable to all political entities as well as to
"political
campaigners" [21] ,
"third
parties" [22] 
and "associated
entities" [23] . 
In broad terms, the regime operates to compel each of them to furnish periodic
returns to the Australian Electoral Commission in
which they disclose gifts
received by them and "electoral expenditure" made by them. In the case of
registered political parties,
as in the case of political campaigners and
associated entities, the returns are required to be furnished annually and are
to set
out amounts received or paid during the year and outstanding debts
incurred [24] .


[25] "Electoral
expenditure" within the meaning of Pt XX , subject to immaterial exceptions, is
"expenditure incurred for the dominant purpose of creating or communicating
electoral
matter" [25] . 
"Electoral matter" is defined for the purposes of the Act, subject again to
immaterial exceptions, to mean "matter communicated
or intended to be
communicated for the dominant purpose of influencing the way electors vote in an
election ... of a member of the
House of Representatives or of Senators for a
State or
Territory" [26] .


[26] Division 3A
of Pt XX was inserted by the Commonwealth Amending Act. The Division operates
to prohibit a political entity or political campaigner from
receiving a gift of
at least $1,000 from a "foreign
donor" [27] 
(such as a body which is not incorporated in Australia and which does not have
its principal place of activity or head office in
Australia [28] ),
and to prohibit a third party from receiving from a foreign donor a gift that is
of a threshold amount and that is used for the
purpose of incurring electoral
expenditure or for the dominant purpose of creating or communicating electoral
matter [29] . 
The Division also operates to prohibit a political entity, political campaigner
or third party from knowingly receiving a gift
of at least $100 from a foreign
donor where either the recipient or the donor intends the gift to be used for
the purposes of incurring
electoral expenditure or for the dominant purpose of
creating or communicating electoral
matter [30] . 
The expressed object of the Division is "to secure and promote the actual and
perceived integrity of the Australian electoral process
by reducing the risk of
foreign persons and entities exerting (or being perceived to exert) undue or
improper influence in the outcomes
of
elections" [31] .


[27] Section
302CA is located within Div 3A of Pt XX, although that placement of the section
cannot be treated as indicating that the
section shares the object of the
Division. The section was not included within the Bill for the Commonwealth
Amending Act in the
form in which it was originally introduced into the
Senate [32] . An
early version of s 302CA was contained in an exposure draft of proposed
government amendments which the Minister for Finance
and the Public Service
provided to the Joint Standing Committee on Electoral Matters, to which the Bill
had been referred for
consideration [33] .
The exposure draft of the amendments was accompanied by an exposure draft of a
Supplementary Explanatory Memorandum which explained
that the section "clarifies
the interaction between similar State and Territory and Commonwealth electoral
funding schemes" and "ensures
that provisions of State and Territory laws that
relate to political donations cannot restrict the making or receipt of donations
that could be used for Commonwealth electoral
purposes" [34] . 
The version of the section contained in the exposure draft was amended to take
its final form following governmental acceptance
of a recommendation of a
majority of the Joint Standing Committee that it be "amended to ensure that
Commonwealth laws would not
apply to money that is directed towards non-federal
campaigns (including state, territory and local government
campaigns)" [35] .


[28] The
section in its final form was inserted into the Bill on 15 November 2018 as part
of a suite of government amendments in the
Senate [36] . 
The Bill as so amended was subsequently passed by the House of Representatives. 
The explanation given in a Supplementary Explanatory
Memorandum circulated in
the Senate [37] 
and in a Revised Explanatory Memorandum in the House of
Representatives [38] 
was that the section "clarifies the interaction between similar State and
Territory and Commonwealth electoral funding schemes" and
"ensures that
provisions of State and Territory laws that relate to political donations cannot
... restrict the use of a gift for
Commonwealth electoral purposes ... or ...
restrict the giving, receiving or retaining of donations that could be used for
Commonwealth
electoral purposes, unless the donation is directed to a purpose
relating to a State, Territory or local government election".


[29] Section
302CA, including its subheadings and its internal note and example, is best set
out in full. Under the heading "Relationship
with State and Territory electoral
laws", the section provides: 

" Giving, receiving or retaining gifts 


(1) Despite any State or Territory electoral law, a person or entity may:


(a) give a gift to, or for the benefit of, a political entity, a political
campaigner or a third party (a gift recipient ); or


(b) if the person or entity is a gift recipient – receive or retain a
gift; or


(c) on behalf of a gift recipient, receive or retain a gift;


if:


(d) this Division does not prohibit the giving, receiving or retaining of the
gift; and


(e) the gift, or part of the gift, is required to be, or may be, used for the
purposes of incurring electoral expenditure, or creating
or communicating
electoral matter, in accordance with subsection (2).


(2) A gift, or part of a gift, is required to be, or may be, used for a purpose
of incurring electoral expenditure, or creating or
communicating electoral
matter, if:


(a) any terms set by the person or entity providing the gift explicitly require
or allow the gift or part to be used for that purpose
(whether or not those
terms are enforceable); or


(b) the person or entity providing the gift does not set terms relating to the
purpose for which the gift or part can be used.


Gifts made or retained for State or Territory electoral purposes 


(3) Without limiting when subsection (1) does not apply, that subsection does
not apply in relation to all or part of a gift if:


(a) any terms set by the person or entity providing the gift explicitly require
the gift or part to be used only for a State or
Territory electoral purpose
(whether or not those terms are enforceable); or


(b) either: 
(i) the effect of a State or Territory electoral law is to require the gift or
part to be kept or identified separately (or to require
the gift or part to be
kept or identified separately in order to be entitled to a benefit under that
law); or


(ii) the gift recipient keeps or identifies the gift or part
separately; 
in order to be used only for a State or Territory electoral purpose.


Note: For the purposes of subparagraph (3)(b)(ii), a gift recipient may identify
the electoral purpose for which a gift is to be
used at any time prior to using
that gift. A person who gives, receives or retains a gift that is used for a
State or Territory
electoral purpose in contravention of a State or Territory
electoral law may be liable to a penalty under the State or Territory
electoral
law.


Example: A gift is given without expressing an intended purpose, and ultimately
is used for a State or Territory electoral purpose.
The giving, receipt,
retention and use of that gift must comply with the State or Territory electoral
law.


Using gifts 


(4) Despite any State or Territory electoral law, a gift recipient may use, or
authorise the use of, a gift for the purposes of incurring
electoral
expenditure, or creating or communicating electoral matter, if this Division
does not prohibit the use of the gift.


(5) Without limiting when subsection (4) does not apply, that subsection does
not apply in relation to all or part of a gift if the
effect of the State or
Territory electoral law is to require the gift or part to be kept or identified
separately (or to require
the gift or part to be kept or identified separately
in order to be entitled to a benefit under that law) in order to be used only
for a State or Territory electoral purpose.


When gifts are kept or identified separately 


(6) Without limiting paragraph (3)(b) or subsection (5), an amount that is all
or part of a gift of money is kept or identified separately
in order to be used
only for a State or Territory electoral purpose if:


(a) the amount is kept in an account
where: 
(i) the only amounts deposited into the account are amounts to be used only for
a State or Territory electoral purpose; and


(ii) the only amounts paid out of the account are amounts incurred for a State
or Territory electoral purpose;
or 
(b) the amount is designated as an amount that must be used only for a State or
Territory electoral purpose." 

[30] The
expression "State or Territory electoral law", used in sub-ss (1), (3), (4)
and (5), is defined for the purposes of Pt XX of
the Commonwealth Electoral Act 
to mean "a law of a State or Territory that deals with electoral matters (within
the ordinary meaning of the
expression)" [39] .
The expression "State or Territory electoral purpose", used in sub-ss (3),
(5) and (6), is defined to mean "a purpose relating to
a State, Territory or
local government election (and, to avoid doubt, does not include the purpose of
incurring electoral expenditure
or creating or communicating electoral
matter)" [40] .


[31] The
construction and putative operation of s 302CA are for the most part
uncontroversial. Sub-section (1) constitutes a positive conferral of authority
on a person to make, and relevantly
on a political entity to receive and retain,
a gift that is not prohibited by Div 3A provided only that "the gift, or part of
the
gift, is required to be, or may be, used for the purposes of incurring
electoral expenditure, or creating or communicating electoral
matter". 
Sub-section (2) makes clear that a gift will attract that positive
conferral of authority unless the person making the
gift does so on terms which
indicate an intention on the part of the donor that the gift or part of it is to
be used for a purpose
other than that of incurring electoral expenditure or
creating or communicating matter intended to be communicated for the dominant
purpose of influencing the way voters vote at a federal election. There can be
no doubt that the positive authority conferred by
sub-s (1) as amplified by
sub-s (2) would, if valid, operate by force of s 109 of the
Constitution to render a State electoral law inoperative to the extent
that the State electoral law would impair or detract from the amplitude
of the
authority [41] . 


[32] Section
302CA(3) operates to displace the authority conferred by sub-s (1) in three
circumstances. The first, referred to in para
(a), is where terms set by the
donor of the gift explicitly require the gift or part of it to be used only for
a State or Territory
electoral purpose. The second, referred to in para (b)(i),
is where a State or Territory electoral law requires the gift or part
of it to
be kept or identified separately in order to be used only for a purpose relating
to a State, Territory or local government
election. The third, referred to in
para (b)(ii), gives rise to the only real issue of construction in the
proceeding.


[33] Section
302CA(3)(b)(ii), in providing that sub-s (1) does not apply if the
recipient of the gift keeps or identifies the gift or
part of it separately in
order to be used only for a State or Territory electoral purpose, is most
naturally read as displacing the
authority conferred by sub-s (1) prospectively
so as to remove the authority to retain a gift only at and from the time that
the
recipient chooses to keep or identify the gift or part of the gift
separately in order to be used only for a purpose relating to
a State, Territory
or local government election. However, the note and the example, each of which
is to be treated as a part of
the Commonwealth Electoral Act as
amended [42] ,
indicate that the sub-paragraph must be read as also displacing the authority
conferred by sub-s (1) retrospectively so as to remove
as well the
authority previously conferred by the sub-section to give and receive the gift. 
An effect of the sub-paragraph is that
a person is not authorised to make an
unconditional gift to a political entity and the political entity is not
authorised to receive
the gift if, sometime after the gift is made and received
in fact, the entity chooses to keep or identify the gift or part of it
separately in order to be used only for a purpose relating to a State, Territory
or local government election. 


[34] That
retrospective operation of s 302CA(3)(b)(ii) gives rise to discrete issues
explored in argument as to whether the sub-paragraph, if otherwise valid, would
infringe the principle
accepted in Western Australia v The Commonwealth
(Native Title Act
Case) [43] 
to have been established by University of Wollongong v Metwally
(" Metwally ") [44] 
that "a law of the Commonwealth cannot retrospectively avoid the operation of
s 109 of the Constitution on a State law that was inconsistent with a law
of the Commonwealth" and, if so, whether Metwally should be reopened and
overruled. There is no need to resolve those issues. The retrospective
operation of s 302CA(3)(b)(ii), if
s 302CA were otherwise valid, can
be assumed.


[35] Section
302CA(4) constitutes a further positive conferral of authority relevantly on a
political entity actually to use, or authorise
use of, a gift received and
retained in circumstances where sub-s (1) has applied to the making and
receipt of the gift and where
sub-s (1) has not been displaced by
sub-s (3). Like sub-s (1), sub-s (4) would, if valid, operate by
force of s 109 of the Constitution to render a State electoral law
inoperative to the extent that the State electoral law would impair or detract
from the amplitude
of the authority.


[36] The
overall putative operation of the section can be illustrated by postulating the
circumstance of a property developer who makes
an unconditional gift to a
political party that endorses and promotes candidates for election to the
Legislative Assembly of Queensland
and that is also registered under the
Commonwealth Electoral Act . The prohibition in Subdiv 4 of Div 8 of Pt 11 of
the Queensland Electoral Act would be inoperative in its application to the
making and receipt of the gift unless the political party at the time of the
gift
or at some time thereafter chose to keep or identify the gift or part of it
separately, or a State or Territory electoral law requires
the gift or part of
it to be kept or identified separately, in order to be used only for a purpose
relating to a State, Territory
or local government election. Were the political
party to choose to use the gift for any other purpose, the prohibition in Subdiv
4 of Div 8 of Pt 11 of the Queensland Electoral Act would remain
inoperative as inconsistent with the authority conferred by s 302CA(1). 
The political party would be free to use the
gift to fund expenditure for the
purpose of creating or communicating matter aimed predominantly at influencing
voters in a federal
election, in which case the added authority of
s 302CA(4) would render inoperable any provision of the Queensland
Electoral Act which might otherwise operate to prohibit or impede that
expenditure. However, the political party would also be free to use the
gift to
fund expenditure for any other purpose unrelated to a State, Territory or local
government election. The political party
might, for example, choose to use the
gift to defray overheads, to fund policy development, to reduce existing
indebtedness, to hold
an annual conference, to finance acquisition of new party
premises (otherwise than for a purpose related to a particular election),
or to
pay for advertising which promotes the party's views on an issue of concern to
it but which does not bear on a particular election.
The
concurrent nature of Commonwealth legislative power 


[37] The
principal argument advanced by the Commonwealth and the plaintiff does not
depend on s 302CA of the Commonwealth Electoral Act , or on the Commonwealth
Electoral Act at all. The argument is that the amendments introduced into the
Queensland Electoral Act by Pt 3 of the Queensland Amending Act and into the
Queensland Local Government Electoral Act by Pt 5 of the Queensland
Amending Act are invalid because they trench upon an exclusive power of the
Commonwealth Parliament "to regulate federal elections". 


[38] The
Commonwealth and the plaintiff argue that the existence of such an exclusive
area of Commonwealth legislative power is the result
of a structural implication
which arises from the combination of two main considerations. One is the
obvious absence of any colonial
legislative power over federal elections capable
of being carried forward as State legislative power by s 107 of the
Constitution . The other is a negative implication which they argue is to
be drawn from the limited legislative powers expressly conferred on
State
Parliaments in ss 7 , 9 and 29 of the Constitution and from
ss 10 and 31 of the Constitution . The legislative powers conferred
on State Parliaments by ss 7 , 9 and 29 , they point out, each had an entirely
transitional operation with the exception of the specific enduring power
conferred on a State
Parliament by s 9 to "make laws for determining the
times and places of elections of senators for the State". Sections 10 and 31 ,
they also point out, had a self-executing operation which made "the laws in
force in each State, for the time being, relating to
elections for the more
numerous House of the Parliament of the State" applicable respectively to
elections in the State of senators
and members of the House of Representatives
only until the Commonwealth Parliament otherwise provided. In support of the
structural
implication for which they contend, the Commonwealth and the
plaintiff rely on Smith v
Oldham [45] .


[39] Eschewing
the test that has been established for determining whether a State law trenches
upon an exclusive power expressly conferred
on the Commonwealth Parliament by
s 52 of the Constitution (being whether the Commonwealth Parliament
could itself have enacted the State law in the exercise of the exclusive
power [46] ), the
Commonwealth and the plaintiff formulate their own test for determining whether
a State law trenches upon what they say is
the implied exclusive power of the
Commonwealth Parliament to regulate federal elections. Their test involves
analogising State
legislative power to the express concurrent legislative powers
conferred on the Commonwealth Parliament by s 51(xiii) and (xiv) to make
laws with respect to "banking, other than State banking" and "insurance, other
than State insurance". State Parliaments
are, in effect, treated as having
power to make laws with respect to "elections, other than federal elections". 
Under this test,
a State law would impermissibly intrude into the forbidden area
of exclusive Commonwealth legislative power if it is a law "relating
to
elections" and if it "touches or
concerns" [47] 
federal elections, and does so more than incidentally. 


[40] The
artificiality of the test so posited and the difficulty of applying it can be
highlighted by hypothesising a State law denying
access to public schools for
use as polling places in a federal election. Applying the posited test, the
State law would lie beyond
State legislative power if it were a law relating to
elections but within State legislative power if it were a law relating to
schools.
The necessity to engage in just that kind of exercise in
characterisation gave rise to the "increasing entanglement and uncertainty"
encountered in the application of the doctrine of "reserved powers" in the era
before the Engineers' 
Case [48] .


[41] It
is true that Smith v Oldham contains statements which provide some
support for the notion that the power to regulate federal elections is exclusive
to the Commonwealth
Parliament [49] .
The statements were made, however, in the pre- Engineers' Case era
in the course of upholding the validity of a Commonwealth law which required
articles appearing in newspapers commenting on candidates
or political parties
during the period of a federal election to be signed by their
author [50] , in
the face of an argument that the subject matter of the law was "within the
reserved powers of the
States" [51] . 
To start with the proposition that plenary legislative power is located
somewhere in the Constitution and then to subtract the supposed scope of
State legislative power either to arrive at the scope of Commonwealth
legislative power,
as did Griffith CJ
implicitly [52] 
and Barton J
explicitly [53] ,
or to confirm the scope of Commonwealth legislative power, as did Isaacs
J [54] , was to
adopt a mode of reasoning which did not survive the Engineers' Case .


[42] Smith
v Oldham did not raise any question as to the validity of any State law. 
The conclusion that the Commonwealth law in question in that case
was within the
reach of Commonwealth legislative power has never been questioned and was
undoubtedly correct. At least since the
Engineers' Case , however, the
statements in Smith v Oldham about the exclusivity of Commonwealth
legislative power cannot be treated as having been necessary to its
conclusion.


[43] The
proposition that a State law relating to elections will intrude into an area of
exclusive Commonwealth legislative power merely
if it touches or concerns a
federal election more than incidentally was in any event contradicted even
before the Engineers' Case by R v Brisbane Licensing Court; Ex parte
Daniell (" Ex parte
Daniell ") [55] .
There the opinion of the majority was delivered by Isaacs J, who had been party
to the decision in Smith v Oldham eight years earlier and who would go on
four months later to deliver the opinion of the plurality in the
Engineers' Case . 


[44] The
State law in question in Ex parte Daniell provided for the taking of a
local poll on the same day as polling for a Senate
election [56] . 
The State law was held invalid, not because it intruded into an area of
exclusive Commonwealth legislative power, but because it
was inconsistent within
the meaning of s 109 of the
Constitution [57] 
with a Commonwealth law which provided that on the appointed polling day for an
election to the Senate or to the House of Representatives
"no referendum or vote
of the electors of any State or part of a State shall be taken under the law of
a State" [58] . 
The Commonwealth law was referred to as one that was "incidental to the
acknowledged power to legislate as to Commonwealth
elections" [59] .


[45] Smith
v
Oldham [60] 
and Ex parte
Daniell [61] 
held, and subsequent cases have
confirmed [62] ,
that the power of the Commonwealth Parliament to regulate federal elections is
to be found in the express conferral of power in
s 51(xxxvi) to make laws
with respect to "matters in respect of which [the] Constitution makes provision
until the Parliament otherwise provides", the relevant matters being elections
of senators and of members of the
House of Representatives in each State in
respect of which provision is made in ss 10 and 31 of the
Constitution , as supplemented by the express conferral of power in
s 51(xxxix) to make laws with respect to "matters incidental to the
execution of any power vested by [the] Constitution in the Parliament". Those
conferrals of power are complemented in respect of elections of senators and of
members of the House of
Representatives in Territories by the express conferral
of power in s 122 of the Constitution to make laws "for the
government of any
territory" [63] .


[46] Given
the applicability to the regulation of federal elections of the express
conferrals of power in s 51(xxxvi) and (xxxix) of the Constitution ,
the structural implication of exclusive Commonwealth legislative power for which
the Commonwealth and the plaintiff contend cannot
be drawn from the limited
references to State legislative power in ss 7 , 9 , 10 , 29 and 31 of the
Constitution , and it can be justified neither textually nor structurally.
In marked contradistinction to the conferrals of power in s 52 of the
Constitution , the conferrals of power in s 51 are concurrent with
the State legislative power referred to in s 107 , any conflict between
exercises of Commonwealth and State legislative power being resolved through the
operation of s 109 of the Constitution and through the doctrine of
inter-governmental immunities expounded in the Melbourne Corporation 
Case .


[47] Echoing
the words of Griffith CJ in Smith v
Oldham [64] ,
Dixon J observed in Nelungaloo Pty Ltd v The
Commonwealth [65] 
that matters encompassed within s 51(xxxvi) , including matters of elections
of senators and of members of the House of Representatives, are not matters with
which the States
could have "any concern" in the sense that, considered as
discrete subject matters of legislative power, they were not within the
competence of colonial legislatures and so are not within the ambit of the State
legislative power that is referred to in s 107 of the Constitution . 
That, however, was at most an observation about State legislative competence. 
To recognise that there may be limits to the extent
of the State legislative
power that is referred to in s 107 of the Constitution is not to
posit the existence of an area of exclusive Commonwealth legislative power into
which an exercise of State legislative
power cannot intrude. The argument of
the Commonwealth and the plaintiff elides that distinction.


[48] State
legislative power referred to in s 107 of the Constitution includes
power to regulate State elections, just as colonial legislative power referred
to in that section included power to regulate
colonial elections. Whatever may
be the limits of State legislative power to make laws which regulate State
elections, they are
not transgressed by a State law regulating State elections
in a manner which merely touches and concerns federal elections more than
incidentally. In particular, the limits of State legislative power are not
infringed by a State electoral law which imposes obligations
or prohibitions on
participants in a State electoral process where performance of those obligations
or observance of those prohibitions
might have a practical impact on the ability
of those participants also to engage in a federal electoral process.


[49] Ex
parte Daniell illustrates that, if a State law regulating a State electoral
process is perceived by the Commonwealth Parliament to have a materially
adverse
impact on a federal electoral process, the Commonwealth Parliament can protect
the federal electoral process by a law enacted
within the scope of
s 51(xxxvi) or s 51(xxxix) which will be given paramountcy over the State
law through the operation of s 109 of the Constitution . To what
lengths a Commonwealth law can go in affording protection to a federal electoral
process is the issue next to be addressed.


[50] The
amendments introduced by Pts 3 and 5 of the Queensland Amending Act are laws
regulating State elections. They may well touch and concern federal elections
more than incidentally. They do not for
that reason travel beyond State
legislative competence.
The scope of Commonwealth legislative
power 


[51] The
fall-back argument of the Commonwealth and the plaintiff is that the amendments
introduced by Pts 3 and 5 of the Queensland Amending Act are inoperative by
force of s 109 of the Constitution to the extent of the application
of s 302CA of the Commonwealth Electoral Act . 


[52] The
immediate issue to which the fall-back argument gives rise is whether
s 302CA of the Commonwealth Electoral Act is within the scope of
Commonwealth legislative power. Although not relied upon by Queensland (which
chose to confine itself to
arguments that the section infringes the doctrine of
inter-governmental immunities expounded in the Melbourne Corporation 
Case or intrudes into what Queensland argued to be an area of exclusive
State legislative power over State elections), the issue was squarely
raised by
some of the State interveners.


[53] In
considering whether s 302CA of the Commonwealth Electoral Act is within the
scope of Commonwealth legislative power, there is no occasion to distinguish
between the legislative powers conferred
by s 51(xxxvi) and (xxxix) of the
Constitution . No doubt, s 51(xxxvi) , along with other conferrals of
legislative power in s 51 of the Constitution , "carries with it
authority to legislate in relation to acts, matters and things the control of
which is found necessary to effectuate
its main purpose, and thus carries with
it power to make laws governing or affecting many matters that are incidental or
ancillary
to the subject
matter" [66] . 
Neither the Commonwealth nor the plaintiff argue that s 302CA could be
independently supported by s 51(xxxix) to the extent that it could not be
supported by s 51(xxxvi) of the Constitution . The issue can
therefore be addressed by asking whether the section is within the scope of the
power conferred by s 51(xxxvi) of the Constitution . Section
51(xxxix) of the Constitution does not arise for separate
consideration.


[54] That
the power conferred by s 51(xxxvi) of the Constitution is capable of
being deployed for a protective purpose is similarly not in doubt. As
Isaacs J explained in Smith v
Oldham [67] ,
the power is not confined to parliamentary supervision of the "mechanical
process of election"; it is a "plenary power" the limits
of which "end only with
the subject matter in respect of which it may be
exercised" [68] .
In exercising it, as Isaacs J went on to explain on behalf of the majority in
Ex parte
Daniell [69] ,
"[t]he Commonwealth Parliament clearly has power to secure, so far as
legislation can secure, the fullest opportunity it thinks
desirable to the
people of the Commonwealth to elect their Parliamentary representatives
unconfused by any other public duties required
of them as citizens of a
particular State". "[T]o say more on that subject", he added, "would be
pedantic" [70] .


[55] Little
analysis is accordingly required to hold that s 302CA is within the scope
of the power conferred by s 51(xxxvi) of the Constitution to the
extent that sub-s (1) operates to protect from any impediment arising from
the operation of a State electoral law the giving,
receipt and retention of a
gift earmarked from the outset to be used in creating or communicating matter
intended to be communicated
for the dominant purpose of influencing voting at a
federal election, and to the extent that sub-s (4) operates to provide
similar
protection in respect of the gift's subsequent use. A sufficient nexus
with the power is plainly to be found in the receipt, retention
and use of a
gift that are the objects of the section's positive grant of authority, being by
a participant in a federal electoral
process for a purpose relating to a federal
election. To the extent that the section so operates, its exclusion of State
electoral
law can be seen to give effect to a constitutionally permissible
judgment on the part of the Commonwealth Parliament that the disclosure
regime
set out in Pt XX of the Commonwealth Electoral Act is sufficient regulation
of the receipt, retention and use of the gift and should be exhaustive of the
obligations of the participant
relating to that receipt, retention and use.


[56] Where
difficulty lies is with the breadth of the operation of s 302CA(1) insofar
as it extends to protect from the operation of a State electoral law the giving,
receipt and retention of a gift in circumstances
where, to adopt the description
used in argument by the Solicitor-General for Tasmania, the "gift (or part of
it) may (or may not)
be used for Commonwealth electoral expenditure" and 
where, at the time it is given and received, use of the gift to create or
communicate matter for a purpose of influencing voting at
a federal election is
nothing more than a bare possibility. Consideration of whether s 302CA , to that
extent of its operation, is within the scope of the power conferred by
s 51(xxxvi) of the Constitution requires closer attention. 


[57] The
principles governing characterisation of a Commonwealth law in order to
determine whether the law is within the scope of a legislative
power conferred
by s 51 of the Constitution have become "well
settled" [71] 
since the Engineers' Case and have even been described as "established,
if not trite, constitutional
law" [72] . In
the language of Latham CJ in Bank of NSW v The Commonwealth ("the Bank
Nationalisation
Case ") [73] :

"In determining the validity of a law it is in the first place obviously
necessary to construe the law and to determine its operation
and effect (that
is, to decide what the Act actually does), and in the second place to determine
the relation of that which the Act
does to a subject matter in respect of which
it is contended that the [Commonwealth] Parliament has power to make laws. A
power
to make laws with respect to a subject matter is a power to make laws
which in reality and substance are laws upon the subject
matter." The character of the law must "be
determined by reference to the rights, powers, liabilities, duties and
privileges which it
creates" [74] . 
The constitutional description of the subject matter of the power must "be
construed with all the generality which the words used
admit" [75] . 
The law will then answer the description of a law "with respect to" that subject
matter if the legal or practical operation of
the law is not "so insubstantial,
tenuous or distant" that the law ought not be regarded as enacted with respect
to that subject
matter [76] . 
There is no need for the law to be shown to be connected with the subject matter
of the power to the exclusion of some other subject
matter that is outside
Commonwealth legislative power, and "if a sufficient connection ... does exist,
the justice and wisdom of
the law, and the degree to which the means it adopts
are necessary or desirable, are matters of legislative
choice" [77] . 


[58] The
sufficiency of the connection of a Commonwealth law with the subject matter of a
conferral of legislative power will appear without
more if the law has a direct
legal operation on the subject matter of the power. In Huddart Parker Ltd v
The
Commonwealth [78] ,
Dixon J, with whom Rich J agreed, explained that a law passed by the
Commonwealth Parliament obtains its character as a law with
respect to the
subject matter of a conferral of legislative power from the circumstance that it
creates rights and duties directly
regulating something that forms part of that
subject matter. Similarly, in Murphyores Incorporated Pty Ltd v The
Commonwealth [79] ,
Mason J, with whom Gibbs and Jacobs JJ agreed, said that "it is enough that
the law deals with the permitted topic" and explained
in this regard that "[i]t
is now far too late in the day to say that a law should be characterized by
reference to the motives which
inspire it or the consequences which flow from
it". So also in the Work Choices
Case [80] ,
this Court concluded that a law which prescribes norms regulating the
relationship between the kinds of corporation described in
s 51(xx) of the
Constitution and their employees is a law with respect to such
corporations, and was no less such a law because it prescribed the means by
which
such corporations and their employees are to conduct their industrial
relations. It must be understood, however, that these cases
were concerned with
laws that operated directly on the subject matter of a Commonwealth legislative
power.


[59] Implicit
in the standard explanation of the principles governing the characterisation of
a Commonwealth law is that the sufficiency
of the connection of a Commonwealth
law with the subject matter of a conferral of legislative power can turn on
questions of degree.
The more the legal operation of the law is removed from
the subject matter of the power, the more questions of degree will become
important. Not inappropriate, although not always helpful, in examining those
questions of degree is to frame the enquiry in terms
of whether the operation of
the law is in an area that is "incidental" or penumbral or "peripheral" to the
subject matter of the
power [81] .


[60] Determining
whether a law is incidental to the subject matter of a power can be assisted by
examining how the purpose of the law
– what the law can be seen to be
designed to achieve in
fact [82] 
– might relate the operation of the law to the subject matter of the
power. In the Bank Nationalisation 
Case [83] ,
Dixon J went so far as to say that "in all cases where it is sought to connect
with a legislative power a measure which lies at
the circumference of the
subject or can at best be only incidental to it, the end or purpose of the
provision, if discernable, will
give the key". 


[61] That
statement of Dixon J in the Bank Nationalisation Case , Brennan J
said in Cunliffe v The
Commonwealth [84] ,
"is merely to point out that, by divining the purpose of a law from its effect
and operation, its connexion with the subject of
the power may appear more
clearly". Brennan J went on to
explain [85] :

"Where this is the manner of characterization of a law, its validity is
ascertained first by determining its purpose or object –
a determination
made by reference to what its effect and operation are 'appropriate and adapted'
to achieve – and then by looking
to the connexion between that purpose or
object and the relevant head of power." 

[62] Applying
that manner of characterisation, a law the purpose or object of which is
protection of something that is encompassed within
the subject matter of a
conferral of legislative power may yet not be a law with respect to that subject
matter because the law is
insufficiently adapted to achieve that purpose, having
regard to the breadth and intensity of the impact of the law on other matters.

Professors Zines and Stellios have commented in this respect that "the
slightness of the impact on the federal subject" will often
be "shown most
clearly by contrasting it with a much greater effect on matters outside the
subject of
power" [86] .


[63] Thus,
it was said in Davis v The Commonwealth of the protection against
commercial exploitation attempted to be afforded by s 22 of the
Australian Bicentennial Authority Act 1980 (Cth) to words associated with
the national program of celebrations and activities to commemorate the
bicentenary of European settlement
in Australia that "[a]lthough the statutory
regime may be related to a constitutionally legitimate end, the provisions in
question
reach too far" in that their "extraordinary intrusion into freedom of
expression is not reasonably and appropriately adapted to achieve
the ends that
lie within the limits of constitutional
power" [87] . 
Much the same was said in Nationwide News Pty Ltd v
Wills [88] 
of the protection attempted to be afforded by s 299 of the Industrial
Relations Act 1988 (Cth) against even fair and reasonable criticism of a
member of the Australian Industrial Relations Commission. While use of the
concept of proportionality in this context has been
criticised [89] ,
the point presently to be made is that consideration of the purposes which the
law is or is not appropriate and adapted to achieve
may illuminate the required
connection to the relevant head of
power [90] .


[64] Of
particular relevance to the question of degree that needs to be determined in
the present case are observations of Dixon J in
Australian Communist Party v
The Commonwealth ("the Communist Party
Case ") [91] 
as well as aspects of the reasoning of Dixon CJ in Victoria v The
Commonwealth ("the Second Uniform Tax
Case ") [92] .


[65] In
the Communist Party Case , at the commencement of his Honour's reasons for
holding invalid the purported dissolution of the Australian Communist Party by
s
4 of the Communist Party Dissolution Act 1950 (Cth), Dixon J
said [93] :
"It
is of course true, as a general statement, that the law governing the formation,
existence and dissolution of voluntary associations
of people falls within the
province of the States. The legislative power of the Commonwealth does not
extend to the subject as such,
and if any part of it may be dealt with
constitutionally by Federal statute it is as incidental to some matter falling
within the
specific powers conferred upon the Parliament of the Commonwealth. 
To sustain the validity of s 4, it is therefore necessary to
find a subject of
Federal legislative power to which the enactment of such a provision is fairly
incidental."


[66] The
Second Uniform Tax Case concerned the validity of s 221(1)(a) of the
Income Tax and Social Services Contribution Assessment Act 1936 (Cth). 
Expressed to be "[f]or the better securing to the Commonwealth of the revenue
required for the purposes of the Commonwealth",
s 221(1)(a) operated to
prohibit a taxpayer from paying State income tax until after paying federal
income tax. The section was
held by majority (Dixon CJ, McTiernan, Kitto and
Taylor JJ; Williams, Webb and Fullagar JJ dissenting) to be invalid for want of
sufficient connection with the subject matter of the power with respect to
"taxation" in s 51(ii) of the Constitution . The subject matter of
the power was interpreted to encompass not "the whole subject of taxation
throughout Australia" but only
"federal taxation for federal
purposes" [94] . 


[67] Dixon CJ,
with whom Kitto J agreed,
said [95] :

"To support s 221(1)(a) it must be said to be incidental to the federal
power of taxation to forbid the subjects of a State to pay
the tax imposed by
the State until that imposed upon them by the Commonwealth is paid and,
moreover, to do that as a measure assisting
to exclude the States from the same
field of taxation. This appears to me to go beyond any true conception of what
is incidental
to a legislative power and, under colour of recourse to the
incidents of a power expressly granted, to attempt to advance or extend
the
substantive power actually granted to the Commonwealth until it reaches into the
exercise of the constitutional powers of the
States." 

[68] Specifically
addressing whether a sufficient connection could be found in the legislatively
identified purpose of "better securing"
revenue required for the purposes of the
Commonwealth, Dixon CJ
continued [96] :

"Why should not other debts be postponed too? The resources of a taxpayer are
as certainly diminished by making any other payment
of like amount ... Would it
not strike the mind as absurd if the incidental power arising from s 51(v) and
(xxxix) were treated as authorising a law forbidding a subscriber to the
telephone services to pay debts or some particular debt
whether to the State or
to other persons until he had paid his telephone account? Another analogy would
be a law as under s 51(xiii) and (xxxix) postponing the payment of the
indebtedness of a person happening to be a customer of the Commonwealth Bank
until he had
cleared off or reduced his overdraft, indebtedness for example to
another bank or to take another example, to the State, or again
to all or any
class of his creditors. Yet, if s 221(1)(a) is to be held valid on the
ground that to insure, so far as may be, the
payment of taxes is incidental to
the power conferred by s 51(ii) and the paragraph contains no more than what may
be properly directed to that end, then it would follow that these are examples
of
what may validly be enacted." 

[69] In
Gazzo v Comptroller of Stamps
(Vict) [97] 
Gibbs CJ referred to the Second Uniform Tax Case as amongst a number of
decisions which showed "that a provision cannot be said to be incidental to the
subject matter of a power
simply because in a general way it facilitates the
execution of the power" and "that in considering whether a law is incidental to
the subject matter of a Commonwealth power it is not always irrelevant that the
effect of the law is to invade State power". Although
the correctness of the
decision in Gazzo has been
questioned [98] ,
there is no reason to doubt the veracity of those observations.


[70] Just
as the subject matter of the power with respect to "taxation" conferred by
s 51(ii) of the Constitution is properly identified as "federal
taxation", the subject matter of the power conferred by s 51(xxxvi) in its
application to ss 10 and 31 of the Constitution is properly
identified not as "elections" but as "federal elections". The subject matter,
specifically, is elections of senators
and of members of the House of
Representatives in each State. The words "relating to" in ss 10 and 31 do
not have the effect of expanding the subject matter of the power. The function
of the words "relating to" in ss 10 and 31 is to connote a nexus between
State laws and State elections equivalent to the nexus between Commonwealth laws
and federal elections
connoted by the words "with respect to" in
s 51(xxxvi) 
itself [99] .


[71] What
then is encompassed within the subject matter of federal elections? Although
his Honour may have gone too far in conceiving
of the power conferred by
s 51(xxxvi) in its application to ss 10 and 31 of the
Constitution as
"purposive" [100] ,
Dawson J was correct in Langer v The
Commonwealth [101] 
in conceiving of a federal election as a process which has as its object the
ascertainment of senators and members of the House of
Representatives "directly
chosen by the people" within the meaning of ss 7 and 24 of the
Constitution . An election is the process by which the people exercise
that choice. Taking an appropriately broad view of the subject matter
of
federal elections, and focusing relevantly on the position of political
entities, nomination and grouping of candidates for election
to the Senate or to
the House of Representatives can be said to form part of the electoral
process [102] ,
and registration of political parties having objects of endorsing and promoting
candidates can be said to be incidental to that
process [103] .


[72] That
does not mean, however, that everything done by a federally registered political
party or a candidate or group of candidates
for federal election can be said to
form part of or be incidental to the subject matter of federal elections any
more than it can
be said that everything done by a federal person who is a
taxpayer forms part of or is incidental to the subject matter of federal
taxation. Unlike, for example, the approach which was long ago taken to
registration of participants in the process of "conciliation
and arbitration"
referred to in s 51(xxxv) of the
Constitution [104] ,
the Commonwealth Parliament has not provided for incorporation of participants
in the federal election process as an incident of
which it has defined and so
limited their capacities, nor has it sought to confine the activities of any of
those participants to
activities related to the federal electoral process. The
choice of the Commonwealth Parliament to permit registration as a political
party under the Commonwealth Electoral Act of an unincorporated association only
one of whose objects need be endorsing and promoting candidates for election to
the Senate
or to the House of
Representatives [105] 
is an acknowledgement that the association and its members retain the capacity
to pursue objects and to engage in activities unrelated
to federal
elections.


[73] The
mere circumstance that a registered political party or a candidate or group of
candidates is the object of the imposition of
an obligation or the conferral of
an authority under a Commonwealth law must therefore be insufficient to
establish the requisite
nexus between the operation of the law and the subject
matter of federal elections to bring the law within the scope of
s 51(xxxvi) in its application to ss 10 and 31 of the
Constitution . There is a material distinction between, on the one hand,
imposing an obligation or conferring an authority or immunity on a federally
registered political party or a candidate for federal election in respect of
what they might or might not do in their capacity as
a federally registered
political party or a candidate for federal election and, on the other hand,
imposing an obligation or conferring
an authority or immunity on a federally
registered political party or a candidate for federal election in respect of
what they might
or might not do in some other capacity.


[74] That
distinction is enough to distinguish the present case from Bayside City
Council v Telstra Corporation
Ltd [106] ,
on which the Commonwealth places reliance. There the
law [107] held
to fall within the scope of the legislative power with respect to "postal,
telegraphic, telephonic, and other like services",
conferred on the Commonwealth
Parliament by s 51(v) of the Constitution , went no further than to
confer an immunity on a telecommunications carrier from the operation of a State
law which discriminated
against a telecommunications carrier in its capacity as
a telecommunications
carrier [108] .


[75] If
s 302CA of the Commonwealth Electoral Act is to be found to have a
sufficient connection with the subject matter of federal elections to bring it
within the scope of s 51(xxxvi) of the Constitution insofar as it
purports to immunise from State electoral law the giving, receipt and retention
of a gift that might never be used
for a federal electoral purpose, that
connection cannot be found only in the identity of the object of the authority
as a political
entity. Nor can a sufficient connection be found in the
subjection of the political entity, if the gift were received, to the disclosure
regime set out in Pt XX of the Commonwealth Electoral Act .


[76] If
s 302CA of the Commonwealth Electoral Act is to be found to have a
sufficient connection with the subject matter of the power, that connection
could only be found by relating
the operation of the section to the purpose of
the section. Exploring that possibility makes it necessary to turn to the
identification
of the section's purpose.


[77] The
purpose of the section postulated in argument by the Commonwealth is an
extrapolation from the purpose that was identified in
the Explanatory Memoranda
for the Commonwealth Amending Act. The purpose there identified, as will be
recalled, was bipartite. 
It was in part to clarify the interaction between the
funding and disclosure regime in Pt XX of the Commonwealth Electoral Act and
State and Territory electoral funding schemes. It was in part to ensure that
State and Territory laws relating to political
donations could not restrict the
giving, receipt and retention of a gift "that could be used for
Commonwealth electoral
purposes" [109] ,
unless the gift is directed to a purpose relating to a State, Territory or local
government election.


[78] The
first part of the purpose so identified in the Explanatory Memoranda adds
nothing to the second, and the qualification to the
second part of the purpose
so identified does not alter its basic thrust. The identified purpose can
accordingly be restated as
being to protect from impairment by a State or
Territory electoral law the giving, receipt and retention of any gift to,
relevantly,
a political entity where that gift might, or might not, be used to
create or communicate matter for the dominant purpose of influencing
voting at a
federal election. 


[79] The
ultimate purpose of the section can on that basis be generalised as being to
protect a source of funds which might, but need
not, be deployed by a political
entity in a federal electoral process. The Solicitor-General of the
Commonwealth expressed that
ultimate purpose even more generally as being "to
protect the federal electoral process by ensuring that participants in that
process
are not starved of funds that are able to be used for the dominant
purpose of influencing the way electors vote in the federal elections".


[80] The
difficulty with accepting the purpose so postulated by the Commonwealth lies in
the disconformity between that purpose and the
breadth of the operation of s
302CA , to which attention has been drawn. The section confers immunity from the
application of State and Territory electoral laws that
would otherwise limit the
availability of funds to political entities to pursue a range of activities
having no connection with federal
elections. They include activities the
regulation of which is within the heartland of State legislative power.


[81] The
contrast between the slightness of the impact of s 302CA on the subject matter
of the federal electoral process and its much greater impact on matters outside
that subject matter points
strongly to a purpose that cannot be said to be
incidental to that subject matter. Indeed, it is difficult not to draw from the
operation of s 302CA the inference that its purpose is to ensure that, save
for donations earmarked for use in State, Territory or local government election
campaigns, political entities may receive donations to fund any activities from
any donors who would otherwise be prohibited by State
or Territory electoral
laws from making those donations. Ensuring the availability to political
entities of funding for participation
in federal elections appears to be at most
an adventitious consequence of this purpose.


[82] The
connection between the operation of the section and the actual deployment of
funds by a political entity in a federal electoral
process cannot be described
as more than insubstantial, tenuous and distant. The connection between the
operation of the section
and the subject matter of legislative power, in other
words, is at best remote. To adapt one of the examples used rhetorically by
Dixon CJ in the Second Uniform Tax Case , the connection between
the operation of the section and the subject matter of s 51(xxxvi) in its
application to ss 10 and 31 of the Constitution is no closer than
would exist between the subject matter of "telephonic" services within
s 51(v) of the Constitution and a law immunising a person who is a
user of a telephone service from payment of all State taxes. The fact that the
immunity would
serve to provide the person with a greater source of funds from
which the person could choose to pay a telephone bill might be said
to
constitute some connection with the subject matter of the power. The
connection, however, would be insubstantial and tenuous,
if not unreal.


[83] Having
regard then both to the tenuous connection between s 302CA of the
Commonwealth Electoral Act and the federal electoral process and to the
section's purpose to confer an immunity from State laws in respect of subject
matters
outside the subject matter of Commonwealth legislative power, the
section cannot be supported as a law incidental to federal electoral
processes
to the extent that it authorises the giving, receipt and retention of a gift
that might never be used for any federal electoral
purpose. The section is to
that extent beyond the scope of the power conferred by s 51(xxxvi) of the
Constitution .


[84] Subject
to the question of severance, next to be considered, that conclusion means that
issues raised by Queensland and the State
interveners as to whether s 302CA
infringes the doctrine of inter-governmental immunities expounded in the
Melbourne Corporation Case or intrudes into a supposed area of
exclusive State legislative power over State elections do not arise for
consideration. The absence
of Commonwealth legislative power to sustain the
section in the full amplitude of its purported exclusion of State law stems not
from an implied prohibition or from an exclusion of power but from want of a
sufficient connection with an affirmative grant of power.


Severance 


[85] The
Commonwealth and the plaintiff argue that, if s 302CA of the Commonwealth
Electoral Act is beyond the scope of the power conferred by s 51(xxxvi) of
the Constitution insofar as the section purports to authorise the giving,
receipt and retention of a gift that might never be used for a federal electoral
purpose, the section is to be construed in accordance with s 15A of the
Acts Interpretation Act 1901 (Cth) ("the Commonwealth Interpretation
Act ") so as to result in severance of that invalid operation.


[86] The
principles which govern application of s 15A of the Commonwealth
Interpretation Act were stated sufficiently for present purposes in Victoria
v The Commonwealth (Industrial Relations Act
Case) [110] 
with reference to the reasoning of Latham CJ in Pidoto v
Victoria [111] .
The present case is not within the class of case in which the putative
application of s 15A is "in relation to general words or
expressions" but
is rather within the class of case in which its putative application is "in
relation to 'particular clauses, provisos
and qualifications, separately
expressed, which are beyond legislative
power'" [112] .


[87] Adopting
the language of Latham CJ in Pidoto v Victoria , the interpretative
requirement of s 15A of the Commonwealth Interpretation Act can be applied
to strike out the invalid parts of s 302CA of the Commonwealth Electoral
Act only if two conditions are satisfied. One is that "the operation of the
remaining parts of the [section] remains
unchanged" [113] .
The other is that, if the section "can be reduced to validity by adopting any
one or more of a number of several possible limitations",
some "reason based
upon the law itself can be stated for selecting one limitation rather than
another" [114] .
Underlying the need to satisfy both of those conditions is that s 15A of
the Commonwealth Interpretation Act is an interpretation provision to be applied
strictly within the limits of judicial power. The section "does not authorize
the Court,
by adopting a standard criterion or test merely selected by itself,
to redraft a statute or regulation so as to bring it within power
and so
preserve its
validity" [115] .


[88] The
immediate difficulty encountered in attempting to apply s 15A of the
Commonwealth Interpretation Act to the severance of s 302CA of the
Commonwealth Electoral Act is that s 302CA(1) is expressed to operate in
spite of "any State or Territory electoral law". The section is framed to rely
on s 51(xxxvi) of the Constitution in its application to exclude a
State electoral law and on s 122 of the Constitution in its
application to exclude a Territory electoral law. Although the section reaches
beyond the scope of the power conferred by
s 51(xxxvi) in its application
to exclude a State electoral law, there is and could be no suggestion that the
section reaches beyond the scope
of the power conferred by s 122 in its
application to exclude a Territory electoral law. The section cannot be given a
distributive operation which would have it
operate in one way in relation to a
State electoral law and in another way in relation to a Territory electoral
law [116] , and
there is no basis in the section or elsewhere in the Commonwealth Electoral Act 
for interpreting it to operate in one way rather than the other.


[89] Even
if that difficulty were ignored and attention were confined to s 302CA in
its application in relation to a State electoral law, the work required to bring
the section within the scope of s 51(xxxvi) would amount to major
surgery [117] .
The work could not simply be confined to striking out the words "or may be" from
sub-s (1)(e), given that it is the composite expression
"is required to be,
or may be, used" that is the subject of explication in sub-s (2). The work
then to be done on sub-s (2) would
involve deletion of the words "or may
be" in the chapeau, deletion of the words "or allow" in para (a) and deletion of
the whole
para (b). The result would be a different statutory definition of a
different statutory expression. Sub-section (3) would become
largely redundant.
Sub-section (4) could perhaps be left to stand, but it would make little
sense without reference to the definition
of "gift recipient" in
sub-s (1)(a). Sub-section (5), and with it sub-s (6), would become
redundant in like manner to para (b)(i)
of sub-s (3).


[90] To
mix metaphors, severance would involve separating "the woof from the warp" and
manufacturing "a new
web" [118] . 
That is not a result which can be achieved as an exercise in statutory
interpretation.


[91] Section
302CA of the Commonwealth Electoral Act is incapable of severance under
s 15A of the Commonwealth Interpretation Act . The section is wholly
invalid.
Implied freedom of political communication 


[92] The
plaintiff, but not the Commonwealth, argues that the amendments introduced by Pt
3 of the Queensland Amending Act into the Queensland Electoral Act are invalid
on the basis that they impermissibly burden the constitutionally implied freedom
of political communication. Tellingly,
the plaintiff does not argue that the
amendments introduced by Pt 5 of the Queensland Amending Act into the Queensland
Local Government Electoral Act are invalid on that basis.


[93] Part
3 of the Queensland Amending Act , it will be recalled, inserted into the
Queensland Electoral Act a new Subdiv 4 of Div 8 of Pt 11 which substantially
replicates Div 4A of Pt 6 of the New South Wales Electoral Act . In
McCloy , it was held by majority that Div 4A did not impermissibly burden
the constitutionally implied freedom of political
communication [119] .
Taking account of the nature of the business activities of property developers
and "the nature of the public powers which they might
seek to influence in their
self-interest", the burden which Div 4A placed on freedom of political
communication was held to be justified
as a measure which furthers the general
purpose of preventing corruption and undue influence in the government of the
State and is
therefore "'legitimate' within the meaning given to that term in
Lange , as are the means adopted to achieve
it" [120] . 
Division 4A was held to be suitable and necessary to the achievement of that
purpose and the burden imposed by it to be proportionate
to the achievement of
that
purpose [121] .
Division 4A was also held to "support and enhance equality of access to
government, and the system of representative government
which the freedom
protects" [122] .


[94] The
plaintiff does not seek to reopen McCloy , but to distinguish it. The
plaintiff argues that the justification for the burden that was accepted by the
majority in McCloy to apply in New South Wales has no application in
Queensland. The inference to be drawn from the facts agreed in the special
case,
the plaintiff argues, is that Queensland has not had the same recent
history of corruption associated with land development applications
occurring at
the level of State government (as distinct from corruption associated with land
development applications occurring at
the level of local government) as has New
South Wales.


[95] The
factual basis of the plaintiff's attempt to distinguish McCloy is
contested. The contest of fact, however, need not be resolved. Unlike
Unions NSW v New South
Wales [123] , 
this is not a case in which an adequate factual foundation for the
justification advanced for the burden on freedom of communication
is wanting.


[96] Apparent
from the debate on the introduction and second reading of the Bill for the
Queensland Amending
Act [124] is
that the choice to insert the new Subdiv 4 of Div 8 of Pt 11 into the Queensland
Electoral Act was based on lessons learned from the experience in New South
Wales. As Nettle J said in McCloy
itself [125] :

"[I]t is not illogical or unprecedented for the Parliament to enact legislation
in response to inferred legislative imperatives.
More often than not, that is
the only way in which the Parliament can deal prophylactically with matters of
public concern." Australian States are not so much
"little
laboratories" [126] 
that each State is required to conduct its own experiments or rely on its own
experiences before it can be justified in taking legislative
action to address a
risk of harm to its system of government highlighted by occurrences in another
State.


[97] Together
with Div 4A of Pt 6 of the New South Wales Electoral Act , Subdiv 4 of Div 8
of Pt 11 of the Queensland Electoral Act imposes a burden on political
communication that is justified. The subdivision does not infringe the
constitutionally implied freedom
of political
communication.
Inter-governmental immunity 


[98] The
plaintiff, but again not the Commonwealth, argues that the amendments introduced
by Pts 3 and 5 of the Queensland Amending Act infringe the doctrine of
inter-governmental immunities expounded in the Melbourne Corporation 
Case .


[99] In
a passage in the Melbourne Corporation Case to which partial
reference has already been made, Dixon J
said [127] :

"The foundation of the Constitution is the conception of a central government
and a number of State governments separately organized. The Constitution 
predicates their continued existence as independent
entities." 

[100] The
doctrine of inter-governmental immunities expounded in the Melbourne
Corporation Case is a structural implication built on that
conception. The implication is captured in the proposition articulated by
Starke J in
that case that "neither federal nor State governments may destroy
the other nor curtail in any substantial manner the exercise of
its powers or
'obviously interfere with one another's
operations'" [128] .
His Honour explained that "[i]t is a practical question, whether legislation or
executive action thereunder on the part of a Commonwealth
or of a State
destroys, curtails or interferes with the operations of the
other" [129] . 
The essentially practical nature of the enquiry involved in determining whether
a law of one polity impermissibly interferes with
the operations of government
of another is borne out by subsequent cases in which Commonwealth legislation
has been held to contravene
that structural
implication [130] .


[101] It
might be thought that Brennan CJ took too narrow a view of the doctrine in the
Melbourne Corporation Case when he observed in Re Residential
Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (" Re
Residential Tenancies
Tribunal ") [131] 
that the doctrine "proceeds on the footing that specific legislative powers
conferred on the Parliament of the Commonwealth might
be exercised to affect the
prerogatives of the Crown in right of a State" and "states the limitation which
is to be implied from
the structure of the Constitution on the scope of the
specific legislative powers of the Commonwealth". However, the statement was no
more than a prelude to Brennan
CJ going on in Re Residential Tenancies
Tribunal to observe, undoubtedly correctly, that a State law imposing a
burden on the enjoyment of the Commonwealth prerogative would be offensive
to
s 61 of the Constitution and that a State law imposing a burden on
the enjoyment of a Commonwealth statutory power would be inconsistent with the
Commonwealth
law conferring the power and therefore inoperative by force of
s 109 of the
Constitution [132] .


[102] Queensland
and South Australia seek to take the second of those observations further. The
operation of s 109 of the Constitution to give supremacy to a
Commonwealth law over a State law, they say, means that there is no need for the
operations of the government
of the Commonwealth to be impliedly protected from
interference by or under any State law. The functioning of federal government,
they argue, can always be protected by Commonwealth legislation, including by
appropriately tailored legislation enacted under s 51(xxxix) of the
Constitution . Their argument is not wholly without precedent. It might
even be thought to have some support in reasons given for rejecting the
old
doctrine of implied prohibitions in the Engineers' Case 
itself [133] . 
But it should not be accepted.


[103] The
supremacy given by s 109 of the Constitution to a Commonwealth law
enacted in the exercise of a legislative power conferred by s 51 of the
Constitution over an inconsistent State law means that, in practical
terms, there is more scope for a Commonwealth law to interfere with operations
of the government of a State than there is for a State law to interfere with
operations of the government of the Commonwealth. To
observe that the
constraint imposed by the structural implication recognised in the Melbourne
Corporation Case has greater practical significance in its application to a
Commonwealth law because of the force that s 109 of the Constitution 
gives to a Commonwealth law that is used as a sword against a State, however, is
not to show that the constraint imposed by the structural
implication is of no
practical significance in its application to a State law that is used as a sword
against the Commonwealth. 
The reciprocal operation of the structural
implication is not displaced merely because s 109 allows a Commonwealth law
to be used as a shield. 


[104] The
Commonwealth Parliament certainly has power to protect the functioning of the
government of the Commonwealth through the enactment
of appropriately tailored
legislation under s 51(xxxix) of the Constitution on which
s 109 of the Constitution will then operate. Hardly consistent with
the conception of our federal system as involving a national government and a
number of
State governments separately organised, however, is the notion that
the legislature of the national government should be forced to
protect itself
from State laws in order merely to be able to function. To take up an example
given by Dixon J in West v Commissioner of Taxation
(NSW) [134] ,
it should not be necessary for the Commonwealth Parliament to enact a law
conferring immunity on Commonwealth public servants in
order to ensure that
those public servants are not subjected to State laws imposing special
liabilities or burdens on them by reason
of their status or activities as
Commonwealth public servants.


[105] Inter-governmental
immunities constitute an area of constitutional discourse in which the
fundamental nature of the Constitution as an enduring framework for
federal government must be constantly borne in mind. "We should avoid pedantic
and narrow constructions"
just as we should not be "fearful about making
implications" [135] .
Most importantly, we should avoid being driven to entrenched positions.


[106] There
was a time, even after the Engineers' Case , when it was thought
that Commonwealth immunity from State legislation was absolute. The depiction
of federation portrayed by Dixon
J in In re Foreman & Sons Pty Ltd; Uther
v Federal Commissioner of
Taxation [136] 
– in stating that "[l]ike the goddess of wisdom the Commonwealth
uno ictu sprang from the brain of its begetters armed and of full
stature" at the same instant as the colonies became States lacking "the
power to
regulate the legal relations of this new polity with its subjects" – was
taken so far by Fullagar J in The Commonwealth v
Bogle [137] 
as to imply that a State Parliament "has no power over the Commonwealth". 
That absolute view of Commonwealth immunity was unambiguously
rejected in
Re Residential Tenancies Tribunal . Part of the reason for
rejecting it given by at least three members of the
majority [138] 
was that the reciprocal operation of the Melbourne Corporation doctrine
afforded the operations of the government of the Commonwealth an adequate
measure of protection from State legislative interference.
That view of the
reciprocal operation of the Melbourne Corporation doctrine accorded with
earlier informed
commentary [139] .


[107] No
return to extreme and discredited notions of inter-governmental immunity is
therefore involved in recognising that the Commonwealth
and the States
reciprocally have the benefit of the structural implication recognised in the
Melbourne Corporation Case . The reciprocal application of that
structural implication has been, and should remain, constitutional
doctrine.


[108] Whilst
it is one thing to acknowledge the reciprocal operation of the doctrine of
inter-governmental immunities expounded in the
Melbourne Corporation 
Case as a limitation on the permissible exercise of State legislative
power as well as a limitation on the permissible exercise of Commonwealth
legislative power, it is quite another thing to find that limitation to have
been transgressed. As explained in Fortescue Metals Group Ltd v The
Commonwealth [140] ,
insofar as it imposes a limitation on the exercise of Commonwealth legislative
power, application of the doctrine "requires consideration
of whether impugned
legislation is directed at States, imposing some special disability or burden on
the exercise of powers and fulfilment
of functions of the States which curtails
their capacity to function as governments". Reciprocally, insofar as it imposes
a limitation
on the exercise of State legislative power, application of the
doctrine requires consideration of whether an impugned State law is
directed at
the Commonwealth so as to impose some special disability or burden on the
exercise of powers and fulfilment of functions
of the Commonwealth which
curtails the capacity of the Commonwealth to function as a government.


[109] The
nature of the requisite enquiry need only be stated for its non-application in
the present case to be apparent. Subdivision
4 of Div 8 of Pt 11 of the
Queensland Electoral Act and Div 1A of Pt 6 of the Queensland Local Government
Electoral Act are not directed to the Commonwealth or to any persons or bodies
who are uniquely or even primarily participants in a federal governmental
process. They do not impose a special disability or burden on the Commonwealth.
They do not deny to the Commonwealth the capacity
to regulate its own elections.
The most that can be said of them is that they deny to some persons and bodies
who are participants
in federal electoral processes a source of funds that would
otherwise be available to be used in such a process.

Inconsistency 


[110] The
final argument of the plaintiff is that the amendments introduced by Pts 3 and 5 
of the Queensland Amending Act are inoperative by force of s 109 of the
Constitution independently of s 302CA of the Commonwealth Electoral
Act because they are in any event inconsistent with the broader operation of the
election funding and financial disclosure regime set
out in Pt XX of the
Commonwealth Electoral Act . The plaintiff argues in particular that the
subsidiary schemes for the prohibition of gifts by foreign donors in Div 3A and
for
financial disclosure in Divs 4, 5 and 5A of Pt XX are to be understood as an
exhaustive legal framework.


[111] As
to the plaintiff's reliance on the scheme of Div 3A of Pt XX , it need
hardly be said that the Division taken as a whole cannot achieve indirectly and
by implication that which s 302CA seeks and fails to achieve directly and
expressly. As to the plaintiff's reliance on Divs 4, 5 and 5A of Pt XX , it
is sufficient to say that the regime there set out for the disclosure of gifts
received by a political entity can hardly be said
to be detracted from or
impaired by a State electoral law which prohibits the giving and receipt of a
gift to which, if received,
the disclosure regime would
apply.
Conclusion 


[112] The
questions raised by the special case and the answers to them are as
follows: 

[1] Are
the amendments made to the Queensland Electoral Act by Pt 3 of the Queensland
Amending Act invalid (in whole or in part and, if in part, to what extent)
because they impermissibly burden the implied freedom of political
communication
on governmental and political matters, contrary to the
Constitution ?

Answer: No.


[2] Are
the amendments made to the Queensland Electoral Act by Pt 3 of the 
Queensland Amending Act invalid (in whole or in part and, if in part, to
what extent) because they are beyond the power of the Parliament of Queensland
to
enact on the basis of an implied doctrine of inter-governmental immunities or
on the basis that they impermissibly intrude into an
area of exclusive
Commonwealth legislative power?
Answer: No.


[100] Are
the amendments made to the Queensland Local Government Electoral Act by Pt 5 of
the Queensland Amending Act invalid (in whole or in part and, if in part, to
what extent) because they are beyond the power of the Parliament of Queensland
to
enact on the basis of an implied doctrine of inter-governmental immunities or
on the basis that they impermissibly intrude into an
area of exclusive
Commonwealth legislative power?
Answer: No.


[4] Is s
302CA of the Commonwealth Electoral Act invalid (in whole or in part and, if in
part, to what extent) because it is beyond the Commonwealth's legislative
power?
Answer: The section is wholly invalid.


[5] Is s
302CA of the Commonwealth Electoral Act invalid (in whole or in part and, if in
part, to what extent) because it purports to operate in a manner that is
contrary to the
principle derived from the Melbourne Corporation
Case ?
Answer: Does not arise.


[6] Is s
302CA of the Commonwealth Electoral Act invalid (in whole or in part and, if in
part, to what extent) because it purports to operate in a manner that is
contrary to the
principle derived from Metwally , namely that a
Commonwealth law cannot override the operation of s 109 of the
Constitution ?
Answer: Unnecessary to decide.


[7] Are
the amendments made to the Queensland Electoral Act by Pt 3 of the 
Queensland Amending Act invalid (in whole or in part and, if in part, to
what extent) pursuant to s 109 of the Constitution by reason of their
being inconsistent with the Commonwealth Electoral
Act ?
Answer: No.


[8] Are
the amendments made to the Queensland Local Government Electoral Act by Pt 5 of
the Queensland Amending Act invalid (in whole or in part and, if in part,
to what extent) pursuant to s 109 of the Constitution by reason of their
being inconsistent with the Commonwealth Electoral
Act ?
Answer: No.


i) Who should pay the costs of the special case?


Answer: The plaintiff.


NETTLE J.


Donations in the political sphere 


[113] Parts
3 and 5 of the Local Government Electoral (Implementing Stage 1 of
Belcarra) and Other Legislation Amendment Act 2018 (Qld) ("the impugned
provisions") inserted provisions into the Electoral Act 1992 (Qld) and
the Local Government Electoral Act 2011 (Qld) closely resembling
Div 4A of Pt 6 of the Election Funding, Expenditure and Disclosures
Act 1981 (NSW). Each Act prohibits property developers from making
political donations and each thereby burdens the implied freedom of political
communication. In McCloy v New South
Wales [141] 
a majority of the Court upheld the constitutional validity of Div 4A as
reasonably appropriate and adapted to achieving a legitimate
purpose of reducing
the risk of undue or corrupt influence in an area relating to planning decisions
"where such risk may be greater
than in other areas of official
decision-making" [142] .
As is explained in the majority's reasons in this matter, the majority's
decision in McCloy dictates that the plaintiff's challenge to the
impugned provisions must be rejected.


[114] To
acknowledge the inevitability of that result, however, is not to say that I
agree with it. In McCloy , I dissented because I
considered [143] 
that the discriminatory nature of the prohibition could not be justified. I
remain of that view. Granted, the evidence in McCloy disclosed previous
instances of property developers bribing politicians in order to procure
planning decisions favourable to the
developers [144] .
It was also open to infer, as it might be here, too, that, as well as or instead
of paying bribes, property developers were and
are sometimes disposed to make
political donations to one or other political party or member of Parliament in
the hope or expectation
of the donee later making political decisions favourable
to the developers. But the fact that property developers might make political
donations in the hope or expectation of receiving political favours, exerting
political influence or otherwise advancing their own
interests does not mark
them out as a class so different from other sections of the electorate as to
warrant discriminately prohibiting
them from making political donations.


[115] Plainly,
there are any number of electors who make political donations in the hope or
expectation of extracting political favours,
exerting political influence or
otherwise advancing their own interests. Large corporations which make
significant political donations
provide an obvious example: because the
directors of a corporation cannot lawfully authorise the making of a political
donation
unless persuaded that it is in the best interests of the corporation. 
The trade union movement also serves as a clear example: 
because trade
unions make very large political donations avowedly in the hope or expectation
of influencing the donees to make political
decisions which will advance the
interests of the unions and their membership. No one suggests that big business
or the union movement
should or could be discriminately prohibited from making
political donations. What compelling justification is there for the State
of
Queensland to treat property developers
differently [145] ?
Unjustified
burden 


[116] The
prohibition on property developer political donations is not rationally
connected to the prevention of political bribery and
corruption. Bribery and
corruption are proscribed and punishable as crimes under the
Criminal Code (Qld) [146] .
The premise of the added proscription of political donations in the impugned
provisions is that the kind of political donations
at which it is aimed lack one
or more of the elements of the offences of bribery and corruption. Nor are the
impugned provisions
rationally connected to lessening the risk of property
developers and politicians committing those crimes. If a property developer
is
prepared to risk prison in order to bribe a politician, or a politician is
prepared to risk prison in order to receive a secret
commission, the fact that
the payment might also be prohibited as a proscribed property developer
political donation under the impugned
provisions can do nothing in reality
further to deter the developer or politician from engaging in that conduct. It
might render
each of them liable to being convicted of two offences rather than
one, but, perforce of the principle of
totality [147] ,
the total effective sentence which they receive for the two offences should be
substantially the same as for the one. 


[117] Granted,
prohibiting property developer political donations may reduce the risk of
property developers exerting non-criminal political
"undue influence". But to
repeat the question
posed [148] in
McCloy , who is to say what political influence is undue ? Most
times, the assessment of political undue influence reflects a subjective
political point of view. What appears to one side
of the political debate as
undue presents to the other side as salutary. The examples of big business and
the trade union movement
earlier cited attest to the point, but they are not the
limit of it. 


[118] For
instance, it is not unreasonable to suppose that there is now a significant
proportion of the Queensland electorate who believe
that the State of Queensland
is or would be justified in prohibiting political donations by tobacco
companies, the gun lobby or fossil
fuel producers, on the basis that any
influence that those organisations might exert on anti-smoking or gun control or
fossil fuel
production policies or legislation would be "undue". There may also
be a section of the Queensland electorate who believe that it
would be a good
thing to prevent political donations by, say, sugar producers or private health
insurers or prescription drug or
prosthesis manufacturers, on the basis that any
influence which those organisations might have on political decisions concerning
sugar consumption, the promotion of private health insurance or prescription
drugs or prosthetics would be "undue". No doubt at
the same time, however,
there is also a sizeable section of the Queensland electorate who, rightly or
wrongly, hold opposing views.
And they are entitled to have their views
heard.


[119] Discriminately
prohibiting entities from making political donations because of the interests
which they represent or the policies
which they favour is calculated to deny to
that part of the electorate which aligns with those interests and policies a
considerable
measure of the capacity that is enjoyed by their political
opponents to make their views heard. As such, it materially distorts
the level
playing field that is said to be the raison d'être of the implied
freedom and imposes a significant and potentially dangerous burden upon
it [149] . In
effect, it amounts to deploying the legislative might of the State to silence
points of view which those in power do not wish
to be heard. As McHugh J in
effect
observed [150] 
in another context, that cannot be justified. 
Commonwealth
exclusive power in respect of Commonwealth elections 


[120] As
was first held in Smith v
Oldham [151] 
and has since repeatedly been held by this Court, perforce of ss 7, 9, 10,
29, 30 and 31 in conjunction with s 51(xxxvi) of the Constitution ,
the Commonwealth has exclusive, plenary power to make laws "in respect of" the
election of members and senators of the Commonwealth
Houses of
Parliament [152] ,
and, perforce of s 51(xxxix) , to legislate "with respect to" all matters
incidental
thereto [153] .


[121] Some
of the States intervening submitted that the Commonwealth does not have
exclusive legislative power with respect to Commonwealth
elections. The most
far reaching of those submissions were those of the Solicitor-General for the
State of Western Australia that
the decision in Smith v Oldham was made
"in the context of the fallacy about reserved powers". It was contended
that the question for the Court in Smith v Oldham , "[a]s the headnote
itself accept[ed]", was whether a Commonwealth Act was within power. As such,
so it was contended, the decision
said nothing binding about State power to
legislate with respect to Commonwealth elections. The "real question" in
Smith v Oldham , it was contended, was about characterisation: whether
the Commonwealth law in issue was a law with respect to Commonwealth elections
or whether it was a law with respect to the conduct and control of newspapers;
for if the latter, it was within a State reserved
power, but if the former it
was valid. In the result, it was submitted, the question of characterisation in
Smith v Oldham simply "did not go to the question of trying to analyse
the constitutional basis for exclusivity of Commonwealth electoral power".


[122] Those
submissions should be rejected. Smith v Oldham cannot be sloughed off as
a product of the now discredited reserved powers doctrine. It had nothing to do
with reserved powers. 
Although counsel for the appellants advanced
arguments based on that
doctrine [154] ,
the Court did not call on the respondent to answer them. The Court gave
judgment for the respondent on the express basis that the
Commonwealth has
exclusive legislative power with respect to Commonwealth elections. The Court
made no mention of reserved powers.
Nor is it to be expected that they would do
so. The reserved powers doctrine was concerned with cutting down the
scope of Commonwealth legislative power to ensure that the States
retained
control of their domestic
affairs [155] .
It had no application in Smith v Oldham because it was considered that
Commonwealth elections had nothing to do with the domestic affairs of the
States. As Griffith CJ
observed [156] ,
the matter was one in which the States as such had no concern, and, as Barton J
said [157] , no
power was given to the States to make laws with regard to Commonwealth elections
except until the Commonwealth Parliament otherwise
provided, and, since the
Commonwealth Parliament had otherwise provided, it was the only authority that
could legislate on the subject.
Likewise, as Isaacs J
explained [158] ,
ss 10, 31 and 51(xxxvi) and (xxxix) empower the Parliament to legislate in
respect of Commonwealth elections on the "vital principle"
that the "vote of
every elector is a matter of concern to the whole Commonwealth".


[123] Some
of the States intervening referred to individual statements in Smith v
Oldham as examples of what was contended to be reserved powers reasoning. 
For instance, the Solicitor-General for the State of South Australia
referred to
the observation of Barton J that the proposition that the States have, and the
Commonwealth has not, power to deal with
the conduct of citizens in respect of
Commonwealth elections was "too grotesque to be entertained". It was submitted
that this statement,
read with Barton J's earlier observation that "no power was
given to any State", demonstrated that his Honour approached the issue
from a
reserved powers perspective. Such contentions are misplaced. There is nothing
about Barton J's observations, or those of
the other members of the Court, which
suggests reserved powers reasoning. As the Solicitor-General of the
Commonwealth rightly submitted,
they merely identified uniformity as a
structural reason in support of the conclusion that no power was given to the
States over
Commonwealth elections.


[124] The
constitutional basis for the exclusive power of the Commonwealth with respect to
Commonwealth elections was the initial election
to Parliament and franchise
created by ss 7 , 8 , 9 , 10 , 24 , 29 , 30 , 31 and 41 of the Constitution . It
was never conceived of as having anything to do with reserved powers. 
As Barwick CJ
observed [159] 
in King v Jones , consistently with the constitutional understanding
expressed [160] 
at the time of federation that certain matters falling within s 51(xxxvi) 
were ex necessitate exclusive of any concurrent power in the Parliaments
of the States:
"The Imperial Parliament had to provide in the
Constitution for the initial election of the Parliament and for a franchise
until such time as the Parliament should legislate to specify the
qualifications
for electors of the Parliament. This provision was effected by ss 8 , 9 , 10 , 30 
and 31 of the Constitution . Section 30 provided both for a franchise for the
election of the House of Representatives in the first Parliament and a franchise
for election
of that House until the Parliament legislated on the matter. 
Section 31 utilized the colonial electoral machinery continued in force by s 108 
of the Constitution as State law, for the purpose of electing the first House of
Representatives and thereafter, and if subsequently amended, perhaps,
as so
amended, until the Parliament passed a Commonwealth electoral law. Sections 8 ,
9 and 10 of the Constitution made comparable provisions as to the franchise and
the procedure for the election of the Senate.


But clearly, in my opinion, it was contemplated from the inception of the
Commonwealth that in Australia, unlike the position in
relation to the Congress
as I think it was thought to be in the United States, the Parliament would
determine the franchise for Australia
for the election of both the House of
Representatives and the Senate." Queensland and
Victoria sought to draw support from the decision in R v Brisbane
Licensing Court; Ex parte
Daniell [161] 
for the view that the Commonwealth's legislative power with respect to
Commonwealth elections is in major respects concurrent with
the States. Those
suggestions are also misplaced. Ex parte Daniell concerned the validity
of s 14 of the Commonwealth Electoral (War-time) Act 1917 (Cth). That
section provided that on the day appointed as polling day for an election of the
Senate or a general election of the
House of Representatives, no referendum or
vote of the electors of any State or part of a State shall be taken under the
law of a
State. Counsel for the prosecutor advanced two arguments in support of
validity of the provision. The first was that s 14 was within
the exclusive
power of the Commonwealth with respect to Commonwealth elections. The second,
alternative argument was that, if the
power were not exclusive, it nevertheless
prevailed over s 172 of the Liquor Act 1912 (Qld) (which had appointed a
particular date for a local option poll to be taken in the Local Option Area in
Queensland) by reason
of s 109 of the Constitution . In contrast to the
prosecutor's arguments, there is no recorded submission of the respondents
challenging the authority of Smith v Oldham , still less any suggestion
that it should be overruled. As appears from the record of argument of the
respondents' submissions,
it was not concurrent power but the operation of s 9 
of the Constitution , and the limited power granted to the States under
that section, that was of concern to the
States [162] :


"Sec 14 of the Commonwealth Electoral (War-time) Act is invalid. The
power given by sec 9 of the Constitution to a State Parliament to fix the days
on which Senate elections shall be held is exclusive. Sec 14 is an attempt to
cut down that power, for under that power the Parliament of Queensland might fix
the day for holding an election
as the day on which a local option poll was
held. If it does not limit the power to fix the day for holding Senate
elections, it
limits the power to fix the day for holding local option polls,
and so is an interference with a State instrumentality."


[125] Although
the significance of the decision in Ex parte Daniell now lies in its
precedential value as an example of "direct" inconsistency, its significance at
the time of publication, as is explained
below, was its response to the
respondents' argument that, perforce of s 9 of the Constitution ,
determination of the times and places for the election of senators was
understood to be a power "permanently and exclusively vested
in the
States" [163] .


[126] After
construing the effect of s 14 of the Commonwealth Act, a majority of the Court
(Knox CJ, Isaacs, Gavan Duffy, Powers, Rich
and Starke JJ) rejected the
respondents' contention on the assumption that, if the Commonwealth had
the power to pass s 14, it would render s 172 of the Liquor Act 
invalid [164] :

"Supposing the Commonwealth Parliament competent to enact such a prohibition,
the result is not doubtful. There arises upon that
construction a conflict, or
inconsistency, between the State Act authorizing and commanding the vote on that
day and the Commonwealth
Act, assumedly competently made, forbidding the vote on
that day. Then sec 109 of the Constitution enacts that in such a case the State
law, to the extent of the inconsistency, is
invalid." Their Honours then turned to the issue of
whether the Commonwealth had power to pass s 14 , and emphatically rejected any
suggestion that s 14 was beyond
power [165] :


"The respondents, however, strongly contended that such an enactment was
beyond the competency of the Commonwealth Parliament. They
so contended on two
grounds. First they argued that the prohibition of State elections on the same
day was not incidental to the
acknowledged power to legislate as to Commonwealth
elections. We are distinctly of opinion that the argument is unsound. The
Commonwealth
Parliament clearly has power to secure, so far as legislation can
secure, the fullest opportunity it thinks desirable to the people
of the
Commonwealth to elect their Parliamentary representatives unconfused by any
other public duties required of them as citizens
of a particular State. It
would be pedantic to say more on that subject."


[127] As
is apparent from their Honours' characterisation of the respondents' argument,
as opposed to the way in which it is summarised
in the Commonwealth Law Reports,
the respondents' contention was that the power to pass laws in respect of the
times and places of
elections of senators was incidental to the "acknowledged
power" of the Commonwealth. And as is apparent from the time and membership
of
the Court when Ex parte Daniell was decided, the "acknowledged power" of
the Commonwealth is to be understood in light of the then recent holding in
Smith v Oldham of exclusive power with respect to Commonwealth
elections . The issue was whether that power extended to a law passed
pursuant to ss 10 and 51 (xxxvi) and (xxxix) of the Constitution in
respect of a subject matter over which s 9 of the Constitution 
grants exclusive legislative power to the States. The description of the
Commonwealth's power as "incidental" was, however, not so
much a reference to
the incidental power under s 51(xxxix) , as to the extent to which the
Commonwealth sought to legislate in respect of the times and places of elections
of senators; being
something lying on the periphery of the exclusive power and,
in that sense, "incidental" to the "acknowledged power". The "distinct"
view of
their Honours was that the Commonwealth Parliament has power to "the fullest
opportunity it thinks desirable"; thus echoing
Isaacs J's statement in Smith
v Oldham that the "limits of plenary power end only with the subject matter
in respect of which it may be
exercised" [166] .
That is further confirmed by their Honours' rejection of the respondents' second
argument: that by operation of s 9 of the Constitution the Parliament of
Queensland had exercised its power as to the day of polling and that s 14 of the
Commonwealth Act was a "fetter
on that power". Their Honours
held [167] 
that the local option poll was not a law falling under s 9 of the
Constitution , that the State of Queensland was "left absolutely
unfettered as to the day of polling for Senators", and so that the passing of s
14 of the Commonwealth Act pursuant to s 10 of the Constitution , in
combination with s 51(xxxvi) and (xxxix), was not incompatible with what s
9 of the Constitution 
prescribes [168] .


[128] Properly
understood, the decision in Ex parte Daniell was on account of the
practical overlap of Commonwealth and State laws at the periphery of the
Commonwealth's exclusive power, and
consequent
inconsistency [169] .
It was not in any sense an implicit or explicit holding that Commonwealth
legislative power over Commonwealth elections was concurrent.
Queensland's
submission that this case is "not talking about the intersection of State and
federal laws on the fringes" should be
rejected.


[129] Queensland
further encouraged this Court to understand Ex parte Daniell as a
departure from Smith v Oldham and to accept that the question was whether
this Court now "should or should not reject what was necessarily determined by
their Honours
in Daniell " . Unsurprisingly, however, Queensland
was unable to point to even one subsequent case or text published in the passage
of almost a century
since Ex parte Daniell was decided which interprets
Ex parte Daniell as overruling Smith v Oldham , or as otherwise
inconsistent with it. The Commonwealth Law Reports do not report the case
as reversing or (re)considering Smith v Oldham and the received
understanding after the decision was published was that Commonwealth power over
Commonwealth elections was an exclusive
power [170] . 
Queensland's argument to the contrary is without foundation.


[130] Finally
with respect to Ex parte Daniell , it is to be observed that, so far from
being considered as contradictory of Smith v Oldham , the
precedential value of Ex parte Daniell has long been understood as an
example of "direct" inconsistency between State and Commonwealth legislative
power. That is immediately
apparent in West v Commissioner of Taxation
(NSW) [171] , 
where Latham CJ
described [172] 
Ex parte Daniell as an example of the application of the principle that
the Commonwealth Parliament can legislate so as to exclude the operation of
a
State law in relation to a matter controlled by federal law. Evatt J, after
describing unlawful attempts by the Commonwealth "to
manufacture
'inconsistency'",
stated [173] 
that the passing of the Commonwealth law in question in Ex parte Daniell 
in order to engage the operation of s 109 was lawful. The direct collision
of laws was, in his Honour's view, acceptable because the Commonwealth's
legislative power over
its own electoral system was "deemed sufficient to enable
it" to prevent the awkwardness and confusion which might well result from
a
simultaneous Commonwealth and State election. Once again, the reference to
"sufficient to enable it" is to be understood in terms
of the law operating at
the periphery of the power for the reasons already explained.


[131] For
more than a century this Court has applied Smith v Oldham without doubt
as to its correctness or precedential authority. Long since the abolition of
the reserved powers doctrine, this Court
has repeatedly
invoked [174] 
Smith v Oldham as establishing that the legislative power of the
Commonwealth with respect to Commonwealth elections is essentially exclusive. 
Nothing
advanced by any of the States in this matter offers any reason to doubt
it.
The plenitude of Commonwealth power over Commonwealth
elections 


[132] Subject
to context and contrary indication, the words "in respect of" connote "the
widest possible meaning of any expression intended
to convey some connexion or
relation between two
subject-matters" [175] .
In s 51(xxxvi) it is apparent that they are intended to have that effect. The
Commonwealth Parliament's legislative power to make laws "in respect
of"
Commonwealth elections is
wide [176] . 
It extends to enacting laws which in any way relate to Commonwealth elections
provided that the connection is not so "insubstantial,
tenuous or distant" that
it cannot properly be described as a law with respect to that subject matter. 
It includes making laws which
regulate the conduct of persons in relation to
elections, and thus the making of laws proscribing bribery or corruption,
illegal
practices and undue influence in relation to
elections [177] .
And as is implicit in the Court's previous decisions concerning the legislative
power of the States to cap and prohibit State electoral
donations [178] ,
it extends to making laws capping and prohibiting donations for Commonwealth
electoral purposes. Such laws have a direct and substantial
connection with
Commonwealth
elections [179] .

Limited State power over Commonwealth elections 


[133] By
contrast, the States have but narrowly defined specific legislative powers with
respect to Commonwealth elections, which, with
one exception, are limited to
making laws relating to Commonwealth elections until the Commonwealth otherwise
provides. The one
exception occurs in s 9 of the Constitution , which, as
has been seen, provides for the Parliament of a State to make laws for
determining the times and places of election of
senators for the State. 
Despite, however, the essential exclusivity of the Commonwealth's legislative
power to make laws in respect
of Commonwealth elections, State laws with respect
to subject matters other than elections may operate on and in connection with
Commonwealth laws to the extent that they are not inconsistent. Thus, although
a State law properly characterisable as a law with
respect to Commonwealth
elections would be invalid as a State law impinging on a field of exclusive
Commonwealth legislative power,
a State law properly characterisable as a law
with respect to a subject matter other than Commonwealth elections – for
example,
a State law with respect to crime, defamation, or occupational health
and safety – might not be invalid despite its effect
on Commonwealth
elections. Whether a State law is properly characterisable as a law with
respect to Commonwealth elections depends
on the degree of its connectedness to
Commonwealth elections: the degree to which it touches or concerns Commonwealth
elections.
A State law is unlikely to be a law with respect to Commonwealth
elections if the degree of its connectedness to Commonwealth elections
is no
more than adventitious. But the scope for the States to legislate with respect
to Commonwealth elections and what is incidental
to them remains essentially
limited.
Commonwealth power to pass electoral funding
laws 


[134] Given
the breadth of the Commonwealth's legislative power relating to Commonwealth
elections, and that donations for Commonwealth
electoral purposes are so closely
connected to the Commonwealth electoral process, the Commonwealth's legislative
power with respect
to Commonwealth elections includes exclusive legislative
power to enact a regime to govern and control Commonwealth election funding
and
financial disclosure and the giving and receipt of political donations for
Commonwealth electoral
purposes [180] .
It also includes legislative power to exclude the operation of State and
Territory laws from the field of operation of that
regime [181] . 
As Mason J
remarked [182] 
in R v Credit Tribunal; Ex parte General Motors Acceptance
Corporation :
"although a provision in a Commonwealth statute
which attempts to deny operational validity to a State law cannot of its own
force
achieve that object, it may nevertheless validly evince an intention on
the part of the statute to make exhaustive or exclusive provision
on the subject
with which it deals, thereby bringing s 109 into play".


There is no doubt that the Commonwealth Parliament has legislative power to
exclude the application of State laws which prohibit political
donations that
are required to be used for Commonwealth electoral
purposes [183] .


Sufficient connection with Commonwealth power 


[135] The
critical issue joined in argument was whether the Commonwealth has power to
regulate political donations which, although not
required to be used for
Commonwealth electoral purposes, may be used for those purposes. The
Solicitor-General for the State of
Victoria, for example, contended that s 302CA
does not directly operate on the subject matter of Commonwealth elections but is
supported
as being incidental to that subject, that the degree of connection
between such donations and Commonwealth elections is tenuous,
and that where the
Constitution creates or recognises a distinction between the Commonwealth and
the States in a grant of power, it is necessary to "give a narrowly
confined
ambit to the incidental power so that that distinction is not obliterated". 
Reliance was placed on Gazzo v Comptroller of Stamps
(Vict) [184] , 
in which Gibbs CJ
stated [185] 
that where the exercise of Commonwealth legislative power is incidental to the
subject matter of the power it is not always irrelevant
that the effect of the
law is to invade State power.


[136] The
rectitude of Gibbs CJ's reasoning in Gazzo has rightly been
questioned [186] .
As Murphy J
observed [187] 
in Gazzo :
"This Court's decision to invalidate s 90 is
attributable to what can fairly be described as a revival of the States'
reserved powers doctrine."


And similarly, as his Honour
reasoned [188] 
in Attorney-General (WA) v Australian National Airlines Commission :


"The maintenance of the supposed decision and the further insistence (see
Wragg v New South Wales ) that even the use of the incidental power in
s 51(xxxix) cannot obliterate the division, keeps the pre- Engineers 
ghosts walking." (footnote omitted) 


[137] Possibly
Gibbs CJ was not so much suggesting a veiled recourse to reserved powers
reasoning as, consistent with the Engineers
Case [189] 
and Melbourne Corporation v The
Commonwealth [190] ,
an analysis directed to ensuring the independent existence of the States. But
the distinction is a fine one. And where, as here,
there arise questions
involving the exercise of exclusive Commonwealth legislative power, it is
necessary to be particularly careful
in drawing conclusions about "remoteness"
and "invading State power". Certainly, at the periphery, the State's concern
increases
by reason of the inevitable overlap of Commonwealth and State laws. 
But simply to decide that a Commonwealth law at the periphery
may intrude into
an area the subject of State law does not mean that the subject matter is not
one of real and valued interest to
the Commonwealth. As Deane J
said [191] in
The Commonwealth v Tasmania :
"There are, no doubt, areas
within the plenitude of executive and legislative power shared between
Commonwealth and States (see Colonial Sugar Refining Co Ltd v
Attorney-General (Cth); Smith v Oldham) which, while not included in
any express grant of legislative power, are of real interest to the Commonwealth
or national government
alone. Even in fields which are under active State
legislative and executive control, Commonwealth legislative or executive action
may involve no competition with State authority: an example is the mere
appropriation and payment of money to assist what are truly
national
endeavours." (footnotes omitted)


[138] Arguably,
a Commonwealth law which did no more than purport to exclude the application of
State law to gifts that might be used for
Commonwealth electoral purposes would
be beyond Commonwealth legislative power. On one view of the matter, the link
between the
subject matter of Commonwealth elections and a mere possibility of a
gift being used for Commonwealth electoral purposes, standing
alone, would be
too tenuous to conclude that the law was one with respect to Commonwealth
elections. As was accepted by the Solicitor-General
of the Commonwealth, the
situation would be in some respects analogous to the examples of Commonwealth
prohibitions
adumbrated [192] 
by Dixon CJ in the Second Uniform Tax Case in support of his Honour's
conclusion that a Commonwealth law which purported to prohibit a taxpayer paying
State taxation before
paying Commonwealth taxation went beyond any true
conception of what was incidental to the Commonwealth's power to make laws with
respect to taxation. But there are dangers in
analogies [193] ,
and as Dixon CJ expressly
cautioned [194] 
in the Second Uniform Tax Case : 
"[W]hen you are
considering what is incidental to a power not only must you take into account
the nature and subject of the power
but you must pay regard to the context in
which you find the power."


[139] Relevantly,
the conclusion reached in the Second Uniform Tax Case was that the
Commonwealth's taxation power could not be construed as power over the whole
subject of taxation, and thus that it was
to be recognised that the States had
concurrent and independent taxation power. By contrast here, the context is one
in which the
Commonwealth has exclusive legislative power with respect to
Commonwealth elections and the States have no interest in Commonwealth
elections. 


[140] Moreover,
and more importantly, as Gordon J observes, the exclusion in s 302CA of
application of State laws to donations which might
be used for Commonwealth
electoral purposes does not stand alone. As Gordon J demonstrates, it
forms part of the comprehensive legislative
regime enacted as Pt XX of the
Commonwealth Electoral Act 1918 (Cth) for the regulation of
Commonwealth election funding and financial disclosure. The scheme is analysed
in full in Gordon J's
judgment. It is also accurately summarised in the
simplified outline of the Part which appears in s 286A. For present
purposes, it suffices to say that Pt XX deals with the funding of
"registered political parties, candidates and groups" and with gifts and other
financial matters relating
to "parties, candidates, groups, political
campaigners, third parties and associated entities". Subject to some
exceptions, it prohibits foreign donors from making gifts
to registered political parties, candidates, Senate groups, or political
campaigners of $1,000 or
more for the purpose of incurring electoral expenditure
or creating or communicating electoral matter. Significantly, it also imposes
obligations to disclose certain gifts made to candidates and members of groups,
registered political parties, State branches of registered
political parties and
political campaigners, and certain expenditure incurred by or with the authority
of candidates and groups during
an election period. And it requires that, each
financial year, registered political parties, political campaigners, third
parties
and associated entities disclose details relating to amounts received by
or paid to or incurred by them during the year. 


[141] As
long as a donation made to a Commonwealth electoral participant is made on terms
which permit the donation to be used for Commonwealth
electoral purposes, the
breadth of the Commonwealth's legislative power with respect to Commonwealth
elections means that, until
and unless the donee determines to use the donation
for purposes other than Commonwealth electoral purposes, the Commonwealth
Parliament's
power to make laws regulating the conduct of persons in relation to
Commonwealth elections and, therefore, proscribing bribery and
corruption,
illegal practices and undue influence in relation to Commonwealth elections
includes power to regulate the giving and
receipt of the donation and to require
the donee to account for it. Were it otherwise, Commonwealth control of
donations for Commonwealth
electoral purposes could be frustrated by the simple
device of donors who intend and expect their donations to be used for
Commonwealth
electoral purposes stipulating that donations may be used
for Commonwealth electoral purposes. And for the reasons already given, because
that is so it follows that the Commonwealth
has legislative power, as part of
the regulatory scheme which Pt XX entails, to exclude the operation of
State laws from the field of operation of that scheme in its application to
donations which
may be used for Commonwealth electoral purposes.


[142] Does
the situation change when and if a donee determines to use such a donation for
purposes other than Commonwealth electoral purposes?
By its terms, s 302CA has
the effect of making Pt XX cease to apply if a donee determines to apply
such a donation to a State political purpose. But what if the donee determines
to
apply such a donation to a purpose which is neither a Commonwealth electoral
purpose nor a State electoral purpose? 


[143] As
it appears to me, the answer to that question is that because that possibility
is inherent in every donation made on terms that
permit but do not require the
donation to be used for Commonwealth electoral purposes, Pt XX is a law
with respect to both Commonwealth purposes and purposes not within Commonwealth
legislative power. But as has long been
established, if a law enacted by the
Commonwealth Parliament can fairly be described as a law with respect to a grant
of Commonwealth
legislative power as well as a law with respect to matters left
to the States, that will suffice to support its validity as a law
of the
Commonwealth [195] .


[144] In
Actors and Announcers Equity Association v Fontana Films Pty Ltd Stephen
J
concluded [196] 
that the question of whether a "mixed" law may fairly be described as one with
respect to a head of power will depend upon the "significance"
of the remaining
elements:
"So long as the remaining elements, which do not fall
within any such grant of power, are not of such significance that the law cannot
fairly be described as one with respect to one or more of such grants of power
then, however else it may also be described, the law
will be valid."


[145] In
my view, the possible application of s 302CA to donations which may be but
are not required to be used for Commonwealth electoral purposes, and are not
used for Commonwealth
electoral purposes, is not so significant that the law
cannot fairly be described as a law with respect to Commonwealth elections.
And
since 302CA can thus fairly be described as a law with respect to Commonwealth
elections – no matter that it might also
be described in its application
to donations which may be but are not required to be used for Commonwealth
electoral purposes as
a law with respect to purposes other than Commonwealth
electoral purposes – it is a valid law of the Commonwealth which prevails
over inconsistent State laws by reason of s 109 of the
Constitution .
University of Wollongong v Metwally


[146] Queensland
contended that s 302CA was invalid as offending the conclusion reached by the
majority in University of Wollongong v
Metwally [197] 
that, where a State law has been held to be invalid as inconsistent with a
valid Commonwealth law, it is beyond the legislative competence
of the
Commonwealth retrospectively to enact that the Commonwealth law shall be deemed
never to have been intended to exclude or
to have excluded or limited the
operation of the State law. 


[147] Views
differ as to the extent of operation of the decision in Metwally but,
whatever the correct conception of it, it does not apply to the facts of this
matter. Section 302CA does not provide that it
shall be deemed never to have
been intended to exclude or to have excluded or limited the operation of any
State law prohibiting
property developer political donations. Nor is
s 302CA in any respect retroactive in its operation. It provides simply
that if
a donation which may be but is not required to be used for Commonwealth
electoral purposes is used for State electoral purposes,
s 302CA shall
thenceforth cease to apply. It is open to the Commonwealth Parliament to enact
when and in what circumstances a provision
such as s 302CA will cease to apply. 
With respect, I agree with what Gordon J has written on the subject.

Melbourne Corporation principle 


[148] Queensland
further contended that s 302CA was "aimed at" the States and thereby offended
the principle articulated in Melbourne Corporation v
The Commonwealth [198] 
that a Commonwealth law which, looking to its substance and operation, in a
significant manner curtails or interferes with the capacity
of the States to
function as governments is
invalid [199] .
Attention was directed to the effect of the Revised Explanatory Memorandum to
the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform)
Bill 2018 (Cth), which stated that s 302CA clarified the interaction between
State and Territory and Commonwealth electoral laws and that some
State and
Territory laws would be invalidated to the extent they detracted from the right
to give, accept or use a donation under
the Commonwealth Electoral Act . 
It was submitted that s 302CA discriminates against the States and has the
effect of denying or destroying the application of Queensland's chosen
regulatory model,
the result of which is that s 302CA impairs the "liberty
of action of the State" in exercise of its constitutional functions. 


[149] There
is no merit in that submission. As has been explained, the prevention of the
application of Queensland's prohibition of property
developer political
donations to political donations which must or may be used for Commonwealth
electoral purposes in s 302CA is within the ambit of the Commonwealth's
legislative power with respect to Commonwealth elections. As is apparent from
the text
of the provision, s 302CA is designed to ensure the effectiveness of
the regime which the Commonwealth has chosen for regulating the conduct of
persons in
relation to Commonwealth elections. Evidently, it does so without in
any significant manner curtailing or interfering with Queensland's
legislative
freedom. It leaves Queensland free to legislate, as it has, to criminalise
corrupt political donations and, apart from
prohibiting political donations to
Commonwealth electoral participants that must or may be used for Commonwealth
electoral purposes,
leaves Queensland otherwise free to prohibit non-criminal
property developer political donations. The exclusion of donations which
may
but need not be used for Commonwealth electoral purposes does not affect the
capacity of Queensland to function as a government.
Rather, to adopt and adapt
the language in Bayside City Council v Telstra Corporation
Ltd [200] ,
there is no more an attempt in s 302CA to dictate the content of Queensland's
State electoral donations laws than there was an attempt in Australian
Coastal Shipping Commission v
O'Reilly [201] 
or in Botany Municipal Council v Federal Airports
Corporation [202] 
to dictate the content of State laws with respect to taxation or the carrying
out of relevant works.


[150] The
substance of the States' submissions that s 302CA was "aimed at" the States
elided with objections previously described in this Court as "a bare attempt to
limit or exclude State
power" [203] 
or to "manufacture
inconsistency" [204] .
Regardless of how such objections may be described, however, this Court has
repeatedly upheld Commonwealth legislation where supported
by a rational policy
choice in the manner of federal regulation of a federal subject
matter [205] . 
Section 302CA is so drafted, in particular by the inclusion of the three
qualifications in sub-s (3), as to preserve as far as possible State legislation
regulating donations and to limit the effect of inconsistency to the extent of
those regulations which interfere with the policy
choice sought to be achieved
by the Commonwealth electoral funding regime described above. 
Section 302CA does not attempt to oust State laws beyond what is necessary
to give effect to the policy choice reflected in the Commonwealth regime.
It
cannot be said that s 302CA is "aimed at" the States or is "a bare attempt
to limit or exclude State power" or to "manufacture inconsistency". It is
rather
a provision calculated to achieve the exclusivity of Commonwealth
regulation of a matter which is squarely within a head of exclusive
Commonwealth
legislative power.
Conclusion 


[151] As
mine is a dissenting judgment, it is unnecessary and probably undesirable for me
to say anything of other issues raised in the
special case. For the reasons I
have given, I would agree in the orders proposed by Gordon J.


[152] GORDON
J. In 2018, Queensland and then the Commonwealth passed legislation seeking to
regulate political donations – the Local Government Electoral
(Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 
(Qld) ("the Queensland Amending Act ") and the Electoral Legislation
Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Cth)
("the Commonwealth Amending Act ").


[153] In
general terms, the Queensland Amending Act inserted provisions into the
Electoral Act 1992 (Qld) and the Local Government Electoral Act
2011 (Qld) prohibiting political donations by property developers. 
The Commonwealth Amending Act amended Pt XX of the Commonwealth
Electoral Act 1918 (Cth) to the opposite effect. It inserted into
Pt XX s 302CA , which provides that, subject to certain qualifications,
"[d]espite any State or Territory electoral law" gifts may be given,
received or retained as long as Commonwealth electoral law does not prohibit it.


[154] Both
sets of provisions apply to "political donations" or "gifts" to political
parties [206] ,
and define "political
party" [207] 
to include parties whose object (or object or activity), or one of whose objects
(or objects or activities), is the promotion of
the election of candidates, in
the one case for State or local government elected office and, in the other, for
election to the federal
Parliament. Thus, there is potential for overlap
in their application to parties with multiple objects or activities. In
addition, the Commonwealth legislation applies to "State branch[es]" of
Commonwealth registered political
parties [208] .


[155] The
questions stated for the Full Court are set out in the reasons of
Kiefel CJ, Bell, Gageler and Keane
JJ [209] . I
would have answered them as follows:
Questions (a)-(f): "No";


Question (g): "Yes. Section 275 of the Electoral Act 1992 (Qld)
is invalid to the extent that it applies to giving, receiving or retaining gifts
where this is permitted by s 302CA(1) of the Commonwealth Electoral Act
1918 (Cth)";


Question (h): "Yes. Section 113B of the Local Government Electoral Act
2011 (Qld) is invalid to the extent that it applies to giving, receiving or
retaining gifts where this is permitted by s 302CA(1) of the
Commonwealth Electoral Act 1918 (Cth)";


Question (i): "The defendant should pay the costs of the special case".


[156] In
short, s 302CA of the Commonwealth Electoral Act is valid: it is
within power, and not otherwise invalid on any of the various bases advanced. 
In relation to Pts 3 and 5 of the Queensland Amending Act , although
the implied freedom of political communication does not invalidate the
amendments made by Pt 3 of that Act, and nor does any notion of Commonwealth
exclusive power or intergovernmental immunities invalidate the amendments made
by Pts 3 and 5, the amendments made by Pts 3 and 5 are inconsistent with
s 302CA of the Commonwealth Electoral Act and should be held
inoperative to the extent of that inconsistency.


[157] The
challenge to the validity of s 302CA of the Commonwealth Electoral
Act was founded on complex and elaborate arguments often expressed in terms
that concluded the issue. At its core, the argument for
invalidity was that
s 302CA was "aimed
at" [210] the
States and sought to give some "immunity" from the operation of State law. 


[158] It
is important, in these circumstances, to begin by identifying the central errors
in the arguments for invalidity of s 302CA of the Commonwealth Electoral
Act . 


[159] Section
302CA of the Commonwealth Electoral Act is supported by s 51(xxxvi) ,
read with ss 10 and 31 , of the Constitution . It is a law with
respect to matters in respect of which the Constitution makes provision
until the Parliament otherwise provides: laws relating to federal elections of
Senators and members of the House
of
Representatives [211] .
These provisions confer on the federal Parliament a plenary power over federal
elections for the Senate and the House of
Representatives [212] .
The Constitution does not confer on State Parliaments any power to
make laws relating to federal elections, other than those powers granted by
ss 7 , 9 and 29 of the Constitution . 


[160] If
s 302CA of the Commonwealth Electoral Act is robbed of all of its
context, it may appear as some attempt to limit or exclude State law in the
exercise of State legislative
power. But the provision is not to be robbed of
its
context [213] .
It is to be read in the context of the other provisions in Pt XX that lay
down positive rules about who may make contributions to entities and persons
that participate in federal elections. The
rules provided by the
Commonwealth Electoral Act in respect of political donations differ from,
and are less restrictive than, the Queensland laws. But to describe the result
of
that difference as giving some immunity from the operation of State law
either says too much or says too little – it obscures,
rather than
clarifies, the interaction of the laws. 


[161] Section
109 of the Constitution operates according to its terms: to the extent
of inconsistency between State and Commonwealth laws, the Commonwealth law
prevails.
Notions of
"immunity" [214] 
may be politically powerful but are at best distracting and may even mislead the
constitutional analysis. If State and Commonwealth
laws are inconsistent (and
here they are), s 109 prescribes the result. "Immunity" and similar
expressions assume (wrongly) that the State law operates according to its terms
in
relation to federal elections or imply (again wrongly) that the federal law
is no more than a law with respect to State legislative
power .


[162] The
Queensland Parliament and the federal Parliament have made different policy
choices about who may contribute money that is or
may be used in the elections
for each respective Parliament. Put shortly, Queensland has decided that
there should be no contributions
by property developers. The Commonwealth
has decided, first, that there should be no contributions by foreign donors
above specific
monetary
thresholds [215] 
but, second, that the partial ban on foreign donors is to be the only 
restriction on donations.


[163] Victoria
and Tasmania contended that the federal Parliament has no power to make a law
providing that the only limit on donations
with respect to federal electoral
matters is to be the preclusion of foreign donors above the specific monetary
thresholds. They
said that the Commonwealth law is invalid because, given that
political parties are organised as multi-purpose entities, the Queensland
prohibition on property developer donations should have effect in any case where
the donation is not earmarked or applied for federal
electoral purposes. In
particular, the argument was that the federal law is not valid in its
application to donations that are not
earmarked for State electoral purposes but
could be (but may or may not be) applied to federal electoral purposes. 
The argument
was that the federal Parliament has no power to make a law
that the rules set by the federal Parliament about donations capable of
being
applied to federal electoral purposes are the complete and comprehensive
regulation of that subject.


[164] To
accept this central proposition denies the long-established doctrine of this
Court about the operation of s 109. Dressing the argument, as Victoria and
Tasmania did, in the clothes of an argument about legislative power seeks to
divert attention
from the novelty of the proposition advanced. That proposition
is that the federal Parliament, making a law with respect to a subject
matter
within its legislative powers (here the subject of elections for the House of
Representatives and the Senate), cannot provide
as part of that law that the
provisions made are a complete and comprehensive statement of the applicable
law. 


[165] There
was, and could be, no dispute that the federal Parliament has the power to make
a law banning foreign donors from making donations
above specific monetary
thresholds for federal electoral purposes. Equally, then, there can be no
dispute that the federal Parliament
has power to make a law that banning foreign
donors above those thresholds shall operate as the only limitation on donations
for
federal electoral purposes. Nor can there be any dispute that the federal
Parliament has power to provide, as s 302CA does, that
all
donations which may be applied to federal electoral purposes
(except those by foreign donors above specific monetary thresholds) are to
be permitted.


[166] Regulating
how federal elections may be funded – for registered political
parties, candidates, groups, political campaigners
and third parties – is
at the core of the relevant legislative power. It is not insubstantial,
tenuous or distant.
Commonwealth Electoral Act 


[167] In
2018, the Commonwealth Electoral Act was amended by the Commonwealth
Amending Act . In particular, Pt XX of the Commonwealth Electoral Act , 
headed "Election funding and financial disclosure", was amended. Following
that amendment, Pt XX contains a simplified outline of the Part in the following
terms [216] :


"This Part deals with the funding of registered political parties, candidates
and groups. It also deals with gifts and other financial
matters relating to
parties, candidates, groups, political campaigners, third parties and associated
entities.


Registered political parties, candidates and groups must have agents. Political
campaigners and associated entities must nominate
financial controllers. Many
of the obligations in this Part are imposed on those agents and financial
controllers.


Registered political parties, candidates and groups may be entitled to election
funding. The election funding is payable in relation
to any candidate who
received more than 4% of the total first preference votes cast in the
election.


Generally, gifts of at least $1,000 to political entities (who are registered
political parties, candidates and Senate groups) and
political campaigners must
not be made by foreign donors (that is, persons who, broadly, do not have a
connection to Australia).


Broadly, gifts to political entities, political campaigners or third parties
must not be made by foreign donors for the purpose of
incurring electoral
expenditure or creating or communicating electoral matter .


There are obligations to disclose certain gifts made to:


(a) candidates and members of groups; and


(b) registered political parties, State branches and political campaigners. 


Certain expenditure incurred by or with the authority of candidates and groups
during an election period must also be disclosed.


Each financial year, registered political parties, political campaigners, third
parties and associated entities are required to disclose
details relating to
amounts received or paid or incurred by the parties, campaigners or entities
during the year." (emphasis added) 

[168] Part
XX addresses these issues by creating a scheme which provides for registration
of political campaigners and associated entities and
a Transparency
Register [217] ;
appointment of agents and nomination of financial
controllers [218] ;
public election
funding [219] ;
requirements relating to
donations [220] ;
disclosure obligations for
donations [221] ;
disclosure obligations for electoral
expenditure [222] ;
annual returns by registered political parties and other
persons [223] ;
and machinery or miscellaneous provisions for the operation of the
scheme [224] .


[169] Section
302CA is in Div 3A of Pt XX. Division 3A is headed "Requirements relating
to donations". Section 302A explains that Div 3A "regulates gifts that are made
to registered political parties, candidates, groups, political campaigners and
third parties". Specifically, it notes that there are
prohibitions [225] 
on the giving of certain gifts by foreign donors.


[170] The
object of Div 3A is "to secure and promote the actual and perceived
integrity of the Australian electoral process by reducing
the risk of foreign
persons and entities exerting (or being perceived to exert) undue or improper
influence in the outcomes of
elections" [226] .
The stated objective is limited. However, s 302CA , headed "Relationship
with State and Territory electoral laws", is broader in its reach. For example,
s 302CA(1) , headed "Giving, receiving or retaining gifts", is in the
following terms:

"Despite any State or Territory electoral law, a person or entity may:


(a) give a gift to, or for the benefit of, a political entity, a political
campaigner or a third party (a gift recipient ); or


(b) if the person or entity is a gift recipient – receive or retain a
gift; or


(c) on behalf of a gift recipient, receive or retain a gift;


if:


(d) this Division does not prohibit the giving, receiving or retaining of the
gift; and


(e) the gift, or part of the gift, is required to be, or may be, used for the
purposes of incurring electoral expenditure , or creating or communicating
electoral matter, in accordance with subsection (2)." (second emphasis
added) 

[171] Section
302CA(1) permits gifts to, or for the benefit of, a "gift
recipient" [227] ,
the receipt or retention of those
gifts [228] ,
and receipt or retention on behalf of one of the specified gift
recipients [229] .
This permission is subject to specific requirements and exceptions. In
order for s 302CA(1) to apply, it is necessary that the gifts are not
prohibited by Div
3A [230] , that
the gifts are "required to be" or "may be" used for federal electoral
purposes [231] ,
and that the gifts are not subject to an exception for gifts for State or
Territory electoral
purposes [232] .
Each of these aspects requires further explanation. 
The
gift recipients regulated by s 302CA 


[172] Section
302CA(1)(a) seeks to regulate gifts to, or for the benefit of, "a political
entity, a political campaigner or a third party", collectively referred
to as a
"gift recipient". The law is limited to those gift recipients. And, as will be
seen, each gift recipient is tied to, and
defined by reference to, its
participation in federal elections. It is necessary to take each "gift
recipient" in turn.


[173] The
phrase "political
entity" [233] 
is relevantly defined to include a registered political party and a State branch
of a registered political party, as well as a candidate
in a House of
Representatives or Senate election, or a group of candidates for the
Senate [234] . 
As is apparent, the phrase includes specific participants in federal elections. 


[174] The
first to be addressed are federally registered political
parties [235] .
A "[r]egistered political
party" [236] 
is defined as "a political party that is registered under Part XI". "Political
party" [237] 
is defined as "an organization the object or activity, or one of the
objects or activities , of which is the promotion of the election to the
Senate or to the House of Representatives of a candidate or candidates endorsed
by it" (emphasis added). Section 124 in Pt XI provides for the registration,
subject to that Part, of an "eligible political party", which is
defined [238] 
as "a political party that (a) either: (i) is a Parliamentary party;
or (ii) has at least 500 members; and (b) is established on
the basis
of a written constitution (however described) that sets out the aims of the
party". In the same provision, "[p]arliamentary
party means a political party
at least one member of which is a member of the Parliament of the Commonwealth".
"[P]olitical entity" [239] 
also includes a "State branch (within the meaning of Part XX) of a
registered political party". "State
branch" [240] 
means "in relation to a political party ... a branch or division of the party
that is organized on the basis of a particular State
or Territory".


[175] The
second category of participants picked up by the definition of "political
entity" is candidates. The term
includes [241] 
a "candidate (within the meaning of [Pt XX]) in an election (including a
by-election)". A candidate is "taken to begin to be a candidate"
on the
earlier of their announcement or
nomination [242] 
in an "election", defined to mean "an election of a member of the House of
Representatives or an election of senators for a State
or
Territory" [243] .
Then, unsurprisingly, "political entity" includes "a member of a group
(within the meaning of [Pt
XX])" [244] 
where "group" means "a group of 2 or more candidates nominated for election to
the Senate who have their names grouped in the ballot
papers in accordance with
section
168" [245] . A
group is "taken to begin to be a group in an election on the day the members of
the group make a request under section 168 for their names to be grouped in the
ballot papers for the
election" [246] .
The candidate or group ceases to be a candidate or group at the end of 30 days
after the polling day in the
election [247] .


[176] Section
302CA(1) then applies to gifts to, or for the benefit of, a "political
campaigner", which is defined as "a person or entity that is registered
as a
political campaigner under section
287L" [248] . 
A person or entity (except a "political entity", a member of the House of
Representatives or a Senator) must be registered for
a specific financial year
as a political campaigner, within 90 days after becoming required to be
registered [249] ,
if the amount of electoral expenditure incurred by or with the authority
of the person or entity during that or any one of the previous three financial
years is $500,000
or
more [250] 
or the amount of electoral expenditure incurred by or with the
authority of the person or entity during that financial year is $100,000 or more
and during the previous
financial year that amount of electoral
expenditure was at least two-thirds of the revenue of the person or entity
for that
year [251] . 


[177] "Electoral
expenditure" is relevantly defined in
Pt XX [252] 
as "expenditure incurred for the dominant purpose of creating or
communicating electoral
matter " [253] 
(emphasis added). "Electoral matter" is relevantly
defined [254] 
to mean:

"(1) ... matter communicated or intended to be communicated for the dominant
purpose of influencing the way electors vote in an election (a federal election)
of a member of the House of Representatives
or of Senators for a State or
Territory , including by promoting or opposing:


(a) a political entity, to the extent that the matter relates to a federal
election; or


(b) a member of the House of Representatives or a Senator.


... 


(2) For the purposes of subsection (1), each creation, recreation, communication
or recommunication of matter is to be treated separately
for the purposes of
determining whether matter is electoral matter.


..." (emphasis added) 

[178] Finally,
s 302CA(1) applies to gifts to or for the benefit of a "third party". A
"third party" is defined in
Pt XX [255] 
as follows: 

"a person or entity (except a political entity or a member of the House of
Representatives or the Senate) is a third party during a financial year
if: 


(a) the amount of electoral expenditure incurred by or with the authority
of the person or entity during the financial year is more than the disclosure
threshold [ [256] ] ;
and 


(b) the person or entity is not required to be, and is not, registered as a
political campaigner under section 287F for the year." (second emphasis
added) 

[179] As
is readily apparent, the regulation of each gift recipient is tied to,
and inextricably linked to, gifts to or for the benefit
of that recipient,
and each recipient is a participant in federal elections.

Purpose for which gifts to be used 


[180] That
s 302CA is tied to, and inextricably linked to, federal elections and the
regulation of funding for federal elections is addressed further
in
ss 302CA(1)(e) and 302CA (2). Section 302CA(1)(e) provides that the
section regulates gifts where the gift, or part of the gift, is "required to be"
or "may be" used for the purposes
of incurring electoral expenditure. That
condition is explained by s 302CA(2) , which provides that a gift or part of
a gift is required to be, or may be, used for the purposes of "incurring
electoral expenditure , or creating or communicating electoral
matter " if "any terms set by the person or entity providing the gift
explicitly require or allow the gift or part to be used for that purpose
(whether or not those terms are
enforceable)" [257] 
or "the person or entity providing the gift does not set terms 
relating to the purpose for which the gift or part can be
used" [258] 
(emphasis added).


[181] That
the gifts are required to be or may be used for "electoral expenditure"
and, thus, an "electoral matter" means not only that the gifts are tied to
federal elections
but, more specifically, that the gifts (either expressly or
potentially) are to be used for the purpose of matters being communicated,
or
intended to be communicated, for the dominant purpose of influencing the way
electors vote in a federal election.


[182] As
seen above, s 302CA(1)(e) provides that the permission in s 302CA(1) 
applies where a gift or part of a gift is required to be, or may be, used
for federal electoral purposes. Does this mean that the permission in
s 302CA(1) attaches to a gift in its entirety if only part of that
gift – potentially even a small part – is required to
be, or may be, used for federal electoral purposes? The answer is no. 
To read
the provision in that way would be to produce an irrational
result [259] ,
contrary to the context and purpose of s 302CA as providing a permission in
respect of gifts for federal electoral purposes. Section 302CA does not apply,
and is not intended to apply, to gifts or parts of gifts that are not able to be
used for such purposes. As the
Commonwealth submitted, where only part of a
gift is required to be or may be used for federal electoral purposes,
the permission
would operate "only in relation to [that] part of the gift".

Exclusions and use of gifts 


[183] Before
turning to address the use of the gifts, it is necessary to outline three
exclusions from the operation of s 302CA(1). 


[184] Section
302CA(3) , headed "Gifts made or retained for State or Territory electoral
purposes", identifies three exclusions from the operation of s 302CA(1) in
relation to gifts for State or Territory electoral purposes: first, where the
terms of the gift "explicitly require the gift
or part to be used only for a
State or Territory electoral
purpose" [260] ;
second, where a State or Territory electoral law requires the gift or part of
the gift to be kept or identified separately in order
to be used only for a
State or Territory electoral
purpose [261] ;
and, third, where the gift recipient keeps or identifies the gift or part
separately in order to be used only for a State or Territory
electoral
purpose [262] .


[185] Section
302CA(3) provides:

"Without limiting when subsection (1) does not apply, that subsection does not
apply in relation to all or part of a gift if:


(a) any terms set by the person or entity providing the gift explicitly require
the gift or part to be used only for a State or Territory electoral
purpose (whether or not those terms are enforceable); or


(b) either:


(i) the effect of a State or Territory electoral law is to require the
gift or part to be kept or identified separately (or to require the gift or part
to be kept or identified separately
in order to be entitled to a benefit under
that law); or


(ii) the gift recipient keeps or identifies the gift or part separately;


in order to be used only for a State or Territory electoral purpose .


Note: For the purposes of subparagraph (3)(b)(ii), a gift recipient may
identify the electoral purpose for which a gift is to be
used at any time prior
to using that gift. A person who gives, receives or retains a gift that is
used for a State or Territory
electoral purpose in contravention of a State or
Territory electoral law may be liable to a penalty under the State or Territory
electoral law.


Example: A gift is given without expressing an intended purpose,
and ultimately is used for a State or Territory electoral purpose.
The
giving, receipt, retention and use of that gift must comply with the State or
Territory electoral
law." [263] 
(emphasis added) 

[186] Section
287(1) 
provides [264] 
that a " State or Territory electoral law means a law of a State or
Territory that deals with electoral matters (within the ordinary meaning of the
expression)" and a " State or Territory electoral purpose means a purpose
relating to a State, Territory or local government election (and, to avoid
doubt, does not include the purpose of
incurring electoral expenditure or
creating or communicating electoral matter)".


[187] It
is in that context that the use of gifts, if not prohibited by
Div 3A, is then permitted by s 302CA in the following
terms:

"(4) Despite any State or Territory electoral law, a gift recipient may use, or
authorise the use of, a gift for the purposes of
incurring electoral
expenditure, or creating or communicating electoral matter, if this Division
does not prohibit the use of the
gift.


(5) Without limiting when subsection (4) does not apply, that subsection
does not apply in relation to all or part of a gift if the
effect of the State
or Territory electoral law is to require the gift or part to be kept or
identified separately (or to require the gift or part to be kept or
identified separately in order to be entitled to a benefit under that law) in
order
to be used only for a State or Territory electoral purpose." (emphasis
added) 

[188] The
concept of gifts "kept or identified separately" is explained in s 302CA(6) 
as follows:

"Without limiting paragraph (3)(b) or subsection (5), an amount that is all
or part of a gift of money is kept or identified separately
in order to be used
only for a State or Territory electoral purpose if:


(a) the amount is kept in an account where:


(i) the only amounts deposited into the account are amounts to be used only for
a State or Territory electoral purpose; and


(ii) the only amounts paid out of the account are amounts incurred for a State
or Territory electoral purpose; or


(b) the amount is designated as an amount that must be used only for a State or
Territory electoral purpose." 

[189] These
provisions identify a key aspect of the way the scheme operates. They recognise
that it is not a bare or mere possibility
that a gift may be used for
federal electoral purposes that attracts the operation of s 302CA. To put
it in that way overlooks both the character of the recipient as a participant in
federal elections, as discussed above, and
the fact that exclusions apply
if the gift is allocated for State or Territory electoral purposes. The rule
permitting a gift recipient,
a participant in federal elections, to be funded
for the defined "electoral purpose" applies when a gift is earmarked for that
purpose
by the donor at the time the gift is given; when it is earmarked by the
recipient, at the time that it is received, that it will
be used for such a
purpose; or when it is subsequently earmarked by the recipient that it will be
used for such a purpose. If a
gift recipient, a participant in federal
elections, receives a gift that is not earmarked, then, consistent with a scheme
that encourages
funding of participants in a federal election in the manner
described, the gift is to be treated as if it is to be used for a federal
purpose unless and until the gift is earmarked to be used in a way which
attracts one of the exclusions from the rule.


[190] Thus,
practically, the law imposes an obligation on those entities and persons who
receive gifts that may be used for federal electoral purposes, as well as
those who make such gifts, to identify the use for which the gift is to be
allocated.
This earmarking is a condition of the positive rule that those
participants are entitled to receive funding for federal elections.


[191] Section
302CA(1) takes effect from the time of giving or receiving the gift. As
the Commonwealth submitted, the permission granted by s 302CA(1) is
contingent upon s 302CA(3)(b)(ii) – which addresses gifts kept or
identified separately by the recipient in order to be used only for a State or
Territory electoral
purpose – not applying (or, put in different
terms, s 302CA(3)(b)(ii) not applying is a condition subsequent to the
permission). That s 302CA(3)(b)(ii) operates in this way is made clear
from the Note and Example to the provision, taking into account that an example
may extend the
operation of a
provision [265] .


[192] Practically,
any issues with s 302CA(3)(b)(ii) operating in those terms can be
mitigated. In relation to a gift recipient, they are in control of the way they
allocate a gift.
If they choose to subsequently keep or identify a gift for a
State purpose, notwithstanding the fact that the State law says that
they cannot
receive such a gift, then the recipient bears and should bear the consequences
of their own conduct. Donors are in a
different position. However, as the
Commonwealth submitted, all a donor needs to ensure is that the recipient of a
gift is directed
to use the gift for a federal purpose, namely for electoral
expenditure or for creating or communicating an electoral matter. If
that
direction is made by a donor, then s 302CA(2)(a) applies and the gift is
subject to the federal regime.


[193] If,
however, a donor gives a gift to a federal participant and does not allocate the
gift to federal purposes, and the gift is subsequently
used by the recipient for
a State purpose, thereby removing the permission in s 302CA(1) and allowing
a State law to render its receipt unlawful, then whether or not the donor's
conduct is criminal will depend upon the
offence provisions of the relevant
State law. The gift, from the time that it was given, would be regulated by any
relevant State
Act, not the Commonwealth scheme. However, as will be seen, in
the context of the Queensland Electoral Act , a donor would not commit an
offence against s 307A of the Electoral Act because an essential
element of the offence would be absent, namely that the donor knew or ought
reasonably to have known of the facts
that resulted in the act or omission
(in this case, the making of the donation under s 275) being
unlawful, because when the donation was made, it was not unlawful (as it was
subject to the permission in s 302CA(1) of the Commonwealth Electoral
Act ). 


[194] Describing
one or more of these circumstances as a "retrospective" application of either
the federal or the State law is apt to mislead.
The notion of "retrospectivity"
is too broad, and imprecise, to make it a useful point from which to commence
the
argument [266] .
The questions will be determined by having regard to the way in which the
relevant Act applies to the particular facts and circumstances
in issue.

Foreign donors 


[195] Finally,
it is necessary to refer to s 302CA(1)(d), which identifies one 
category of donor that is prohibited in Div 3A, namely, foreign
donors who make political donations above specific monetary thresholds. 
That prohibition
is effected by ss 302D, 302E and 302F. It is
sufficient to refer, by way of example, to s 302D, which prohibits
donations made to
or for the benefit of an agent of a political entity or a
financial controller of a political campaigner during a financial year
by a
foreign donor in an amount of at least $1,000 (if the gift is not returned
to the donor or an equal amount transferred to the
donor, or an equal amount
transferred to the
Commonwealth [267] ).
Due to s 302CA(1)(d), donations prohibited by s 302D, 302E or
302F would not be subject to the permission in
s 302CA(1).
Section 302CA is within power 


[196] The
Commonwealth submitted that s 302CA is supported by s 51(xxxvi), read
with ss 10 and 31 , of the Constitution . It is a law with
respect to matters in respect of which the Constitution makes provision
until the Parliament otherwise provides: laws relating to elections of Senators
and members of the House of
Representatives [268] .
That contention should be accepted.


[197] A
law of the federal Parliament is made "with respect to" the subject matter of a
power "when it relates to or affects that subject
matter and the connection is
not 'so insubstantial, tenuous or distant' that it cannot properly be described
as a law with respect
to that subject
matter" [269] .
The constitutional text is to be construed "with all the generality which the
words used
admit" [270] .


[198] The
character of a law is determined by reference to "the rights, powers,
liabilities, duties and privileges which it creates"; the
practical as well as
the legal operation of the law must be
examined [271] .
And, consistent with established principle, it is necessary to consider the law
in context, as part of any wider scheme of regulation,
rather than in isolation,
where it might incorrectly be viewed as some bare attempt to limit or exclude
State legislative
power [272] . 


[199] Here,
as outlined, the wider scheme in Pt XX provides for regulation of donations in
federal elections through, in particular, a disclosure regime and prohibitions
of foreign
donations above specific monetary
thresholds [273] .
Put in different terms, in assessing the practical as well as the legal
operation of the law, it is relevant to distinguish between
a law which
lays down a positive rule and a law seeking to limit State
power [274] . 
On its proper construction, s 302CA, as part of the scheme in Pt XX , lays
down a positive rule. That is consistent with the understanding that s 109 
of the Constitution may operate where the Commonwealth chooses to enact a
scheme involving a more detailed form of regulation than State law provides,
where the Commonwealth creates a scheme involving less detailed regulation than
State law provides, or where the Commonwealth has
provided a more detailed
scheme than State law in some respects and a less detailed scheme in other
respects [275] .


[200] Describing
a power as "exclusive" may or may not be apt to emphasise that a State may have
no power to regulate federal electoral
matters. But in this case that is not a
necessary point at which to begin the analysis. It is sufficient to proceed
without deciding
the extent to which the power may properly be described as
"exclusive". And doing so avoids any unintended endorsement or revival
of
ideas rejected in the Engineers'
Case [276] .


[201] So
what is the practical and legal operation of s 302CA? 


[202] As
seen above, it is a provision which lays down a positive rule in the context of
a scheme. It provides that "[d]espite any State
or Territory electoral law", a
person may give a gift "to, or for the benefit of, a political entity,
a political campaigner or a third party", and those recipients can "receive
or retain a gift", if two conditions are met: Div 3A does not prohibit it
and the gift or part of the gift is required to be or
may be used for the
purposes of "incurring electoral expenditure, or creating or communicating
electoral matter". 


[203] Specific
aspects of the law's operation establish that the connection between the law and
the head of power is sufficient. Those
aspects are interrelated and
interconnected. The first two aspects – the character of the
recipients it regulates and the purpose of the gifts – are positive
links with the head of power. The second two aspects – that
s 302CA excludes only State
or Territory electoral laws and then,
having made that exclusion, expressly leaves room for State or Territory
electoral laws to operate in relation to
gifts for State or Territory electoral
purposes – are limitations on the scope of the law that support the law
being within
power. It is necessary to address each in turn. 


[204] The
first aspect is the character of the recipients that the law regulates. 
The law is directed to participants in federal elections – federally
registered
political parties, federal candidates or groups, federally registered
political campaigners, and federal third parties – and
only
participants in federal elections. A law that regulates such entities and
persons cannot be described as having a slight connection
with federal power. 
It is also relevant to observe that the law affects a limited and specific class
of participants, those that
participate in federal elections, and not a wide
section of the Australian community. That the class is limited in this way is
an
important consideration in finding the law within power.


[205] The
effect of the law on each "political entity" is not uniform. For example,
the effect of the law on a "candidate" is direct and
time-limited. 
It applies for only so long as that individual is a "candidate" in a
federal election, until 30 days after polling
day [277] . 
Similar time limitations apply in relation to its application to groups of
Senate
candidates [278] .
It may, indeed, be particularly hard to doubt that the law is within power to
the extent that it applies to the receipt of funds
by candidates or groups of
Senate candidates in a federal election. Victoria and Tasmania, although
contending for the invalidity
of s 302CA, did not explain why the
Commonwealth lacked power to regulate gifts to these persons or groups.


[206] Political
parties are often organised as multi-purpose entities in the sense that they are
organised, run and act in connection with
both State and federal elections. 
They may not keep State and federal electoral activities segregated in
watertight compartments.
Some political parties may be constituted as
unitary bodies participating in State, Territory and federal electoral
activities.
Some may be organised as a federation of separate State
bodies. They may be, and often are, unincorporated associations. Whether
or
not political parties that are registered at the federal level, and accordingly
are participants in federal elections, take the
form of unincorporated
associations does not alter their relevance to or participation in the federal
electoral process. It is not
as if the Commonwealth seeks to support
s 302CA on the basis of the corporations power in s 51(xx) of the
Constitution , and as a result must limit itself to incorporated entities.
The relevant power is over federal elections. It is not the form of
a political
party as an entity that matters, but its participation in federal
elections.


[207] Thus,
when directed to political parties, the law does not impose particular
operational structures on those organisations. Whatever
the manner in which the
party is constituted, the Commonwealth electoral law seeks to regulate how
those parties federally registered
as a participant in federal elections will be
funded. It is therefore unsurprising that the legislation should recognise
and deal
with different organisational structures including, in particular,
political parties constituted in one State but which seek to play
a role in
federal elections.


[208] Of
course, the character of those to whom the law applies does not necessarily
provide, in itself, a basis for any kind of regulation of those persons,
without limitation. Put in different terms, it is relevant here that the law
does not seek to regulate
everything that is done by a federally registered
political party. It seeks to address the receipt of funds, something so
central
to the workings of the electoral system that the Act makes provision for
some element of public funding of
elections [279] .


[209] The
second aspect is the purpose for which gifts may be used. 
In addressing that aspect, it is important to recognise that
s 302CA(1) applies where gifts are "required
to be, or may be, used for the
purposes of incurring electoral expenditure, or creating or communicating
electoral
matter" [280] .
That the gifts are required to be or may be used for "electoral
expenditure" [281] 
and, thus, "electoral
matter" [282] 
means that the gifts not only are tied to federal elections but, importantly,
are limited to gifts that are required to be or may
be used for the purpose of
matters being communicated, or intended to be communicated, for the dominant
purpose of influencing the
way electors vote in a federal election.


[210] In
this context, other aspects of the operation of s 302CA should be noted. 
Gifts allocated to non-electoral purposes are not regulated.
For example,
gifts allocated to the administrative expenses of a party, or for
issue-related advertising between elections, would
not be gifts that "may be"
used for federal electoral purposes. 


[211] That
s 302CA provides that gifts will fall within the operation of the phrase
"may be" used for federal electoral purposes when the
gifts are made on terms
that explicitly require or allow the gift or part to be used for that
purpose [283] ,
or if they are provided on no
terms [284] ,
does not alter or detract from that conclusion. It is not the bare or mere
possibility of the use of gifts for federal electoral
purposes that brings the
law within power. The law does not apply to each and every gift that may be
used for federal electoral
purposes. There are two interconnected facts that
must exist for s 302CA(1) to apply: the potential use of the gift for
the dominant
purpose of influencing the way electors vote in a federal election,
coupled with the identity of the recipient as one of a limited
set of
participants in federal elections to which Pt XX and s 302CA(1) are
directed. The two are inextricably interconnected. Put
in different terms,
those two essential aspects of s 302CA cannot be ignored. Without them,
the Part and the section do not and
cannot operate.


[212] The
third and fourth aspects are limitations on the scope of s 302CA. 
The third aspect is that it confines its exclusion of State
or Territory
law to State or Territory electoral laws: s 302CA(1) applies
"[d]espite any State or Territory electoral law", not despite any State
or Territory law. Section 287 defines "State or Territory electoral law" as "a
law of a State or Territory that deals with
electoral matters (within the
ordinary meaning of the expression)". Thus, s 302CA(1) does not
operate to exclude, and was never
intended to exclude, State or Territory laws
with respect to defamation, bribery or any other criminal conduct. 
Part XX, and s 302CA
in particular, is not concerned with
such matters. It is concerned only with aspects of funding of federal
elections.


[213] The
fourth aspect is the room that s 302CA leaves open for State or Territory
electoral laws to operate through s 302CA(3), which
has been set out
earlier [285] .
As the Commonwealth submitted, the law operates as a kind of funnel. It is
a provision that starts wide in seeking to permit, and
thus generate, funding
for the entities and persons who participate in federal elections in order to
influence the way electors vote
in a federal election. The provision then
narrows. One significant narrowing of the funnel is the prohibition on
foreign donors
above specific monetary thresholds. Another narrowing is the
exclusion of any gift that has been allocated for a State or Territory
purpose.


[214] As
just explained, that last narrowing is effected by three distinct exceptions. 
First, s 302CA(1) "does not apply in relation to
all or part of a gift if
... any terms set by the person or entity providing the gift explicitly require
the gift or part to be used
only for a State or Territory electoral purpose
(whether or not those terms are
enforceable)" [286] .
Second, s 302CA(1) "does not apply in relation to all or part of a gift if
... the effect of a State or Territory electoral law
is to require the gift or
part to be kept or identified separately (or to require the gift or part to be
kept or identified separately
in order to be entitled to a benefit under that
law) ... in order to be used only for a State or Territory electoral
purpose" [287] .
Third, s 302CA(1) "does not apply in relation to all or part of a gift if
... the gift recipient keeps or identifies the gift or
part separately ... in
order to be used only for a State or Territory electoral
purpose" [288] .


[215] The
substantial carve-outs in s 302CA(3), together with the fact that only
State and Territory electoral laws are excluded under s 302CA(1),
significantly undermine any contention that s 302CA intrudes into some
"heartland" of State legislative
power. The law is, if anything, carefully
crafted so as to avoid interfering with State elections and State laws
generally. It
is incorrect, in any event, to treat a federal law's impact
on some predefined concept of State power as a relevant consideration
in
determining whether the law is within Commonwealth
power [289] . 


[216] Thus,
the Commonwealth has legislated a scheme governing political donations for
federal elections that includes disclosure obligations
for donations and
expenditure and a prohibition on foreign donors making donations above specific
monetary thresholds. Under the
Commonwealth regime, foreign donors making
donations above those thresholds are the only forbidden class of donor. No one
challenged
the power of the Commonwealth to prohibit foreign donors in that way.
No one challenged that controlling donations relating to federal
elections was
within the relevant head of power. But the analysis does not stop there. The
power of the Commonwealth to control
donations relating to federal elections is
more than simply prohibiting classes of donors. The law is marking out
who may donate. It is marking out what money "may be ... used" for
federal electoral purposes, not "must be used". The operation of
the law cannot
be made to depend upon tracing the activities of political parties, party
organisations or participants in the federal
electoral process. Participants in
federal elections take many forms and the policy choice made by the
Commonwealth, and reflected
in the relevant provisions, is an electoral system
to which all non-foreign individuals and corporations can donate without
restriction.


[217] A
law that regulates the method of voting in a federal election is a law with
respect to federal
elections [290] .
A law that protects the electoral or voting system is a law with respect to
federal
elections [291] .
A law that assists in the maintenance of the voting system and protects a
particular method of voting is a law with respect to federal
elections [292] .
A law which proscribes conduct that interferes with the electoral system that
Parliament has chosen is a law with respect to federal
elections [293] .
It is then unsurprising that here, a law which forms part of a scheme that,
among other things, provides for registration of political
campaigners and
associated entities connected with federal
elections [294] ,
public election funding for federal
elections [295] ,
requirements relating to
donations [296] ,
and disclosure obligations for
donations [297] 
and electoral
expenditure [298] 
in relation to federal elections is a law with respect to federal
elections.


[218] In that
context, the extension of s 302CA to gifts that "may be ... used" for
federal electoral purposes in s 302CA(1)(e) is not
an "insubstantial,
tenuous or distant
connection" [299] .
It reflects the fact that gifts that are given to an entity engaged in the
federal electoral process should be able to be used for
federal electoral
purposes. It is not the bare or mere possibility of use for federal
electoral purposes, but, as has been seen,
that possibility together with the
character of the recipient as a participant in the federal electoral process,
qualified by the
exclusion of gifts for State or Territory electoral purposes,
that brings the law within power. And, unsurprisingly, no one
challenged
the power of the Commonwealth to regulate participants in the federal
electoral
process [300] .


[219] Two
further related and interconnected general propositions must be stated. First,
as Gleeson CJ, Gummow, Hayne, Heydon and Crennan
JJ stated in Work
Choices [301] ,
"a law with respect to a subject matter within Commonwealth power does not cease
to be valid because it affects a subject outside
power or can be characterised
as a law with respect to a subject matter outside power". That is not a new
proposition. As Stephen
J stated in Actors and Announcers Equity Association
v Fontana Films Pty
Ltd [302] ,
"[i]t will be enough if the law fairly answers the description of a law 'with
respect to' one given subject matter appearing in
s 51, regardless of
whether it may equally be described as a law with respect to other subject
matters. This will be so whether
or not those other subject matters appear in
the enumeration of heads of legislative power in s 51." 


[220] Second,
as was stated in Actors
Equity [303] :
"Once
it is recognized that a law may possess several distinct characters,
it follows that the fact that only some elements in the
description of a
law fall within one or more of the grants of power in s 51 or elsewhere in
the Constitution will be in no way fatal to its validity. So long as the
remaining elements, which do not fall within any such grant of power, are
not of
such significance that the law cannot fairly be described as one with respect to
one or more of such grants of power then,
however else it may also be described,
the law will be valid. If a law enacted by the federal legislature can be
fairly described
both as a law with respect to a grant of power to it and as a
law with respect to a matter or matters left to the States, that will
suffice to
support its validity as a law of the Commonwealth." 


[221] Accordingly,
so long as s 302CA fairly answers the description of a law with respect to
federal elections (and it does), it does
not matter that it may have other
possible characterisations. In particular, it does not matter that the law
may affect the legislative
powers of the
States [304] . 
That federal law can and does affect the exercise of legislative power of the
States is a central constitutional tenet which is
reflected in s 109 of the
Constitution [305] .


[222] When
a law is at the "centre or heart of the subject matter of the power", generally
speaking the purpose of the law is not
relevant [306] .
As this Court said in Plaintiff S156/2013 v Minister for Immigration and
Border Protection , "once a federal law has an immediate operation
within a field assigned to the Commonwealth as a subject of legislative power,
that
is enough ... No further inquiry is
necessary" [307] .
However, when a law is not at the centre or heart of the power but you "are
considering what is incidental to a power not only must
you take into account
the nature and subject of the power but you must pay regard to the context in
which you find the power"; that
is, "you must look at the purpose disclosed by
the law said to be incidental to the main
power" [308] . 


[223] Here,
s 302CA is supported by s 51(xxxvi) , read with ss 10 and 31 , of
the Constitution . But if that were not the case, the law would be
supported under the implied incidental power or the express incidental power in
s 51(xxxix) [309] .


[224] It
is in that context that it is necessary to address the Revised Explanatory
Memorandum to the Electoral Legislation Amendment (Electoral Funding and
Disclosure Reform) Bill 2018 , which stated that the goal of s 302CA is
to partially invalidate State and Territory electoral laws in the following
terms [310] :
"New
section 302CA clarifies the interaction between similar State and Territory and
Commonwealth electoral funding schemes. Broadly
speaking, these State and
Territory electoral laws will be invalidated to the extent that they would
detract from the right to give,
accept or use a donation under the Electoral Act 
for Commonwealth electoral purposes."


[225] That
approach is neither surprising nor new. There is nothing problematic about a
law that excludes State laws in the context of
the policy choice of the manner
in which there will be federal regulation of the subject matter. The law
outlined in Work Choices is just one example. In Work Choices ,
s 16(1) of the Workplace Relations Act 1996 (Cth), headed "Exclusion
of State and Territory laws", provided that "[t]his Act is intended to apply to
the exclusion of all the
following laws of a State or Territory so far as they
would otherwise apply in relation to an employee or employer", listing a series
of laws including "a State or Territory industrial
law" [311] . 
The validity of s 16 was
upheld [312] . 
The Commonwealth submitted in that case that s 109 would operate "even
though the Commonwealth had not made its own detailed provisions
about every
matter within that field which State law dealt with, and that it sufficed for
the Commonwealth to have some provisions
dealing with aspects of the field,
leaving others
unregulated" [313] .
Under the heading "No bare attempt to limit or exclude State legislative power",
Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ
accepted the Commonwealth's
submissions [314] .


[226] There
are other examples. Wenn v Attorney-General
(Vict) [315] 
concerned Commonwealth and Victorian laws in relation to preference for
ex-servicemen in employment. One difference between the Commonwealth
and
Victorian laws was that the Commonwealth Act required an employer to give
preference to ex-servicemen in new engagements or appointments,
but not in
promotion, as the Victorian Act
provided [316] .
Section 24(1) of the Commonwealth Act provided that the provisions of the
relevant Division would "apply to the exclusion" of State
or Territory
laws [317] . 
Section 24 was found to be
valid [318] . 
The exclusion of State law was not any less effective because the Commonwealth
Act did not cover all the areas addressed by the State Act; rather, as
Dixon J wrote, there were "areas of liberty designedly
left" [319] .


[227] In
Australian Coastal Shipping Commission v
O'Reilly [320] ,
the impugned law granted the Commission, a Commonwealth corporation, an
exemption from State taxes. This was found to be within
power [321] . 
As Dixon CJ said, "[t]he argument that under a legislative power of the
Commonwealth the operation of State laws cannot be directly
and expressly
excluded has been used without effect in a succession of cases beginning with
The Commonwealth v
Queensland " [322] .
And in The Commonwealth v
Queensland [323] ,
a federal law was upheld which provided that "[t]he interest derived from
stock or Treasury bonds shall not be liable to income
tax under any law of the
Commonwealth or a State" unless the prospectus declared otherwise. 


[228] In
Western Australia v The Commonwealth (Native Title Act
Case) [324] ,
s 11(1) of the Native Title Act 1993 (Cth), which provided
that "[n]ative title is not able to be extinguished contrary to this Act" and
thus, in effect, granted an immunity
from extinguishment by State laws, was
upheld as valid under s 51(xxvi) of the Constitution .


[229] In
Botany Municipal Council v Federal Airports
Corporation [325] , 
a federal regulation authorising licensed contractors to carry out
works at Sydney Airport in spite of a New South Wales law "that
... relate[d] to
... environmental assessment" was upheld as valid. The Court stated that
"[t]here can be no objection to a Commonwealth
law on a subject which falls
within a head of Commonwealth legislative power providing that a person is
authorized to undertake an
activity despite a State law prohibiting,
restricting, qualifying or regulating that activity. Indeed, unless the law
expresses
itself directly in that way, there is the possibility that it may not
be understood as manifesting an intention to occupy the relevant
field to the
exclusion of State
law" [326] .


[230] In
Bayside City Council v Telstra Corporation
Ltd [327] ,
a Commonwealth law providing that a law of a State or Territory had no
effect to the extent to which the law discriminated, or would
have the effect
(whether direct or indirect) of discriminating, against a particular carrier,
against a particular class of carriers,
or against carriers generally was upheld
under s 51(v) of the Constitution . As McHugh J stated, "[t]his
Court has held on many occasions that, where the Commonwealth has power to
regulate an area, it has
power to protect entities which operate in that area
from the effect of State
laws" [328] .


[231] Moreover,
as a matter of fundamental principle, it does not matter whether the law
"regulates" or confers a permission. As Evatt
J said in Huddart Parker
Ltd v The
Commonwealth [329] :

"Given the appropriate subject matter, the Commonwealth Parliament may
prohibit as well as it may restrict; it may remove restrictions,
alter
restrictions or add restrictions; it may encourage or discourage; it may
facilitate or obstruct. The phraseology is political,
and question-begging
terms necessarily abound." The issue is the
sufficiency of connection, not the nature of the regulation. Here, there
is sufficiency of connection. The policy
choice made by the Commonwealth is an
electoral system to which all non-foreign individuals and corporations can
donate without restriction,
subject to disclosure requirements. And so long as
there is a sufficient connection with the head of power, the policy choice that
the Commonwealth makes does not affect the question of
validity [330] .
As the Commonwealth submitted, to find s 302CA invalid entails "startling"
consequences. In particular, were the Commonwealth unable
to legislate to
permit donations to a federally registered political party, it is hard to
see how it could ban such donations or require disclosure of
them.


Melbourne Corporation 


[232] The
contention that s 302CA is invalid by reference to fundamental structural
considerations identified in Melbourne Corporation v
The Commonwealth [331] 
should be rejected. The heart of the contention is no more than a restatement
of the argument that the law is directed only to limiting
the exercise of State
legislative power. For the reasons already given, that contention fails. 


[233] There
are other difficulties with the argument. Section 302CA applies generally to
the giving, receiving or retaining of gifts in
the context of political
donations; it does not single out the States. At most it is noted that it
applies "[d]espite" State or
Territory laws, but that is because it applies
generally despite those laws. Moreover, it is permissive rather than
creating a burden.
The only "burden" is to potentially create s 109 
inconsistency with State laws. But to find that s 109 inconsistency
amounts to an effect on the States' capacity to exercise functions or powers
would be to "subvert not only the position
established by the decision in the
Engineers' Case but also s 109 of the
Constitution " [332] .


[234] There
is another and no less fundamental point to be made in answer to the
Melbourne Corporation argument. The Commonwealth Electoral
Act , and s 302CA in particular, makes provision for how federal
elections will be conducted: all except foreign donors may contribute without
restriction.
It does not make any provision for how State elections are to be
conducted. Money earmarked for use in State elections is subject
only to
State law. The State determines for itself how elections for its
Parliament will be conducted and funded. The fundamental
constitutional
assumption identified in Melbourne Corporation − that the States
continue to exist as separate bodies politic having their own institutional
arrangements − is neither
directly nor indirectly affected by the
Commonwealth Electoral Act . 


[235] In
short, s 302CA does not deny to the States the capacity to regulate their
own elections. Melbourne Corporation is not engaged. Section 302CA 
gives effect to a policy choice by the federal Parliament that all except
foreign donors making donations above the specific monetary
thresholds may
donate for federal electoral purposes. As will be seen, the prohibition
created by State law is invalid insofar as
it applies to donations which are
earmarked for or could be applied to federal electoral
purposes.
Metwally 


[236] The
decision of University of Wollongong v
Metwally [333] 
concerned an amendment to the Racial Discrimination Act 1975 (Cth) that
provided that the Act "is not intended, and shall be deemed never to have been
intended, to exclude or limit the operation
of a law of a State or
Territory that furthers the objects of the [International] Convention [on the
Elimination of All Forms of
Racial Discrimination] and is capable of operating
concurrently with this Act". In a previous decision of this
Court [334] ,
certain provisions of the Anti-Discrimination Act 1977 (NSW) had been
found to be invalid due to s 109 inconsistency with the federal Act. 
There was no question that the Anti-Discrimination Act again became
operative when the federal Act was
amended [335] .
However, there was an issue about whether the amendment operated to remove the
inconsistency retrospectively. By majority, the
Court held that the
amendment could not have such retrospective
operation [336] .


[237] Here,
Queensland contended that the principle in Metwally applies to render
s 302CA(3)(b)(ii) invalid, and, by extension, the entirety of
s 302CA. That was said to be because s 302CA(3)(b)(ii)
may apply to
remove the permission in s 302CA(1) on the basis of a later action,
namely the recipient keeping or identifying a gift separately for State or
Territory electoral purposes. However, in this
case it is not that
s 302CA(3)(b)(ii) is operating retrospectively; rather, it is that the
later action determines the application
of the law. As discussed above, it
is that the permission in s 302CA(1) is contingent upon or subject to a
condition subsequent
of s 302CA(3)(b)(ii) not applying. 
Thus, no Metwally issue arises because s 302CA(3)(b)(ii)
is not a law that seeks to remove s 109 inconsistency retrospectively in
the relevant sense.
Moreover, even if s 302CA(3)(b)(ii) did
retrospectively remove s 109 inconsistency (and it does not),
the result would be the same
as in Metwally : to remove any
retrospective operation. It would not render s 302CA(3)(b)(ii) invalid,
let alone the entirety of s 302CA.
Conclusion 


[238] For
these reasons, I would have answered questions (d)-(f) stated for the Full Court
"No".
Queensland Acts 


[239] As
seen earlier, Pt 3 of the Queensland Amending Act amended the Electoral
Act , which relates to elections at the Queensland State government
level, to introduce a prohibition on certain political donations. Part 5 of the
Queensland Amending Act amended the Local Government Electoral Act , which
relates to elections at the Queensland local government level. 
The provisions introduced by Pt 5 are, for the most part, the same as
those introduced by Pt 3. 
Electoral Act 


[240] The
Electoral Act makes provision for State elections in Queensland. 
For example, Pt 2 creates the Electoral Commission of Queensland, Pt 3 
addresses electoral districts and redistributions, Pt 4 relates to
electoral rolls and enrolment, Pt 6 covers registration of political
parties and Pt 7 addresses topics including the calling of elections,
nomination of candidates, and who may vote. The Electoral Act does
not have a relevant purposes provision.


[241] Part
11 is headed "Election funding and financial disclosure". It makes provision
for appointing and registering
agents [337] ,
election funding [338] ,
disclosure of
gifts [339] 
and
expenditure [340] ,
returns by registered political parties and associated
entities [341] ,
and authorised
officers [342] .


[242] Part
3 of the Queensland Amending Act inserted various provisions into the
Electoral Act . One of those provisions was s 275 , headed "Political
donations by prohibited donors", which was inserted into Subdiv 4 of Div 8 of
Pt 11 , headed "Political donations from property
developers" [343] .


[243] Section
275 , one of the key provisions, makes it unlawful for a prohibited donor to make
a political donation. It is in the following
terms:

"(1) It is unlawful for a prohibited donor to make a political
donation .


(2) It is unlawful for a person to make a political donation on behalf of a
prohibited donor.


(3) It is unlawful for a person to accept a political donation that was made
(wholly or in part) by or on behalf of a prohibited
donor.


(4) It is unlawful for a prohibited donor to solicit a person to make a
political donation.


(5) It is unlawful for a person to solicit, on behalf of a prohibited donor,
another person to make a political donation." 
(emphasis
added) 

[244] For
the purposes of Subdiv 4, s 274(1) provides that each of the following
is a "political donation":

"(a) a gift made to or for the benefit of –


(i) a political party; or


(ii) an elected member; or


(iii) a candidate in an election;


(b) a gift made to or for the benefit of another entity –


(i) to enable the entity (directly or indirectly) to make a gift mentioned in
paragraph (a) or to incur electoral expenditure; or


(ii) to reimburse the entity (directly or indirectly) for making a gift
mentioned in paragraph (a) or incurring electoral expenditure;


(c) a loan from an entity other than a financial institution that, if the loan
were a gift, would be a gift mentioned in paragraph
(a) or
(b)." 

[245] Relevantly,
"political party" is
defined [344] 
as "an organisation whose object, or 1 of whose objects , is the promotion
of the election to the Legislative Assembly of a candidate or candidates
endorsed by it or by a body or organisation
of which it forms a part" (emphasis
added). As seen earlier, that would include an entity or organisation that
has multiple objects
– for example, objects in relation to both State
elections and federal elections. 


[246] Certain
gifts, made in a private capacity, are excluded from the definition of
"political donation" in s 274 unless the gift is used for an "electoral
purpose". In this respect, the section provides as
follows:

"(2) If a gift is made by a person in a private capacity to an individual (the
recipient ) for the recipient's personal use and the recipient does not
intend to use the gift for an electoral purpose –


(a) the gift is not a political donation when it is made; but


(b) if any part of the gift is used for an electoral purpose, then, for the
purposes of section 275(3) –


(i) that part of the gift is a political donation; and


(ii) the recipient is taken to accept that part of the gift at the time it is
used for an electoral purpose.


(3) A reference in subsection (2) to using a gift for an electoral
purpose is a reference to using the gift to incur electoral expenditure or
for the recipient's duties as an elected member." 

[247] "[E]lectoral
expenditure" is relevantly
defined [345] 
as "expenditure incurred for the purposes of a campaign for an election, whether
or not the expenditure is incurred during the election
period for the election".
"[E]lection" means "an election of a member or members of the Legislative
Assembly" [346] .


[248] On
the other hand, a gift under s 274 includes certain "fundraising
contribution[s]" and payments to political parties as
follows:

"(4) Despite section 201(4)(a) and (b), a reference in this section to a gift
includes a fundraising contribution, to the extent the amount of the
contribution
forms part of the proceeds of the fundraising venture or function
to which the contribution relates.


(5) Despite section 201(4)(d) , a reference in this section to a gift includes
any of the following amounts paid by a person to a political party, to the
extent
the total amount of the person's payments in a calendar year exceeds
$1,000 –


(a) an amount paid as a subscription for a person's membership of the party;


(b) an amount paid for a person's affiliation with the
party." 

[249] "[P]rohibited
donor" is defined in s 273 to mean:

"(1) ...


(i) a property developer; or


(ii) an industry representative organisation, a majority of whose members are
property developers; but


(b) does not include an entity for whom a determination is in effect under
section 277. 


..." 

[250] "[P]roperty
developer" is in turn defined in sub-ss (2) and (3) of s 273 to mean
each of the following persons:

"(2) ...


(a) a corporation engaged in a business that regularly involves the making of
relevant planning applications by or on behalf of the
corporation –


(i) in connection with the residential or commercial development of land;
and


(ii) with the ultimate purpose of the sale or lease of the land for profit;


(b) a close associate of a corporation mentioned in paragraph (a).


(3) For deciding whether a corporation is a corporation mentioned in subsection
(2)(a), any activity engaged in by the corporation
for the dominant purpose of
providing commercial premises at which the corporation, or a related body
corporate of the corporation,
will carry on business is to be disregarded,
unless the business involves the sale or leasing of a substantial part of the
premises." 

[251] "[C]lose
associate", "relevant planning application" and "stapled entity" are defined in
broad terms by s 273(5) , and "director", "officer", "related body
corporate" and "voting power" are defined in the same sub-section by reference
to the Corporations Act 2001 (Cth). 


[252] Under
s 277, there is a process for determining that a person is not a
"prohibited donor", by applying in writing to the commissioner
of the Electoral
Commission of Queensland. The commissioner can revoke this determination
"at any time" under s 278(1) if the commissioner
"ceases to be
satisfied" that the entity is not a prohibited donor. Under s 279(1),
"[t]he commissioner must keep a register of
determinations made under section
277".


[253] The
scheme includes an obligation to pay the State if a prohibited donation is
accepted [347] .
If the person "knew it was unlawful to accept the prohibited donation", the
amount payable is "twice the amount or value of the
prohibited
donation" [348] ,
otherwise it is an amount equal to the amount or value of the prohibited
donation [349] .


[254] The
prohibition under s 275 is further enforced with three criminal offences. 
First, under s 307A , there is an offence for the breach of the
prohibition:

" Offence about prohibited donations 


(1) A person must not do an act or make an omission that is unlawful under
section 275 if the person knows or ought reasonably to
know of the facts that
result in the act or omission being unlawful under that section.


Maximum penalty – 400 penalty units or 2 years imprisonment.


(2) An offence against subsection (1) is a
misdemeanour." 

[255] Second,
a "scheme to circumvent" the prohibition is an offence under s 307B. This
occurs if a person "knowingly participate[s], directly or indirectly, in a
scheme to circumvent a prohibition under division
8, subdivision 4 about
political donations". And, third, under s 307C , there is an offence for
giving information that the person knows is "false or misleading in a material
particular" to the commissioner
under s 277 (relating to determinations
about prohibited donors). 
Local Government Electoral Act 


[256] The
Local Government Electoral Act addresses local government elections in
Queensland. For example, Pt 3 addresses voters rolls, Pt 4 makes provision for
topics including candidates for local government elections, polling, and who may
vote, Pt 5 relates to fresh elections, and Pt 7 provides for disputed results. 
Part 6 is entitled "Electoral funding and financial disclosure". Division 1A of
this Part, "Political donations from property developers",
contains the
prohibition inserted by the Queensland Amending Act . The Part also contains
provisions addressing disclosure
periods [350] ,
disclosure obligations for
candidates [351] ,
disclosure obligations for third
parties [352] ,
the operation of dedicated
accounts [353] 
and a gifts
register [354] .


[257] Section
113B of the Local Government Electoral Act makes unlawful certain
political donations in the same terms as s 275 of the Electoral Act .
The definitions are in substantially identical terms to those in s 273 
of the Electoral Act . For example, "political donation" is defined in
s 113A in slightly different wording from s 274 of the Electoral
Act , referring to a "councillor of a local government" instead of "an
elected member". And "political party" is
defined [355] 
as "an organisation or group whose object or activity, or 1 of whose objects or
activities, is the promotion of the election of a
candidate or candidates
endorsed by it, or by a body or organisation of which it forms a part, to an
office of councillor of a local
government".


[258] The
other provisions are the same as the corresponding provisions in the
Electoral Act . Under ss 113D , 113E and 113F of the Local
Government Electoral Act , there is a process, identical to ss 277 , 278 
and 279 of the Electoral Act , for determining that a person is not a
"prohibited donor". A provision for review of decisions made under Div 1A of
Pt 6 is included under s 113G "as if the decision were a decision to
which section 277(4)(b) or 278 (2) of [the Electoral Act ] applied". 
The provision for recovery of prohibited donations in s 276 of the
Electoral Act is replicated in substantially similar terms in
s 113C, with additional provisions in sub-ss (4) and (5) noting that an
action to
recover an amount due to the State may be brought in the name of the
Electoral Commission and a process may be served on the Electoral
Commission. 
The offences provided for by ss 307A , 307B and 307C of the
Electoral Act are reproduced as ss 194A , 194B and 194C of the
Local Government Electoral Act .
Rationale for the
changes 


[259] The
Explanatory Notes accompanying the introduction of the Local Government
Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment
Bill 2018 ("the Queensland Amending Bill") stated
that [356] :

"The policy objective of the [Queensland Amending Bill] is to implement the
Government's response to certain recommendations of the
Crime and Corruption
Commission's (CCC) report Operation Belcarra: A blueprint for integrity
and addressing corruption risk in local government (the Belcarra
Report) to: 

[1] reinforce
integrity and minimise corruption risk that political donations from property
developers has potential to cause at both
a State and local government
level;


[2] improve
transparency and accountability in State and local government; and


[3] strengthen
the legislative requirements that regulate how a councillor must deal with a
real or perceived conflict of interest or
a material personal interest."


[260] Specifically,
the Bill implements "recommendation 20 [of the Belcarra Report] to ban donations
from property developers for candidates,
third parties, political parties and
councillors. This is extended to Members of State
Parliament" [357] .


[261] The
Minister for Local Government explained the Bill in the following
terms [358] :
"To
implement the government's response to recommendation 20, the bill bans
donations from property developers to candidates, third
parties, political
parties and councillors. The bill extends the ban to members of state
parliament. The provisions are modelled
on the New South Wales Election
Funding, Expenditure and Disclosures Act 1981 . The prohibition addresses the
concern identified in the Belcarra report that close connections between
councillors and donors can
lead to a perception in the community that donors
expect to, and do, receive something in return for their support. As the CCC
stated,
'These perceptions alone are enough to damage public confidence in the
integrity of local government.' Further, the CCC stated,
'... continued public
concern about the influence of property developer donations on council
decision-making demands a stronger response
than transparency alone.'"


[262] Though
there is no relevant purposes provision in the Electoral Act ,
s 28 of the Queensland Amending Act replaced the purposes provision of
the Local Government Electoral Act with the
following [359] :

"The purposes of this Act are to –


(a) ensure the transparent conduct of elections of councillors of Queensland's
local governments; and


(b) ensure and reinforce integrity in Queensland's local governments, including,
for example, by minimising the risk of corruption
in relation to –


(i) the election of councillors; and


(ii) the good governance of, and by, local
government." Constitutional challenges 


[263] All
sorts of constitutional issues were raised by the plaintiff and the Commonwealth
to contend for the invalidity of the provisions
of the Electoral Act and
Local Government Electoral Act that were inserted by the Queensland
Amending Act . 


[264] One
of the plaintiff's challenges to the prohibition in the Electoral Act 
– on the basis of the implied freedom of political communication –
is readily disposed of because the law is indistinguishable
from that upheld in
McCloy v New South
Wales [360] .


[265] The
other constitutional issues are in a different category. They concern what the
plaintiff asserted is constitutional invalidity
because the Queensland laws
breach a reverse Melbourne Corporation principle protecting the
Commonwealth, as well as the Commonwealth's challenge to the Queensland law on
the basis that its power over
federal elections is exclusive and therefore the
prohibition in the Queensland laws is invalid because it applies even to
donations
made for express federal electoral purposes.


[266] Neither
contention should be accepted. There may be valid reasons to consider that the
Melbourne Corporation principle should protect the Commonwealth, as well
as the States, given that the continued existence of both levels of government
is assumed in the constitutional
structure [361] .
But it is unnecessary to decide whether a reverse Melbourne Corporation
principle exists, beyond that identified in The Commonwealth v Cigamatic
Pty Ltd
(In liq) [362] ,
because any such doctrine would not be infringed by prohibition of a limited
class of political
donations [363] .
Such a prohibition cannot be described as directed at the Commonwealth, nor as
imposing some special disability or burden on the
exercise of powers and
fulfilment of functions which curtails the Commonwealth's capacity to
function [364] .


[267] And
to say, as members of this Court have done on several
occasions [365] ,
that Commonwealth power over federal elections is "exclusive" is merely to
observe an absence of State power over that
subject [366] .
In this case, the Queensland laws, despite having some operation on gifts
for Commonwealth electoral purposes, are laws about State
elections. They are
not beyond State power. 


[268] For
these reasons, I would have answered questions (a)-(c) stated for the Full Court
"No".
Inconsistency with s 302CA 


[269] Queensland
conceded that if s 302CA of the Commonwealth Electoral Act was
valid, then there was inconsistency under s 109 of the Constitution 
between s 302CA of the Commonwealth Electoral Act and the State
schemes. More particularly, s 275(1) -(3) of the Electoral Act 
and s 113B(1) -(3) of the Local Government Electoral Act "alter,
impair or detract from" the Commonwealth law. There is "direct
inconsistency" [367] .
The permission in s 302CA(1)(a) of the Commonwealth Electoral
Act is directly inconsistent with the prohibitions in s 275(1) -(2) of
the Electoral Act and s 113B(1) -(2) of the Local Government
Electoral Act . Those prohibitions would apply to the making of a
political donation by or on behalf of a prohibited donor (for example,
a property developer) to a political party, within the
State definitions,
where the political party is registered at the federal level or is a State
branch of a federally registered party.
The permission in s 302CA(1)(b) or
(c) is directly inconsistent with the prohibitions in s 275(3) of the
Electoral Act and s 113B(3) of the Local Government Electoral
Act . Those prohibitions prevent acceptance of a political donation
in those circumstances. Section 275(1) -(3) of the Electoral Act and
s 113B(1) -(3) of the Local Government Electoral Act are invalid to
the extent of that inconsistency.


[270] The
overlap is not limited to political parties. For completeness,
the permission in s 302CA(1)(a) of the Commonwealth Electoral Act 
is directly inconsistent with the prohibitions in s 275(1) -(2) of the
Electoral Act and s 113B(1) -(2) of the Local Government Electoral
Act which would apply to the making of a political donation by or on
behalf of a prohibited donor (for example, a property developer) to a candidate
in a local government
or State election, or State member or local government
councillor, or to other entities, within the State definitions, if they are
also
a candidate or member of a group of candidates in a federal election,
a federally registered political campaigner, or a third
party within the
relevant federal definition. Moreover, the permission in s 302CA(1)(b) or
(c) is directly inconsistent with the
prohibitions in s 275(3) of the
Electoral Act and s 113B(3) of the Local Government Electoral
Act , which apply to the acceptance of a political
donation in those circumstances. Thus, s 275(1) -(3) of the Electoral
Act and s 113B(1) -(3) of the Local Government Electoral Act are
invalid to the extent of that inconsistency.


[271] And
s 275(4) -(5) of the Electoral Act and s 113B(4) -(5) of the
Local Government Electoral Act "alter, impair or detract from"
s 302CA(1) of the Commonwealth Electoral Act . The prohibitions
in s 275(4) -(5) of the Electoral Act and s 113B(4) -(5) of the
Local Government Electoral Act on soliciting of political donations from
prohibited donors are directly inconsistent with the permission in
s 302CA(1)(a) –
the soliciting provisions directly impair the
operation of the federal law providing that gifts can be given and received. 
The overall
purpose and design of the federal law is directed to preventing
only one class of political donations – donations by foreign
donors that
are above the specific monetary thresholds. The ability under
s 302CA(1) to receive a gift is at least made more difficult
if you cannot
ask people for a gift. 
Inconsistency with the wider Commonwealth
Electoral Act 


[272] The
plaintiff submitted that there was inconsistency between the Queensland laws and
the wider Commonwealth Electoral Act . That should not be accepted. The
Queensland laws are not inconsistent with the wider Commonwealth Electoral
Act .


[273] The
prohibition on foreign donations above specific monetary thresholds, as well as
the other rules in Pt XX of the Commonwealth Electoral Act , and
the prohibitions in s 275 of the Electoral Act and s 113B of
the Local Government Electoral Act are cumulative, not inconsistent. 
The laws can and do work together.


[274] Section
302CA does not completely exclude State
laws [368] . 
It clearly indicates that the Commonwealth's intention was not to cover the
field, but to manage the interaction of its regime
with applicable State laws. 
There is no indirect
inconsistency [369] .

Conclusion 


[275] It
is for those reasons that I would have answered the questions stated for the
Full Court as follows: 
Questions (a)-(f): "No";


Question (g): "Yes. Section 275 of the Electoral Act 1992 (Qld)
is invalid to the extent that it applies to giving, receiving or retaining gifts
where this is permitted by s 302CA(1) of the Commonwealth Electoral Act
1918 (Cth)";


Question (h): "Yes. Section 113B of the Local Government Electoral Act
2011 (Qld) is invalid to the extent that it applies to giving, receiving or
retaining gifts where this is permitted by s 302CA(1) of the
Commonwealth Electoral Act 1918 (Cth)";


Question (i): "The defendant should pay the costs of the special case".


EDELMAN J.


Introduction 


[276] When
the Engineers'
Case [370] 
is "stripped of embellishment and reduced to the form of a legal
proposition", it stands for the proposition that "a power to legislate
with
respect to a given subject enables the Parliament to make laws which, upon that
subject, affect the operations of the States
and their
agencies" [371] .
The decision has been criticised, sometimes
trenchantly [372] .
It has stood for nearly a century but other doctrines have been built around it,
mitigating its effect. Those include constitutional
implications, relied upon
in this case, some of which restrict its otherwise unimpeded operation upon the
States. The restrictions
were relied upon in this case but they do not
invalidate any of the laws in issue. The point that ultimately divides the
Court in
this case concerns the limit of the Commonwealth's power to make its
legislative regimes exclusive of the States.


[277] If
a donation is made to a political party operating at both State and federal
levels, and if the donation could be used for either
State or federal electoral
purposes, polities at both levels of government can subject the donor or the
recipient to regulation.
Such untied donations, which directly attract the
interests of both polities, were described by the plaintiff in this case as the
"unallocated middle". At the heart of this case is the Commonwealth's
legislation to make its regime exclusive in respect of that
unallocated middle,
whilst carving out from that exclusivity a sphere for operation of State laws
affecting the interests of that
State. The Commonwealth regime thus leaves
unaffected in relevant respects the legislative regimes in New South Wales,
Victoria,
and South Australia, which are closely tailored to the interests of
those
States [373] . 
But it is inconsistent with the much broader regime in Queensland.


[278] Section
275 of the Electoral Act 1992 (Qld) ("the Queensland Electoral Act ") and
the equivalent provision, s 113B of the Local Government Electoral Act
2011 (Qld) ("the Queensland Local Government Electoral Act "), make it
unlawful for donations to political parties to be solicited by, made by, or
received from, a property developer, or on behalf
of a property developer. 
Immediately before Federation, a colonial parliament had power to pass laws
of this nature. Section 107 of the Constitution continued this power for
the parliaments of the States, unless it was exclusively vested in the
Commonwealth Parliament or withdrawn
from the States.


[279] In
this special case, the plaintiff, and the Attorney-General of the Commonwealth
intervening, submitted that this power was, by
implication from the
Constitution , exclusively vested in the Commonwealth Parliament. 
The plaintiff also submitted that it was withdrawn from the States either
by
the application of an implication necessary to preserve the functioning of
the Commonwealth as a polity ("the reverse Melbourne Corporation
implication") or by the implied freedom of political communication. None of
these attacks on the existence or extent of State legislative
power should be
accepted.


[280] Part
XX of the Commonwealth Electoral Act 1918 (Cth) ("the Commonwealth
Electoral Act ") also creates a regime to regulate, amongst other aspects of
federal elections, political donations. In some respects, such as
in relation
to foreign donors, the Commonwealth regime is more restrictive than the
Queensland regime. In other respects, it is
more permissive. For example, the
Commonwealth regime does not prohibit property developers from making donations
to registered
political parties but subjects property developers to a generally
applicable regime of disclosure. Many political parties registered
under the
Commonwealth Electoral Act operate at both State and federal levels. 
Section 302CA of the Commonwealth Electoral Act , concerning exclusivity of
the regulation of prohibited donors, and s 314B , concerning exclusivity of
the regulation of disclosure, make exclusive the Commonwealth regime regulating
donations to registered
political parties.


[281] If
s 275 of the Queensland Electoral Act and s 302CA of the Commonwealth
Electoral Act are both valid laws then s 275 is inconsistent with
s 302CA and therefore rendered inoperative by s 109 of the
Constitution . The same conclusion follows for s 113B of the
Queensland Local Government Electoral Act . However, the State of Queensland and
the intervening State Attorneys-General submitted that, for various reasons,
s 302CA of the Commonwealth Electoral Act is beyond the prima facie power
of the Commonwealth Parliament or that it falls within an area of
intergovernmental immunity and
corresponding lack of Commonwealth power. None
of the attacks on Commonwealth legislative power should be accepted.


[282] The
particular issue that divides this Court is whether s 302CA of the
Commonwealth Electoral Act is within power. Ultimately, the issue reduces to
whether the Commonwealth has the power to make its own regime exclusive, albeit
subject to various carve-outs for State legislation. The nature of the State
law should make no difference. It would be no different
if the Queensland law
had sought to permit property developers to make entirely unregulated
donations to political parties that may be used for State or federal electoral
purposes.
Such a law would also be inconsistent with a Commonwealth law that
had sought to make exclusive a general regime which included
regulation of
donations by property developers including by disclosure requirements. In my
view, the weight of precedent is too
heavy, and the stream of legal development
has been too clear, to conclude now that Commonwealth exclusivity provisions,
tailored
closely to Commonwealth interests, are invalid.


[283] Section 302CA 
of the Commonwealth Electoral Act is a valid law. Section 275 of the
Queensland Electoral Act and s 113B of the Queensland Local Government
Electoral Act are inconsistent with s 302CA of the Commonwealth Electoral
Act and are therefore inoperative to the extent of that
inconsistency.
The validity of the amendments to the Queensland
Electoral Act 


(i) The operation of the Queensland Electoral Act 


[284] On
2 October 2018, Pts 3 and 5 of the Local Government Electoral
(Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 
(Qld) ("the Queensland Amending Act ") came into force. The Queensland
Amending Act introduced relevantly equivalent provisions into the Queensland
Electoral Act , in relation to elections to the Legislative Assembly of
Queensland, and the Queensland Local Government Electoral Act , in relation to
elections of Queensland local government councillors. The submissions in this
case focused upon the amendments to
the Queensland Electoral Act on the
assumption, which was not in dispute, that, apart from the plaintiff's
submission based on the implied freedom of political
communication, the legal
position was relevantly identical in relation to the Queensland Local Government
Electoral Act .


[285] The
amendments to the Queensland Electoral Act relevantly introduced a new
Subdiv 4 to Div 8 of Pt 11. At the heart of the Subdivision,
entitled "Political donations from property developers", is s 275 , which
provides:
" Political donations by prohibited donors 


(1) It is unlawful for a prohibited donor to make a political donation.


(2) It is unlawful for a person to make a political donation on behalf of a
prohibited donor.


(3) It is unlawful for a person to accept a political donation that was made
(wholly or in part) by or on behalf of a prohibited
donor.


(4) It is unlawful for a prohibited donor to solicit a person to make a
political donation.


(5) It is unlawful for a person to solicit, on behalf of a prohibited donor,
another person to make a political donation." 

[286] The
essence of the section is to prevent property
developers [374] 
from, directly or indirectly, making gifts for the benefit of a political party,
an elected member or a candidate in an
election [375] .
By the definition in s 2 , an organisation will be a political party within
the scope of the prohibition provided that one of its objects is "the promotion
of the election to the Legislative Assembly of a candidate or candidates
endorsed by it or by a body or organisation of which it
forms a part".


[287] As
agreed in the special case, the Liberal National Party, the Labor Party
Queensland, Katter's Australian Party, Pauline Hanson's
One Nation, and the
Queensland Greens hold 92 of the 93 seats in the Legislative Assembly of
Queensland. Each party, either directly
or through an affiliated or related
party, is also represented in the House of Representatives or the Senate, or
both. In prohibiting
political donations from property developers to
political parties with an object of promoting candidates to the Legislative
Assembly
of Queensland, the Queensland Electoral Act therefore has the
incidental effect of removing a source of funding for those parties' activities
in the federal sphere.
(ii) Was power in relation to federal
elections exclusively vested in the Commonwealth Parliament? 


[288] With
some
restrictions [376] ,
colonial legislative power was generally as plenary and extensive within each
colony as the power of the Imperial
Parliament [377] .
The colonies plainly had an interest in the exercise of that plenary power in
many matters concerning any election held in the
colony [378] . 
The many matters that a colony might have wished to regulate with respect to
elections held within the territory of the colony
may have included the
facilities for polling places, ensuring peaceful and honest conduct during
polling, or electoral advertising
in the colony. Prior to Federation, some
colonial parliaments had passed laws in relation to elections in the colonies
which included:
(i) restrictions on electoral expenses, including
restrictions on payment of electoral expenses by third
parties [379] ;
(ii) bribery, undue influence, or solicitation
offences [380] ;
and (iii) requirements to include in electoral advertising the name and
address of the person authorising the
advertising [381] .


[289] Prior
to Federation there was evidently no need for the colonies to extend their
operative laws to federal elections which did not
then exist. 
The Constitution conferred power upon the Commonwealth Parliament to
make such laws, by ss 10 , 31 , and 51 (xxxvi), and the incidental power in
s 51(xxxix). But until these Commonwealth legislative powers were
exercised there would be no laws relating to the time, place or manner of a
federal election unless anticipatory laws were passed by colonial or State
parliaments [382] .
The Constitution therefore ensured that there would be no lacuna by
providing in ss 10 and 31 that until the Commonwealth Parliament otherwise
provided, the laws that would apply to federal elections would be those in force
in each State relating to elections for the more numerous House of the
Parliament of the State. This was neither a conferral of
legislative power upon
the State parliaments in relation to federal elections nor was it based upon an
assumption of an absence of
State legislative power in relation to federal
elections. Rather, it was to ensure that, from the moment of Federation, there
would
be an extant regime for federal elections. Central to the Commonwealth's
submission that the Commonwealth Parliament has exclusive
legislative power
concerning federal elections is the decision of this Court in Smith v
Oldham [383] .
That appeal concerned the conviction of the editors of The Argus 
newspaper of an offence contrary to s 181AA of the Commonwealth
Electoral Act 1902 (Cth), which required that any newspaper article
commenting upon a candidate, political party, or issue being submitted to the
electors
must be signed by the author, giving a true name and address. The
offence concerned the publication of an unsigned article commenting
on various
candidates for election. The editors submitted that s 181AA was beyond the
legislative power of the Commonwealth
Parliament [384] .
The Court did not call upon the respondent to make
submissions [385] .
Judgment was immediately delivered dismissing the appeal. 
Griffith CJ, Barton J, and Isaacs J all delivered reasons for
decision
finding that the law was within the core of the power
(Barton J) [386] ,
or incidental to the core of the power (Griffith CJ and
Isaacs J) [387] ,
of the Commonwealth Parliament in relation to federal elections. And each
member of the Court said that the Commonwealth power
was
exclusive [388] .


[290] In
this Court, Queensland and a number of interveners submitted that the decision
in Smith v Oldham was based upon the doctrine that the
Constitution , particularly s 107 , reserved powers to the States. 
That doctrine has been rejected for nearly a
century [389] .
The submissions of the appellants in Smith v Oldham had certainly been
put on this basis. Mitchell KC and Irvine KC submitted that the power
of the Commonwealth Parliament to legislate
in relation to elections must be
confined to "the conduct and control of elections" so that a law such as
s 181AA, which they contended
was concerned with the "conduct and control
of newspapers", was a law concerned with a matter within the reserved powers of
the
States [390] . 
But the Court did not rely upon that doctrine for the conclusion that there was
an absence of State power. Although Griffith CJ
and Barton J had been
supporters of the reserved powers doctrine for several
years [391] ,
their Honours' reasoning about the absence of State power was not
substantially different from that of Isaacs J, who was not a supporter
of
the
doctrine [392] .
Indeed, the subtle antagonism towards the reserved powers doctrine that
appears in the decision of Isaacs J in Smith v
Oldham [393] 
was later echoed in the joint judgments which his Honour delivered in
R v Brisbane Licensing Court; Ex parte
Daniell [394] 
and the Engineers'
Case [395] .


[291] In
Smith v Oldham , the essence of the reasoning of each member of the
Court concerning the absence of State legislative power was, unsurprisingly, not
based upon the reserved powers doctrine. The reasoning was simply that the
State had no interest in the subject matter of federal
elections. 
Griffith CJ said that the matter was "one in which the States as such have
no
concern" [396] .
Barton J said that "[n]o State has anything whatever to do with" the
actions of citizens that affect the result and issues of federal
elections [397] .
And Isaacs J said that the subject matter of federal elections was
"transparently beyond the competency of the State to
control" [398] .
Neither Griffith CJ nor Isaacs J provided any further reasoning to
support this assumption of an absence of State legislative power.
The
assumption by Griffith CJ and Isaacs J may have been based on the
notion, later expressed by Latham CJ in West v Commissioner of Taxation
(NSW) [399] ,
that matters specifically relating to the government of the Commonwealth are not
laws for the peace, welfare and good government
of a State. That reasoning was
made explicit by Barton J, who said that no State constitution gave to a
State parliament a power
to legislate with respect to federal
elections [400] .


[292] With
respect, this reasoning confuses two separate matters. On the one hand, there
was the colonial plenary legislative power, which
supported laws relating to
elections held in the colony. On the other hand, there are new facts and
circumstances, arising after
Federation, upon which that power might
operate [401] .
The colonial plenary power to make laws concerning requirements for elections
included a power to make laws for federal elections
to be held in the territory
of the colony even though an election of that nature extended beyond the
territory and had not previously
been held. The existence of new facts or
circumstances upon which a power might operate does not change the nature of the
power.
This is particularly so where, as could have been reasonably foreseen at
Federation [402] ,
"[s]ocial, economic and political matters ... are increasingly integrated" and
political parties operate "across the federal divide
and at federal, State,
Territory and local government
levels" [403] .
Political parties had begun to emerge by the
1890s [404] ,
and Deakin had observed that it was "inevitable" that political parties in the
Senate would "coalesce and throw in their lot with
each other ... irrespective
of state boundaries
altogether" [405] .


[293] The
circumstances of this case are a good example of the underlying fallacy in the
factual assumption that no State has an interest
in the actions of citizens that
affect the issues in federal elections. As the Attorney-General for the State
of Western Australia
submitted, the interests of the States may even be
engaged where a donation is given to a registered political party only for
federal
electoral purposes. The use for federal electoral purposes might: 
(i) be on an issue of both federal and State concern; (ii) allow
funds
that would otherwise have been used for federal electoral purposes to be used
for State electoral purposes; or (iii) promote
the brand of the political
party if it operates at both State and federal level.


[294] The
more fundamental point about Smith v Oldham is that it has no
precedential weight. "[Precedents], sub silentio without argument, are of no
moment" [406] .
The statement by each of Griffith CJ, Barton J, and Isaacs J that
the States have no power to legislate in relation to matters incidental
to
federal elections was neither argued nor was it necessary for the decision. 
Further, a mere eight years after Smith v Oldham , the reasoning of this
Court in R v Brisbane Licensing Court; Ex parte
Daniell [407] 
cast serious doubt upon the exclusivity reasoning by the Court in Smith v
Oldham .


[295] The
provision in question in R v Brisbane Licensing Court; Ex parte Daniell
was s 14 of the Commonwealth Electoral (War-time) Act 1917 (Cth)
("the War-time Act"). That section provided that on the polling day for an
election of the Senate or a general election of
the House of Representatives,
"no referendum or vote of the electors of any State or part of a State
shall be taken under the law
of a State". The issue was the validity of a local
option poll held in Queensland, purportedly under s 172 of the Liquor
Act 1912 (Qld), on the day of an election of the Senate.


[296] The
prosecutor in R v Brisbane Licensing Court; Ex parte Daniell relied
upon Smith v Oldham , asserting that the Commonwealth legislative power in
relation to federal elections was
exclusive [408] .
Alternatively, he submitted, if the power was not exclusive, then s 14 of
the War-time Act was enacted pursuant to a concurrent
legislative power, based
upon s 9 of the Constitution , and prevailed over s 172 of the
Liquor Act due to s 109 of the
Constitution [409] .
The respondents responded by alleging that s 14 of the War-time Act was
invalid either because there was no Commonwealth legislative
power to pass
s 14 or because it was an attempt to cut down the exclusive State
legislative power conferred by s 9 of the
Constitution [410] .
The joint judgment of six members of this Court disposed of the respondents'
submission rapidly, concluding that the Commonwealth
had power to pass s 14
of the War-time Act under all of s 10, s 51(xxxvi), and the incidental
power in s 51(xxxix) of the
Constitution [411] .
But that did not answer the questions raised by the prosecutor's submissions of
whether s 172 of the Liquor Act was invalid either (i) because
it trespassed upon an exclusive Commonwealth legislative power or
(ii) because it was inconsistent
with s 14 of the War-time Act. 
The first submission was logically anterior to the second because s 109
operates only upon valid,
albeit inconsistent,
State [412] 
and
Commonwealth [413] 
laws. The joint judgment implicitly rejected the prosecutor's first submission
but accepted the second. Their Honours treated s
172 of the Liquor
Act as valid but inoperative to the extent of the inconsistency with
s 14 of the War-time
Act [414] .


[297] The
distinction between the two ways in which the prosecutor had put its case was a
distinction with real consequences. If the Commonwealth
legislative power over
federal elections was exclusive then s 172 of the Liquor Act would
be invalid, irrespective of the existence of, or any inconsistency with,
s 14 of the War-time Act. In contrast, the prosecutor's
alternative
submission would mean, as Higgins J observed, that s 172 "still lives,
subject to the pressure of the Federal Act –
like Jack-in-the-box
under his lid" and the inoperability would be only to the extent of the
inconsistency [415] .
Indeed, Higgins J expressed doubt about the extent of the inconsistency
expressed in the joint
judgment [416] .
Without the bedrock of Smith v Oldham , either as a precedent
or as providing a coherent rationale, there remains to be considered the
submission by the Commonwealth of an
alternative rationale for the existence of
exclusive Commonwealth legislative power over federal elections. The
Commonwealth's submission
was essentially that the scheme of the
Constitution gives rise to a structural implication that legislative
power over federal elections is exclusively a power of the Commonwealth
Parliament.
More precisely, the structural submission was said to be that the
legislative power over federal elections is exclusively that of
the Commonwealth
Parliament, other than where the Constitution expressly provides for
State power, such as by ss 7 , 9 , and 29 .


[298] That
submission cannot be accepted. A structural implication of exclusive
Commonwealth power over federal elections generally is
not "logically or
practically necessary for the preservation of the integrity of [the
constitutional]
structure" [417] .
An immediate problem for the submission is that such a structural implication
for exclusivity of a power over federal elections
is contradicted by the
structural placement of a necessary component of the Commonwealth Parliament's
power over federal elections,
s 51(xxxvi). That source of power is located
in a section concerned
primarily [418] 
with concurrent powers, and followed by a different section, s 52 , setting
out those matters upon which the power of the Commonwealth Parliament is
exclusive.


[299] The
alleged structural implication of exclusive Commonwealth legislative power is
also said to operate in a manner that is fundamentally
different from the
exclusive powers expressly conferred on the Commonwealth Parliament by s 52 
of the Constitution . That express conferral of exclusive power has the
effect of invalidating any State law that is "with respect to" the subject of
exclusive Commonwealth
power [419] . 
In other words, a State law is invalid if it has a connection with the subject
matter that is not "'so insubstantial, tenuous,
or distant' that it cannot be
regarded as a law with respect to the head of
power" [420] . 
That is because an exclusive power of the Commonwealth Parliament necessarily
excludes any State legislative power on that subject
matter [421] . 
Hence, if Commonwealth legislative power in relation to federal elections were
exclusive and the same approach to exclusive powers
under s 52 of the
Constitution were applied, then State laws concerning assault,
defamation, bribery, fraud, or trespass would be invalid to the extent that they
had any real connection with federal elections.


[300] Perhaps
in an attempt to avoid the absurdity of this result, the Commonwealth submitted
that the power over federal elections is
exclusive only once the State law is
characterised as one concerning elections. It was submitted that the structural
implication
operates as a constraint upon State power in the same way as the
express constraint "other than State banking" in s 51(xiii) and "other than
State insurance" in s 51(xiv) of the Constitution by limiting
Commonwealth power to make laws characterised as those concerning banking and
insurance [422] .
Hence, on this submission, general State laws concerning assault, trespass, or
defamation would not be invalid in their operation
upon matters relating to
federal elections. A State law concerning assault, trespass, or defamation that
is characterised as a law
in relation to an election would be invalid unless it
"touched or concerned" federal elections only
incidentally [423] .
In other words, the effect of the Commonwealth's submission was not merely
that the alleged structural implication is derived silently
from provisions that
sit alongside the expressions of exclusivity in s 52. It was that the
structural implication of exclusivity operates in a fundamentally different way
from the other expressions of exclusivity
within the structure upon which it was
said to be based. That is not a promising foundation for a structural
implication.


[301] A
final nail in the coffin for the structural implication submission is the lack
of any logical or practical necessity for Commonwealth
legislative power to be
exclusive. The Commonwealth relied upon the express powers in ss 7 , 9 , and
29 of the Constitution , and the failure to include in s 9 the
additional words "and manner" contained in cl 1 of Art I, §4
of the United States
Constitution [424] .
In essence, this was a submission that the express conferral of some powers
upon State parliaments in relation to federal elections
indicated the exclusion
of all other power.


[302] It
has been said that there are perhaps few maxims of interpretation that "have
been more frequently misapplied and stretched beyond
their due
limits" [425] 
than the maxim expressio unius est exclusio alterius , which treats the
express mention of one thing as indicating the exclusion of another. Like all
language conventions much depends
upon context, including expectations based
upon past
experience [426] .
The context of the conferral of power in ss 7 , 9 , and 29 does not imply a
general exclusion of power over federal elections. Instead, each section was
included for specific reasons.


[303] The
power conferred upon the Queensland Parliament in the second paragraph of
s 7 of the Constitution was an exemption, due to particular
historical
circumstances [427] 
and until the Commonwealth Parliament otherwise provided, from the
constitutional requirements of that section as to the State being
a single
Senate electorate. The scheme of setting out State legislative powers in
s 9 of the Constitution operated to distinguish between the
concurrent State power to make laws concerning the manner, or "method", of
choosing senators
and the State power to make laws for determining the times and
places of elections of senators for the
State [428] . 
The latter power, like the power in s 12 of the Governor of a State to
cause writs to be issued for election of senators for that State, is an
exclusive State
power [429] . 
Section 29 of the Constitution created a concurrent
power [430] of
the Commonwealth Parliament in relation to State divisions and the number of
members chosen in each division for the House of
Representatives "to meet
certain contingencies", since the Constitution did not "raise any
objection to the laws on this subject being made by the various
states" [431] .
The contingency for which the power was created, although it was not
expected that it would be "exercised in any ordinary case",
was to avoid the
prospect of a "Massachusetts
gerrymander" [432] .
Both State and Commonwealth legislative power are also restricted by the final
sentence, adapted from Art 73 of the Swiss Constitution , which
provides that a division shall not be formed out of parts of different
States [433] .


[304] The
lack of logical or practical necessity for a structural implication of
exclusivity of Commonwealth legislative power over federal
elections is
reinforced by s 109 of the Constitution . For instance, the
Commonwealth's submission concerning the "challenge of producing a uniform
federal scheme" is met by a Commonwealth
law that entirely covers the "field" or
subject matter of federal elections. That law would render inoperative any
State law on
that subject
matter [434] . 
Without any exhaustive Commonwealth law, as Queensland observed, the first
federal election was regulated by a diverse range of
electoral laws in different
States. It does not assist any further in the exercise of interpretation to
use, as the Commonwealth
attempted in this case, extreme and unlikely examples,
such as State legislation that is passed after the Commonwealth Parliament
is
prorogued, in an attempt to support a different interpretation of Commonwealth
power [435] .


[305] The
submission that Commonwealth legislative power over federal elections is
exclusive must be rejected.
(iii) Are the amendments to the
Queensland Electoral Act contrary to a reverse Melbourne Corporation
implication? 


[306] The
plaintiff advanced a different argument for the invalidity of s 275 of the
Queensland Electoral Act . In a submission that was disclaimed by the
Commonwealth, the plaintiff asserted that the Constitution contains a
limited structural implication of Commonwealth governmental immunity into which
s 275 of the Queensland Electoral Act had trespassed. The immunity upon
which the plaintiff relied was not the limited immunity from discriminatory,
non-generalised laws
affecting Commonwealth executive
capacities [436] .
It was an assertion of an area of immunity for the Commonwealth polity from
State laws and a co-relative limitation of State legislative
power.


[307] At
the heart of the plaintiff's submission was the principle established by the
decision of this Court in Melbourne
Corporation [437] .
That principle is a constitutional intergovernmental immunity of the States in
the sense that it is co-relative to a lack of Commonwealth
legal
power [438] . 
It was described by Stephen J in Koowarta v
Bjelke-Petersen [439] 
as a limitation on Commonwealth legislative power derived from "the federal
nature of the Constitution and which will serve to protect the structural
integrity of the State components of the federal framework, State legislatures
and
State executives".


[308] Although
expressed in different ways over the
years [440] ,
the Melbourne Corporation principle was described most recently in the
joint judgment of Hayne, Bell and Keane JJ in Fortescue Metals Group Ltd
v
The Commonwealth [441] 
(" Fortescue ") as requiring consideration of "whether impugned legislation
is directed at States, imposing some special disability or burden on
the
exercise of powers and fulfilment of functions of the States which curtails
their capacity to function as governments". This
formulation of the principle
in the joint judgment in Fortescue concerned only the effect of the
impugned Commonwealth legislation on the States, which was the question in that
case. However,
in Re Residential Tenancies Tribunal (NSW); Ex parte
Defence Housing
Authority [442] ,
Brennan CJ expressly confined the principle to a constraint upon
Commonwealth legislative power, saying that the Melbourne Corporation 
principle is "irrelevant to the scope of any State legislative power". If that
were correct, it would be a sufficient basis, without
more, to reject the
plaintiff's submission. With respect, Brennan CJ's statement cannot be
accepted.


[309] The
implication established in Melbourne Corporation derives from the
assumption implicit in the text and structure of the
Constitution [443] 
that the Commonwealth and State governments will continue to co-exist as
separate entities. There are, therefore, statements in
Melbourne
Corporation that support the symmetrical application of the implication both
to protect the States from laws of the Commonwealth or other
States [444] ,
and to protect the Commonwealth from laws of the States. For instance,
Latham CJ said that the Constitution "is based upon and provides for
the continued co-existence of Commonwealth and States as separate Governments,
each independent of
the other within its own
sphere" [445] .
Dixon J said that the "foundation of the Constitution is the conception of
a central government and a number of State governments separately organized. 
The Constitution predicates their continued existence as independent
entities." [446] 
Starke J said that "neither federal nor State governments may destroy the
other nor curtail in any substantial manner the exercise
of its powers or
'obviously interfere with one another's
operations'" [447] .
And Williams J said that there arises from the very nature of the federal
compact "a necessary implication that neither the Commonwealth
nor the States
may exercise their respective constitutional powers for the purpose of affecting
the capacity of the other to perform
its essential governmental
functions" [448] .
The symmetry of this underlying
assumption [449] 
has been repeated in subsequent decisions in this
Court [450] .


[310] The
assumption upon which the Melbourne Corporation principle is based
supports an implication that constrains any State or Commonwealth power to make
a law that is destructive of the
continued co-existence and independence of the
Commonwealth and States as separate governments. That assumption, and
associated
implication, of a co-existing, independent Commonwealth polity is not
negated by the existence of s 109 of the
Constitution [451] .
That section, like others in the Constitution , is itself premised upon
the assumption of the continued existence and independence of the Commonwealth
polity. Nevertheless, the
existence of s 109 may have an impact upon the
magnitude of any burden that a State law imposes upon the Commonwealth
polity.


[311] As
Kirby J observed in Austin v
The Commonwealth [452] ,
"it is unlikely that a frontal attack upon the existence of the States would
arise in the form of federal law". The same is true
of a State law that
directly attacks the existence of the Commonwealth. The real difficulty in the
application of the Melbourne Corporation implication arises because
neither the implication nor the assumption upon which it is based is limited to
the continued existence
of the States and the Commonwealth. In two respects,
both the assumption and the implication extend beyond ensuring continued
co-existence [453] :
(i) the destruction of the continued co-existence of the polity 
extends to destruction of a capacity of the polity to function as a
government; and (ii) destruction of that capacity of the polity is
further extended to curtailment or weakening of the capacity of
the polity to function as a government. Sometimes this is expressed merely as
an "interference" with the polity's
continued functioning as a
government [454] .


[312] The
two respects in which the assumption and the implication extend beyond a core
implication of continued co-existence represent
a significant inroad into the
decision in the Engineers' Case . However, they were not novel extensions
even at the time of the Melbourne Corporation decision. 
Several years after the Engineers' Case , in his dissenting judgment
in Pirrie v
McFarlane [455] ,
upon which later decisions
relied [456] ,
Isaacs J described the "natural and fundamental principle" restricting
the scope of powers conferred by the Constitution upon distinct
governmental "organisms" that "neither is intended, in the absence of distinct
provision to the contrary, to destroy
or weaken the capacity or
functions expressly conferred on the other".


[313] Despite
their longevity, the difficulty in defining the scope of these two broader
aspects of the implication has been a substantial
reason why the Melbourne
Corporation principle "has proved insusceptible of precise
formulation" [457] .
Different expressions of the constraints upon the principle have been made over
time. It has been said that the weakening must
be of an "essential"
governmental
function [458] .
It has also been said that the other polity must be subject to a "special
burden" or "single[d] out" or "aimed at" by the
law [459] in
the sense that the law's "very object is to restrict, burden or control an
activity of the
States" [460] .
However, such an object is a relevant but not determinative
criterion [461] .
Emphasis has instead been placed on a difference between a law that affects the
capacity of a State to exercise constitutional functions
and a law that affects
the "ease with which those functions are
exercised" [462] .
Or, in a formulation which might amount to the same thing, it was said by three
Justices in Austin v
The Commonwealth [463] 
that the curtailment or weakening must be "significant".


[314] All
of these formulations can be reduced to a consideration of the magnitude of the
burden upon the other polity's capacity to function
as a government. That
assessment will be one of "evaluation and
degree" [464] .
The magnitude of a burden has dimensions of both breadth and depth. A
burden will be more deeply felt the more that it is targeted
at the other polity
and the more essential the governmental function that it curtails is to that
other polity. For instance, in
Clarke v Federal Commissioner of
Taxation [465] ,
French CJ gave the example of a Commonwealth law imposing a gubernatorial
privileges tax that had little financial importance to
the States or their
Governors but which might nonetheless involve too great a legislative intrusion
into the functioning of the States.


[315] A
burden will be wider the more that it curtails the operation of the governmental
functions of the other polity. The curtailing
of the governmental functions of
the other polity might arise merely by curtailing the range of legislative
policy choices of the
other polity. Even more significantly, it might curtail
the operation of key governmental institutions of the other polity.


[316] If
the magnitude of the burden on the other polity's capacity to function as a
government is relevant then it should also be relevant
to consider the
significance of the law for the capacity of the polity enacting it to govern. 
Hence, in Austin v
The Commonwealth [466] , 
although dissenting in the result, Kirby J took into account, for the
assessment of the significance of the effect of an impugned
Commonwealth law
upon the States, the importance of the "effective discharge by the Commonwealth
of all of its national responsibilities,
as envisaged by the Constitution ".


[317] The
burden of the provisions of the Queensland Electoral Act and the Queensland
Local Government Electoral Act was not deep. It had only an incidental effect
upon a constitutional function of the Commonwealth, namely the regulation of
federal
elections. The interference was not specifically targeted at the
Commonwealth; the "immediate
object" [467] 
of the provisions was not to regulate federal elections.


[318] Nor
did the provisions of the Queensland Electoral Act and the Queensland Local
Government Electoral Act impose a wide burden on the operation of the
Commonwealth government. The Queensland Electoral Act imposed no restriction
upon the range of Commonwealth legislative policy choices. Further, the
plaintiff pointed to no constitutional
fact, and made no submission, to
establish that the provisions would curtail or weaken the capacity of the
Commonwealth to function
as a government. For instance, the provisions did not
burden the capacity of the Commonwealth to determine the number and identity
of,
and the terms and conditions of engagement of, high-level public
servants [468] ,
judges [469] ,
or
politicians [470] .
They did not constrain the ability of the Commonwealth to conduct the affairs of
government through means such as borrowing from
and placing funds with private
banks [471] . 
Rather, a central purpose of the Queensland Amending Act was to reduce "the risk
of actual or perceived corruption related to developer donations" and thus to
increase "transparency and
accountability" in State
elections [472] .
It is unsurprising that the plaintiff made no submission that the functioning of
the Commonwealth government was curtailed or weakened
by any incidental effect
of reducing corruption in federal elections.


[319] Finally,
the provisions of the Queensland Electoral Act and the Queensland Local
Government Electoral Act had a real significance for the capacity of the State
to function as a government. Although, as the plaintiff was at pains to
emphasise,
there were other laws that the Queensland Parliament could have
passed to fulfil its legitimate purpose of regulating State elections
without
impermissibly impairing the constitutional functions of the Commonwealth, the
choice of regime to regulate electoral donations
was part of the functioning of
the State as a government.


[320] The
plaintiff's submission that the Queensland laws contravened the reverse
Melbourne Corporation implication must be rejected.
(iv)
Are the amendments to the Queensland Electoral Act contrary to the
constitutional implied freedom of political communication? 


[321] The
plaintiff's submission that the amendments to the Queensland Electoral Act , but
not the equivalent amendments to the Queensland Local Government Electoral Act ,
are invalid by reason of the constitutional implied freedom of political
communication can be dealt with briefly. Subdivision 4
of Div 8 of
Pt 11 of the Queensland Electoral Act was closely modelled upon equivalent
provisions in the Election Funding, Expenditure and Disclosures Act 1981 
(NSW) [473] . 
It shares the same core underlying purpose of "minimising the risk of
corruption" [474] .
A submission that the New South Wales legislation was contrary to the implied
freedom was rejected by this Court in
McCloy [475] .
The Explanatory Notes to the Queensland Amending
Act [476] 
noted the reliance that was placed upon the decision of this Court in
McCloy .


[322] The
plaintiff did not challenge McCloy but, instead, sought to brush aside
the decision, not yet four years old, on the basis that the legislative
facts upon which that decision was based occurred in New South Wales. In
Queensland, so the submission
effectively went, things are done differently. 
The submission is in more than a little tension with the facts in the special
case:
(i) various findings by the Crime and Corruption Commission and its
predecessors, referred to in the Explanatory Notes to the Queensland Amending
Act [477] , in
1991 and 2006 that candidates for local government elections had received
significant donations from property developers; (ii)
Crime and Corruption
Commission findings in 2017 that one of the key concerns about political
donations, namely the increase in the
risk of corruption, "is heightened when
donors have business interests that are affected by government decisions" and,
at local government
level, is "particularly associated with property
developers" [478] ;
(iii) investigations by the Fitzgerald Inquiry into a State Minister,
Mr Hinze, revealing benefits he derived relating to property
developments;
and (iv) investigations by the Crime and Misconduct Commission between 2005
and 2010 into payments made to Mr Nuttall,
a member of the Legislative
Assembly, leading to conviction for offences including official corruption.


[323] Even
if, as the plaintiff effectively submitted, a metaphorical corruption-proof
fence existed between New South Wales and Queensland,
and also between local
government and State government in Queensland, the plaintiff's submission is
still misconceived. A reason
why parliaments make laws is to shape behaviour. 
They can act prophylactically, by reference to possibilities and probabilities,
as well as
reactively [479] .
They can shape laws by reference to circumstances overseas. And they can, and
often should, shape laws by reference to circumstances
and conduct in other
States. And, when legislating in response to the conduct of those who are not
governed, "[t]here is no doubt
of it; but in this country it is found good, from
time to time, ... to encourage the
others" [480] .


[324] The
plaintiff's submission really reduces to a claim that the result in McCloy
does not dictate the result in this case because the circumstances
underlying the same parliamentary purpose are different in Queensland
from those
in New South Wales. But the different underlying circumstances do not affect
whether the law burdens the freedom of political
communication. They do not
affect the legitimacy of the law's purpose. They do not affect whether the law
is suitable, in the sense
of having a rational connection with its purpose. 
Nor do the different underlying circumstances affect whether there were
alternative,
reasonably practicable, means of achieving the same object but
which have a less restrictive effect on the freedom.


[325] The
assessment of whether the law is adequate in the balance is the only possible
area where different underlying circumstances could
affect the process of
reasoning concerning the implied freedom of political communication. 
But the plaintiff did not submit, and
there is no reason to conclude, that
there was any difference in importance placed by the Queensland Parliament from
that placed
by the Parliament of New South Wales upon the core underlying
purpose of removing the risk and perception of
corruption [481] .
And even if some lesser weight were placed by the Queensland Parliament upon
this core purpose, once regard is had to the plurality
of values that underlie
the Constitution this would still be insufficient to establish such a
gross or manifest lack of balance between, on the one hand, the foreseeable
magnitude and likelihood of the burden upon freedom of political communication
and, on the other hand, the importance of the legislative
purpose [482] .


[326] The
plaintiff's invitation to distinguish McCloy and to hold that the
Queensland law infringed the implied freedom in this case is effectively an
invitation to "innovate at pleasure"
as a "knight-errant roaming at will in
pursuit of his own ideal of beauty or of
goodness" [483] .
It should not be accepted.
The validity of s 302CA of the
Commonwealth Electoral Act 


(i) The Commonwealth Electoral Act and s 302CA 


[327] Part XX
of the Commonwealth Electoral Act is entitled "Election funding and financial
disclosure". Considered as a whole, the provisions
of Pt XX create a
regime for federal electoral purposes including: (i) the registration of
political campaigners (Div 1A); (ii)
election funding for unendorsed
candidates, for unendorsed groups, and for "registered political
parties" [484] 
(Div 3); (iii) disclosure of donations to candidates, political
parties, and political campaigners (Div 4); and (iv) disclosure of
electoral expenditure (Div 5). The scheme of Pt XX involves two
interrelated components: the prohibition upon certain political
donations
(Div 3A), and the disclosure of most other donations and electoral
expenditure (Divs 4, 5, and 5A). The regime aims, by
ss 302CA and
314B, to make these two components part of a single regime that regulates
donations in relation to federal electoral
purposes, although carving out, as
far as possible, donations that are made for, or are used for, State electoral
purposes.


[328] Part XX
of the Commonwealth Electoral Act, in the form described above, includes
amendments made by the Electoral Legislation Amendment (Electoral Funding and
Disclosure Reform) Act 2018 (Cth) ("the Commonwealth Amending Act "). The
Commonwealth Amending Act introduced a suite of changes to electoral funding and
disclosure. The Commonwealth Amending Act was described as having an intention
to effect significant "reform [of] the electoral funding and disclosure regime
in the Commonwealth Electoral Act
1918 " [485] . 
The changes included a new registration regime and disclosure rules for
third-party campaigners, designed to achieve greater transparency,
and the
banning of certain gifts by foreign donors.


[329] Part
of that suite of changes introduced to the Commonwealth Electoral Act by the
Commonwealth Amending Act was the introduction of a new Div 3A to
Pt XX entitled "Requirements relating to donations". Subdivision A of
Div 3A is entitled "Interpretation". It provides an outline of
Div 3A, in s 302A, describing the Division as "regulat[ing] gifts that
are made to registered political parties, candidates, groups,
political
campaigners and third parties". It describes the object of Div 3A, in
s 302C(1), as to "secure and promote the actual
and perceived integrity of
the Australian electoral process by reducing the risk of foreign persons and
entities exerting (or being
perceived to exert) undue or improper influence in
the outcomes of elections".


[330] Most
pertinently to this case, the suite of changes introduced by the Commonwealth
Amending Act provides in s 302CA for the relationship between the
Commonwealth prohibited donor regime and State and Territory electoral laws.

The suite of changes also included the insertion in Div 6, entitled
"Miscellaneous", of s 314B, which provides for the relationship
between the
Commonwealth disclosure regime and State and Territory electoral laws. 
Section 302CA, contained within the "Interpretation"
subdivision of
Div 3A, and s 314B provide generally for the extent to which the
Commonwealth laws concerning political donations,
both the prohibitions on
foreign donations in Div 3A and the disclosure regime in Divs 4, 5,
and 5A, are intended to regulate exhaustively
the subject matter of donations to
the relevant political actors.


[331] Section 302CA 
of the Commonwealth Electoral Act is set out in full in other judgments in this
case. It suffices to make reference to several key features of the section. 
First,
the removal of State and Territory prohibitions applies to gifts given
to, or received or retained by or on behalf of, political
entities, political
campaigners [486] ,
or third
parties [487] .
A "political entity" is defined in s 4 to include a registered political
party. In testing whether s 302CA is valid, the submissions in this case
generally, and conveniently, focused upon the application of s 302CA to
registered political parties.


[332] Secondly,
the removal of State or Territory prohibitions or permissions on donations, and
the limiting of the prohibition to those
matters in Div 3A, applies only in
the context of a federal election to those gifts (i) with terms that
require or
allow [488] 
the gift to be used for the purposes of incurring electoral expenditure or
creating or communicating electoral matter or (ii) without
terms as to the
purpose for which the gift may be
used [489] . 
In relation to those gifts that are not prohibited by Div 3A, but about
which State and Territory prohibitions are removed, they
remain subject to the
applicable rules in Divs 4 and 5A concerning disclosure.


[333] Thirdly,
s 302CA(3) provides for three circumstances in which the State and
Territory laws that would otherwise be excluded by s 302CA(1) will
nevertheless operate. These carve-outs from the operation of s 302CA(1) 
were not included in the original version of s 302CA in the Bill that
became the Commonwealth Amending Act . That original version of s 302CA was
included in an exposure draft of proposed amendments by the Government to the
first version
of the Bill. However, the Joint Standing Committee on Electoral
Matters heard evidence about the Bill, including from Professor
Twomey,
that although the Commonwealth Parliament can legislate to exclude State laws
requiring disclosure "when the donation goes
to the Commonwealth", the
Commonwealth should not be "interfering with the state decisions as to how to
regulate their own electoral
systems"; the interference would be "inappropriate
and arguably unconstitutional" if the "amount is actually used to fund state
political
expenditure" [490] .
The Joint Standing Committee recommended, and the Government accepted, that the
provisions should be amended expressly to "exclude
the application of the
Commonwealth law to any funds that are used in a state or territory election",
explaining that "these provisions
form an important part of the disclosure
regime" [491] .


[334] The
first of the three circumstances where State and Territory laws are left to
operate, in s 302CA(3)(a), is where the terms of
the gift "explicitly
require the gift or part to be used only for a State or Territory electoral
purpose". The second, in s 302CA(3)(b)(i),
is where the State or
Territory electoral law requires "the gift or part to be kept or identified
separately" in order to be used
only for a State or Territory electoral purpose.
The third, in s 302CA(3)(b)(ii), is where "the gift recipient keeps or
identifies
the gift or part separately ... in order to be used only for a State
or Territory electoral purpose". A note and an example accompanying
s 302CA(3)(b)(ii) make clear, in the interpretation of that
sub-paragraph [492] ,
that the sub-paragraph is intended to restrict the removal of State or Territory
regulation of gifts that may be used for federal
electoral purposes if the gift
is later kept or identified separately for use for State or Territory electoral
purposes.


[335] The
example concerns a circumstance where, at the time that a gift is given, there
is no expressed purpose for the gift. In the
example, if the gift is kept
separately and ultimately used for a State or Territory electoral purpose, then
both the donor and the
recipient of the gift must comply with State and
Territory electoral laws concerning the giving, receipt, retention, and use of
the
gift [493] . 
In other words, s 302CA(3)(b)(ii) has the effect of imposing a condition
precedent upon State or Territory electoral laws that
concern gifts that, when
given, may still be used for federal electoral purposes. The condition
precedent to the operation of those
State or Territory electoral laws is that
the gift is later kept separately for ultimate use for a State or Territory
electoral purpose.
At that later time of keeping it separately the condition
precedent will be satisfied and the State or Territory electoral law will
have
retroactive operation.
(ii) The purpose of s 302CA of the
Commonwealth Electoral Act 


[336] In
Unions NSW v New South
Wales [494] ,
I explained the importance of distinguishing between a legislative purpose and
legislative effects. This distinction is not
novel [495] . 
But it is important. A purpose is an object or aim. An effect might be
foreseen, expected, or even considered inevitable. But
foreseeability, or
even belief in inevitability, are only factors from which an inference of
purpose might be drawn. As with intention,
if the inference is not drawn then,
no matter how foreseeable or likely the effect, it is not the purpose of the
legislation [496] .
In Unions NSW v New South
Wales [497] ,
I concluded that legislative amendments had the purpose, and not merely the
effect, of quietening the voices of third-party campaigners
relative to
political parties and candidates. There was no other discernable reason for the
change to the legislative regime.


[337] In
this case, ss 302CA and 314B of the Commonwealth Electoral Act , as part of
the substantial package of amendments to reform the electoral funding and
disclosure regime in that Act, have the effect
of creating an exclusive regime
of Commonwealth regulation of political donations that may be used for incurring
electoral expenditure
or creating or communicating electoral matter. 
Section 302CA was inserted as part of an "Interpretation" subdivision of
Div 3A.
It would be absurd to try to discern its purpose, or that of s
314B, independently of the remainder of that Division, or independently
of the
other amendments. The interpretation subdivision and the associated amendments
introduced with s 302CA are inextricably linked
to the regime of regulation
of political donations and electoral expenditure including disclosure
requirements and positive prohibitions
on foreign donors in particular
circumstances. Likewise, the subject matter of s 302CA is also
inextricably intertwined with the
regime of regulation of political donations
and electoral expenditure in federal elections. Read as a whole, the scheme of
regulation
reveals no basis for an inference of a purpose to impair or weaken
the ability of the States and Territories to regulate their own
elections.


[338] When
one considers the aim, object, or purpose of the scheme of exclusive regulation,
there may be a number of answers. One might
have been to increase certainty by
subjecting all domestic donors, but not foreign donors, to the same regime of
disclosure as far
as possible. Another might have been to strike a single
balance between maximising the flow of funds for electoral purposes and
encouraging transparency. And, in relation to s 314B, two purposes given
in the extrinsic materials were to prevent discouragement
of "persons or
entities from making or receiving small donations for federal electoral
purposes, where such donations are not required
to be reported under
Part XX of the Electoral
Act" [498] ,
and "to ensure that ... the person or entity is not subject to duplicative
reporting
requirements" [499] .
But there is no basis in the materials before this Court from which a conclusion
can be drawn that the legislative purpose or aim
of an exclusive scheme of
regulation of Commonwealth donations, reflected in ss 302CA and 314B, was
to impair or weaken the ability
of the States and Territories to regulate their
own elections. That impairment was an effect of regulating the unallocated
middle.
But it was not a legislative purpose.


[339] Any
possible inference that s 302CA had a purpose of impairment of the ability
of the States and Territories to regulate their own
elections is also
substantially undermined by the history of the amendments to the original draft
versions of s 302CA and s 314B
in response to the concerns of the
Joint Standing Committee on Electoral Matters about the "boundaries of [the
Commonwealth] disclosure
regime" [500] .
The introduction of carve-outs for the further operation of State and Territory
laws reveals an intention to reduce any restrictions upon the ability of
the States and Territories to regulate their own elections, in the course of
pursuing the exclusive
scheme to fulfil legislative objects such as maximising
the flows of funds, transparency, and certainty.
(iii) The
attacks on s 302CA of the Commonwealth Electoral Act 


[340] For
the reasons that I have explained, s 275 of the Queensland Electoral Act 
is a valid law. However, it is common ground that s 275 , although
validly made, would be inoperative by s 109 of the Constitution as
it is inconsistent with s 302CA of the Commonwealth Electoral Act . 
Queensland sought to avoid that conclusion by submitting that s 302CA of
the Commonwealth Electoral Act is invalid. Three reasons were advanced
in this respect. First, it was submitted that if the Commonwealth Parliament
had exclusive
legislative power with respect to federal elections, then
s 302CA impermissibly intruded into a corresponding area of exclusive State
legislative power with respect to State elections. The premise
of this
submission, namely exclusive Commonwealth legislative power, has already been
rejected. Secondly, it was submitted that
s 302CA contravenes the
Melbourne Corporation implication. Thirdly, relying upon the decision of
the majority of this Court in University of Wollongong v
Metwally [501] 
(" Metwally "), it was submitted that s 302CA purports to override
the temporal operation of s 109 of the Constitution and is therefore
invalid. Aspects of these submissions were supported by each of the intervening
State Attorneys-General. The Attorney-General
for the State of Victoria,
and to some extent the Attorney-General for the State of Tasmania, sought to
impugn the connection between
s 302CA and federal legislative power in a
different manner. First, it was submitted that s 302CA was beyond the core
or incidental
power of the Commonwealth Parliament. Secondly, in a related but
potentially independent submission, it was suggested that the Commonwealth
Parliament had an extraneous purpose in enacting s 302CA which meant that
it was beyond power.
(iv) Section 302CA is within the power of
the Commonwealth Parliament 


[341] It
is necessary at the outset to explain (i) why the Commonwealth Parliament
has the power to regulate donations to registered political
parties which may be
used, but are not required to be used, for federal electoral purposes, and
(ii) the close relationship between
the laws that collectively seek to make
a system of regulation exclusive, which reveals the artificiality of concluding
that some
are beyond power but others are not.


[342] Consider
the following fictitious example. Suppose that an investigation revealed
widespread corruption and undue influence in federal
elections associated with
large donations to political parties. The Commonwealth Parliament responds to
this evidence of undue influence,
in the sense of corrupting influence, by a law
requiring donors to disclose their donations to registered political parties of
more
than $1,000 of funds that are required to be used in federal elections. 
But the widespread corruption continues. The donors evade
the Commonwealth law
and make the same donations, intended for use by the same registered political
parties in the same way, with
the same consequences. They evade the
Commonwealth law by giving their donations without restriction. That is, the
donations are
not tied for use only in federal elections. An amendment to the
Commonwealth law, capable of reducing the size of this gaping hole
in the
legislation, might be to require disclosure of all donations that may be
used for federal electoral purposes.


[343] In
this fictitious example, the question of how far the regulation should go in
order to combat the menace of corrupting influence
is quintessentially a matter
for political judgment. The regime hypothesised was one of disclosure only. 
At another extreme would
be a regime of complete prohibition. An
intermediate regime might be one of prohibition of some donations (foreign
donors) and disclosure
of others. The political judgment involved in defining
the scope and boundary of the regulation might require balancing of matters
such
as ensuring a sufficiency of funds for political parties to promote their
messages and any deterrent effect of dual systems
of regulation of the same
donation. The outcome of that balancing process might very well require that
the Commonwealth law be made
exclusive. That is hardly a judgment which courts
are equipped to second-guess.


[344] The
plenary power of the Commonwealth Parliament relating to federal
elections [502] ,
including matters incidental or peripheral to the main subject matter, plainly
permits it to pass such a protective law regulating
the use of funds that may be
used, but are not required to be used, by political parties contesting federal
elections. In Smith v
Oldham [503] , 
Griffith CJ characterised the subject matter of the Commonwealth
plenary legislative power deriving from ss 10 , 31 , and 51 (xxxvi) of the
Constitution in terms of the "regulation of the conduct of persons with
regard to
elections" [504] .
More precisely, it might be expressed as the conduct of persons with regard to
federal elections. And, as Griffith CJ also said, "[t]he main
object of laws for that purpose [is] to secure freedom of choice to the
electors" [505] .
That object permits or requires laws that establish the machinery of elections
and laws to prevent "intimidation and undue
influence" [506] .
In other words, the legislative power includes power to make laws that establish
an electoral system and laws that regulate that
electoral system by proscribing
"conduct that interferes with the electoral system that Parliament has
chosen" [507] .
The power also includes laws that define the boundary or scope of the
regulation, and which are therefore necessarily incidental
to that regulation. 
That sense of "incidental" is distinct from the power in s 51(xxxix) of the
Constitution , which is concerned with "incidental power" in the different
sense of extending Commonwealth legislative power to matters that arise
in
connection with the execution of its
powers [508] . 
That "express incidental power" does not arise in this case.


[345] Subdivision B
of Div 3A of Pt XX of the Commonwealth Electoral Act involves
provisions that are based upon the power of the Commonwealth Parliament to pass
laws concerning funds that may be used,
but are not required to be used, by
registered political parties for incurring electoral expenditure in relation to
federal elections.
It includes prohibitions upon foreign donors and recipients
of foreign donations, including a prohibition on foreign donors making
gifts to
registered political
parties [509] .
There was no dispute that the provisions in Subdiv B are valid. And it was
not suggested that those provisions are only valid because
of a probability,
rather than a possibility, that the foreign donor's donation would be used for
the purposes of incurring electoral
expenditure.


[346] Division 4
of Pt XX is also based upon the premise that the Commonwealth Parliament
has power to pass laws concerning funds that may be used, but are
not required
to be used, by registered political parties for incurring electoral expenditure
in relation to federal elections. For
instance, s 305B(1) provides that if
a person makes gifts above the disclosure threshold to a registered political
party during a financial year, the
person must provide a return to the Electoral
Commission within 20 weeks after the end of the financial year, covering
all the gifts
that the person or entity made to that political party during the
financial year. Disclosure is required irrespective of the use
to which the
registered political party plans to put the funds, or to which it does put the
funds. Although the disclosure regime
operates even in circumstances of
possible use of funds by registered political parties for electoral expenditure,
there was no suggestion
in this case that the disclosure regime was beyond the
Commonwealth power to regulate the conduct of persons with regard to federal
elections. In Actors and Announcers Equity Association v Fontana Films
Pty
Ltd [510] ,
Mason J said that a mere "likelihood of the effect of substantial damage to
the business of the corporation" would give rise to
a "direct legal operation"
upon a corporation sufficient to establish a connection with s 51(xx) of
the Constitution .


[347] The
submission that the Commonwealth Parliament had no power to pass s 302CA of
the Commonwealth Electoral Act is essentially a submission that although the
Commonwealth Parliament can regulate the use of funds that may be used for
federal
electoral purposes, it cannot make that regulation exclusive. The
Commonwealth submitted that if it has power to regulate that area
then it must
have power to make that same regulation exclusive of State and Territory laws. 
The Commonwealth withdrew an initial
submission that it was unnecessary even to
determine this question of power because any invalid part of s 302CA could
be severed from the remainder and in that severed form s 302CA would
nonetheless be inconsistent with the whole of s 275 of the Queensland
Electoral Act .


[348] The
issue is thus whether s 302CA, by defining the boundaries of the
Commonwealth laws in relation to donations for federal elections,
has a
sufficient connection with the plenary Commonwealth power to make laws relating
to federal elections. There are two
steps [511] 
involved in the question of sufficiency of connection between s 302CA of
the Commonwealth Electoral Act and the subject matter of s 51(xxxvi) ,
picking up ss 10 and 31 , of the Constitution , being the regulation
of the conduct of persons with regard to federal elections.


[349] The
first step to determine the sufficiency of the degree of connection between the
subject matter of a law and the subject matter
of the head of power said to
support it, is to characterise the subject matter, or essential meaning, of the
law. The characterisation
is ascertained by the legal relations, rights,
duties, obligations, powers, and privileges that it
creates [512] .
But those legal relations will not reveal the appropriate level of generality at
which the law should be characterised and at which
the subject matter should
thus be identified. One clear guide to the level of generality at which the
subject matter or essential
meaning should be characterised, particularly in
relation to purposive powers, is the purpose of the legislation. Since the
level
of generality of characterisation will be most important when the law is
likely to fall within the incidental part, or periphery,
of the head of power,
the identification of purpose in those cases might often be essential. However,
as Brennan J said in Cunliffe v
The Commonwealth [513] :
"The
central and peripheral aspects of a power do not evoke different tests of
validity; it is simply a fact of constitutional reasoning
that connexion between
a law and a head of power is more frequently revealed by purpose than by effect
and operation when the law
is on the periphery of the power."


[350] Once
the subject matter of the law has been characterised at the appropriate level of
generality the second step is to assess the
degree of connection which that
subject matter has with the subject matter of the head of power. The required
connection does not
need to be strong. A connection will be sufficient if it is
not "insubstantial, tenuous or
distant" [514] .
The real difficulty at this second stage lies in how to assess the sufficiency
of connection. It is not necessary in this case
to enter into the longstanding
debate about the role of proportionality, whatever that term means in this
context, in elucidating
that
connection [515] .
It suffices to say that the sufficiency of connection will often be apparent
once the subject matter of the law has been characterised.
For instance, a law
requiring payment of a deposit upon nomination would generally be characterised
as a law concerned with the
nomination of candidates for election and it would
be a law with a clear connection with the head of power for regulating the
conduct
of persons in relation to federal elections. But the same
characterisation of the law might not be made if the legislation prescribed
such
a vast sum of money as a deposit as to suggest an additional subject matter in
the character of the
law [516] . It
might no longer be a law concerned with the nomination of candidates for
election and might no longer have a sufficient connection
with the head of power
for regulating the conduct of persons in relation to federal elections.


[351] As
to the characterisation of s 302CA of the Commonwealth Electoral Act , the
provision does not have a purpose independent of the rest of Pt XX , and
particularly not independent of Divs 3A and 4. As I have explained, there
could have been a multitude of purposes for s 302CA , and the equivalent
s 314B , in creating and defining the exclusivity of the regime of
Commonwealth regulation of political donations that may be used for incurring
electoral expenditure. The Commonwealth's submission was that s 302CA 
had three purposes, being: (i) to provide certainty to participants in the
federal electoral process about the applicable regulatory
rules concerning
donations; (ii) to ensure that participants in the federal electoral
process are not starved of funds; and (iii)
to facilitate participation in
public debate through the making of donations.


[352] Whether
the law had all of these purposes or only some of them, I do not accept the
submission of Victoria that the purpose for creating
exclusivity of the
Commonwealth regime was to intrude into the State sphere or to reduce State
legislative power. There is no basis
to suppose that this was the aim of the
Commonwealth Parliament and every reason to suppose that it was not. 
Indeed, when the Joint
Standing Committee on Electoral Matters expressed
concern that the effect of the law might be seen as involving interference by
the
Commonwealth with State decisions as to how to regulate their own electoral
systems [517] ,
three significant exceptions were carved out from the exclusivity of the
Commonwealth regime of regulation of donations that may
be used for Commonwealth
electoral
purposes [518] .
The submission by Victoria thus impermissibly elevates an effect of the
legislation to a purpose. Although it will be relevant
if a law has a purpose
to restrict a State governmental power, it is irrelevant if a law merely has
that effect. As Professor Stellios
explains [519] :
"Clearly
any law that is valid because, and only because, it is incidental to a subject
of power will always invade an area that would
otherwise be solely within State
power, because the law, ex hypothesi, does not operate directly on the subject
of the power. To
bring in the notion of an 'invasion' of State power causes
confusion."


[353] There
may be laws that are passed where there is no possible purpose or object to the
law other than its
effect [520] . 
But that is not this case. This point can be clearly made by contrast with
Victoria v The Commonwealth ("the Second Uniform Tax
Case ") [521] ,
upon which Victoria relied. In the Second Uniform Tax Case , a majority
of this Court invalidated a provision that prohibited a taxpayer from paying
State income tax in any tax year until Commonwealth
income tax was paid. The
majority held that the Commonwealth provision was not within, or incidental to,
the Commonwealth power
in s 51(ii) to make laws with respect to
taxation [522] .
In that case, the prohibition did not depend upon the amount of federal income
tax for which the taxpayer was
liable [523] . 
It did not depend upon any competition between claims by the State and the
Commonwealth [524] .
It was unaffected by solvency
considerations [525] .
It had no concern with payment by the taxpayer of any other State
debts [526] . 
Dixon CJ thus characterised the purpose of the Commonwealth provision in
that case as being "to make it more difficult for the
States to impose an income
tax" [527] ,
effectively by deferring the time for payment of State income
tax [528] . 
With that purpose, it is unsurprising that the characterised subject matter was
too remotely connected with the head of power in
s 51(ii). To adapt a
rhetorical question posed by Dixon CJ, a purpose to impinge upon State
powers might be discerned from the purported use
of the telecommunications power
in s 51(v) to prohibit a customer from paying a State debt until he or she
paid a telephone
account [529] .


[354] The
circumstances of this case, and the purpose of s 302CA , are far removed
from those in the Second Uniform Tax Case . It could hardly be said of
s 302CA that, as Latham CJ said in Melbourne
Corporation [530] ,
"though referring to a subject of federal power", its purpose (what it "seeks"
to do; what it is "aimed at or directed
against" [531] )
reveals that it is "really legislation about what is clearly a State
governmental function" and unconnected to the subject matter
of Commonwealth
power.


[355] Provisions
such as s 302CA and s 314B , with purposes that require the creation
and definition of the extent of exclusivity of a Commonwealth regime which is
within power,
are sufficiently connected with the head of power. 
The purposes of the qualified exclusivity are inseparable from the purpose
of
the regime. Almost by definition, the exclusivity provision will be
incidental to, and supported by, the head of power that supports
the regime. 
Hence, even in the majority in the Second Uniform Tax Case , 
Dixon CJ (with whom Kitto J agreed) and Taylor J indicated
that they would have upheld legislation by which the Commonwealth conferred
priority to its own scheme for the administration of assets over the scheme of a
State or
Territory [532] .
Similarly, in Bayside City Council v Telstra Corporation
Ltd [533] ,
five members of this Court said that a "law conferring upon [telecommunications]
carriers an immunity from all State taxes and charges
would be a law with
respect to telecommunications services". The immunity in that case, from
discriminatory burdens imposed by State
laws, had a "direct and substantial
connection with the [telecommunications]
power" [534] . 
As McHugh J
said [535] ,
referring to some of the numerous cases in support of this
proposition [536] :
"A
s 51 power also authorises a law that expressly limits the operation of a
State law in relation to a subject matter authorised, regulated
or prohibited
under that head of power. This Court has held on many occasions that, where the
Commonwealth has power to regulate
an area, it has power to protect entities
which operate in that area from the effect of State laws. The cases, where the
Court has
so held, include Australian Coastal Shipping Commission v
O'Reilly [537] ,
Botany Municipal Council v Federal Airports
Corporation [538] 
and Western Australia v The Commonwealth ( the Native Title Act 
Case ) [539] ."


[356] Victoria
submitted that the Commonwealth Parliament has no power to regulate registered
political parties "in relation to every aspect
of what they do". It may be
accepted that such a law would be beyond power because its characterisation
would be likely to be far
removed from the regulation of the conduct of persons
in relation to federal elections. It would be analogous to relying upon the
external affairs power in s 51(xxix) to support a law requiring all sheep
in Australia to be slaughtered if "some international convention ... required
the taking of
steps to safeguard against the spread of some obscure sheep
disease which had been detected in sheep in a foreign country and which
had not
reached these
shores" [540] .
But that is far from the operation of s 302CA of the Commonwealth Electoral
Act .


[357] Section 302CA 
is a law closely tailored to the subject matter of the Commonwealth prohibited
donor and disclosure regime, which is itself within
power. As I have explained,
the Commonwealth regime extends to donations that may or may not be used for the
purposes of incurring
electoral expenditure or creating or communicating
electoral matter. Section 302CA does not extend beyond that regime. It
creates exclusivity for the regime but also narrows the exclusivity of
the regime in respect of the three significant carve-outs. It is within
power.
(v) Section 302CA is not invalid for having an extraneous
purpose 


[358] As
explained above, the purpose of the Commonwealth Parliament in passing a law is
relevant to ascertaining the character of the
law in the first step of the
process of determining whether there is a sufficient connection between the law
and the head of power.
As Dawson J said in Leask v
The Commonwealth [541] ,
although purpose has a role, "the test remains one of sufficient connection". 
However, at some points in oral submissions, Victoria
appeared to elevate the
role of purpose, at least in relation to laws that, when characterised, do not
fall within the core of a
head of power. Victoria submitted that the purpose of
a law might, by itself, supply a sufficient connection to a head of power
or,
conversely, that some purposes require "much greater scrutiny" of the purported
connection of the law to the head of power. 
In other words, on that submission,
a purpose that is extraneous to the head of power might sometimes serve a
greater, and more significant,
function in acting as a sufficient source of
invalidity. It is unnecessary to decide this issue in this case because, as I
have
explained, the purpose for which the Commonwealth Parliament enacted
s 302CA was not as Victoria characterised it. It suffices to make brief
observations about a potentially larger invalidating role for the
Parliament's
purpose in enacting a law in reliance upon a head of Commonwealth legislative
power.


[359] There
are a number of circumstances where the use of a power for an extraneous purpose
will invalidate the exercise of the power.
In equity, the doctrine of fraud on
a power recognises invalidity where "the power has been exercised for a purpose,
or with an
intention, beyond the scope of or not justified by the instrument
creating the
power" [542] . 
A similar doctrine is recognised in administrative law invalidating an exercise
of statutory power where a substantial purpose
for the exercise of a statutory
power is a purpose ulterior to that for which the power was
granted [543] .
If the command in the Engineers'
Case [544] 
were followed, and the meaning of the Constitution found by reading
the Constitution "naturally in the light of the circumstances in which it
was made, with knowledge of the combined fabric of the common law, and the
statute law which preceded it", then it might be said that this fabric includes
an implied constraint upon the use for extraneous
purposes of purposive
constitutional powers, like the same constraint upon other purposive powers in
equity and under administrative
law, whether at the core of the power or in its
incidental aspects.


[360] However,
it may be that such a doctrine would have a limited operation. Such a doctrine
could not arise other than in relation to
purposive [545] 
powers. And it might only apply where the predominant or only substantial
purpose was the extraneous
purpose [546] .
In Melbourne
Corporation [547] ,
Dixon J, although only "speaking generally", said that:
"once
it appears that a federal law has an actual and immediate operation within a
field assigned to the Commonwealth as a subject
of legislative power, that is
enough. It will be held to fall within the power unless some further reason
appears for excluding
it. That it discloses another purpose and that the
purpose lies outside the area of federal power are considerations which will
not
in such a case suffice to invalidate the law."


[361] In
circumstances where: (i) s 302CA of the Commonwealth Electoral Act 
was not enacted for any improper purpose; (ii) there has been some doubt
expressed about whether the power to regulate the conduct
of persons with regard
to federal elections is a purposive
power [548] ;
and (iii) there have not been any direct submissions on a doctrine of
extraneous purpose, the existence and operation of such a
constitutional
doctrine should be left for another case.
(vi) Section 302CA does
not contravene the Melbourne Corporation implication 


[362] The
Melbourne Corporation implication, with its symmetrical operation upon
the States and the Commonwealth, has been described earlier in these reasons. 
The
control of the electoral processes of a State is a function of the State,
the interference with which could threaten the functioning
of the States as
independent bodies
politic [549] .
With their potential for corruption in a broad sense, political donations can
"sap the vitality, as well as the integrity, of the
political branches of
government" [550] 
and "threaten the quality and integrity of governmental
decision-making" [551] .


[363] The
regime in Pt XX of the Commonwealth Electoral Act has the effect of
imposing some constraints upon the ability of the States to function as
governments. Section 302CA and s 314B have this effect by making
exclusive the Commonwealth regime not merely in relation to donations that would
most directly affect
the interests of the Commonwealth but also in the
unallocated middle. In the unallocated middle, the gifts may be used for the
purposes
of expenditure in elections of either polity, so the interests of the
Commonwealth and the States are both directly engaged.


[364] Given
the potential importance of this area to the functioning of States as bodies
politic, it may be that a Commonwealth law would
be invalid if its effect were
to occupy the entirety of this area with a significant detrimental effect upon
the States' ability
to function as governments. Invalidity would be even more
likely if one purpose of the law were to impose a burden upon the States
or, in
other words, if its "very object" were "to restrict, burden or control an
activity of the
States" [552] .


[365] However,
there are three key reasons which, although individually insufficient, combine
to prevent s 302CA from trespassing over the boundary of impermissibly
impairing the capacity of States to function as governments. First, as I
have
explained, s 302CA is not targeted at the States. Although it has a
detrimental effect on State legislative power its purpose is to ensure a single
regulatory regime for donations in relation to federal electoral purposes. 
Whatever the purposes of that regime (whether to provide
certainty, to prevent
deprivation of funds to participants in the federal electoral process, or to
facilitate participation in public
debate through the making of donations), the
purpose of s 302CA was not to restrict, to burden, or to control the
States.


[366] Secondly,
the effect of the amendments to the original draft that introduced the three
carve-outs in s 302CA(3) from the exclusivity of the Commonwealth regime do
not merely reinforce the lack of a purpose to restrict or control the States.

They also permit the States a significant margin to develop their own
legislative regimes concerning donations relating to State
elections [553] .
Section 302CA leaves intact the laws of New South Wales, Victoria, and
South Australia [554] .


[367] Thirdly,
there is the significance of the law for the capacity to govern by the polity
enacting it, namely the Commonwealth. Just
as the States have a significant
interest in regulating electoral expenditure to secure the independence of their
systems of government,
so too does the Commonwealth.
(vii)
Section 302CA is not invalid by reason of the Metwally principle 


[368] The
next attack upon the validity of the Commonwealth legislation was the submission
by Queensland that s 302CA is invalid because it seeks to override
s 109 of the Constitution by purporting to give operation to State
laws when s 109 had rendered them inoperative. This submission relied upon
the decision of a majority of this Court in
Metwally [555] .


[369] The
background to the Metwally decision involved a decision by this Court on
18 May 1983 [556] 
that provisions of the Anti-Discrimination Act 1977 (NSW) ("the New
South Wales Act ") were rendered inoperative by s 109 of the
Constitution due to their inconsistency with the Racial Discrimination
Act 1975 (Cth). The effect of that decision was that there was no statutory
foundation for an investigation under the New South Wales Act into
Mr Metwally's complaints of racial discrimination against him by the
University of Wollongong. However, by an amending Act
that came into force
on 19 June 1983 the Commonwealth Parliament amended the Racial
Discrimination Act to provide that the Racial Discrimination Act "is
not intended, and shall be deemed never to have been intended, to exclude or
limit the operation" of a category of laws which
included the New South Wales
Act . Subsequently, Mr Metwally's complaints were upheld on
23 November 1983 by a tribunal established under the New South Wales
Act . On the removal of the appeal by the University of Wollongong, a majority
of this Court held that the amending Act did not make
the New South Wales Act 
retroactively
operative [557] .


[370] The
essential reason for the conclusion of the majority, Gibbs CJ, Murphy,
Brennan and Deane JJ, was that although a Commonwealth
Act can have
retroactive effect, it cannot contradict s 109 of the Constitution 
by retroactively endowing a State law with the operative effect of which it had
been deprived by
s 109 [558] .
In the minority, Mason J and Dawson J (with both of whom Wilson J
agreed [559] )
also did not deny that a Commonwealth Act cannot contradict
s 109 [560] .
But a reason for their dissents was that the Racial Discrimination Act 
had simply removed the inconsistency upon which s 109
operated [561] .
Without any inconsistency, the condition upon which s 109 depends was not
satisfied.


[371] The
essential difference between the majority and the minority in Metwally is
(i) whether "a law of the Commonwealth" in s 109 of the
Constitution means only the content of that law at the time of the
alleged inconsistency or (ii) whether it also includes content arising from
subsequent, retroactive Commonwealth laws. The same issue would apply to "a law
of a State". On the assumption of validity of retroactive
laws, it is difficult
to see why the content of laws to which s 109 refers would be confined to
the first meaning if the purpose of s 109 is to resolve conflict between
laws of different polities. But part of the reasoning of Gibbs CJ and
Deane J in the majority was
that the purpose of s 109 extends to
inform the ordinary citizen which of two inconsistent laws he or she is required
to
observe [562] .
That purpose might support a narrow interpretation of "law" in s 109 as an
existing social construct at a particular time upon which people arrange their
affairs [563] .


[372] The
Commonwealth directly challenged Metwally , relying upon the reasoning of
the minority judges. Resolution of that challenge requires consideration of
whether the purpose of
s 109 extends to ensure that a citizen is aware of
the law that he or she is required to observe, or whether that is merely a
consequence
or effect of s 109 in the usual case, reasonably expected and
therefore presumed, of non-retroactive
laws [564] . 
Ultimately, that consideration is unnecessary in this case because Queensland's
submission about the invalidity of s 302CA cannot
succeed on either view of
Metwally .


[373] Queensland
relied upon the retroactive operation of the carve-out from the exclusivity of
the Commonwealth regime created by s 302CA
in s 302CA(3)(b)(ii). As I
have explained, that carve-out has the effect of imposing a condition precedent
upon the operation of
State or Territory electoral laws concerning gifts which
may still be used for federal electoral purposes. Queensland's submission
was
that s 302CA(3)(b)(ii) thus creates a contingent inconsistency with
State or Territory law, contrary to s 109 of the Constitution , which
is concerned only with circumstances when a law of a State is actually
inconsistent with a law of the Commonwealth. Unlike the answers to the
questions given in the decision of the majority in
Metwally [565] , 
the alleged operation of s 302CA as creating a contingent inconsistency
was said to render s 302CA invalid.


[374] The
most basic reason Queensland's submission cannot succeed is that the condition
precedent in s 302CA(3)(b)(ii) does not create
or remove any retroactive
inconsistency and does not conflict with s 109 of the Constitution . 
Unlike the Commonwealth amendments considered in Metwally ,
s 302CA(3)(b)(ii) is not a subsequent, retroactive law that purports to
"expunge the
past" [566] . 
The effect of the provision is to allow State or Territory electoral laws to
operate subject to a condition precedent upon gifts
that, when given, may be
used for federal electoral purposes. That condition precedent is that the gifts
are later kept or identified
separately in order to be used for a State or
Territory electoral purpose. The condition precedent always applied, and
applies.
Conclusion 


[375] I
would have answered each of the questions in the special case as proposed by
Gordon J.


[1] eg, New South Wales v The
Commonwealth (Work Choices Case) [2006] HCA 52 ; (2006) 229 CLR 1 at 118-120 [190] - [194] ;
[2006] HCA 52. 


[2] (1920) 28 CLR 129; [1920] HCA
54. 


[3] Strickland v Rocla Concrete
Pipes Ltd (1971) 124 CLR 468 at 485; [1971] HCA 40.


[4] [1947] HCA 26 ; (1947) 74 CLR 31 at 82; [1947] HCA
26. 


[5] Attorney-General (WA) v
Australian National Airlines Commission [1976] HCA 66 ; (1976) 138 CLR 492 at 530; [1976]
HCA 66. 


[6] Section 2 of the Queensland
Amending Act ; Queensland, Proclamation , SL 2018 No 150, 20 September
2018.


[7] Section 2 of the Queensland
Electoral Act (definition of "political party").


[8] (2015) 257 CLR 178; [2015] HCA
34. 


[9] See ss 273(1) -(2), 274 (1)(a)(i)
and 275 (1), (3) of the Queensland Electoral Act . 


[10] Sections 273(1) -(2),
274 (1)(a)(ii)-(iii) and 275 (1), (3) read with ss 2 (definition of
"election") and 197 (definition of "elected member") of the Queensland Electoral
Act .


[11] Section 273(2) read with sub-s
(5) (definition of "relevant planning application") of the Queensland Electoral
Act ; s 96GB(1) read with sub-s (3) (definition of "relevant planning
application") of the New South Wales Electoral Act . 


[12] Schedule to the Queensland
Local Government Electoral Act (definition of "political party").


[13] Section 113(2) of the
Queensland Local Government Electoral Act .


[14] Sections 113(1) -(2),
113A (1)(a)(i) and 113B (1), (3) of the Queensland Local Government Electoral
Act .


[15] Sections 113(1) -(2),
113A (1)(a)(ii)-(iii) and 113B (1), (3) of the Queensland Local Government
Electoral Act read with the Schedule (definition of "election").


[16] Section 2(1) of the
Commonwealth Amending Act .


[17] (2004) 220 CLR 181; [2004] HCA
41. 


[18] Section 4(1) of the
Commonwealth Electoral Act (definition of "political party").


[19] Section 4(1) of the
Commonwealth Electoral Act (definition of "registered political party").


[20] Section 4(1) (definition of
"political entity") read with s 287(1) (definitions of "election", "group" and
"State branch") of the Commonwealth Electoral Act .


[21] See s 287(1) of the
Commonwealth Electoral Act (definition of "political campaigner").


[22] See s 287(1) of the
Commonwealth Electoral Act (definition of "third party").


[23] See s 287(1) of the
Commonwealth Electoral Act (definition of "associated entity"). 


[24] Sections 314AB and 314AEA of
the Commonwealth Electoral Act .


[25] Section 287AB(1) of the
Commonwealth Electoral Act .


[26] Section 4AA(1) of the
Commonwealth Electoral Act .


[27] Section 302D of the
Commonwealth Electoral Act .


[28] Section 287AA(e) of the
Commonwealth Electoral Act .


[29] Section 302E read with s 287(1) 
(definition of "disclosure threshold") of the Commonwealth Electoral Act .


[30] Section 302F(1) of the
Commonwealth Electoral Act . 


[31] Section 302C(1) of the
Commonwealth Electoral Act .


[32] See Electoral Legislation
Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (Cth). 


[33] Exposure Draft GJ160,
Electoral Legislation Amendment (Electoral Funding and Disclosure Reform)
Bill 2017 (Cth), Amendment (114).


[34] Australia, Senate, Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 ,
Supplementary Explanatory Memorandum Exposure Draft at 35 [121].


[35] Joint Standing Committee on
Electoral Matters, Second advisory report on the Electoral Legislation
(Electoral Funding and Disclosure Reform) Bill 2017 (2018) at 49 [4.36]
(Recommendation 10).


[36] Australia, Senate,
Parliamentary Debates (Hansard), 15 November 2018 at 8372, 8388-8390.


[37] Australia, Senate, Electoral
Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 ,
Supplementary Explanatory Memorandum at 40 [132]-[133].


[38] Australia, House of
Representatives, Electoral Legislation Amendment (Electoral Funding and
Disclosure Reform) Bill 2018 , Revised Explanatory Memorandum at 51
[224]-[225].


[39] Section 287(1) of the
Commonwealth Electoral Act (definition of "State or Territory electoral
law").


[40] Section 287(1) of the
Commonwealth Electoral Act (definition of "State or Territory electoral
purpose").


[41] Botany Municipal Council v
Federal Airports Corporation [1992] HCA 52 ; (1992) 175 CLR 453 at 464; [1992] HCA 52. 


[42] Sections 13(1) and 15AD of the
Acts Interpretation Act 1901 (Cth).


[43] [1995] HCA 47 ; (1995) 183 CLR 373 at 454-455;
[1995] HCA 47. 


[44] (1984) 158 CLR 447; [1984] HCA
74. 


[45] (1912) 15 CLR 355; [1912] HCA
61. 


[46] See Worthing v Rowell and
Muston Pty Ltd (1970) 123 CLR 89 at 96, 113, 141; [1970] HCA 19 ; Allders
International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR
630 at 638-640, 673-674; [1996] HCA 58.


[47] See Bourke v State Bank of
New South Wales [1990] HCA 29 ; (1990) 170 CLR 276 at 288-289; [1990] HCA 29 ;
Attorney-General (Vic) v Andrews [2007] HCA 9 ; (2007) 230 CLR 369 at 391-392 [11] - [12] ,
406-407 [78]-[79], 423-428 [138]-[150]; [2007] HCA 9. 


[48] [1920] HCA 54 ; (1920) 28 CLR 129 at 142.


[49] [1912] HCA 61 ; (1912) 15 CLR 355 at 358-361,
365.


[50] Section 181AA(1) of the
Commonwealth Electoral Act 1902 (Cth).


[51] [1912] HCA 61 ; (1912) 15 CLR 355 at 356.


[52] [1912] HCA 61 ; (1912) 15 CLR 355 at 358.


[53] [1912] HCA 61 ; (1912) 15 CLR 355 at 361.


[54] [1912] HCA 61 ; (1912) 15 CLR 355 at 365.


[55] (1920) 28 CLR 23; [1920] HCA
24. 


[56] Sections 166 and 172 of the
Liquor Act 1912 (Qld).


[57] See [1920] HCA 24 ; (1920) 28 CLR 23 at
29-31.


[58] Section 14 of the
Commonwealth Electoral (War-time) Act 1917 (Cth). 


[59] [1920] HCA 24 ; (1920) 28 CLR 23 at 31.


[60] [1912] HCA 61 ; (1912) 15 CLR 355 at 359,
362.


[61] [1920] HCA 24 ; (1920) 28 CLR 23 at 31.


[62] Fabre v Ley [1972] HCA 65 ; (1972) 127
CLR 665 at 669; [1972] HCA 65 ; Attorney-General (Cth); Ex rel McKinlay v The
Commonwealth [1975] HCA 53 ; (1975) 135 CLR 1 at 57-58; [1975] HCA 53 ; Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 185, 219-220,
225-226, 234; [1992] HCA 45 ; Langer v The Commonwealth [1996] HCA 43 ; (1996) 186 CLR 302
at 315, 317, 339, 348-349; [1996] HCA 43 ; Mulholland v Australian Electoral
Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 190 [14] , 202 [46], 206 [61], 215-216 [83],
231-232 [140], 253-254 [211], 299 [340].


[63] Western Australia v The
Commonwealth [1975] HCA 46 ; (1975) 134 CLR 201 at 233-234, 268-275, 287; [1975] HCA 46. 


[64] [1912] HCA 61 ; (1912) 15 CLR 355 at 358.


[65] [1952] HCA 11 ; (1952) 85 CLR 545 at 564;
[1952] HCA 11. 


[66] Grannall v Marrickville
Margarine Pty Ltd [1955] HCA 6 ; (1955) 93 CLR 55 at 77; [1955] HCA 6. 


[67] [1912] HCA 61 ; (1912) 15 CLR 355 at 362.


[68] [1912] HCA 61 ; (1912) 15 CLR 355 at 363.


[69] [1920] HCA 24 ; (1920) 28 CLR 23 at 31.


[70] [1920] HCA 24 ; (1920) 28 CLR 23 at 31.


[71] Grain Pool of Western
Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16]; [2000] HCA 14;
Work Choices Case [2006] HCA 52 ; (2006) 229 CLR 1 at 103 [142] .


[72] Cunliffe v The
Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 at 315; [1994] HCA 44. 


[73] [1948] HCA 7 ; (1948) 76 CLR 1 at 186; [1948]
HCA 7. 


[74] Work Choices Case [2006] HCA 52 ; (2006)
229 CLR 1 at 103 [142] .


[75] R v Public Vehicles
Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty
Ltd [1964] HCA 15 ; (1964) 113 CLR 207 at 225; [1964] HCA 15. 


[76] Melbourne Corporation
Case [1947] HCA 26 ; (1947) 74 CLR 31 at 79.


[77] Grain Pool of Western
Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16], quoted in
Work Choices Case [2006] HCA 52 ; (2006) 229 CLR 1 at 104 [142] .


[78] [1931] HCA 1 ; (1931) 44 CLR 492 at 515-516;
[1931] HCA 1. 


[79] [1976] HCA 20 ; (1976) 136 CLR 1 at 20; [1976]
HCA 20. 


[80] [2006] HCA 52 ; (2006) 229 CLR 1 at 121-122
[198] , referring to Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry,
Mining and Energy Union (2000) 203 CLR 346 at 375 [83]; [2000] HCA 34.


[81] See Cunliffe v The
Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 at 317-322; Leask v The Commonwealth 
[1996] HCA 29 ; (1996) 187 CLR 579 at 591, 593-594; [1996] HCA 29. 


[82] See Stenhouse v Coleman
[1944] HCA 36 ; (1944) 69 CLR 457 at 471; [1944] HCA 36. 


[83] [1948] HCA 7 ; (1948) 76 CLR 1 at 354.


[84] [1994] HCA 44 ; (1994) 182 CLR 272 at 319.


[85] [1994] HCA 44 ; (1994) 182 CLR 272 at 319
(footnote omitted). See also Leask v The Commonwealth [1996] HCA 29 ; (1996) 187 CLR 579
at 591.


[86] Stellios, Zines's The High
Court and The Constitution , 6th ed (2015) at 64.


[87] [1988] HCA 63 ; (1988) 166 CLR 79 at 100;
[1988] HCA 63. 


[88] [1992] HCA 46 ; (1992) 177 CLR 1 at 33-34, 91,
95, 103-105; [1992] HCA 46. 


[89] Nationwide News Pty Ltd v
Wills [1992] HCA 46 ; (1992) 177 CLR 1 at 87-89; Cunliffe v The Commonwealth [1994] HCA 44 ; (1994)
182 CLR 272 at 320, 359; Leask v The Commonwealth [1996] HCA 29 ; (1996) 187 CLR 579 at
591, 593, 599-605, 614-617.


[90] See Plaintiff S156/2013 v
Minister for Immigration and Border Protection [2014] HCA 22 ; (2014) 254 CLR 28 at
45 [36] ; [2014] HCA 22. 


[91] (1951) 83 CLR 1; [1951] HCA
5. 


[92] (1957) 99 CLR 575; [1957] HCA
54. 


[93] [1951] HCA 5 ; (1951) 83 CLR 1 at 175. See
also at 209-210, 226-227, 261-263.


[94] [1957] HCA 54 ; (1957) 99 CLR 575 at 614,
quoting The Municipal Council of Sydney v The Commonwealth [1904] HCA 50 ; (1904) 1 CLR
208 at 232; [1904] HCA 50. 


[95] [1957] HCA 54 ; (1957) 99 CLR 575 at 614. See
also at 658.


[96] [1957] HCA 54 ; (1957) 99 CLR 575 at 615.


[97] [1981] HCA 73 ; (1981) 149 CLR 227 at 240;
[1981] HCA 73. 


[98] Fisher v Fisher [1986] HCA 61 ; (1986)
161 CLR 438 at 453; [1986] HCA 61. See also Stellios, Zines's The High Court
and The Constitution , 6th ed (2015) at 63. 


[99] Mulholland v Australian
Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 254 [211] .


[100] See Mulholland v
Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 238-239 [159] .


[101] [1996] HCA 43 ; (1996) 186 CLR 302 at
324-325.


[102] Sykes v Cleary [1992] HCA 60 ; (1992)
176 CLR 77 at 99-100; [1992] HCA 60 ; Day v Australian Electoral Officer
(SA) (2016) 261 CLR 1 at 13-14 [23]-[24]; [2016] HCA 20 ; Re Culleton [No
2] [2017] HCA 4 ; (2017) 91 ALJR 311 at 315 [13] ; [2017] HCA 4 ; 341 ALR 1 at 5; [2017] HCA 4 ; Re Nash
[No 2] [2017] HCA 52 ; (2017) 92 ALJR 23 at 28 [23] ; [2017] HCA 52 ; 350 ALR 204 at 209-210; [2017] HCA
52. 


[103] Mulholland v Australian
Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 205-209 [61] - [67] . 


[104] See Jumbunna Coal Mine NL
v Victorian Coal Miners' Association (1908) 6 CLR 309; [1908] HCA 95 ;
Williams v Hursey [1959] HCA 51 ; (1959) 103 CLR 30 at 68; [1959] HCA 51. 


[105] See above at [23].


[106] (2004) 216 CLR 595; [2004]
HCA 19. 


[107] Clause 44 of Sch 3 to the
Telecommunications Act 1997 (Cth). 


[108] [2004] HCA 19 ; (2004) 216 CLR 595 at 624
[26] .


[109] See above at [28] (emphasis
added).


[110] (1996) 187 CLR 416 at
502-503; [1996] HCA 56.


[111] [1943] HCA 37 ; (1943) 68 CLR 87 at 108-111;
[1943] HCA 37. 


[112] (1996) 187 CLR 416 at 502,
quoting Re Tracey; Ex parte Ryan [1989] HCA 12 ; (1989) 166 CLR 518 at 577; [1989] HCA
12. 


[113] [1943] HCA 37 ; (1943) 68 CLR 87 at 108.


[114] [1943] HCA 37 ; (1943) 68 CLR 87 at 111.


[115] [1943] HCA 37 ; (1943) 68 CLR 87 at 111.


[116] See Strickland v Rocla
Concrete Pipes Ltd (1971) 124 CLR 468 at 518-519.


[117] cf Bank Nationalisation
Case [1948] HCA 7 ; (1948) 76 CLR 1 at 372.


[118] cf Australian Railways
Union v Victorian Railways Commissioners [1930] HCA 52 ; (1930) 44 CLR 319 at 386; [1930]
HCA 52. 


[119] [2015] HCA 34 ; (2015) 257 CLR 178 at 221
[94] , 222 [98], 274 [275].


[120] [2015] HCA 34 ; (2015) 257 CLR 178 at 208
[49] , 209 [53]. See also at 220-221 [93].


[121] [2015] HCA 34 ; (2015) 257 CLR 178 at
209-210 [54] - [56] , 210-212 [57]-[63]. 


[122] [2015] HCA 34 ; (2015) 257 CLR 178 at 221
[93] .


[123] (2019) 93 ALJR 166; 363 ALR
1; [2019] HCA 1. 


[124] Queensland, Legislative
Assembly, Parliamentary Debates (Hansard), 6 March 2018 at 190;
Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 15 May
2018 at 1105-1106, 1114.


[125] [2015] HCA 34 ; (2015) 257 CLR 178 at 262
[233] .


[126] See New State Ice Co v
Liebmann (1932) 285 US 262 at 311.


[127] [1947] HCA 26 ; (1947) 74 CLR 31 at 82.


[128] [1947] HCA 26 ; (1947) 74 CLR 31 at 74,
quoting Graves v New York; Ex rel O'Keefe [1939] USSC 60 ; (1939) 306 US 466 at 488.


[129] [1947] HCA 26 ; (1947) 74 CLR 31 at 75.


[130] eg Austin v The
Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at 249 [124] ; [2003] HCA 3 ; Clarke v
Federal Commissioner of Taxation [2009] HCA 33 ; (2009) 240 CLR 272 at 298-299 [32] - [34] ,
305-307 [61]-[66], 312-313 [93]-[95]; [2009] HCA 33. 


[131] (1997) 190 CLR 410 at 425;
[1997] HCA 36.


[132] (1997) 190 CLR 410 at
426.


[133] [1920] HCA 54 ; (1920) 28 CLR 129 at
155.


[134] [1937] HCA 26 ; (1937) 56 CLR 657 at 681;
[1937] HCA 26. 


[135] Australian National
Airways Pty Ltd v The Commonwealth [1945] HCA 41 ; (1945) 71 CLR 29 at 85; [1945] HCA
41. 


[136] [1947] HCA 45 ; (1947) 74 CLR 508 at 530;
[1947] HCA 45. 


[137] [1953] HCA 10 ; (1953) 89 CLR 229 at 259;
[1953] HCA 10. 


[138] (1997) 190 CLR 410 at 440,
443-444. See also at 509.


[139] See Doyle, "1947 Revisited: 
The Immunity of the Commonwealth from State Law", in Lindell (ed), Future
Directions in Australian Constitutional Law: Essays in honour of Professor
Leslie Zines (1994) 47 at 69-70.


[140] [2013] HCA 34 ; (2013) 250 CLR 548 at 609
[130] ; [2013] HCA 34. 


[141] (2015) 257 CLR 178; [2015]
HCA 34. 


[142] [2015] HCA 34 ; (2015) 257 CLR 178 at 209
[53] per French CJ, Kiefel, Bell and Keane JJ.


[143] [2015] HCA 34 ; (2015) 257 CLR 178 at 270
[257] .


[144] [2015] HCA 34 ; (2015) 257 CLR 178 at
208-209 [51] per French CJ, Kiefel, Bell and Keane JJ, 250 [194] per
Gageler J, 261-262 [233] per Nettle J.


[145] cf Unions NSW v New South
Wales (2013) 252 CLR 530; [2013] HCA 58; Unions NSW v New South
Wales (2019) 93 ALJR 166; 363 ALR 1; [2019] HCA 1. 


[146] Criminal Code (Qld),
ss 60 and 87.


[147] See Pearce v The Queen
[1998] HCA 57 ; (1998) 194 CLR 610 at 623 [40] per McHugh, Hayne and Callinan JJ, 638 [92]
per Kirby J; [1998] HCA 57. 


[148] [2015] HCA 34 ; (2015) 257 CLR 178 at 273
[267] per Nettle J . 


[149] Unions NSW v New South
Wales (2013) 252 CLR 530 at 578-579 [137] per Keane J.


[150] Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 237; [1992] HCA
45. 


[151] (1912) 15 CLR 355;
[1912] HCA 61. 


[152] Smith v Oldham [1912] HCA 61 ; (1912)
15 CLR 355 at 358 per Griffith CJ, 360-361 per Barton J, 363 per Isaacs J;
R v Brisbane Licensing Court; Ex parte Daniell [1920] HCA 24 ; (1920) 28 CLR 23
at 31 per Knox CJ, Isaacs, Gavan Duffy, Powers, Rich and Starke JJ;
[1920] HCA 24 ; Judd v McKeon [1926] HCA 33 ; (1926) 38 CLR 380 at 383 per Knox CJ,
Gavan Duffy and Starke JJ; [1926] HCA 33 ; Langer v The Commonwealth 
[1996] HCA 43 ; (1996) 186 CLR 302 at 317 per Brennan CJ; [1996] HCA 43 ; Abbotto v
Australian Electoral Commission (1997) 71 ALJR 675 at 678-679 per
Dawson J; 144 ALR 352 at 356-357; [1997] HCA 18; Rowe v Electoral
Commissioner (2010) 243 CLR 1 at 14 [8] per French CJ; [2010] HCA
46 ; Murphy v Electoral Commissioner (2016) 261 CLR 28 at 113 [262]
per Gordon J; [2016] HCA 36. 


[153] Grannall v Marrickville
Margarine Pty Ltd [1955] HCA 6 ; (1955) 93 CLR 55 at 77 per Dixon CJ, McTiernan, Webb and
Kitto JJ; [1955] HCA 6. 


[154] Smith v Oldham [1912] HCA 61 ; (1912)
15 CLR 355 at 356.


[155] Peterswald v Bartley 
[1904] HCA 21 ; (1904) 1 CLR 497 at 507 per Griffith CJ; [1904] HCA 21 ;
R v Barger [1908] HCA 43 ; (1908) 6 CLR 41 at 54 per Griffith CJ in
argument; [1908] HCA 43 ; Attorney-General for NSW v Brewery Employes Union of
NSW [1908] HCA 94 ; (1908) 6 CLR 469 at 502-503 per Griffith CJ; [1908] HCA 94. See
also Detmold, The Australian Commonwealth: A Fundamental Analysis of its
Constitution (1985) at 29 [2.6].


[156] Smith v Oldham [1912] HCA 61 ; (1912)
15 CLR 355 at 358.


[157] Smith v Oldham [1912] HCA 61 ; (1912)
15 CLR 355 at 359.


[158] Smith v Oldham [1912] HCA 61 ; (1912)
15 CLR 355 at 362.


[159] [1972] HCA 44 ; (1972) 128 CLR 221 at 230;
[1972] HCA 44. See also R v Pearson; Ex parte Sipka [1983] HCA 6 ; (1983) 152 CLR 254
at 260-262 per Gibbs CJ, Mason and Wilson JJ; [1983] HCA 6 ; Quick and
Garran, The Annotated Constitution of the Australian Commonwealth , rev ed
(2015) at 532-537; Moore, The Constitution of the Commonwealth of
Australia , 2nd ed (1910) at 124-126. 


[160] See Clarke, Studies in
Australian Constitutional Law (1901) at 74-75. See also Quick and Garran,
The Annotated Constitution of the Australian Commonwealth , rev ed (2015)
at 482-483.


[161] [1920] HCA 24 ; (1920) 28 CLR 23.


[162] R v Brisbane Licensing
Court; Ex parte Daniell [1920] HCA 24 ; (1920) 28 CLR 23 at 26.


[163] Quick and Garran, The
Annotated Constitution of the Australian Commonwealth , rev ed (2015) at
481.


[164] R v Brisbane Licensing
Court; Ex parte Daniell [1920] HCA 24 ; (1920) 28 CLR 23 at 29.


[165] R v Brisbane Licensing
Court; Ex parte Daniell [1920] HCA 24 ; (1920) 28 CLR 23 at 30-31.


[166] [1912] HCA 61 ; (1912) 15 CLR 355 at
363.


[167] R v Brisbane Licensing
Court; Ex parte Daniell [1920] HCA 24 ; (1920) 28 CLR 23 at 31.


[168] See Knowles, The
Commonwealth of Australia Constitution Act (1936) at 10.


[169] See and compare
Nelungaloo Pty Ltd v The Commonwealth [1952] HCA 11 ; (1952) 85 CLR 545 at 564 per
Dixon J; [1952] HCA 11. 


[170] See, eg, Kerr, The Law of
the Australian Constitution (1925) at 102 fn 5.


[171] (1937) 56 CLR 657; [1937]
HCA 26. 


[172] [1937] HCA 26 ; (1937) 56 CLR 657 at
670.


[173] West v Commissioner of
Taxation (NSW) [1937] HCA 26 ; (1937) 56 CLR 657 at 707.


[174] See fn 152 above.


[175] Trustees Executors &
Agency Co Ltd v Reilly [1941] VicLawRp 22 ; [1941] VLR 110 at 111 per Mann CJ, quoted in
Powers v Maher [1959] HCA 52 ; (1959) 103 CLR 478 at 484-485 per Kitto J; [1959] HCA
52. 


[176] See Mulholland v
Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 207-208 [66] per
McHugh J; [2004] HCA 41. 


[177] Sue v Hill [1999] HCA 30 ; (1999) 199
CLR 462 at 473 [7] per Gleeson CJ, Gummow and Hayne JJ; [1999] HCA 30. 


[178] Unions NSW v New South
Wales (2013) 252 CLR 530; McCloy v New South Wales [2015] HCA 34 ; (2015) 257
CLR 178; Unions NSW v New South Wales [2019] HCA 1 ; (2019) 93 ALJR 166; 363 ALR
1.


[179] See and compare Victoria
v The Commonwealth ("the Second Uniform Tax Case ") [1957] HCA 54 ; (1957) 99
CLR 575 at 614-615 per Dixon CJ; [1957] HCA 54. 


[180] Sue v Hill [1999] HCA 30 ; (1999) 199
CLR 462 at 473 [7] per Gleeson CJ, Gummow and Hayne JJ; Mulholland v
Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 207-208 [66] per
McHugh J.


[181] Wenn v Attorney-General
(Vict) [1948] HCA 13 ; (1948) 77 CLR 84 at 120 per Dixon J; [1948] HCA 13 ;
Australian Coastal Shipping Commission v O'Reilly [1962] HCA 8 ; (1962) 107 CLR 46 at
56-57 per Dixon CJ; [1962] HCA 8 ; Botany Municipal Council v Federal
Airports Corporation [1992] HCA 52 ; (1992) 175 CLR 453 at 465 per Mason CJ, Brennan, Deane,
Dawson, Toohey, Gaudron and McHugh JJ; [1992] HCA 52 ; Western Australia v The
Commonwealth [1995] HCA 47 ; (1995) 183 CLR 373 at 467 per Mason CJ, Brennan, Deane, Toohey,
Gaudron and McHugh JJ; [1995] HCA 47. 


[182] [1977] HCA 34 ; (1977) 137 CLR 545 at 563;
[1977] HCA 34. 


[183] Abbotto v Australian
Electoral Commission (1997) 71 ALJR 675 at 678-679 per Dawson J; 144
ALR 352 at 356-357.


[184] (1981) 149 CLR 227; [1981]
HCA 73. 


[185] [1981] HCA 73 ; (1981) 149 CLR 227 at
240.


[186] Fisher v Fisher
[1986] HCA 61 ; (1986) 161 CLR 438 at 453 per Mason and Deane JJ; [1986] HCA 61 ;
Stellios, Zines's The High Court and The Constitution , 6th ed (2015)
at 63-64. 


[187] [1981] HCA 73 ; (1981) 149 CLR 227 at
261.


[188] [1976] HCA 66 ; (1976) 138 CLR 492 at 530;
[1976] HCA 66. 


[189] Amalgamated Society of
Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; [1920]
HCA 54. 


[190] (1947) 74 CLR 31; [1947] HCA
26. 


[191] [1983] HCA 21 ; (1983) 158 CLR 1 at 252-253;
[1983] HCA 21. 


[192] Victoria v The
Commonwealth [1957] HCA 54 ; (1957) 99 CLR 575 at 615.


[193] See Federal Commissioner
of Taxation v Citylink Melbourne Ltd [2006] HCA 35 ; (2006) 228 CLR 1 at 43 [151] 
per Crennan J; [2006] HCA 35. 


[194] Victoria v The
Commonwealth [1957] HCA 54 ; (1957) 99 CLR 575 at 614.


[195] Actors and Announcers
Equity Association v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 at 192
per Stephen J; [1982] HCA 23 ; New South Wales v The Commonwealth 
[2006] HCA 52 ; (2006) 229 CLR 1 at 103-104 [142] per Gleeson CJ, Gummow, Hayne, Heydon and
Crennan JJ; [2006] HCA 52. 


[196] [1982] HCA 23 ; (1982) 150 CLR 169 at
192.


[197] (1984) 158 CLR 447; [1984]
HCA 74. 


[198] [1947] HCA 26 ; (1947) 74 CLR 31.


[199] Melbourne Corporation v
The Commonwealth [1947] HCA 26 ; (1947) 74 CLR 31 at 75 per Starke J, 81 per Dixon
J; Austin v The Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at 219 [27] per
Gleeson CJ, 265 [168] per Gaudron, Gummow and Hayne JJ, 299 [275] per Kirby
J; [2003] HCA 3. 


[200] [2004] HCA 19 ; (2004) 216 CLR 595 at 626
[30] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; [2004] HCA 19. 


[201] [1962] HCA 8 ; (1962) 107 CLR 46 at 56-57
per Dixon CJ.


[202] [1992] HCA 52 ; (1992) 175 CLR 453 at 465
per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. 


[203] See, eg, Wenn v
Attorney-General (Vict) [1948] HCA 13 ; (1948) 77 CLR 84 at 120 per Dixon J; New
South Wales v The Commonwealth [2006] HCA 52 ; (2006) 229 CLR 1 at 166-167 [370] 
per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.


[204] See, eg, West v
Commissioner of Taxation (NSW) [1937] HCA 26 ; (1937) 56 CLR 657 at 707 per Evatt J;
Bayside City Council v Telstra Corporation Ltd [2004] HCA 19 ; (2004) 216 CLR 595
at 627-628 [35] - [36] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ;
New South Wales v The Commonwealth [2006] HCA 52 ; (2006) 229 CLR 1 at 164 [365] 
per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.


[205] West v Commissioner of
Taxation (NSW) [1937] HCA 26 ; (1937) 56 CLR 657 at 707 per Evatt J; Wenn v
Attorney-General (Vict) [1948] HCA 13 ; (1948) 77 CLR 84 at 110 per Latham CJ,
120 per Dixon J; Australian Coastal Shipping Commission v
O'Reilly [1962] HCA 8 ; (1962) 107 CLR 46 at 56-57 per Dixon CJ; Botany
Municipal Council v Federal Airports Corporation [1992] HCA 52 ; (1992) 175 CLR 453 at 465
per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Western
Australia v The Commonwealth [1995] HCA 47 ; (1995) 183 CLR 373 at 467 per Mason CJ,
Brennan, Deane, Toohey, Gaudron and McHugh JJ; Bayside City Council v Telstra
Corporation Ltd [2004] HCA 19 ; (2004) 216 CLR 595 at 627-628 [35] - [36] per Gleeson CJ,
Gummow, Kirby, Hayne and Heydon JJ, 644 [91] per McHugh J; New South
Wales v The Commonwealth [2006] HCA 52 ; (2006) 229 CLR 1 at 166-167 [370] per Gleeson CJ,
Gummow, Hayne, Heydon and Crennan JJ. See and compare Dour and
Taylor, "Manufactured Inconsistency" (2012) 39 Monash Law Review 
131.


[206] Electoral Act , s
274(1)(a)(i); Local Government Electoral Act , s 113A(1)(a)(i) ;
Commonwealth Electoral Act , s 302CA(1)(a), read with s 4(1)
para (a) of the definition of "political entity". 


[207] Electoral Act ,
s 2 definition of "political party"; Local Government Electoral Act ,
s 4 and Sch definition of "political party"; Commonwealth Electoral
Act , s 4(1) definitions of "political entity", "[p]olitical party" and
"[r]egistered political party" . 


[208] Commonwealth Electoral
Act , s 4(1) para (b) of the definition of "political entity", read with
s 287(1) definition of "State branch".


[209] Reasons of Kiefel CJ, Bell,
Gageler and Keane JJ at [112].


[210] See Fortescue Metals
Group Ltd v The Commonwealth [2013] HCA 34 ; (2013) 250 CLR 548 at 611 [137] ; [2013]
HCA 34. 


[211] Constitution ,
ss 10 and 31 .


[212] See Langer v The
Commonwealth [1996] HCA 43 ; (1996) 186 CLR 302 at 317; [1996] HCA 43 , citing Smith v
Oldham [1912] HCA 61 ; (1912) 15 CLR 355 at 363; [1912] HCA 61. 


[213] See Australian Coastal
Shipping Commission v O'Reilly [1962] HCA 8 ; (1962) 107 CLR 46 at 70-71; [1962] HCA 8. 


[214] Australia, House of
Representatives, Electoral Legislation Amendment (Electoral Funding and
Disclosure Reform) Bill 2018 (Cth), Revised Explanatory Memorandum at 51
[228].


[215] See Commonwealth
Electoral Act , ss 302D, 302E, 302F.


[216] Commonwealth Electoral
Act , s 286A.


[217] Commonwealth Electoral
Act , Pt XX, Div 1A.


[218] Commonwealth Electoral
Act , Pt XX, Div 2.


[219] Commonwealth Electoral
Act , Pt XX, Div 3.


[220] Commonwealth Electoral
Act , Pt XX, Div 3A.


[221] Commonwealth Electoral
Act , Pt XX, Div 4.


[222] Commonwealth Electoral
Act , Pt XX, Div 5.


[223] Commonwealth Electoral
Act , Pt XX, Div 5A.


[224] Commonwealth 
Electoral Act , Pt XX, Div 6.


[225] See Commonwealth
Electoral Act , ss 302D, 302E, 302F.


[226] Commonwealth Electoral
Act , s 302C(1).


[227] Commonwealth Electoral
Act , s 302CA(1)(a).


[228] Commonwealth Electoral
Act , s 302CA(1)(b).


[229] Commonwealth Electoral
Act , s 302CA(1)(c).


[230] Commonwealth Electoral
Act , s 302CA(1)(d).


[231] Commonwealth Electoral
Act , s 302CA(1)(e) and (2).


[232] Commonwealth Electoral
Act , s 302CA(3).


[233] Commonwealth Electoral
Act , s 4(1) definition of "political entity".


[234] See Commonwealth
Electoral Act , s 287(1) definitions of "election" and "group", and
s 287(9).


[235] Commonwealth Electoral
Act , s 4(1) para (a) of the definition of "political entity".


[236] Commonwealth Electoral
Act , s 4(1) definition of "[r]egistered political party".


[237] Commonwealth Electoral
Act , s 4(1) definition of "[p]olitical party".


[238] Commonwealth Electoral
Act , s 123(1).


[239] Commonwealth Electoral
Act , s 4(1) para (b) of the definition of "political entity".


[240] Commonwealth Electoral
Act , s 287(1) definition of "State branch".


[241] Commonwealth Electoral
Act , s 4(1) para (c) of the definition of "political
entity".


[242] Commonwealth Electoral
Act , s 287(9)(a).


[243] Commonwealth Electoral
Act , s 287(1) definition of "election".


[244] Commonwealth Electoral
Act , s 4(1) para (d) of the definition of "political
entity".


[245] Commonwealth Electoral
Act , s 287(1) definition of "group".


[246] Commonwealth Electoral
Act , s 287(9)(b).


[247] Commonwealth Electoral
Act , s 287(9).


[248] Commonwealth Electoral
Act , s 287(1) definition of "political campaigner".


[249] Commonwealth Electoral
Act , s 287F(1) and (2).


[250] Commonwealth Electoral
Act , s 287F(1)(a).


[251] Commonwealth Electoral
Act , s 287F(1)(b).


[252] Commonwealth Electoral
Act , s 287AB(1).


[253] Subject to certain
exceptions which may be put to one side.


[254] Commonwealth Electoral
Act , s 4AA(1) and (2).


[255] Commonwealth Electoral
Act , s 287(1) definition of "third party".


[256] "[D]isclosure threshold" is
defined in s 287(1) as $13,800, which is indexed under s 321A.


[257] Commonwealth Electoral
Act , s 302CA(2)(a).


[258] Commonwealth Electoral
Act , s 302CA(2)(b).


[259] See Prentice v Nugan
Packing Co Pty Ltd [1950] HCA 51 ; (1950) 81 CLR 558 at 564-565; [1950] HCA 51 ;
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation 
(1981) 147 CLR 297 at 305, 320-322; [1981] HCA 26 ; MacAlister v
The Queen (1990) 169 CLR 324 at 330; [1990] HCA 15; CIC Insurance
Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA
2.


[260] Commonwealth Electoral
Act , s 302CA(3)(a).


[261] Commonwealth Electoral
Act , s 302CA(3)(b)(i).


[262] Commonwealth Electoral
Act , s 302CA(3)(b)(ii).


[263] If an Act includes an
example of the operation of a provision, the example is not exhaustive and may
extend the operation of the
provision: Acts Interpretation Act 1901 
(Cth), s 15AD. A note is part of an Act: see Acts Interpretation
Act 1901 (Cth), s 13(1). 


[264] Commonwealth Electoral
Act , s 287(1) definitions of "State or Territory electoral law" and
"State or Territory electoral purpose".


[265] Acts Interpretation Act
1901 (Cth), s 15AD. 


[266] See, eg, Attorney-General
(Q) v Australian Industrial Relations Commission [2002] HCA 42 ; (2002) 213 CLR 485 at 492
[6] ; [2002] HCA 42. 


[267] See Commonwealth
Electoral Act , s 302B definition of "acceptable action". 


[268] Constitution ,
ss 10 and 31 .


[269] Mulholland v Australian
Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 208 [66] ; [2004] HCA 41 ,
citing Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 369; [1995] HCA
16 , in turn citing Melbourne Corporation v The Commonwealth
[1947] HCA 26 ; (1947) 74 CLR 31 at 79; [1947] HCA 26. 


[270] New South Wales v The
Commonwealth (Work Choices Case) [2006] HCA 52 ; (2006) 229 CLR 1 at 103 [142] ; [2006] HCA
52 , citing R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte
Australian National Airways Pty Ltd [1964] HCA 15 ; (1964) 113 CLR 207 at 225-226; [1964]
HCA 15 and Grain Pool of Western Australia v The Commonwealth (2000)
202 CLR 479 at 492 [16]; [2000] HCA 14.


[271] Work Choices [2006] HCA 52 ; (2006)
229 CLR 1 at 103 [142] . See also Re Dingjan [1995] HCA 16 ; (1995) 183 CLR 323
at 369; Grain Pool (2000) 202 CLR 479 at 492 [16].


[272] O'Reilly [1962] HCA 8 ; (1962) 107
CLR 46 at 70-71; Botany Municipal Council v Federal Airports Corporation
[1992] HCA 52 ; (1992) 175 CLR 453 at 463; [1992] HCA 52 ; Work Choices [2006] HCA 52 ; (2006)
229 CLR 1 at 166-167 [370] .


[273] See Commonwealth
Electoral Act , Pt XX, Divs 3A, 4 and 5.


[274] Lamshed v Lake [1958] HCA 14 ; (1958)
99 CLR 132 at 147; [1958] HCA 14 , quoted in Work Choices [2006] HCA 52 ; (2006) 229
CLR 1 at 166 [370] .


[275] Work Choices [2006] HCA 52 ; (2006)
229 CLR 1 at 166-167 [370] .


[276] Amalgamated Society of
Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; [1920] HCA 54. 


[277] See Commonwealth
Electoral Act , s 287(9)(a).


[278] See Commonwealth
Electoral Act , s 287(9)(b).


[279] See Commonwealth
Electoral Act , Pt XX, Div 3.


[280] Commonwealth Electoral
Act , s 302CA(1)(e).


[281] Commonwealth Electoral
Act , s 287AB(1).


[282] Commonwealth Electoral
Act , s 4AA.


[283] Commonwealth Electoral
Act , s 302CA(2)(a).


[284] Commonwealth Electoral
Act , s 302CA(2)(b).


[285] See [183]-[194] above.


[286] Commonwealth Electoral
Act , s 302CA(3)(a).


[287] Commonwealth Electoral
Act , s 302CA(3)(b)(i).


[288] Commonwealth Electoral
Act , s 302CA(3)(b)(ii).


[289] See Engineers' Case 
[1920] HCA 54 ; (1920) 28 CLR 129.


[290] Mulholland [2004] HCA 41 ; (2004) 220
CLR 181 at 208 [66] , citing McGinty v Western Australia [1996] HCA 48 ; (1996) 186 CLR
140 at 244; [1996] HCA 48 and Langer [1996] HCA 43 ; (1996) 186 CLR 302 at 333.


[291] Mulholland [2004] HCA 41 ; (2004) 220
CLR 181 at 208 [66] , citing Langer [1996] HCA 43 ; (1996) 186 CLR 302 at 349.


[292] Mulholland [2004] HCA 41 ; (2004) 220
CLR 181 at 208 [66] , citing Langer [1996] HCA 43 ; (1996) 186 CLR 302 at 318.


[293] Mulholland [2004] HCA 41 ; (2004) 220
CLR 181 at 208 [66] , citing Langer [1996] HCA 43 ; (1996) 186 CLR 302 at 339.


[294] Commonwealth Electoral
Act , Pt XX, Div 1A.


[295] Commonwealth Electoral
Act , Pt XX, Div 3.


[296] Commonwealth Electoral
Act , Pt XX, Div 3A.


[297] Commonwealth Electoral
Act , Pt XX, Div 4.


[298] Commonwealth Electoral
Act , Pt XX, Div 5.


[299] Work Choices [2006] HCA 52 ; (2006)
229 CLR 1 at 113 [174] , citing Melbourne Corporation [1947] HCA 26 ; (1947) 74 CLR 31 at
79.


[300] See Langer [1996] HCA 43 ; (1996) 186
CLR 302 at 317.


[301] [2006] HCA 52 ; (2006) 229 CLR 1 at 127
[219] , quoting Bourke v State Bank of New South Wales [1990] HCA 29 ; (1990) 170 CLR 276
at 285; [1990] HCA 29. 


[302] [1982] HCA 23 ; (1982) 150 CLR 169 at 194;
[1982] HCA 23. 


[303] [1982] HCA 23 ; (1982) 150 CLR 169 at 192,
quoted in Bayside City Council v Telstra Corporation Ltd [2004] HCA 19 ; (2004) 216 CLR
595 at 625 [27] ; [2004] HCA 19. 


[304] See also Engineers'
Case [1920] HCA 54 ; (1920) 28 CLR 129.


[305] See Rizeq v Western
Australia [2017] HCA 23 ; (2017) 262 CLR 1 at 21 [47] ; [2017] HCA 23. 


[306] See Stellios, Zines's The
High Court and The Constitution , 6th ed (2015) at 42.


[307] [2014] HCA 22 ; (2014) 254 CLR 28 at 43
[25] ; [2014] HCA 22. 


[308] Victoria v The
Commonwealth ("the Second Uniform Tax Case ") [1957] HCA 54 ; (1957) 99 CLR 575
at 614; [1957] HCA 54. See also Cunliffe v The Commonwealth [1994] HCA 44 ; (1994)
182 CLR 272 at 318-319; [1994] HCA 44 ; Leask v The Commonwealth
[1996] HCA 29 ; (1996) 187 CLR 579 at 602-603; [1996] HCA 29. 


[309] See Smith [1912] HCA 61 ; (1912) 15
CLR 355 at 361.


[310] Australia, House of
Representatives, Electoral Legislation Amendment (Electoral Funding and
Disclosure Reform) Bill 2018 , Revised Explanatory Memorandum at 51
[224].


[311] [2006] HCA 52 ; (2006) 229 CLR 1 at 159
[346] .


[312] Work Choices [2006] HCA 52 ; (2006)
229 CLR 1 at 169 [377] .


[313] Work Choices [2006] HCA 52 ; (2006)
229 CLR 1 at 166 [369] .


[314] Work Choices [2006] HCA 52 ; (2006)
229 CLR 1 at 166 [370] .


[315] (1948) 77 CLR 84; [1948] HCA
13. 


[316] Wenn [1948] HCA 13 ; (1948) 77 CLR 84
at 102.


[317] Wenn [1948] HCA 13 ; (1948) 77 CLR 84
at 107.


[318] Wenn [1948] HCA 13 ; (1948) 77 CLR 84
at 111-112, 114, 120, 122.


[319] Wenn [1948] HCA 13 ; (1948) 77 CLR 84
at 120.


[320] [1962] HCA 8 ; (1962) 107 CLR 46.


[321] O'Reilly [1962] HCA 8 ; (1962) 107
CLR 46 at 56, 58-59, 61, 70-71.


[322] O'Reilly [1962] HCA 8 ; (1962) 107
CLR 46 at 56 (footnote omitted).


[323] [1920] HCA 79 ; (1920) 29 CLR 1 at 8, 11,
21-22, 26, 28; [1920] HCA 79. 


[324] [1995] HCA 47 ; (1995) 183 CLR 373 at
468-469; [1995] HCA 47. 


[325] [1992] HCA 52 ; (1992) 175 CLR 453 at 459,
464-465.


[326] Botany Municipal Council
[1992] HCA 52 ; (1992) 175 CLR 453 at 465.


[327] [2004] HCA 19 ; (2004) 216 CLR 595 at
619-620 [13] , 624 [26], 647 [101].


[328] Bayside City Council
[2004] HCA 19 ; (2004) 216 CLR 595 at 644 [91] .


[329] [1931] HCA 1 ; (1931) 44 CLR 492 at 526;
[1931] HCA 1 , quoted in Work Choices [2006] HCA 52 ; (2006) 229 CLR 1 at 127
[218] .


[330] See Leask [1996] HCA 29 ; (1996)
187 CLR 579 at 602; Grain Pool (2000) 202 CLR 479 at 492 [16].


[331] [1947] HCA 26 ; (1947) 74 CLR 31. 
See also Austin v The Commonwealth (2003) 215 CLR 185; [2003]
HCA 3 ; Clarke v Federal Commissioner of Taxation (2009) 240 CLR 272;
[2009] HCA 33 ; Fortescue Metals [2013] HCA 34 ; (2013) 250 CLR 548.


[332] Fortescue Metals
[2013] HCA 34 ; (2013) 250 CLR 548 at 609 [131] .


[333] [1984] HCA 74 ; (1984) 158 CLR 447 at 453;
[1984] HCA 74. 


[334] Viskauskas v Niland 
(1983) 153 CLR 280; [1983] HCA 15. 


[335] Metwally [1984] HCA 74 ; (1984) 158
CLR 447 at 456.


[336] Metwally [1984] HCA 74 ; (1984) 158
CLR 447 at 457, 469, 475, 479.


[337] Electoral Act , Pt 11,
Div 2.


[338] Electoral Act , Pt 11,
Div 4.


[339] Electoral Act , Pt 11,
Div 7.


[340] Electoral Act , Pt 11,
Div 10.


[341] Electoral Act , Pt 11,
Div 11.


[342] Electoral Act , Pt 11,
Divs 14-19.


[343] Queensland Amending Act ,
s 13. 


[344] Electoral Act ,
s 2 definition of "political party".


[345] Electoral Act ,
s 197 para (b) of the definition of "electoral expenditure".


[346] Electoral Act ,
s 2 definition of "election".


[347] Electoral Act ,
s 276.


[348] Electoral Act ,
s 276(1)(a).


[349] Electoral Act ,
s 276(1)(b).


[350] Local Government
Electoral Act , Pt 6 , Div 2.


[351] Local Government
Electoral Act , Pt 6 , Div 3.


[352] Local Government
Electoral Act , Pt 6 , Div 4.


[353] Local Government
Electoral Act , Pt 6 , Div 5.


[354] Local Government
Electoral Act , Pt 6 , Div 6.


[355] Local Government
Electoral Act , Sch definition of "political party".


[356] Queensland, Legislative
Assembly, Local Government Electoral (Implementing Stage 1 of Belcarra) and
Other Legislation Amendment Bill 2018 , Explanatory Notes at 1
(footnotes omitted).


[357] Queensland, Legislative
Assembly, Local Government Electoral (Implementing Stage 1 of Belcarra) and
Other Legislation Amendment Bill 2018 , Explanatory Notes at 2.


[358] Queensland, Legislative
Assembly, Parliamentary Debates (Hansard), 6 March 2018 at 190.


[359] Local Government
Electoral Act , s 3. 


[360] (2015) 257 CLR 178; [2015]
HCA 34. 


[361] Melbourne Corporation
[1947] HCA 26 ; (1947) 74 CLR 31 at 82.


[362] [1962] HCA 40 ; (1962) 108 CLR 372 at 377;
[1962] HCA 40. See also Re Residential Tenancies Tribunal (NSW); Ex
parte Defence Housing Authority (1997) 190 CLR 410 at 438-440;
[1997] HCA 36; cf In re Foreman & Sons Pty Ltd; Uther
v Federal Commissioner of Taxation (1947) 74 CLR 508; [1947] HCA
45. 


[363] cf Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 163-164; [1992]
HCA 45. 


[364] Fortescue Metals
[2013] HCA 34 ; (2013) 250 CLR 548 at 609 [130] .


[365] See Smith [1912] HCA 61 ; (1912) 15
CLR 355 at 358, 360, 365; Nelungaloo Pty Ltd v The Commonwealth 
[1952] HCA 11 ; (1952) 85 CLR 545 at 564; [1952] HCA 11 ; Rowe v Electoral Commissioner 
(2010) 243 CLR 1 at 14 [8]; [2010] HCA 46 ; Murphy v Electoral
Commissioner (2016) 261 CLR 28 at 113 [261] fn 326; [2016] HCA 36. 


[366] See also Carter v Egg and
Egg Pulp Marketing Board (Vict) [1942] HCA 30 ; (1942) 66 CLR 557 at 571; [1942] HCA 30. 


[367] Work Health Authority v
Outback Ballooning Pty Ltd (2019) 93 ALJR 212 at 221 [32]; 363
ALR 188 at 195-196; [2019] HCA 2. 


[368] See Commonwealth
Electoral Act , s 302CA(3).


[369] Ex parte McLean 
[1930] HCA 12 ; (1930) 43 CLR 472 at 483; [1930] HCA 12 ; Outback Ballooning (2019) 93
ALJR 212 at 221-222 [33]; 363 ALR 188 at 196.


[370] Amalgamated Society of
Engineers v Adelaide Steamship Co Ltd [1920] HCA 54 ; (1920) 28 CLR 129 at 153-154; [1920]
HCA 54 (" Engineers' Case ").


[371] Melbourne Corporation v
The Commonwealth [1947] HCA 26 ; (1947) 74 CLR 31 at 78; [1947] HCA 26 (" Melbourne
Corporation ").


[372] See, for instance, New
South Wales v The Commonwealth [2006] HCA 52 ; (2006) 229 CLR 1 at 305-308 [740] - [747] ;
[2006] HCA 52 ; Sawer, Australian Federalism in the Courts (1967) at 130;
Walker, "The Seven Pillars of Centralism: Engineers' Case and Federalism"
(2002) 76 Australian Law Journal 678 at 686-687; Allan and Aroney, "An
Uncommon Court: How the High Court of Australia Has Undermined Australian
Federalism" [2008] SydLawRw 15 ; (2008) 30 Sydney Law Review 245 at 288-289.


[373] Electoral Funding Act
2018 (NSW), ss 24(2) , 37 (2)(a), (7); Electoral Act 2002 (Vic),
ss 207F(1) , (3), 217D (4); Electoral Act 1985 (SA), ss 130C ,
130K (1), 130L (b), 130M (1a).


[374] See the definition of
"prohibited donor" in s 273(1) and "property developer" in
s 273(2).


[375] See the definition of
"political donation" in s 274(1).


[376] Such as the Colonial Laws
Validity Act 1865 (Imp) (28 & 29 Vict c 63), s 2.


[377] Union Steamship Co of
Australia Pty Ltd v King [1988] HCA 55 ; (1988) 166 CLR 1 at 9-10; [1988] HCA 55. See R
v Burah (1878) 3 App Cas 889 at 904; Hodge v The Queen (1883) 9 App
Cas 117 at 132; Powell v Apollo Candle Co (1885) 10 App Cas 282 at
289-290; Riel v The Queen (1885) 10 App Cas 675 at 678.


[378] Compare Nelungaloo Pty
Ltd v The Commonwealth [1952] HCA 11 ; (1952) 85 CLR 545 at 564; [1952] HCA 11. 


[379] The Electoral Code 1896
(SA) (59 & 60 Vict No 667), ss 146, 147; The Electoral Act
1896 (Tas) (60 Vict No 49), ss 190, 197, Sch 25.


[380] The Electoral Code 1896
(SA) (59 & 60 Vict No 667), ss 155-161; The Electoral Act
1896 (Tas) (60 Vict No 49), ss 125-131; The Criminal Code Act
1899 (Qld) (63 Vict No 9), First Schedule,
ss 101-103.


[381] The Electoral Code 1896
(SA) (59 & 60 Vict No 667), s 160(d); The Electoral Act
1896 (Tas) (60 Vict No 49), s 142; The Criminal Code Act
1899 (Qld) (63 Vict No 9), First Schedule, s 106(2).


[382] See, eg, Federal
Elections Act 1900 (NSW); The Parliament of the Commonwealth Elections
Act and The Elections Act 1885 to 1898 Amendment Act of 1900 (Qld) (64 Vict
No 25); The Federal Elections Act 1900 (Tas) (64 Vict
No 59); Federal Elections Act 1900 (Vic) (64 Vict No 1715).


[383] (1912) 15 CLR 355; [1912]
HCA 61. 


[384] [1912] HCA 61 ; (1912) 15 CLR 355 at
358.


[385] [1912] HCA 61 ; (1912) 15 CLR 355 at
357.


[386] [1912] HCA 61 ; (1912) 15 CLR 355 at
361.


[387] [1912] HCA 61 ; (1912) 15 CLR 355 at 358,
362.


[388] [1912] HCA 61 ; (1912) 15 CLR 355 at 358,
360, 365.


[389] Engineers' Case 
[1920] HCA 54 ; (1920) 28 CLR 129 at 154.


[390] [1912] HCA 61 ; (1912) 15 CLR 355 at
356.


[391] See, eg, Peterswald v
Bartley [1904] HCA 21 ; (1904) 1 CLR 497 at 507; [1904] HCA 21 ; R v Barger [1908] HCA 43 ; (1908) 6
CLR 41 at 64, 67, 69; [1908] HCA 43 ; Attorney-General for NSW v Brewery
Employes Union of NSW [1908] HCA 94 ; (1908) 6 CLR 469 at 503; [1908] HCA 94 ; Huddart,
Parker & Co Pty Ltd v Moorehead [1909] HCA 36 ; (1909) 8 CLR 330 at 352, 354, 361;
[1909] HCA 36. 


[392] See R v Barger [1908] HCA 43 ; (1908)
6 CLR 41 at 83-84; Attorney-General for NSW v Brewery Employes Union of
NSW [1908] HCA 94 ; (1908) 6 CLR 469 at 585; Huddart, Parker & Co Pty Ltd v
Moorehead [1909] HCA 36 ; (1909) 8 CLR 330 at 390-391.


[393] [1912] HCA 61 ; (1912) 15 CLR 355 at
363.


[394] [1920] HCA 24 ; (1920) 28 CLR 23 at 31;
[1920] HCA 24. 


[395] [1920] HCA 54 ; (1920) 28 CLR 129 at
153-154.


[396] [1912] HCA 61 ; (1912) 15 CLR 355 at
358.


[397] [1912] HCA 61 ; (1912) 15 CLR 355 at
361.


[398] [1912] HCA 61 ; (1912) 15 CLR 355 at
365.


[399] [1937] HCA 26 ; (1937) 56 CLR 657 at 669;
[1937] HCA 26. 


[400] [1912] HCA 61 ; (1912) 15 CLR 355 at
360.


[401] Meagher and Gummow, "Sir
Owen Dixon's Heresy" (1980) 54 Australian Law Journal 25 at 28; Doyle,
"1947 Revisited: The Immunity of the Commonwealth from State Law", in Lindell
(ed), Future Directions in Australian Constitutional Law (1994) 47 at
62-63.


[402] See Gauja, "From Hogan to
Hanson: The regulation and changing legal status of Australian political
parties" (2006) 17 Public Law Review 282 at 285.


[403] Unions NSW v New South
Wales (2013) 252 CLR 530 at 549 [22], 550 [24]; [2013] HCA 58.


[404] Jupp and Sawer, "Political
parties, partisanship and electoral governance", in Sawer (ed),
Elections: Full, free & fair (2001) 216 at 217.


[405] Gauja, "From Hogan to
Hanson: The regulation and changing legal status of Australian political
parties" (2006) 17 Public Law Review 282 at 285, quoting Official
Record of the Debates of the Australasian Federal Convention (Sydney),
10 September 1897 at 335. See also Official Report of the National
Australasian Convention Debates (Sydney), 17 March 1891 at 434
(Macrossan).


[406] R v Warner [1793] EngR 1183 ; (1661) 1
Keb 66 at 67 [83 ER 814 at 815]. See CSR Ltd v Eddy [2005] HCA 64 ; (2005) 226 CLR 1 at
11 [13] ; [2005] HCA 64 ; Cross and Harris, Precedent in English Law , 4th
ed (1991) at 158-161. See also Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 at
413; [1971] HCA 39 ; Baker v The Queen [1975] AC 774 at 787-789;
National Enterprises Ltd v Racal Communications Ltd [1975] Ch 397 at 406;
Barrs v Bethell [1982] Ch 294 at 308; In re Hetherington [1990] Ch
1 at 10; Coleman v Power [2004] HCA 39 ; (2004) 220 CLR 1 at 44-45 [79] ; [2004] HCA
39. 


[407] [1920] HCA 24 ; (1920) 28 CLR 23.


[408] [1920] HCA 24 ; (1920) 28 CLR 23 at 25.


[409] [1920] HCA 24 ; (1920) 28 CLR 23 at 25.


[410] [1920] HCA 24 ; (1920) 28 CLR 23 at 26,
31.


[411] [1920] HCA 24 ; (1920) 28 CLR 23 at 31.


[412] See, eg, Allders
International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR
630 at 680; [1996] HCA 58.


[413] See, eg, Bayside City
Council v Telstra Corporation Ltd [2004] HCA 19 ; (2004) 216 CLR 595 at 628 [37] ; [2004] HCA
19. 


[414] [1920] HCA 24 ; (1920) 28 CLR 23 at 29; see
also at 32. See also West v Commissioner of Taxation (NSW) [1937] HCA 26 ; (1937) 56 CLR
657 at 670.


[415] [1920] HCA 24 ; (1920) 28 CLR 23 at 33.


[416] [1920] HCA 24 ; (1920) 28 CLR 23 at 36.


[417] Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 135; [1992] HCA
45 ; McGinty v Western Australia [1996] HCA 48 ; (1996) 186 CLR 140 at 169, 231; [1996]
HCA 48 ; Austin v The Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at 245 [113] ;
[2003] HCA 3 ; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 ; (2005) 224 CLR
322 at 409 [240] ; [2005] HCA 44. 


[418] Quick and Garran, The
Annotated Constitution of the Australian Commonwealth , rev ed (2015) at
587 §160.


[419] Attorney-General (NSW) v
Stocks and Holdings (Constructors) Pty Ltd [1970] HCA 58 ; (1970) 124 CLR 262 at 269, 279,
288; [1970] HCA 58 ; Allders International Pty Ltd v Commissioner of State
Revenue (Vict) (1996) 186 CLR 630 at 671, 676-677; see also at 644.


[420] Allders International Pty
Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 642,
quoting Mason J in The Commonwealth v Tasmania (The Tasmanian Dam
Case) [1983] HCA 21 ; (1983) 158 CLR 1 at 152; [1983] HCA 21 , who in turn was quoting
Dixon J in Melbourne Corporation [1947] HCA 26 ; (1947) 74 CLR 31 at 79. 
See also Allders International Pty Ltd v Commissioner of State Revenue
(Vict) (1996) 186 CLR 630 at 677, citing Cunliffe v The Commonwealth 
[1994] HCA 44 ; (1994) 182 CLR 272 at 314; [1994] HCA 44. 


[421] Worthing v Rowell and
Muston Pty Ltd (1970) 123 CLR 89 at 96, 112, 113, 119-120, 141; [1970] HCA
19 ; R v Phillips [1970] HCA 50 ; (1970) 125 CLR 93 at 129; [1970] HCA 50 ; Allders
International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR
630 at 638, 670, 676.


[422] Bourke v State Bank of
New South Wales [1990] HCA 29 ; (1990) 170 CLR 276 at 288-289; [1990] HCA 29 ;
Attorney-General (Vic) v Andrews [2007] HCA 9 ; (2007) 230 CLR 369 at 392 [12] , 406-407
[78]-[79], 428 [151]; [2007] HCA 9. 


[423] See Bourke v State Bank
of New South Wales [1990] HCA 29 ; (1990) 170 CLR 276 at 288-289; Attorney-General (Vic)
v Andrews [2007] HCA 9 ; (2007) 230 CLR 369 at 407 [79] , 408 [83], 428 [151].


[424] Power to prescribe the
"Times, Places and Manner of holding Elections for Senators and
Representatives". Compare Mulholland v Australian Electoral Commission 
[2004] HCA 41 ; (2004) 220 CLR 181 at 232 [141] ; [2004] HCA 41. 


[425] Colquhoun v Brooks 
(1887) 19 QBD 400 at 406, quoted in Rylands Brothers (Australia) Ltd v Morgan
[1927] NSWStRp 18 ; (1927) 27 SR (NSW) 161 at 169 and George v Federal Commissioner of
Taxation (1952) 86 CLR 183 at 206; [1952] HCA 21. See, further, Pearce
and Geddes, Statutory Interpretation in Australia , 8th ed
(2014) at 178-181 [4.33]-[4.35].


[426] See also Federal
Commissioner of Taxation v Tomaras [2018] HCA 62 ; (2018) 93 ALJR 118 at 137 [100] ; 362 ALR
253 at 276; [2018] HCA 62. 


[427] Quick and Garran, The
Annotated Constitution of the Australian Commonwealth , rev ed (2015) at
473 §70.


[428] Re Australian Electoral
Commission; Ex parte Kelly [2003] HCA 37 ; (2003) 77 ALJR 1307 at 1309 [14] ; [2003] HCA 37 ; 198 ALR 262 at
265; [2003] HCA 37 , quoting Australia, Final Report of the Constitutional
Commission (1988), vol 1 at 212 [4.447]-[4.448].


[429] Re Australian Electoral
Commission; Ex parte Kelly [2003] HCA 37 ; (2003) 77 ALJR 1307 at 1309 [13] ; [2003] HCA 37 ; 198 ALR 262 at
265; Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at
232 [140] ; Quick and Garran, The Annotated Constitution of the Australian
Commonwealth , rev ed (2015) at 481 §79, 484-485
§§81-82.


[430] A proposal that the power
should be exclusive to the parliaments of the States was not passed: 
Official Record of the Debates of the Australasian Federal Convention 
(Sydney), 13 September 1897 at 454; Quick and Garran, The Annotated
Constitution of the Australian Commonwealth , rev ed (2015) at 530
§118.


[431] Official Record of the
Debates of the Australasian Federal Convention (Sydney),
13 September 1897 at 454.


[432] Official Record of the
Debates of the Australasian Federal Convention (Sydney),
13 September 1897 at 454. See also Quick and Garran, The Annotated
Constitution of the Australian Commonwealth , rev ed (2015) at 531
§119.


[433] Quick and Garran, The
Annotated Constitution of the Australian Commonwealth , rev ed (2015) at
530 §118.


[434] Ex parte McLean 
[1930] HCA 12 ; (1930) 43 CLR 472 at 483; [1930] HCA 12 ; Jemena Asset Management (3) Pty Ltd
v Coinvest Ltd [2011] HCA 33 ; (2011) 244 CLR 508 at 524 [40] ; [2011] HCA 33. See also
The Commonwealth v Australian Capital Territory [2013] HCA 55 ; (2013) 250 CLR 441
at 466 [52] ; [2013] HCA 55 ; Work Health Authority v Outback Ballooning Pty
Ltd (2019) 93 ALJR 212 at 221-222 [33], 227 [65], 236 [106]; 363 ALR 188 at
196, 203, 216; [2019] HCA 2. 


[435] Western Australia v
The Commonwealth [1975] HCA 46 ; (1975) 134 CLR 201 at 271, 275; [1975] HCA 46 ;
Queensland v The Commonwealth [1977] HCA 60 ; (1977) 139 CLR 585 at 604-605; [1977]
HCA 60 ; Kartinyeri v The Commonwealth [1998] HCA 22 ; (1998) 195 CLR 337 at 380-381
[87] - [88] ; [1998] HCA 22 ; Sue v Hill [1999] HCA 30 ; (1999) 199 CLR 462 at 480 [26] ;
[1999] HCA 30 ; Shaw v Minister for Immigration and Multicultural Affairs 
[2003] HCA 72 ; (2003) 218 CLR 28 at 43 [32] ; [2003] HCA 72 ; XYZ v The Commonwealth
[2006] HCA 25 ; (2006) 227 CLR 532 at 549 [39] ; [2006] HCA 25. 


[436] Established in The
Commonwealth v Cigamatic Pty Ltd (In liq) [1962] HCA 40 ; (1962) 108 CLR 372 at 378; [1962]
HCA 40 ; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing
Authority (1997) 190 CLR 410 at 427, 441-442; [1997] HCA 36.


[437] [1947] HCA 26 ; (1947) 74 CLR 31.


[438] See, generally, Cook,
"Hohfeld's Contributions to the Science of Law" (1919) 28 Yale Law
Journal 721 at 726-727.


[439] [1982] HCA 27 ; (1982) 153 CLR 168 at 216;
[1982] HCA 27. 


[440] See Austin v The
Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at 258 [145] .


[441] [2013] HCA 34 ; (2013) 250 CLR 548 at
609 [130] ; see also at 563 [6], 614 [145], 636-637 [229]; [2013] HCA 34. 


[442] (1997) 190 CLR 410 at
426.


[443] See, eg,
Constitution , ss 51(xiii) , (xiv), (xxxiii), (xxxiv), 100 , 102 , 104 ,
112 , 123 , 128 .


[444] Mobil Oil Australia Pty
Ltd v Victoria [2002] HCA 27 ; (2002) 211 CLR 1 at 25-26 [15] ; [2002] HCA 27. 


[445] [1947] HCA 26 ; (1947) 74 CLR 31 at 55; see
also at 61.


[446] [1947] HCA 26 ; (1947) 74 CLR 31 at 82.


[447] [1947] HCA 26 ; (1947) 74 CLR 31 at 74,
quoting Graves v New York; Ex rel O'Keefe [1939] USSC 60 ; (1939) 306 US 466 at 488; see
also at 70.


[448] [1947] HCA 26 ; (1947) 74 CLR 31 at 99.


[449] See, further, Stellios,
Zines's The High Court and The Constitution , 6th ed (2015) at 523,
534.


[450] See Victoria v The
Commonwealth [1971] HCA 16 ; (1971) 122 CLR 353 at 418; [1971] HCA 16 ;
R v Coldham; Ex parte Australian Social Welfare Union [1983] HCA 19 ; (1983)
153 CLR 297 at 313; [1983] HCA 19 ; Australian Capital Television Pty Ltd v
The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 134; New South Wales v
The Commonwealth [2006] HCA 52 ; (2006) 229 CLR 1 at 119-120 [194] ; Fortescue 
[2013] HCA 34 ; (2013) 250 CLR 548 at 609 [130] .


[451] See West v Commissioner
of Taxation (NSW) [1937] HCA 26 ; (1937) 56 CLR 657 at 681; compare Re Residential
Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190
CLR 410 at 507.


[452] [2003] HCA 3 ; (2003) 215 CLR 185 at
300 [279] .


[453] See Melbourne
Corporation [1947] HCA 26 ; (1947) 74 CLR 31 at 66, 74; Victoria v
The Commonwealth [1971] HCA 16 ; (1971) 122 CLR 353 at 411, 424-425; Victoria v
Australian Building Construction Employees' and Builders Labourers'
Federation [1982] HCA 31 ; (1982) 152 CLR 25 at 93; [1982] HCA 31 ; Queensland Electricity
Commission v The Commonwealth [1985] HCA 56 ; (1985) 159 CLR 192 at 207, 217, 226, 231,
247, 260; [1985] HCA 56 ; Australian Capital Television Pty Ltd v
The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 163, 243; Austin v
The Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at 217 [24] ; Clarke v Federal
Commissioner of Taxation [2009] HCA 33 ; (2009) 240 CLR 272 at 298 [32] , 307 [66]; [2009]
HCA 33. 


[454] Albrecht v Federal
Commissioner of Taxation [2014] FCAFC 176 ; (2014) 228 FCR 177 at 182 [16] . See also
Melbourne Corporation [1947] HCA 26 ; (1947) 74 CLR 31 at 75; Victoria v
The Commonwealth [1971] HCA 16 ; (1971) 122 CLR 353 at 392-393; Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 163,
242.


[455] [1925] HCA 30 ; (1925) 36 CLR 170 at 191;
[1925] HCA 30 (emphasis in original). Compare Federated State School
Teachers' Association of Australia v Victoria [1929] HCA 11 ; (1929) 41 CLR 569 at 584-585;
[1929] HCA 11. 


[456] West v Commissioner of
Taxation (NSW) [1937] HCA 26 ; (1937) 56 CLR 657 at 682; Re Residential Tenancies
Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at
439, 451; Austin v The Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at 278
[213] ; Clarke v Federal Commissioner of Taxation [2009] HCA 33 ; (2009) 240 CLR 272 at
290-291 [17] .


[457] Austin v The Commonwealth
[2003] HCA 3 ; (2003) 215 CLR 185 at 258 [145] . See also Fortescue [2013] HCA 34 ; (2013)
250 CLR 548 at 610 [134] .


[458] Melbourne Corporation
[1947] HCA 26 ; (1947) 74 CLR 31 at 99.


[459] Queensland Electricity
Commission v The Commonwealth [1985] HCA 56 ; (1985) 159 CLR 192 at 206, 217, 229.


[460] Queensland Electricity
Commission v The Commonwealth [1985] HCA 56 ; (1985) 159 CLR 192 at 207.


[461] Queensland Electricity
Commission v The Commonwealth [1985] HCA 56 ; (1985) 159 CLR 192 at 260, quoted with
approval in Austin v The Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at
217 [24] , 249 [125]; see also at 249 [123]-[124], 301 [281]. See also Clarke
v Federal Commissioner of Taxation [2009] HCA 33 ; (2009) 240 CLR 272 at 299 [34] , 306 [65];
Fortescue [2013] HCA 34 ; (2013) 250 CLR 548 at 611 [137] .


[462] Western Australia v The
Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 at 481; [1995] HCA
47. See also Austin v The Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at
259 [146] ; Fortescue [2013] HCA 34 ; (2013) 250 CLR 548 at 610 [132] .


[463] [2003] HCA 3 ; (2003) 215 CLR 185 at
265 [168] . See also Clarke v Federal Commissioner of Taxation [2009] HCA 33 ; (2009) 240
CLR 272 at 298 [32] , 309 [76]. See, further, the references to "substantial" in
Melbourne Corporation [1947] HCA 26 ; (1947) 74 CLR 31 at 74-75; Victoria v
The Commonwealth [1971] HCA 16 ; (1971) 122 CLR 353 at 398.


[464] Austin v The Commonwealth
[2003] HCA 3 ; (2003) 215 CLR 185 at 249 [124] , quoted by all Justices in Clarke
v Federal Commissioner of Taxation [2009] HCA 33 ; (2009) 240 CLR 272 at 290 [16] , 307 [66],
312 [93].


[465] [2009] HCA 33 ; (2009) 240 CLR 272 at 298
[33] .


[466] [2003] HCA 3 ; (2003) 215 CLR 185 at
304 [290] .


[467] Compare Australian
Capital Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at
241-242. See also Melbourne Corporation [1947] HCA 26 ; (1947) 74 CLR 31 at 79.


[468] Compare Re Australian
Education Union; Ex parte Victoria (1995) 184 CLR 188 at 232-233; 
[1995] HCA 71; Albrecht v Federal Commissioner of Taxation [2014] FCAFC 176 ; (2014) 228
FCR 177 at 184 [22] .


[469] Compare Austin v The
Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at 219 [28] , 260-261 [152], 263 [161]-[162],
264 [165], 283 [229]. See also Re Australian Education Union; Ex parte
Victoria (1995) 184 CLR 188 at 233.


[470] Compare Clarke v Federal
Commissioner of Taxation [2009] HCA 33 ; (2009) 240 CLR 272 at 299-300 [35] - [36] , 305 [62],
315-316 [101]-[102].


[471] Compare Melbourne
Corporation [1947] HCA 26 ; (1947) 74 CLR 31 at 67, 75, 84.


[472] Queensland, Legislative
Assembly, Parliamentary Debates (Hansard), 6 March 2018
at 190, 192; see also Queensland, Legislative Assembly, Parliamentary
Debates (Hansard), 15 May 2018 at 1104.


[473] Queensland, Legislative
Assembly, Local Government Electoral (Implementing Stage 1 of Belcarra) and
Other Legislation Amendment Bill 2018 , Explanatory Notes at 2, 4, 11, 14,
16.


[474] Queensland, Legislative
Assembly, Parliamentary Debates (Hansard), 6 March 2018 at 192.
See also McCloy v New South Wales [2015] HCA 34 ; (2015) 257 CLR 178 at 209 [53] , 221
[93], 241 [165], 261 [232], 291 [351]; [2015] HCA 34 (" McCloy ").


[475] [2015] HCA 34 ; (2015) 257 CLR 178 at 221
[93] , 222 [98], 295 [369].


[476] Queensland, Legislative
Assembly, Local Government Electoral (Implementing Stage 1 of Belcarra) and
Other Legislation Amendment Bill 2018 , Explanatory Notes at 4, 11.


[477] Queensland, Legislative
Assembly, Local Government Electoral (Implementing Stage 1 of Belcarra) and
Other Legislation Amendment Bill 2018 , Explanatory Notes at 3.


[478] Queensland, Crime and
Corruption Commission, Operation Belcarra: A blueprint for integrity and
addressing corruption risk in local government (2017) at 76.


[479] See McCloy [2015] HCA 34 ; (2015) 257
CLR 178 at 262 [233] .


[480] Voltaire, Candide
(1759).


[481] See Clubb v Edwards 
[2019] HCA 11 at [496] .


[482] See Clubb v Edwards 
[2019] HCA 11 at [497] .


[483] Cardozo, The Nature of
the Judicial Process (1921) at 141. See also New South Wales v The
Commonwealth [2006] HCA 52 ; (2006) 229 CLR 1 at 309 [751] .


[484] "Registered political party"
is defined in s 4(1) of the Commonwealth Electoral Act to mean a political
party registered under Pt
XI: see Mulholland v Australian Electoral
Commission [2004] HCA 41 ; (2004) 220 CLR 181.


[485] Australia, House of
Representatives, Parliamentary Debates (Hansard),
27 November 2018 at 11580.


[486] Defined in s 287(1) as
a person or entity registered as a political campaigner under s 287L.


[487] Defined in s 287(1) as
a person or entity authorising or incurring "electoral expenditure" above the
disclosure threshold: see
the definition of "electoral expenditure" in
s 287(1), read with s 287AB(1), and the definition of "electoral
matter" in s 4(1),
read with s 4AA.


[488] Commonwealth Electoral Act,
s 302CA(2)(a).


[489] Commonwealth Electoral Act,
s 302CA(2)(b).


[490] Australia, Joint Standing
Committee on Electoral Matters, Second advisory report on the Electoral
Legislation (Electoral Funding and Disclosure Reform) Bill 2017 (2018) at 43
[4.12], 45 [4.19].


[491] Australia, Joint Standing
Committee on Electoral Matters, Second advisory report on the Electoral
Legislation (Electoral Funding and Disclosure Reform) Bill 2017 (2018) at 48
[4.34]-[4.35]; see also Recommendation 10 at 49 [4.36].


[492] See Acts Interpretation
Act 1901 (Cth), ss 13(1) , 15AD .


[493] See also example 2
given in Australia, House of Representatives, Electoral Legislation Amendment
(Electoral Funding and Disclosure Reform) Bill 2018 , Revised Explanatory
Memorandum at 53.


[494] [2019] HCA 1 ; (2019) 93 ALJR 166 at
200-201 [168] - [172] ; [2019] HCA 1 ; 363 ALR 1 at 45-46; [2019] HCA 1. 


[495] McCloy [2015] HCA 34 ; (2015) 257 CLR
178 at 205 [40] ; Brown v Tasmania (2017) 261 CLR 328 at 362 [99]-[100],
392 [209], 432-433 [322]; [2017] HCA 43.


[496] See also SZTAL v Minister
for Immigration and Border Protection [2017] HCA 34 ; (2017) 262 CLR 362 at 369 [16] ,
392-398 [92]-[103]; [2017] HCA 34. 


[497] [2019] HCA 1 ; (2019) 93 ALJR 166 at 211
[222] ; [2019] HCA 1 ; 363 ALR 1 at 59.


[498] Australia, Senate,
Electoral Legislation Amendment (Electoral Funding and Disclosure Reform)
Bill 2017 , Supplementary Explanatory Memorandum at 63 [259]; Australia,
House of Representatives, Electoral Legislation Amendment (Electoral Funding
and Disclosure Reform) Bill 2018 , Revised Explanatory Memorandum at 65
[286].


[499] Australia, Senate,
Electoral Legislation Amendment (Electoral Funding and Disclosure Reform)
Bill 2017 , Supplementary Explanatory Memorandum at 63 [259]; Australia,
House of Representatives, Electoral Legislation Amendment (Electoral Funding
and Disclosure Reform) Bill 2018 , Revised Explanatory Memorandum at 65
[286].


[500] Australia, Joint Standing
Committee on Electoral Matters, Second advisory report on the Electoral
Legislation (Electoral Funding and Disclosure Reform) Bill 2017 (2018) at 48
[4.31]. See especially at 48 [4.33].


[501] (1984) 158 CLR 447; [1984]
HCA 74. 


[502] See Smith v Oldham 
[1912] HCA 61 ; (1912) 15 CLR 355 at 363; Judd v McKeon [1926] HCA 33 ; (1926) 38 CLR 380 at 383; [1926]
HCA 33 ; Australian Capital Television Pty Ltd v The Commonwealth
[1992] HCA 45 ; (1992) 177 CLR 106 at 220; Langer v The Commonwealth [1996] HCA 43 ; (1996) 186 CLR
302 at 317; [1996] HCA 43 ; Murphy v Electoral Commissioner (2016) 261 CLR
28 at 113 [262]; [2016] HCA 36. See also R v Brisbane Licensing Court; Ex
parte Daniell [1920] HCA 24 ; (1920) 28 CLR 23 at 31, 32; Attorney-General (Cth);
Ex rel McKinlay v The Commonwealth [1975] HCA 53 ; (1975) 135 CLR 1 at 57-58;
[1975] HCA 53 ; Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220
CLR 181 at 254 [212] , 260 [231].


[503] [1912] HCA 61 ; (1912) 15 CLR 355 at
358.


[504] See also R v Brisbane
Licensing Court; Ex parte Daniell [1920] HCA 24 ; (1920) 28 CLR 23 at 31, 32;
Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53 ; (1975)
135 CLR 1 at 57-58; Australian Capital Television Pty Ltd v The Commonwealth
[1992] HCA 45 ; (1992) 177 CLR 106 at 220.


[505] [1912] HCA 61 ; (1912) 15 CLR 355 at
358.


[506] [1912] HCA 61 ; (1912) 15 CLR 355 at 358;
see also at 360, 363.


[507] Mulholland v Australian
Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 208 [66] . See also Smith v
Oldham [1912] HCA 61 ; (1912) 15 CLR 355 at 359-360, 362-363; Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 157, 220,
225-226, 234; Langer v The Commonwealth [1996] HCA 43 ; (1996) 186 CLR 302 at 339.


[508] Le Mesurier v Connor
[1929] HCA 41 ; (1929) 42 CLR 481 at 497; [1929] HCA 41 ; Burton v Honan [1952] HCA 30 ; (1952) 86 CLR
169 at 177-178; [1952] HCA 30 ; Gazzo v Comptroller of Stamps (Vict) 
[1981] HCA 73 ; (1981) 149 CLR 227 at 236; [1981] HCA 73 ; Nationwide News Pty Ltd v Wills 
[1992] HCA 46 ; (1992) 177 CLR 1 at 26-27; [1992] HCA 46 ; Rizeq v Western Australia
[2017] HCA 23 ; (2017) 262 CLR 1 at 68-69 [191] ; [2017] HCA 23. Compare G G Crespin
& Son v Colac Co-operative Farmers Ltd [1916] HCA 13 ; (1916) 21 CLR 205 at 214; [1916]
HCA 13. 


[509] Commonwealth Electoral Act,
s 302F(2).


[510] [1982] HCA 23 ; (1982) 150 CLR 169 at 208;
see also at 183, 195, 212, 219; [1982] HCA 23. See also New South Wales
v The Commonwealth [2006] HCA 52 ; (2006) 229 CLR 1 at 121-122 [198] , 140 [260].


[511] Re Dingjan; Ex parte
Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 368-369; [1995] HCA 16 ; Leask v The
Commonwealth [1996] HCA 29 ; (1996) 187 CLR 579 at 601, 621; [1996] HCA 29. 


[512] The Tasmanian Dam Case
[1983] HCA 21 ; (1983) 158 CLR 1 at 152; Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183
CLR 323 at 368-369; Leask v The Commonwealth [1996] HCA 29 ; (1996) 187 CLR 579 at
601-602; Grain Pool of Western Australia v The Commonwealth (2000)
202 CLR 479 at 492 [16]; [2000] HCA 14; New South Wales v The Commonwealth
[2006] HCA 52 ; (2006) 229 CLR 1 at 103 [142] .


[513] [1994] HCA 44 ; (1994) 182 CLR 272 at 321. 
See also Bank of NSW v The Commonwealth [1948] HCA 7 ; (1948) 76 CLR 1 at 354;
[1948] HCA 7 ; Leask v The Commonwealth [1996] HCA 29 ; (1996) 187 CLR 579 at
602-603, 624.


[514] Melbourne Corporation
[1947] HCA 26 ; (1947) 74 CLR 31 at 79; The Tasmanian Dam Case [1983] HCA 21 ; (1983) 158 CLR 1 at
152; Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323 at 369; Leask v
The Commonwealth [1996] HCA 29 ; (1996) 187 CLR 579 at 601-602, 621;
Re Maritime Union of Australia; Ex parte CSL Pacific Shipping
Inc (2003) 214 CLR 397 at 413 [35]; [2003] HCA 43; Mulholland v
Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 208 [66] ; New South
Wales v The Commonwealth [2006] HCA 52 ; (2006) 229 CLR 1 at 143 [275] .


[515] See the discussion in
Stellios, Zines's The High Court and The Constitution , 6th ed (2015) at
56-60.


[516] Fabre v Ley [1972] HCA 65 ; (1972)
127 CLR 665 at 669; [1972] HCA 65. 


[517] Australia, Joint Standing
Committee on Electoral Matters, Second advisory report on the Electoral
Legislation (Electoral Funding and Disclosure Reform) Bill 2017 (2018) at 48
[4.33].


[518] See Commonwealth Electoral
Act, s 302CA(3).


[519] Stellios, Zines's The
High Court and The Constitution , 6th ed (2015) at 63.


[520] Monis v The Queen 
(2013) 249 CLR 92 at 133-134 [73]; [2013] HCA 4. See also Unions NSW
v New South Wales (2013) 252 CLR 530 at 557-558 [51]-[52]; Unions NSW v
New South Wales [2019] HCA 1 ; (2019) 93 ALJR 166 at 201-202 [174] ; [2019] HCA 1 ; 363 ALR 1 at 46.


[521] (1957) 99 CLR 575; [1957]
HCA 54. 


[522] [1957] HCA 54 ; (1957) 99 CLR 575 at
614-615, 626, 658, 661-662.


[523] [1957] HCA 54 ; (1957) 99 CLR 575 at
613.


[524] [1957] HCA 54 ; (1957) 99 CLR 575 at
613.


[525] [1957] HCA 54 ; (1957) 99 CLR 575 at
613.


[526] [1957] HCA 54 ; (1957) 99 CLR 575 at
615.


[527] [1957] HCA 54 ; (1957) 99 CLR 575 at
614.


[528] [1957] HCA 54 ; (1957) 99 CLR 575 at
615.


[529] [1957] HCA 54 ; (1957) 99 CLR 575 at
615.


[530] [1947] HCA 26 ; (1947) 74 CLR 31 at 61.


[531] [1947] HCA 26 ; (1947) 74 CLR 31 at 62.


[532] [1957] HCA 54 ; (1957) 99 CLR 575 at
611-612, 658, 659-660.


[533] [2004] HCA 19 ; (2004) 216 CLR 595 at 626
[30] .


[534] [2004] HCA 19 ; (2004) 216 CLR 595 at 624
[26] .


[535] [2004] HCA 19 ; (2004) 216 CLR 595 at 644
[91] .


[536] See also The Commonwealth
v Queensland [1920] HCA 79 ; (1920) 29 CLR 1 at 11, 21-22, 26-27, 28; [1920] HCA 79 ; Wenn
v Attorney-General (Vict) [1948] HCA 13 ; (1948) 77 CLR 84 at 111-112, 114, 120, 122; [1948]
HCA 13. 


[537] (1962) 107 CLR 46; [1962]
HCA 8. 


[538] (1992) 175 CLR 453; [1992]
HCA 52. 


[539] [1995] HCA 47 ; (1995) 183 CLR 373.


[540] The Tasmanian Dam Case
[1983] HCA 21 ; (1983) 158 CLR 1 at 260.


[541] [1996] HCA 29 ; (1996) 187 CLR 579 at
603.


[542] Ngurli Ltd v McCann
[1953] HCA 39 ; (1953) 90 CLR 425 at 438; [1953] HCA 39. See also Whitehouse v Carlton
Hotel Pty Ltd [1987] HCA 11 ; (1987) 162 CLR 285 at 289-290; [1987] HCA 11 ; SGH Ltd v
Federal Commissioner of Taxation [2002] HCA 18 ; (2002) 210 CLR 51 at 71-72 [29] ; [2002] HCA
18 ; Australian Securities and Investments Commission v Lewski (2018) 93
ALJR 145 at 161-162 [75]; 362 ALR 286 at 305; [2018] HCA 63. 


[543] Enfield City Corporation
v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 149 [30] ; [2000]
HCA 5. See also Thompson v Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 106;
[1950] HCA 33. 


[544] [1920] HCA 54 ; (1920) 28 CLR 129 at
152.


[545] On purposive powers, see
Stenhouse v Coleman [1944] HCA 36 ; (1944) 69 CLR 457 at 471; [1944] HCA 36 ;
Murphyores Incorporated Pty Ltd v The Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1
at 11; [1976] HCA 20 ; Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 at
353-355. Compare Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6 ; (1955) 93 CLR
55 at 77; [1955] HCA 6 ; Nationwide News Pty Ltd v Wills [1992] HCA 46 ; (1992) 177 CLR 1
at 26-27.


[546] Compare this approach to
abuse of process: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 529, 537;
[1992] HCA 34 ; Walton v Gardiner (1993) 177 CLR 378 at 410; [1993] HCA
77. 


[547] [1947] HCA 26 ; (1947) 74 CLR 31 at 79.


[548] Mulholland v Australian
Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at 238-239 [159] ; compare at 267
[251], Smith v Oldham [1912] HCA 61 ; (1912) 15 CLR 355 at 358, and Langer v The
Commonwealth [1996] HCA 43 ; (1996) 186 CLR 302 at 324-325.


[549] Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 242-243; see
also at 163-164.


[550] McCloy [2015] HCA 34 ; (2015) 257 CLR
178 at 205 [36] .


[551] McCloy [2015] HCA 34 ; (2015) 257 CLR
178 at 205 [38] .


[552] Queensland Electricity
Commission v The Commonwealth [1985] HCA 56 ; (1985) 159 CLR 192 at 207.


[553] Compare Austin v The
Commonwealth [2003] HCA 3 ; (2003) 215 CLR 185 at 219-220 [28] - [29] , 265 [170], 285 [233];
Clarke v Federal Commissioner of Taxation [2009] HCA 33 ; (2009) 240 CLR 272 at 297-298
[31] , 308-309 [72], 315-316 [101].


[554] See Electoral Funding Act
2018 (NSW), ss 24(2) , 37 (2)(a), (7); Electoral Act 2002 (Vic),
ss 207F(1) , (3), 217D (4); Electoral Act 1985 (SA), ss 130C ,
130K (1), 130L (b), 130M (1a).


[555] [1984] HCA 74 ; (1984) 158 CLR 447.


[556] Viskauskas v Niland
(1983) 153 CLR 280; [1983] HCA 15. 


[557] Metwally [1984] HCA 74 ; (1984) 158
CLR 447 at 459, 469, 475, 477.


[558] [1984] HCA 74 ; (1984) 158 CLR 447 at
457-458, 469, 475, 479.


[559] [1984] HCA 74 ; (1984) 158 CLR 447 at
471.


[560] [1984] HCA 74 ; (1984) 158 CLR 447 at 460,
485.


[561] [1984] HCA 74 ; (1984) 158 CLR 447 at
461-462, 485.


[562] [1984] HCA 74 ; (1984) 158 CLR 447 at 458,
477.


[563] See, in a different context,
Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd 
[1994] HCA 61 ; (1994) 182 CLR 51 at 89, 100-101; compare at 67; [1994] HCA 61. 


[564] See Juratowitch,
Retroactivity and the Common Law (2008) at 47-48.


[565] See the discussion in
Metwally [1984] HCA 74 ; (1984) 158 CLR 447 at 470-471.


[566] Metwally [1984] HCA 74 ; (1984) 158
CLR 447 at 478.