Christmas came early for constitutional law nerds when the High Court declared NSW political donor restriction laws invalid as they infringed the implied freedom of political communication. This now means that companies and other associations will again be able to make political donations in NSW (unless you belong to the liquor, gaming, tobacco or property development industries which remain banned).

In 2012 NSW controversially amended electoral laws prohibiting donations to political parties, members, groups, candidates or third party campaigners by anyone except individuals on the electoral roll. The purpose of the law was to reduce any corrupt influence on the political process in NSW. It was an understandable aim with a very wide-reaching effect, cutting a substantial amount of funding from parties as corporations and unions were suddenly left out of the picture. As you can imagine the laws didn't go down too well. Unions NSW challenged the State of NSW, ending up in the High Court.

There isn't an express right to free speech in the Australian Constitution, however the High Court has said that an implied freedom of political communication exists. What that means is that if a law burdens the implied freedom in a way which is not proportionate to a legitimate purpose, it is invalid.

In the Unions case the question was whether the NSW law was proportionate to serving the end of preventing undue influence and corruption in the political process. The Court held that a prohibition based solely on the sources of donations did not have enough of a connection to the aim of preventing corruption.

The Court also found that a restriction on the amount that political parties may spend on electoral communication was invalid.

The implied freedom of political communication is the flavour of the year, and this decision further reinforces that it's a freedom the Courts are taking seriously.

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