In 2018, the Queensland Parliament amended the Electoral Act 1992 (Qld) and another Act to prohibit property developers from making gifts to political parties that promote candidates for election to the Queensland Parliament. The Commonwealth Parliament responded by amending the Commonwealth Electoral Act 1918 (Cth) to insert s 302CA, which expressly permitted any person to make gifts to political parties registered under the Commonwealth Act, where the gift was required to be used, or may be used, for Commonwealth electoral purposes.
The plaintiff challenged the validity of the Queensland amendments on the basis that: (a) they infringed the implied freedom of political communication; (b) they intruded on an area of exclusive Commonwealth legislative power; (c) they infringed the doctrine of intergovernmental immunities; and (d) they were inconsistent with s 302CA of the Commonwealth Act.
Queensland responded by challenging the validity of s 302CA of the Commonwealth Act on the basis that: (a) it was beyond the legislative power of the Commonwealth Parliament; (b) it infringed the principle recognised in Melbourne Corporation; and (c) to the extent that it had a retrospective operation, it infringed the principle identified in University of Wollongong v Metwally.
The Attorneys-General of the Commonwealth, each of the States and the Australian Capital Territory intervened in the proceeding.
A majority of the Court held that s 302CA of the Commonwealth Act was invalid, and that the Queensland amendments were valid. Section 302CA was beyond the legislative power of the Commonwealth Parliament to the extent that it purported to immunise from State law the making of a gift that only “may be” be used for Commonwealth electoral purposes, and could not be severed. The Queensland amendments did not infringe the implied freedom, and did not intrude on an area of exclusive Commonwealth legislative power or infringe the doctrine of intergovernmental immunities.
