Case note: McCloy v New South Wales: political donations, political communication and the place of proportionality analysis

In McCloy v New South Wales, [1] a majority of the High Court held that the challenged provisions of the Election Funding, Expenditure and Disclosures Act 1981 (Cth) (EFED Act), which imposed certain restrictions on political donations, did not impermissibly burden the implied freedom of political communication. Despite being part of Australian constitutional law for more than two decades, [2] and a flurry of recent litigation, [3] the implied freedom of political communication continues to divide judicial opinion. [4] Although since 1997 the Court has consistently confirmed, and occasionally refined, the two-stage test developed in Lange v Australian Broadcasting Corporation (the Lange test), [5] some aspects of this test remain uncertain. In particular, in a number of recent judgments, [6] there have been diverging views on the place of proportionality analysis in determining whether a law is reasonably appropriate and adapted to advance a legitimate object. In McCloy, four members of the Court, writing jointly, refined the second limb of the Lange test to expressly incorporate a structured, three-part proportionality test.