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:

a) 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.

b) 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.

c) 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.

d) 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.

e) 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) 74 CLR 31?

Answer: Does not arise.

f) 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) 158 CLR 447, namely that a Commonwealth law cannot override the operation of section 109 of the Constitution?

Answer: Unnecessary to decide.

g) 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.

h) 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.

i) 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.

   [1]eg, New South Wales v The Commonwealth (Work Choices Case) (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) 74 CLR 31 at 82; [1947] HCA 26.

   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 CorporationCase. 

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

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.

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

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].

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

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. 

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

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].

    [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.

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].

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

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]. 

    [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").

    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].

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

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].

    [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.

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].

    [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. "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].

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

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

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 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.

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]. 

    [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).

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".

    [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].

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].

    [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").

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].      

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

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.      

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

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.

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

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

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].

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

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.

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

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].

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

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.

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

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

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

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

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

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

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. 

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

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].

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

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

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

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

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].

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

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

    [62]Fabre v Ley (1972) 127 CLR 665 at 669; [1972] HCA 65; Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 57-58; [1975] HCA 53; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 185, 219-220, 225-226, 234; [1992] HCA 45; Langer v The Commonwealth (1996) 186 CLR 302 at 315, 317, 339, 348-349; [1996] HCA 43; Mulholland v Australian Electoral Commission (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) 134 CLR 201 at 233-234, 268-275, 287; [1975] HCA 46.

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 CorporationCase.

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.

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

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

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 CorporationCase 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.

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

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].

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

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

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

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

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]. 

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

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

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

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

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

    [76]Melbourne Corporation Case (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) 229 CLR 1 at 104 [142].

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.

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

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

    [80](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.

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].

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

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". 

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

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

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."

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

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

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].

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

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].

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

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

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

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

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].

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

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

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."

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

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]. 

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

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."

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

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."

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

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.

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

    [98]Fisher v Fisher (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. 

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].

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

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].

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

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

    [102]Sykes v Cleary (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) 91 ALJR 311 at 315 [13]; 341 ALR 1 at 5; [2017] HCA 4; Re Nash [No 2] (2017) 92 ALJR 23 at 28 [23]; 350 ALR 204 at 209-210; [2017] HCA 52.

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

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.

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

    [105]See above at [23].

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.

     [509]Commonwealth Electoral Act, s 302F(2).

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.

     [510](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) 229 CLR 1 at 121-122 [198], 140 [260].

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.

     [511]Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 368-369; [1995] HCA 16; Leask v The Commonwealth (1996) 187 CLR 579 at 601, 621; [1996] HCA 29.

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."

     [512]The Tasmanian Dam Case (1983) 158 CLR 1 at 152; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 368-369; Leask v The Commonwealth (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) 229 CLR 1 at 103 [142].

     [513](1994) 182 CLR 272 at 321. See also Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 354; [1948] HCA 7; Leask v The Commonwealth (1996) 187 CLR 579 at 602-603, 624.

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.

     [514]Melbourne Corporation (1947) 74 CLR 31 at 79; The Tasmanian Dam Case (1983) 158 CLR 1 at 152; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 369; Leask v The Commonwealth (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) 220 CLR 181 at 208 [66]; New South Wales v The Commonwealth (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) 127 CLR 665 at 669; [1972] HCA 65.

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."

     [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.

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].

     [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) 93 ALJR 166 at 201-202 [174]; 363 ALR 1 at 46.

     [521](1957) 99 CLR 575; [1957] HCA 54.

     [522](1957) 99 CLR 575 at 614-615, 626, 658, 661-662.

     [523](1957) 99 CLR 575 at 613.

     [524](1957) 99 CLR 575 at 613.

     [525](1957) 99 CLR 575 at 613.

     [526](1957) 99 CLR 575 at 615.

     [527](1957) 99 CLR 575 at 614.

     [528](1957) 99 CLR 575 at 615.

     [529](1957) 99 CLR 575 at 615.

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.

     [530](1947) 74 CLR 31 at 61.

     [531](1947) 74 CLR 31 at 62.

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]."

     [532](1957) 99 CLR 575 at 611-612, 658, 659-660.

     [533](2004) 216 CLR 595 at 626 [30].

     [534](2004) 216 CLR 595 at 624 [26].

     [535](2004) 216 CLR 595 at 644 [91].

     [536]See also The Commonwealth v Queensland (1920) 29 CLR 1 at 11, 21-22, 26-27, 28; [1920] HCA 79; Wenn v Attorney‑General (Vict) (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) 183 CLR 373.

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.

     [540]The Tasmanian Dam Case (1983) 158 CLR 1 at 260.

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.

     [541](1996) 187 CLR 579 at 603.

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.

     [542]Ngurli Ltd v McCann (1953) 90 CLR 425 at 438; [1953] HCA 39. See also Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 at 289-290; [1987] HCA 11; SGH Ltd v Federal Commissioner of Taxation (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) 199 CLR 135 at 149 [30]; [2000] HCA 5. See also Thompson v Randwick Corporation (1950) 81 CLR 87 at 106; [1950] HCA 33.

     [544](1920) 28 CLR 129 at 152.

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."

     [545]On purposive powers, see Stenhouse v Coleman (1944) 69 CLR 457 at 471; [1944] HCA 36; Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 11; [1976] HCA 20; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 353-355. Compare Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77; [1955] HCA 6; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 26-27.

     [546]Compare this approach to abuse of process:  Williams v Spautz (1992) 174 CLR 509 at 529, 537; [1992] HCA 34; Walton v Gardiner (1993) 177 CLR 378 at 410; [1993] HCA 77.

     [547](1947) 74 CLR 31 at 79.

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

     [548]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 238-239 [159]; compare at 267 [251], Smith v Oldham (1912) 15 CLR 355 at 358, and Langer v The Commonwealth (1996) 186 CLR 302 at 324-325.

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].

     [549]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 242-243; see also at 163-164.

     [550]McCloy (2015) 257 CLR 178 at 205 [36].

     [551]McCloy (2015) 257 CLR 178 at 205 [38].

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].

     [552]Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 207.

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].

     [553]Compare Austin v The Commonwealth (2003) 215 CLR 185 at 219-220 [28]-[29], 265 [170], 285 [233]; Clarke v Federal Commissioner of Taxation (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).

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].

     [555](1984) 158 CLR 447.

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].

     [556]Viskauskas v Niland (1983) 153 CLR 280; [1983] HCA 15.

     [557]Metwally (1984) 158 CLR 447 at 459, 469, 475, 477.

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.

     [558](1984) 158 CLR 447 at 457-458, 469, 475, 479.

     [559](1984) 158 CLR 447 at 471.

     [560](1984) 158 CLR 447 at 460, 485.

     [561](1984) 158 CLR 447 at 461-462, 485.

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].

     [562](1984) 158 CLR 447 at 458, 477.

     [563]See, in a different context, Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 89, 100-101; compare at 67; [1994] HCA 61.

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.

     [564]See Juratowitch, Retroactivity and the Common Law (2008) at 47-48.

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.

     [565]See the discussion in Metwally (1984) 158 CLR 447 at 470-471.

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.

     [566]Metwally (1984) 158 CLR 447 at 478.

     Conclusion

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