McCloy v New South Wales: Developer Donations and Banning the Buying of Influence

Abstract

The case of McCloy v New South Wales, which is currently before the High Court of Australia, involves a challenge to the capping of political donations and the imposition of a ban on both indirect donations and donations from property developers in relation to New South Wales elections. If the challenge is successful, it would seriously damage the ability of Australian state governments to take measures to prevent the risk and perception of corruption and undue influence arising from the unfettered making of political donations. This article discusses the issues confronting the High Court and speculates upon how it might deal with them, noting and contrasting the position in the United States. While it is likely that the provisions capping donations and banning indirect donations will survive scrutiny by the High Court, the provisions most vulnerable to attack are those that single out property developers, banning them from making any donation at all.

Keywords: Political donations, election campaign finance, corruption, freedom of expression, freedom of political communication, voting

JEL Classification: K10, K30