Wheatley v State of New South Wales

Legislative framework

1. The EFED Act relevantly commenced on 14 August 1981. [8] Its original title was the Election Funding Act 1981 (NSW). The long title of the EFED Act is: "An Act to make provision for the public funding of Parliamentary election campaigns and to require the disclosure of certain political donations and electoral expenditure; and for other purposes." It was passed to implement, with some variations, recommendations of a Joint Committee, including establishing a system whereby elections would be partly publicly funded. As passed, the EFED Act required disclosure by both parties and candidates of "political contributions" and "electoral expenditure". These disclosures were required to be publicly available. There was no upper limit on "political contributions". [9]
2. The EFED Act was amended by the Election Funding and Disclosures Amendment Act 2010 (NSW) (2010 Amendment Act) which introduced or amended many of the provisions on which these proceedings turn. In particular, it inserted Divs 2A and 2B of Pt 6, which provide for caps on both political donations and electoral communications expenditure (ECE). [10]
3. The structure of the EFED Act is important. Part 1 deals with preliminary matters, including definitions (s 4) and the objects of the Act (s 4A). Part 3 deals with the responsibilities of the Commission. Part 4 deals with the registration of candidates, groups, third-party campaigners and agents for State and local government elections.
4. Part 5 provides for public funding of State election campaigns from an Election Campaigns Fund (established by Div 2) to be kept by the Commission in respect of State elections (s 56(1)). It also provides for how registered parties are eligible for payments from the Election Campaigns Fund in respect of a State election (other than a by-election for the Assembly) (s 57) and for the amount of public funding for eligible parties (s 58). It also provides for how candidates are eligible to receive payments from the Election Campaigns Fund in respect of a State election (s 59) and the amount of public funding for eligible candidates (s 60). Significantly, s 61(1) precludes for the purposes of Div 2, the same item of ECE being included as expenditure of both a candidate and the party that endorses the candidate. If any such item of expenditure is claimed by both the candidate and the party, the expenditure is taken to be that of the party and not the candidate (s 61(2)).
5. Part 6 deals with political donations and electoral expenditure. Parts 5 and 6 are linked by s 54B which provides that words and expressions used in Part 5 and in Pt 6 have the same meaning in Pt 5 as they have in Pt 6, except where the contrary intention appears.
6. Within Pt 6, Div 1 sets out both general and specific definitions, Relevantly, Div 2 deals with disclosure of political donations and electoral expenditure, Div 2A deals with caps on political donations for State elections, Div 2B deals with caps on ECE for State election campaigns, Div 3 deals with the management of donations and expenditure, while Div 5 deals with miscellaneous matters, including the recovery of unlawful donations (s 96J).
7. As the primary judge observed, public funding of State election campaigns is an important feature of the EFED Act. Part 7A made special provisions for the 2015 State general election, of which only s 103C dealing with the amount of funding the Party would receive, is relevant. In that respect, it is common ground that for each first preference vote in favour of either Mr Ouiek or Mr Brookes, each being a candidate for the Legislative Assembly in the 2015 State election, the Party would receive $4 in public funding. [11]
8. I return to the details of the EFED Act.
9. The objects of the EFED Act as set out in s 4A are: (a) to establish a fair and transparent election funding, expenditure and disclosure scheme, (b) to facilitate public awareness of political donations, (c) to help prevent corruption and undue influence in the government of the State, (d) to provide for the effective administration of public funding of elections, recognising the importance of the appropriate use of public revenue for that purpose, (e) to promote compliance by parties, elected members, candidates, groups, agents, third-party campaigners and donors with the requirements of the election funding, expenditure and disclosure scheme. [12]
10. Section 22(2) in Pt 3 requires the Commission to have regard to the objects of the EFED Act in exercising its functions under the EFED Act.
11. The Commission's particular functions, also in Pt 3, are set out in s 23 as follows: 23 Particular Functions (1) Without affecting the generality of section 22, the Electoral Commission has the responsibility of dealing with: … (c) disclosures of, and caps on, political donations and electoral expenditure under Part 6, and (d) claims for payments under Part 6A. (2) For the purpose of ensuring compliance with this Act, the Electoral Commission is authorised to make an application to the Supreme Court for an injunction, declaration or other order that is within the jurisdiction of the Court.
12. Section 41 in Pt 4, Div 3 requires a party to appoint one party agent who must be registered. The primary judge described the "party agent" as being the "agent for a party, which is therefore the principal on behalf of which the agent acts [and also] … the natural person who is required to perform certain statutory obligations on behalf of a party, which is the relevant 'right and duty bearing entity.'" [13]
13. As I have said, Pt 6 regulates the income and expenditure of parties and candidates by capping political donations (Div 2A) and ECE (Div 2B) and requiring disclosure of political donations and ECE in audited statements submitted by candidates and parties to the Commission (Div 2). [14] Part 6 applies to State elections and elected members of Parliament, and local government elections and elected members of councils, save that Divs 2A and 2B apply only to State elections: s 83(1)(b), s 95AA, s 95E.
14. The application of Pt 6 in relation to the 2015 State general election is modified by Pt 7A. Save to the extent that s 103C dealing with the amount of public campaign funding for eligible parties appears in Pt 7A, neither party suggested that Pt 7A of the EFED Act was relevant.
15. The following provisions appear in Pt 6, Div 1 (Preliminary). 84 Definitions - general (1) In this Act: … gift means any disposition of property [15] made by a person to another person, otherwise than by will, being a disposition made without consideration in money or money's worth or with inadequate consideration, and includes the provision of a service (other than volunteer labour) for no consideration or for inadequate consideration. … (7) For the purposes of this Part, an amount of electoral expenditure by a candidate for election to the Assembly includes, if the candidate is the endorsed candidate of a registered party, any amount of electoral expenditure that is: (a) incurred by that party for the benefit of the candidate or for the benefit of the candidate and other candidates endorsed by the party at the election (whether or not as an agent for the candidate), and (b) invoiced by that party to the candidate for payment (whether or not the candidate has a legal liability to pay to the party the amount invoiced). [Emphasis added.] 85 Meaning of "political donation" (1) For the purposes of this Act, a political donation is: (a) a gift made to or for the benefit of a party, or (b) a gift made to or for the benefit of an elected member, or (c) a gift made to or for the benefit of a candidate or a group of candidates, … … 87 Meaning of "Electoral Expenditure" and "Electoral Communication Expenditure" (1) For the purposes of this Act, electoral expenditure is expenditure for or in connection with promoting or opposing, directly or indirectly, a party or the election of a candidate or candidates or for the purpose of influencing, directly or indirectly, the voting at an election. (2) For the purposes of this Act, electoral communication expenditure is electoral expenditure of any of the following kinds …".
16. Section 87(2) includes a long list of matters which constituted ECE, including expenditure on advertisements in various media, the production and distribution of election material, and other associated expenses. As I have said, s 61 provides that the same item of ECE cannot be claimed as expenditure of both a candidate and the party that endorses the candidate. If this occurs, the item of ECE is taken to be that of the party and not the candidate.
17. The primary judge commented that s 84(7) "would appear to permit the party to arrange for, say, printing of how-to-vote cards, to be done for the benefit of a particular candidate, and pay the invoice for that printing, but have the expense treated as the candidate's ECE expenditure because it was incurred for the benefit of the particular candidate, who is invoiced for the amount of such expenditure." Her Honour added that it was "relevant for present purposes because it is referred to in correspondence between the Party and the Electoral Commission", which her Honour set out in her reasons. Finally, it was also significant because it contains the words, "the benefit of the candidate" which was "to be contrasted with, and distinguished from, the words, 'the benefit of a party', which appear, for example, in s 85 of the Act." [16]
18. Part 6, Div 2 deals with the disclosure of political donations and electoral expenditure. As the primary judge explained, s 88 requires disclosure of political donations and electoral expenditure by, relevantly, both parties and candidates. Under s 90 the person responsible for making the disclosure by a party is the party agent, and by a candidate, the candidate's official agent. Disclosures are to be made to the Commission: s 91. Section 92 imposes requirements for the disclosure of all political donations and the details (name, date, amount etc) which are to be disclosed. Section 93 requires disclosure of all electoral expenditure, whether or not it is incurred during the capped period. Section 94 provides that multiple disclosures are not required of the same items. Thus, if an item has been disclosed by someone who is a candidate, it need not also be disclosed by that person when he or she becomes an elected member. If an item has been disclosed in relation to a member of a group, it need not also be disclosed in relation to the group of which the person is a member. Section 95 requires the Commission to make these disclosures public on its website. [17]
19. Part 6, Div 2A (Disclosure of Political Donations and Electoral Expenditure) is at the heart of the case. It relevantly provides: 95A Applicable cap on political donations (1) General cap The applicable cap on political donations is as follows: (a) $5,000 for political donations to or for the benefit of a registered party, … (c) $2,000 for political donations to or for the benefit of an elected member, … (e) $2,000 for political donations to or for the benefit of a candidate… (2) Aggregation of donations during financial year A political donation of or less than an amount specified in subsection (1) made by an entity or other person is to be treated as a donation that exceeds the applicable cap on political donations if that and other separate political donations made by that entity or other person to the same party, elected member, group, candidate or third-party campaigner within the same financial year would, if aggregated, exceed the applicable cap on political donations referred to in subsection (1). (3) Aggregation of donations to elected members, groups or candidates of same party A political donation of or less than an amount specified in subsection (1) made by an entity or other person to an elected member, group or candidate is to be treated as a donation that exceeds the applicable cap on political donations if that and other separate political donations made by that entity or other person to elected members, groups or candidates of the same party within the same financial year would, if aggregated, exceed the applicable cap on political donations referred to in subsection (1). (4) Non-aggregation of contributions to candidate's own campaign For the avoidance of doubt, a candidate's contribution to finance his or her own election campaign is not a political donation and is not included in the applicable cap on political donations to the candidate. Note. Political donations in relation to separately registered parties that are in coalition or otherwise associated are not aggregated and, accordingly, the applicable cap applies separately in relation to each such registered party. (5) Indexation of capped amounts Each of the amounts referred to in subsection (1) is an adjustable amount that is to be adjusted for inflation as provided by Schedule 1. [18] [Emphasis added.] 95B Prohibition on political donations that exceed applicable cap (1) General prohibition It is unlawful (subject to this section) for a person to accept a political donation to a party, elected member, group, candidate or third-party campaigner if the donation exceeds the applicable cap on political donations.
20. Part 6, Div 2B deals with caps on ECE for State election campaigns, relevantly for candidates for the Legislative Assembly and parties which endorse such candidates, as follows: 95F Applicable Caps on electoral communication expenditure on State election campaigns (1) General The applicable caps on electoral communication expenditure for a State election campaign are as provided by this section, as modified by section 95G. (2) Parties with Assembly candidates in a general election For a State general election, the applicable cap for a party that endorses candidates for election to the Assembly is $100,000 multiplied by the number of electoral districts in which a candidate is so endorsed. [19] … (6) Party candidates in Assembly general election For a State general election, the applicable cap for a candidate endorsed by a party for election to the Assembly is $100,000. (7) Independent candidates in Assembly general election For a State general election, the applicable cap for a candidate not endorsed by any party for election to the Assembly is $150,000 .… (12) Additional cap for individual Assembly seats The applicable cap for parties … is subject to an additional cap (within the overall applicable cap) in relation to State general elections … for electoral communication expenditure incurred substantially for the purposes of the election in a particular electorate, being: (a) in the case of a party - $50,000 in respect of each such electorate, [20] … (13) For the purposes of subsection (12), electoral communication expenditure is only incurred for the purposes of the election in a particular electorate if the expenditure is for advertising or other material that: (a) explicitly mentions the name of a candidate in the election in that electorate or the name of the electorate, and (b) is communicated to electors in that electorate, and (c) is not mainly communicated to electors outside that electorate. [Emphasis added.]
21. Section 95G deals with the aggregation of applicable caps. It is sufficiently described by the primary judge as providing for the aggregation of certain ECE, including that of endorsed candidates and parties for Legislative Assembly by-elections (s 95G(5)). In her Honour's view, "[t]hese sections proceed on the basis that expenditure by a party is separate from expenditure by a candidate (because otherwise they would not need to be aggregated)." [21]
22. Section 95I provides: 95I Prohibition on incurring electoral communication expenditure exceeding applicable cap during State campaigns (1) It is unlawful for a party, group, candidate or third-party campaigner to incur electoral communication expenditure for a State election campaign during the capped expenditure period for the election if it exceeds the applicable cap on electoral communication expenditure. (2) If the electoral communication expenditure of any party, group, candidate or third-party campaigner is less than the applicable cap, the balance is not transferrable so as to increase the applicable cap of any other party or person. (3) The applicable cap for a candidate or group of candidates is for electoral communication expenditure directed at the election of the candidate or group.
23. Part 6, Div 3 deals with the management of donations and expenditure. Section 96 deals with the requirement for parties, s 96A with the requirements for elected members, groups and candidates and s 96AA (which it is unnecessary to reproduce) with the requirement for third-party campaigners. It relevantly provides: 96 Requirements for parties … (3) It is unlawful for a party to make payments for electoral expenditure for a State election campaign unless the payment is made from the State campaign account of the party kept in accordance with this section. (4) The State campaign account of a party is to be a separate account with a bank, credit union, building society or other entity prescribed by the regulations. (5) The following may be paid into the State campaign account of a party: (a) political donations made to the party after 1 January 2011 (including the proceeds of the investment or disposal of any political donation of property after that date that is held as an asset of the account),… (6) However, the following may not be paid into the State campaign account of a party: … (b) any amount of a political donation to the party that exceeds the applicable cap on political donations to the party under Division 2A, … (7) This section does not prevent payments being made out of the State campaign account that are in addition to the payments for electoral expenditure referred to in subsection (3). 96A Requirements for political donations to, and electoral expenditure by, elected member, group or candidate (1) It is unlawful for political donations to an elected member to be accepted unless: (a) the member has an official agent, and (b) the donations are made to that agent. (2) It is unlawful for political donations to a group or candidate to be accepted unless: (a) the group or candidate is registered under this Act, and (b) the group or candidate has an official agent, and (c) the donations are made to that agent. (3) It is unlawful for political donations to an elected member, group or candidate to be used to incur electoral expenditure or reimburse a person for incurring electoral expenditure unless: (a) the donations were paid by the official agent into a campaign account of the member, group or candidate kept in accordance with section 96B, and (b) the payment for that electoral expenditure is made by that agent from that campaign account. (4) Subject to the regulations, a person (other than an elected member or candidate) may be appointed in writing by an official agent to accept political donations to be made to the official agent or to make payments for electoral expenditure from a campaign account by the official agent, or both. (5) It is unlawful for an elected member to make payments for electoral expenditure for their own election or re-election unless the payments are made from their campaign account kept in accordance with section 96B. The guidelines of the Electoral Commission may exclude minor payments from the operation of this subsection. (5A) It is unlawful for a candidate or group to make payments for electoral expenditure for their own election or re-election unless the group or candidate is registered under this Act and the payments are made from their campaign account kept in accordance with section 96B. The guidelines of the Electoral Commission may exclude minor payments from the operation of this subsection. (6) It is unlawful for political donations to an elected member, group or candidate to be used otherwise than: (a) to incur electoral expenditure or reimburse a person for incurring electoral expenditure, or (b) for any other purpose authorised by this Act. Note. See section 96B (5). (7) Despite anything to the contrary in this section, it is not unlawful for an elected member, group or candidate to accept political donations and incur electoral expenditure without a campaign account if: (a) the political donations are not reportable political donations and the total amount of those donations for the election period does not exceed $1,000, or (b) the political donations are not reportable political donations and the total amount of electoral expenditure for the election period does not exceed $1,000, or (c) the regulations authorise the member, group or candidate to do so. The election period includes the period ending 30 days after the polling day for the election and also includes the period commencing 30 days after polling day for the previous general election for the State or local government area, as the case requires. Note. See also section 49 which provides for the candidate to be his or her own official agent when a campaign account is not required. Disclosure of political donations and electoral expenditure is still required even if a campaign account is not required under this subsection. [Emphasis added.]
24. The primary judge described s 96A as highlighting the importance of the candidate campaign account as the account into which donations are to be paid by the official agent and from which electoral expenditure is to be paid by that agent. [22] Neither Mr Brookes nor Mr Oueik had a candidate campaign account. Her Honour described s 96A(5A) as providing for self-funding by a candidate. [23]
25. Section 96B, also in Pt 6, Div 3 deals with campaign accounts of elected members, groups or candidates as follows: 96B Campaign accounts of elected members, groups or candidates (1) The campaign account of an elected member, group or candidate is to be a separate account with a bank, credit union, building society or other entity prescribed by the regulations. (2) The official agent for the time being of the elected member, group or candidate to whom the account belongs is to be authorised to operate the account, and that member, group or candidate is not to operate the account. (3) A single account may be kept for a number of elected members, groups or candidates with the same official agent if the funds of (and relevant transactions relating to) each member, group or candidate are accounted for separately. This subsection has effect despite subsection (1) but subject to the regulations under subsection (7). (4) In addition to political donations, money may be paid into a campaign account by the elected member, group or candidate to whom the account belongs. In that case, the amount paid and the terms on which the payment was made are to be disclosed in the relevant declaration lodged under this Part for the period in which the amount was paid. Note. Section 77 (2A) requires election funding payments under Part 5 for a candidate or group to be paid into the relevant campaign account. (5) Payments out of a campaign account may only be made: (a) for the purposes of electoral expenditure incurred by or on behalf of the elected member, group or candidate to whom the account belongs, or (b) with the approval of the elected member, group or candidate to whom the account belongs, for the purposes of lawful expenditure referred to in section 96 incurred by or on behalf of the party of which they are a member, or (c) to reimburse the elected member, group or candidate for money paid into the account by the member, group or candidate, or (d) for the purpose of the elected member, group or candidate to whom the account belongs to make political donations to elected members, groups or candidates who are members of the same party, or (e) for the purposes of expenditure incurred in connection with parliamentary or council duties of the person to whom the account belongs or in connection with community activities. (6) Any amount remaining in a campaign account after the elected member, group or candidate to whom the account belongs ceases to be an elected member, group or candidate and no longer requires the account is to be paid: (a) to any party of which any such person was a member at the time the person last became an elected member or last contested an election to become an elected member, or (b) in the case of a group - to the campaign accounts (if any) belonging to the candidates who were members of the group (the amount being divided equally among the candidates), or (c) subject to paragraphs (a) and (b) - to a charity nominated by the person or by the Electoral Commission (if the person cannot be contacted after due inquiry). (7) The regulations may make provision for or with respect to campaign accounts (including the control of accounts, the keeping of joint accounts and the provision of information to and the audit of accounts by the Electoral Commission).
26. Section 96C deals with the requirement of person accepting reportable donations to record the details of the donation as follows: 96C Person accepting reportable political donations to record details (1) It is unlawful for a person to accept a reportable political donation that is required to be disclosed under this Part unless the person: (a) makes a record of the details required to be disclosed under this Part in relation to the donation, and (b) provides a receipt for the donation (being a receipt that includes a statement required by the regulation as to the circumstances in which the donor is obliged to disclose the donation under this Part). Note. Section 96I (2) requires the above record to be kept for at least 3 years. (2) This section does not apply to a political donation that is not a reportable political donation at the time it is made. Note. Political donations of less than $1,000 may become reportable political donations if separate donations by the same person in the same financial year exceed $1,000. [Emphasis added.]
27. Part 6, Div 5 deals with miscellaneous matters. Relevantly, s 96J, on which the Commission relied to recover the amount claimed, provides: 96J Recovery of unlawful donations etc (1) If a person accepts a political donation … that is unlawful because of this Part, an amount equal to the amount … of the donation … (or double that amount if the person knew it was unlawful) is payable by that person to the State and may be recovered by the Electoral Commission as a debt due to the State from: (a) in the case of a donation … received by a party that is a body corporate - the party, or (b) in the case of a donation, loan or contribution received by a party that is not a body corporate - the party agent of the party. …
28. As I have said, there was no suggestion either Mr Wheatley (or his relevant predecessor of the party) knew the payments were unlawful.

Factual background

1. Mr Oueik and Mr Brookes were nominated by the Party as candidates for election to the New South Wales Legislative Assembly in the 2015 State election for the seats of Auburn and East Hills respectively. Mr Oueik was unsuccessful.
2. During the period from 1 October 2014 to 28 March 2015, the Party held two accounts with Westpac Banking Corporation, one of which known as the "7155 account". During this period, Simon McInnes was both the Party agent and the official agent for Mr Oueik and Mr Brookes. He was also one of the signatories on the 7155 account.
3. Mr Oueik made two payments of $120,000 and $30,000 to the 7155 account on 18 February 2015 and 9 April 2015 respectively. Although the latter payment was made after the election, it is not in issue that it was made to reimburse the Party for electoral expenditure incurred by the Party during the State election.
4. Mr Brookes paid $50,000 to the 7155 account on 4 March 2015. Mr Brookes also spent $77,959.81 on his election campaign which was not deposited into the 7155 account.
5. After the election, the Party agent and the official agent reported the following expenditures for the Auburn and East Hills seats from the 7155 account: [24] Electorate ECE disclosed as being candidate's ECE disclosed by Party as substantially for electorate (all from 7155 account) Total Auburn (Mr Oueik) $99,945.11 (from 7155 account) $47,559.45 $147,504.56 East Hills (Mr Brookes) $99,011.19 $28,948.62 $127,959.81

1. The total sum of $147,504.56 in ECE for Mr Oueik was derived from Mr Oueik's two payments to the 7155 account which totalled $150,000, which he described as "Self-funding monetary"). The total sum of $127,959.81 in ECE for Mr Brookes was derived from his payment of $50,000 to the 7155 account and the $77,959.81 he personally spent on his campaign. Mr Brookes described his contributions to the 7155 accounts as "Self-funding donation (in-kind)". The appellants contend these contributions were self-funding contributions within the meaning of s 95A(4) of the EFED Act.
2. On 28 March 2015, the Party invoiced Mr Oueik for the amount reported as his ECE ($99,945.1) and Mr Brookes for an amount of $99,371.19, which comprised the amount reported as his ECE ($99,011.10) and an in-kind donation. These invoices were rendered in purported compliance with s 84(7) of the EFED Act. [25]
3. The primary judge recorded the Party's disclosure following the State election as follows: "[55] On 22 September 2015 the Electoral Commission received the audited disclosure of political donations and electoral expenditure for the year ended 30 June 2015 from the Party, which was signed by Mr McInnes as party agent (the 2015 Party Disclosure). The 2015 Party Disclosure included, in Part B, a list of 'reportable donations received'. Almost all amounts in Part B were less than $5,000. Part C listed funds raised from various functions or ventures. Part E listed membership totals by various types of membership. Part F contained the disclosure of items of ECE by category. Relevantly, F1 related to advertising; F2 to production and distribution; and F7 to research. The schedules in Part F listed, in respect of each item, the date expenditure was incurred; the name of the supplier; a description of the goods or services supplied; the electorate or area for which the ECE was incurred (whether state-wide or by reference to a local government area or a particular electorate); and the classification of the item as either advertising; production and distribution; or research. The tables in the 2015 Party Disclosure indicated that, for the relevant period, the Party spent in the order of $4 million on advertising (in radio, television, the internet, cinemas, newspapers, billboards, posters, brochures, how-to-vote cards and other election material) and in the order of $2.3 million on the production and distribution of election materials. [56] The Party also supplied to the Electoral Commission copies of the bank statements for the 7155 account from 10 February 2015 to 10 April 2015. Those statements included the deposits made by Mr Oueik and Mr Brookes which are the subject of the proceedings. The Party also supplied a spreadsheet which extracted these deposits from the 'Transaction Report'."
4. In addition, the Commission received disclosures from Mr Brookes and Mr Ouiek as follows.
5. On 10 November 2015 the Commission received Mr Brookes's audited disclosures of political donations and electoral expenditure for the year ended 30 June 2015 (Brookes Disclosure). Mr Brookes disclosed that he had spent $133,220.81 on funding his campaign and had not received any political donations. Of the total, $50,000 represented the cash payment to the 7155 account; the balance comprised items each of which was described as "self-funding donation (in kind)". In addition, Mr Brookes disclosed the invoice he received from the Party on 28 March 2015 for $99,371.19. [26]
6. On the same day, the Commission received Mr Oueik's audited disclosures of political donations and electoral expenditure for the year ended 30 June 2015 (Oueik Disclosure). It disclosed that he had spent $150,000 on funding his campaign, which comprised the sum of the two cash payments to the 7155 account. The amount Mr Oueik reported as ECE was the $99,945.11 for which the Party had invoiced on him 28 March 2015. [27]
7. On analysis of the documents which substantiated the expenditure said to have been made by Mr Brookes and Mr Oueik, it was apparent that several items of expenditure were not confined to their respective electorates. [28] The appellants accepted that much of the advertising material which related to constituent invoices in the Brookes and Ouiek Disclosures was directed at an area beyond the specific electorate to which it was allocated, and in some cases, at the whole of New South Wales. However, they contended that such material was necessarily for the benefit of the candidate to whose account it had been allocated as, in effect, everything that benefited the Party provided a benefit of equivalent value (or at least of some value) to the candidate to whom the expenditure was allocated. [29]
8. Following the disclosures, the Commission made clear to the appellants its position that: "… if the candidate paid and authorised these campaign expenses that are reported in the party disclosure, our position would be that either: A. The candidate should have reported the expenditure in its disclosure declaration (there are no provision[s] similar to s 84(7) where a candidate can invoice a party whether or not there is legal liability to pay); or B. This constitutes a donation in kind by the candidate to the Party. We note that in this instance, both situations raise issues. Situation A would indicate a potential breach of electoral communication expenditure cap by the candidate, while situation B would result in a donation to the party over the cap." [30]
9. In an interview with the Commission on 24 August 2017, Mr Brookes explained his understanding that the $50,000 he deposited into the 7155 account was a donation to the Party. This was because as a Member of Parliament and member of a political party he was told to fundraise for the Party. As he did not "fundraise at all … I just give it to the Liberal Party" (sic, as in original.) [31]

The Commission's case at trial

1. The Commission sought the following declarations: "4. A declaration that: (a) payments made by a candidate to the State campaign account kept by a party pursuant to section 96 of the EFED Act [the Act] for the purposes of electoral expenditure are contributions to the party and therefore not capable of being a candidate's contribution to finance his or her own election campaign for the purposes of section 95A(4) of the EFED Act; and further (b) expenditure of such funds for the purposes of electoral communication expenditure is subject to the cap on electoral communication expenditure in section 95F(2) of the EFED Act, including party expenditure subject to the additional cap in s 95F(12) of the EFED Act. 5. In the alternative to prayer 4, a declaration that: (a) s. 95A(4) of the EFED Act only applies to a candidate's contribution to finance his or her campaign, where that contribution is used for electoral communication expenditure, to the extent that the candidate's contribution is to form part of his or her personal cap on electoral communication expenditure under s 95F(6) of the EFED Act; and further (b) s 95A(4) does not apply to a candidate's contribution to his or her party for the purpose of his or her party expending funds that are to form part of the party's cap on electoral communication expenditure under s 95F(2) of the EFED Act, including party expenditure subject to the additional cap in s 95F(12)of the EFED Act."
2. The Commission's case at trial was that the effect of the EFED Act was that if a candidate wanted to self-fund his or her own election campaign, the money had to be paid into that candidate's campaign account authorised by s 96B(1) or s 96B(3). It argued that funds that were paid into a party's campaign account, whether by a candidate, elected member or other person, were necessarily to be characterised as political donations and as the amounts Messrs Brookes and Ouiek had paid into that account exceeded the cap of $5000 (s 95A(1)(a)), they were unlawful political donations which could be recovered as a debt pursuant to s 96J. [32]
3. The Commission also argued that, because the 7155 account was the Party's campaign account, once the payments were made into that account, the depositor no longer had control over how the money could be spent. Accordingly, such payments ought to be regarded as a "gift" or a "disposition of property". The Commission contended that even if the 7155 account was not correctly characterised as the Party's campaign account, it was nonetheless an account which did not "belong" to the candidate and that, accordingly, the same conclusion would follow. [33] The Commission also argued there was a "bright line distinction" between a candidate's campaign expenditure (governed by ss 95A(4), 96B and 95F(6)) and a party's campaign expenditure (governed by ss 96, 95F(2) and 95F(12)). [34]

The appellants' case at trial

1. The appellants submitted that the 7155 account was not the Party's campaign account, rather they contended in their written submissions, it "had all the hallmarks of a candidate campaign account". In oral submissions in this Court, Mr Moses of Senior Counsel, who appeared for the appellants at trial and on appeal, accepted that "omnibus account" was a "fair description". This was because the 7155 account plainly served a number of purposes, including being the repository for a number of donations up to $2,000 (which might be inferred to be for individual candidates), a number of donations up to $5,000 (which might be inferred to be for the Party) and was the account from which various items of ECE in numerous electorates and throughout the State were paid. [35]
2. Mr Moses contended that the real question was the "nature and purpose" of the deposits Mr Brookes and Mr Oueik made into the 7155 account. [36] He argued that the payments were not prohibited by the cap because they were not donations. Rather, he contended they fell within s 95A(4), providing that "a candidate's contribution to finance his or her own election campaign is not a donation and is not included in the applicable cap on political donations to the candidate". He submitted that the payments were plainly made by the respective candidates for the purposes of their own campaigns and that, accordingly, the Party was bound to use the monies advanced for those purposes. He also contended that the deposits into the 7155 account could not be said to have been made "for no consideration or for no adequate consideration" because the depositors obtained the benefit of the monies being spent on their election campaigns. He argued that it could not be assumed that general advertising for the Party was not for the benefit of an individual candidate since a candidate, necessarily, obtained the benefit of a favourable electoral response to the Party which endorsed him or her. [37]

Primary judgment

1. The primary judge rejected a Briginshaw submission the appellants made, [38] on the basis that the appropriate standard was the civil standard, because no allegations of dishonourable or criminal behaviour had been made. [39]
2. The primary judge accepted that provisions of the EFED Act, including ss 96H, 96HA, 96HB, 96I and 96J, gave rise to potential penal and criminal consequences, a matter to which the court could have regard albeit as a matter of "last resort" in the process of statutory interpretation. [40]
3. The primary judge held that the scheme of the EFED Act makes a fundamental distinction between a candidate campaign account (whether under s 96B(1) or (3)) and a party campaign account under s 96, each of which must be used for its designated purpose. The distinction between the two types of accounts was manifested by the imposition of different rules for each relating to such matters as: caps on electoral expenditure; whether the terms of payment need to be disclosed in the declaration to the Commission; and whether a payment can be made from one account to another. [41]
4. The first difference lay in the difference in applicable caps on electoral expenditure. As her Honour explained: "[83] The candidate's expenditure on his or her election campaign is limited to $100,000 under s 95F(6). The applicable caps for a party are the Overall Cap (s 95F(2)); and the limitation in s 95F(12) that the party may not spend more than $50,000 directly on an electorate-specific campaign. This important distinction would be rendered nugatory if a candidate could 'fund' the party to spend $50,000 on ECE in his or her electorate beyond the limit of $100,000 imposed on the candidate's own campaign expenditure and have the $50,000 excluded from characterisation as a political donation by reason of the self-funding exception in s 95A(4). Section 95I relevantly provides that it is unlawful for a party or candidate to incur ECE if it exceeds the applicable cap. Section 95I(3) relevantly provides that the applicable cap for a candidate is for ECE directed at 'the election of the candidate'. This subsection uses the same language as s 95F(6), in that it refers to the 'applicable cap for a candidate'. It also indicates that ECE directed at the election of that candidate is treated as falling within the candidate cap in s 95F(6). The aggregation provided for in s 95G(4) and (5) proceeds on the basis that expenditure by a party is separate from expenditure by a candidate (because otherwise they would not need to be aggregated). The distinction is also consistent with the public funding provisions in Part 5, and, in particular, s 61, which provides that an item of ECE cannot be claimed as expenditure of both a candidate and his or her party."
5. The second difference was found in the requirement for the candidate to disclose the terms on which he or she paid money into the candidate campaign account.
6. The primary judge noted that the candidate's entitlement to pay money into his or her candidate campaign account was subject to the requirement that the amount paid and the terms on which it was paid be disclosed in the relevant declaration (s 96B(4)). However, there was no equivalent requirement for payments a candidate made to the party campaign account. Her Honour regarded the lack of a counterpart to s 96B(4) in the context of the party's campaign account as a powerful indication that Parliament intended neither to permit, nor to authorise, a candidate to make a payment to a party's campaign account for the purpose of having that money used in the candidate's own campaign. In her Honour's view: "[84] …Whereas the candidate's own campaign account 'belongs' (in the wording of s 96B(2)) to the candidate (subject to the requirements that it be operated by an official agent and that payments out of the account can only be made for authorised purposes), a party campaign account does not. If the Act contemplated that a candidate could make a payment into the party campaign account for his or her own campaign and his or her own benefit, one would expect there to be a statutory requirement that the terms on which the money was paid (that it be used for the campaign of the donor candidate) be disclosed. This is particularly so, having regard to the wording of s 96B(4). The maintenance of these distinctions, too, is inconsistent with a payment by a candidate to a party's campaign account being treated as other than a political donation or a payment authorised by s 96B(5)(b) …" [Emphasis added.]
7. The third difference lay in the "bridge between a candidate campaign account and a party campaign account" for which s 96B(5)(b) provided. In her Honour's view, s 96B(5)(b) was the avenue authorised by the Act by which a candidate can pay his or her party for campaign expenses. Such expenditure had to be treated, and disclosed, as expenditure on the party's election campaign and not on the candidate's own campaign. Her Honour held that s 96B(5)(b) was inconsistent with the proposition that the EFED Act left open the possibility of a candidate funding his or her own campaign by channelling money through an account other than the candidate campaign account. Rather, the fact that payments under s 96B(5)(b) were required to be made from the candidate campaign account to the party campaign account was another indication that the candidate's funds must be deposited into the candidate campaign account, even if they were ultimately to be transferred (through s 96B(5)(b)) to the party campaign account for expenses incurred by or on behalf of the party. [42]
8. The primary judge identified the distinction between "the benefit of the candidate" and "the benefit of the party" as another important, related, distinction. Her Honour construed these terms on the assumption that Parliament intended, by the different wording, to distinguish between the two concepts. Her Honour accepted that every candidate endorsed by a party obtained some advantage from general advertising which benefits the party. [43]
9. The primary judge was also of the view that there may be a substantial difference between the benefit of any given amount of ECE to an Assembly candidate and the benefit of the same ECE to a party. Whereas ECE spent "for a candidate" was concerned solely with that candidate's election in his or her electorate, the maximum of $50,000 that the party could spend on ECE directed at a particular electorate, gave the party itself a range of benefits which include the election of the candidate (which increased the party's prospects of forming government); the promotion of the party more widely (particularly in a seat which was regarded as a safe seat for the opposing party); increased votes (which increased the public funding for the next election); and a potential benefit in the Legislative Council. Her Honour noted that, Mr Oueik obtained 15,471 primary votes in Auburn although he did not win the seat. That entitled the Party to public funding of $61,884 (15,471 x $4) for the State election in 2019. [44]

The effect of the statutory scheme

1. The primary judge summarised the effect of her analysis as follows: [45] "(1) The candidate is permitted (by the exemption in s 95A(4)) to use his or her funds for electoral expenditure (including ECE) on his or her campaign if and only if: (a) the candidate's own funds are paid into the candidate campaign account; and (b) the electoral expenditure is paid out of the candidate campaign account by the official agent (s 96A(5A) and s 96A(3)(b)). (2) If the candidate pays money into a party campaign account, the monies are not covered by the exemption in s 95A(4) and constitute unlawful political donations to that party if they exceed the cap of $5,000 (s 95A(1)(a))." [Emphasis added.]

The limits of the primary proceedings

1. Her Honour found, having regard to the facts of the case, that "there were many instances where the statutory requirements were not complied with". For example, "[a]n account can be either a candidate campaign account (under s 96B) or a party campaign account (under s 96). It could not be both. The concept of an 'omnibus' account has no place within the statutory scheme." [46]
2. The primary judge held that the 7155 account was not a candidate campaign account under either s 96B(1) or (3), since the deposits to it included numerous donations up to $5,000 which were lawful only if they were made to the Party. More importantly, the Party's expenditure was made from that account. In these circumstances, her Honour was satisfied that the 7155 account was a party campaign account within the meaning of s 96. [47] The appellants do not challenge this characterisation of the 7155 account.
3. The appellants argued that it was immaterial that the payments were not made to the candidate campaign account because the payments were not "gifts" as they were supported by adequate consideration. [48]
4. The primary judge found that the evidence did not establish that all of the funds comprised by the deposits made by Mr Oueik and Mr Brookes were spent for the purposes of their own campaigns in their respective electorates. Rather, there were several instances of monies being spent in areas which were of benefit to the Party generally in its campaign, but only incidentally to Mr Oueik and Mr Brookes. In the primary judge's view, such deposits constituted "political donations" since they were, at least to some extent, "gifts". [49]
5. The appellants advanced various submissions to contend that deposits made by Mr Oueik and Mr Brookes to the party campaign account were not political donations.
6. First, they argued that the deposits ought to be regarded as impressed with an obligation imposed on the Party to use the funds for the purposes of the depositors' campaigns, since this ought to be taken to have been the intention of the candidates when they made the deposits. [50]
7. The primary judge accepted that when someone causes money to be deposited into a bank account in the name of a political party, one could infer an intention to make a gift, unless there was an express declaration of trust. Accordingly, where such a deposit was accepted by the party agent, who operated the account, the inference arose that the party was entitled to spend the money for its benefit. In her Honour's view, it may be that the depositor hopes, by that payment, to obtain something in return, whether it be favourable treatment by the party, or a favourable decision if the party is elected to government, or that the money will be spent in a particular way, that did not make what the Party did voluntarily with the money deposited valuable consideration, or consideration at all. Even if a monetary sum equivalent to the deposits were wholly spent by the Party on the respective candidates, that would not amount to consideration since the Party had no obligation to do so. That the Party did not spend the monies exclusively on, or in, the electorates of the depositors was an indication that the Party did not see itself as obliged to spend the money in that way. In these circumstances, it is not appropriate to attempt to segregate the ECE which was spent in the candidate's electorate from the ECE with a broader reach. [51]
8. In any event, the primary judge held that the evidence did not reveal that the depositors had any such expectation. Her Honour regarded Mr Brooke's understanding that his payment of $50,000 into the 7155 account was a "donation" as significant. Her Honour remarked that, "[w]hat distinguishes a donor from the settlor of a trust (who intends the transferee should hold and use the property for the benefit of another, including the settlor himself or herself) is the intention with which property (in this case, money) is transferred." [52]
9. The primary judge held that a further, and more fundamental, difficulty with the submission that the deposits by Mr Oueik and Mr Brookes were not gifts was that, "[t]he analysis of the transactions for which the defendants contended would have the effect of leaving intact common law concepts of trusts and restitution and applying them to a statutory scheme, the purposes of which would appear to be inconsistent with the continued application of such principles." Her Honour regarded those concepts which were "implicitly although not expressly, called in aid by the defendants to have been excluded by the Act by necessary implication." [53]
10. After referring to the policy reason for the cap on political donations in Pt 6, Div 2A, being "the prevention of 'corruption and undue influence'" in the government of the State as "clientelism" and "war chest" corruption" as articulated in McCloy v State of New South Wales, [54] her Honour held: "[100] Were the defendants' construction to be accepted, a candidate would be exempted from the general prohibition on political donations to a party above $5,000. In that event, self-financed candidates for a major party might reasonably be regarded as having a significant advantage over independent candidates in a general election. They would be able to contribute up to $150,000 themselves ($100,000 directly and $50,000 'through' their party), and also get the benefit of their party's State-wide campaign." [55]
11. In the primary judge's view, when construed as a whole, and by reference to the specific provisions to which her Honour had referred, the EFED Act was inconsistent with such a result. Furthermore, her Honour regarded such a construction as inimical to the purposes enunciated in McCloy, particularly those relating to the prevention of "clientelistic" or "war-chest" corruption. [56]

Conclusions

1. The primary judge held that the 7155 account was not authorised by s 96B, that is to say, it was not a candidate campaign account within the meaning of that provision. As the depositor candidate had no right to control the use of the money deposited into that account, which was determined by the Party at its discretion, the deposit became, upon payment, a gift to the Party. Had the depositor intended to retain control of the monies, he or she would have had to deposit it into his or her candidate campaign account (or a collective candidate campaign account authorised by s 96B(3)) or retain it. [57]
2. In conclusion on the Commission's primary case, the primary judge held: "[103] I am satisfied that the payments were 'gifts' within the meaning of s 84(1); did not fall within the exclusion in s 95A(4); and were therefore political donations within the meaning of s 85(1)(a) because each was 'a gift made to or for the benefit of a party'. As each of the three payments was a political donation which exceeded the limit of $5,000 for political donations to a party, each was unlawful under Part 6, are recoverable by the Electoral Commission as a debt due to the State: s 96J(1). As the donation was received by the Party, the debt is recoverable from the first defendant, as the Party's agent: s 96J(1)(b). I note that s 96J provides that the whole of the unlawful political donation is unlawful, not merely the amount of the donation in excess of the statutory limit of $5,000. Accordingly the three deposits are all recoverable in full."
3. On the Commission's alternative claim (although unnecessary to decide), her Honour held that, "if a contribution is made for the purpose of a party's ECE, it cannot be characterised as a candidate's contribution to his or her own campaign" ([[emphasis in original).
4. To construe the EFED Act as the appellants contended would, in the primary judge's view, be at odds with its wording and one of its evident purposes: to limit contributions to a party to lawful political donations (that is up to $5,000). Her Honour rejected the appellants' construction which would permit candidates to donate a further $50,000 for the benefit of his or her party, notwithstanding the express terms of s 95F(12) and (13) which limit a party's ECE in any given electorate. [58]
5. Her Honour made the following orders: "(1) Judgment for the plaintiff against the first defendant in the sum of $245,480.20, comprising $200,000 plus pre-judgment interest from 28 March 2015 to the date hereof in the sum of $45,480.20. (2) Declare that account XX-7155 held with Westpac Banking Corporation in the name of the second defendant (the 7155 account) was not a "candidate campaign account" within the meaning of s 96B(1) or (3) of the EFED Act. (3) Declare that the sum of $50,000, which the second defendant's party agent accepted into the 7155 account on 4 March 2015: (a) did not fall within the exception in s 95A(4) of the EFED Act for a candidate's contribution to his or her campaign; and (b) was an unlawful political donation in breach of the prohibition in s 95A(1)(a) of the EFED Act. (4) Declare that the sums of $120,000 and $30,000, which the second defendant's party agent accepted into the 7155 account on 18 February 2015 and 9 April 2015 respectively: (a) did not fall within the exception in s 95A(4) of the EFED Act for a candidate's contribution to his or her campaign; and (b) were unlawful political donations in breach of the prohibition in s 95A(1)(a) of the EFED Act."
6. Her Honour reserved costs. After hearing from the parties on costs her Honour ordered the appellants to pay the Commission's costs of the proceedings and, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), ordered that the costs be paid in the gross sum of $45,000. [59]

Issues on appeal

1. The appellants complain that the primary judge erred in applying an erroneous construction of ss 85(1)(a), 95A(1)(a) and 95A(4) of the EFED Act to the facts, in holding that the impugned deposits in each case was a "gift" within the meaning of s 84(1) of the EFED Act; and did not fall within the exception in s 95A(4) of the EFED Act for a candidate's contribution to his or her campaign; and was a political donation within the meaning of s 85(1)(a) of the EFED Act; and was an unlawful political donation in breach of the prohibition in s 95A(1)(a) of the EFED Act.
2. They also complain that the primary judge erred in applying an erroneous construction of ss 85(1)(a), 95A(4) and 95F(12) of the EFED Act to the facts, namely that portions of the impugned deposits in each case which was recorded as electoral communication expenditure for the purposes of the applicable cap under s 95F(12) of the EFED Act did not fall within the exception in s 95A(4) of the EFED Act for a candidate's contribution to his or her campaign; and was an unlawful political donation in breach of the prohibition in s 95A(1)(a)of the EFED Act.

Consideration

1. Resolution of the issues raised on the appeal turns on the construction of the EFED Act.
2. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". [60]
3. The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Accordingly, the starting point for ascertainment of the meaning of a statutory provision is the text of the provision considered in the light of its context and purpose. [61] Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies. [62]
4. Context should be regarded in its widest sense. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. [63] The statutory purpose resides in the text and structure of the statute being construed, albeit it may be identified by reference to common law and statutory rules of construction. It may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. [64]
5. Finally, as the plurality said in Project Blue Sky (footnotes omitted): "[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme."
6. The purpose of Pt 6 of the EFED Act has been considered comparatively recently in Unions NSW and McCloy.
7. In Unions NSW, French CJ, Hayne, Crennan, Kiefel and Bell JJ described the purpose of Pt 6, and its interrelationship with Pt 5, in the following terms: "[7] The general scheme of Pt 6, clearly enough, is to regulate the making of political donations to parties, candidates, elected members and others in New South Wales by limiting the amount or value of what may be given to them by any one person, organisation or other entity. It does not permit large individual donations. There is an obvious connection between the need to fund advertising and other methods of communication in connection with election campaigns, and political donations. Part 6 therefore also seeks to limit the amount which may be spent on such communication in the period leading up to an election. To offset, to an extent, the limit on funds available to parties and others, Pt 5 provides some public funding for the purposes of election campaigns. Additionally, the EFED Act enables the public as well as the Authority to scrutinise the donations and their sources and the electoral communication expenditure that is made. [8] The general purpose of these provisions is not in dispute. In its defence, the defendant describes that purpose as being to secure and promote the actual and perceived integrity of the Parliament of New South Wales, the government of New South Wales and local government bodies within New South Wales. More specifically, it identifies the potential risk to integrity as arising from the exercise of undue, corrupt or hidden influences over those institutions, their members or their processes. Donations are identified as a method of exercising such influence. The risks to integrity are significantly increased, the defendant further explains, where there is a need to raise large amounts of money in order effectively to compete with rivals in connection with election campaigns." [65] [Emphasis added.]
8. In McCloy, the plurality observed that the caps on political donations in Pt 6, Div 2A are "most clearly directed to the object stated in s 4A(c), the prevention of 'corruption and undue influence in the government of the State'. [They] are intended to reduce the risk of corruption by preventing payments of large sums of money by way of political donation." [66] Their Honours added (footnotes omitted): "[34] The provisions of Div 2A, and those of the EFED Act more generally, may additionally have an ancillary purpose. They are also directed to overcoming perceptions of corruption and undue influence, which may undermine public confidence in government and in the electoral system itself. In a report of the Parliament of New South Wales Joint Standing Committee on Electoral Matters, which made recommendations as to capping, the Committee noted the submission that the purchase of access to politicians through large donations, which is not available to ordinary citizens, can result in 'actual or the perception of undue influence' and said that 'the need for reform to restore public confidence in the integrity of the system was recognised by most of the political parties that are currently represented in the New South Wales Parliament'." [67]
9. After discussing various forms of political corruption ("quid pro quo" corruption and "clientelism") which threaten the quality and integrity of governmental decision-making, their Honours observed that "the power of money may also pose a threat to the electoral process itself … [a] phenomenon … referred to as 'war-chest' corruption". [68] They referred approvingly to R (Animal Defenders International) v Secretary of State for Culture, Media and Sport, [69] where "Lord Bingham of Cornhill said that in a democracy it is highly desirable that the playing field of public debate be so far as practicable level and that: 'This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated … It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction.'"

The core case

1. The gist of the appellants' case is that the acceptance by the Party of the payments made by Mr Oueik and Mr Brookes into the State campaign account was not unlawful by reason of Pt 6 of the EFED Act because: 1. the exemption in s 95A(4) applied; 2. the proper characterisation of the donations are that they were made to or for the benefit of the candidates, rather than to or for the benefit of the Party, by reason of s 95A(4) when read with s 95A(1)(e); 3. s 95B(1) does not prohibit the Party from receiving a political donation from a candidate in excess of the applicable cap of $2,000, by reason of s 95A(4); 4. s 95A(4), properly construed, does not condition its relief from the restrictions on political donations by reference to the account into which the donation is paid; and 5. s 96(6) does not prohibit payment into a State campaign account of political donations made to or for the benefit of a candidate. [Emphasis added.]
2. As is apparent, and as was made plain by Mr Moses at the outset of his oral submissions, the core of the appellants' case is the proper construction of s 95A(4) of the EFED Act. The appellants' contention in this respect is that Mr Oueik's and Mr Brookes's payments into the 7155 account were lawful self-funding contributions by virtue of s 95A(4), such that they were not subject to any cap.
3. The appellants accept that the path to this conclusion is convoluted. It proceeds on the basis that pursuant to s 95B(1), when read with s 95A(1)(a) and (e), it was unlawful for the Party to accept a political donation (i) to or for the benefit of the Party if the donation exceeded $5,000; or (ii) to or for the benefit of a candidate if the donation exceeded $2,000.
4. The appellants argue that although the question whether the contributions by Mr Oueik and Mr Brookes were made "to or for the benefit of a registered party" (s 95A(1)(a)) or "to or for the benefit of a candidate" (s 95A(1)(e)), may be a distinction without difference in circumstances where the contributions greatly exceeded both thresholds, it is of importance when regard is had to the language of s 95A(4).
5. This is because, if it is correct to characterise the candidates' payments as "to or for the benefit of a candidate" (s 95A(1)(e)), the s 95A(4) exception to the "applicable cap on political donations to the candidate" contemplates that a candidate's contribution to his or own campaign is not a donation to or for the benefit of the Party.
6. Notwithstanding that the monies paid by Mr Oueik and Mr Brookes were paid into a bank account in the name of the Party and that they clearly benefited the Party, the appellants submitted that the quantum of those donations and the Party's acceptance of them evinced a mutual intention, as between the candidates and the Party, that they were for the purpose of financing the candidates' own election campaigns (s 95A(4)). Accordingly, they should be characterised as being "to or for the benefit of a candidate" for the purpose of s 95A(1)(e).
7. The appellants submit that by omitting any reference to the applicable cap on political donations to a party, s 95A(4) contemplates that a candidate's contribution to his or her own campaign is not a donation to or for the benefit of the Party. They argue that the primary judge's failure to recognise this led to her Honour incorrectly characterising the payments as a political donation to the Party for the purpose of s 85(1)(a). [70] Rather, s 95A(4) deemed such contributions as being to, or for the benefit of, a candidate.
8. The next step in this path was, the appellants submitted, that because there was no cap on self-funding contributions, they were not unlawfully paid into the State campaign account by reason of s 96(6)(b). This was because s 96(6) does not prohibit payment into the State campaign account of donations to or for the benefit of a candidate.
9. The appellants submitted it was clear that Mr Oueik's and Mr Brookes's payments were "a candidate's contribution to finance his or her own campaign" for the purpose of this section because they were endorsed candidates in the 2015 State election, the payments were made in close proximity to the election, and the quantum of the payments exceeded $2,000.

Construction of s 95A(4)

1. In my view, the appellants' submissions concerning the proper construction of s 95A(4) offend the principles of statutory construction to which I have referred. They seek to make s 95A(4) the leading provision around which other provisions of the EFED Act dealing with caps on donations, the keeping of accounts and the like are subordinate. In so doing, they misinterpret the clear language of s 95A(4) and the context in which it appears. The appellants' proposed construction also flies in the face of the objects of the EFED Act, in particular, that in s 4A(a) of establishing "a fair and transparent election funding, expenditure and disclosure scheme".
2. In particular, the appellants' submissions fail to have regard to the scheme of the EFED Act. As the respondent submits, and the primary judge found, [71] Pt 6 of the EFED Act must be understood as a coherent regime, which creates three sets of interlocking controls: 1. controls on the payment of funds to a party or candidate for election, including caps on political donations ($5,000 for donations to a party and $2,000 for donations to a candidate: s 95A), and a separate regime in P 5 for the public funding of eligible parties; 2. control and supervision of the management of funds for parties or candidates in separate accounts (relevantly, s 96 for the account required to be operated by a party and s 96B for the account required to be operated by a candidate); and 3. controls on expenditure, including caps on electoral communications expenditure (ECE) in s 95F, with different caps for parties (s 95F(2) and (12)), candidates supported by parties (s 95F(6)) and independent candidates (s 95F(7)).
3. As the respondent also submits, the importance of construing the interlocking controls as part of a single regime is reinforced by the objects in s 4A(a) and (e) of the EFED Act, both of which refer to a singular "funding, expenditure and disclosure scheme". These interlocking controls are the subject of strict disclosure obligations, as set out in Pt 6, Div 2.
4. Although s 95A(4) was not referred to in any relevant second reading speech, it was referred to in a report published by the Joint Standing Committee on Electoral Matters, [72] which prompted the 2010 amendments to the Act which the appellants contend, and the respondent does not dispute, is relevant extrinsic material for the purposes of s 34(2)(b) of the Interpretation Act 1987 (NSW). The JSC Report stated: "1.51. One of the terms of reference of the Committee is to consider the impact of any proposed measures on the ability of new candidates, including independent candidates and new political groupings, to contest elections. In light of evidence from some of the independent Members of Parliament, the Committee is concerned that treating a contribution by a candidate to their own campaign would disproportionately impact on independent candidates and new entrants and undermine their role in the democratic process [sic, as in original]. 1.52 Some Members of Parliament also regularly contribute a portion of their income to their own campaign expenses and political parties. The Committee does not consider that this practice leads to the risk of undue influence or corruption. 1.53 Consequently, the Committee considers that individual candidates should be able to contribute to their own campaign, consistent with any caps on expenditure that are adopted." [Emphasis added.]
5. It might be accepted, as the appellants submit, that s 95A(4) is intended to benefit candidates by enabling them to contribute money towards their election campaigns in an amount greater than the otherwise applicable limit of $2,000.
6. However, in my view, s 95A(4) in terms, and consistently with the JSC Report, means that if a candidate contributes their own funds to finance "his or her own election campaign", such funds are "not included in the applicable cap on political donations to the candidate". In other words, amounts the candidate self-funds, are not included in the s 95A(1)(e) cap. But that is only if they are dealt with in accordance with the provisions of the EFED Act. On the appellants' submission, the regime the EFED Act creates to deal with s 95A(4) funds is completely by-passed.
7. The appellants criticised the primary judge's construction of s 95A(4) as only being available if the candidate's own funds were paid into a candidate's campaign account within the meaning of s 96B as requiring her to impossibly and erroneously interpose limitations into s 95A(4) that do not exist. They argue that in doing so, her Honour failed to determine whether the preconditions which would enable such an exercise to be undertaken existed. [73]
8. In my view the primary judge did not engage in any such constructional heresy. Rather her Honour engaged in constructional orthodoxy.
9. As the respondent submitted at trial, the EFED Act draws a "bright line distinction" between a candidate's campaign expenditure (governed by ss 95A(4), 96B and 95F(6)) and a party's campaign expenditure (governed by ss 96, 95F(2) and 95F(12)). [74] On the appellants' construction, that bright line dims to the point of virtual indistinction.
10. Section 96A(5A) makes it clear that a candidate's payment for electoral expenditure for his or her election or re-election must be made from that candidate's campaign account kept in accordance with s 96B. That campaign account has to be a separate account kept by the candidate in accordance with s 96B. Section 95A(4) is linked to s 96B(4) which makes it plain that amounts a candidate decides to self-fund (as well as political donations) are to be paid into the candidate's campaign account. Such amounts are required to be disclosed in the declaration to be lodged under Pt 6, s 96B(4).
11. Further, the unambiguous language of s 96A(5A) makes it clear that payments by a candidate for electoral expenditure for his or her "own election" may not be made from a party campaign account. This is reinforced by s 96B(5), which confines payments out of a campaign account in the various manners there specified.
12. A permissible payment from a candidate campaign account is, provided the candidate has approved the expenditure, a payment "for the purposes of lawful expenditure referred to in section 96 incurred by or on behalf of the party of which they are a member": s 96B(5)(b) (emphasis added). Such expenditure, as the respondent submitted, would have to be treated as, and disclosed to be, expenditure on the Party's State campaign, not expenditure on the candidate's own campaign. It is not a permitted payment for the candidate's "own election campaign".
13. The appellants contend that s 95A(4) makes no reference to State campaign accounts or candidate campaign accounts. Accordingly, on their argument, there is nothing in s 95A(4) that suggests that its operation is subject to a further requirement that contributions be paid into a candidate campaign account, as opposed to the State campaign account.
14. For the foregoing reasons, Mr Oueik's and Mr Brookes's payments into the 7155 account could not, as the appellants submitted, be regarded as "a candidate's contribution to finance his or her own campaign" for the purpose of s 95A(4). Their self-funding contributions had to be paid into their own campaign accounts kept in accordance with s 96B.
15. The appellants appear to accept that a s 95A(4) contribution which was paid to the Party is a political donation because they contend it is caught by the disclosure requirements in ss 86, 88(1) and 92(1), each of which relates directly or indirectly to the disclosure of political donations. Once any candidate's self-funding contribution has that character when it leaves the candidate's control and is paid to the Party, it would be subject to the $5000 cap for political donations to or for the benefit of a registered party in s 95A(1)(a).
16. If that was not the case, on this argument, Mr Ouiek's payments of $150,000 to the 7155 account could have been paid with impunity, notwithstanding that they vastly exceeded the s 95A(1)(a) cap.
17. It is no part of s 95A(4) that a candidate could simply pay his or her monies into the Party pool in the 7155 account, then rely on a characterisation of that payment as being to finance "his or her own election campaign". That would, as the primary judge held, and the respondent submitted, offend the demarcation in the EFED Act between party financing and candidate financing.
18. I would accept the respondent's submission that the impugned payments were dispositions to the Party for the purposes of the Party's campaign and fell outside the scope of section 95A(4).
19. In my view, in addition to the textual and contextual analysis of s 95A(4), the appellants' submissions as to its construction and use to support the impugned deposits is inconsistent with the purposes of the EFED Act in that it would enable large individual donations from candidates, limit scrutiny of donations and their sources and the ECE that is made and would not secure and promote the actual and perceived integrity of the Parliament of New South Wales, the government of New South Wales and local government bodies within New South Wales. [75]
20. I should add that in oral, but not written submissions, the appellants sought to argue in reliance on Hooker v Gilling, [76] that it was permissible to ascertain the intention of the legislature with regard to s 95A(4) of the EFED Act by reference to the 2018 Act.
21. The principal difficulty with this submission is that a pre-condition for the application of the principle discussed in Hooker v Gilling is that it applies "when the words of the earlier statute are ambiguous". [77]
22. In my view the words of s 95A(4) are not ambiguous. The payments made by Mr Brookes and Mr Oueik to the Party which were deposited into the 7155 account were not self-financing contributions by the respective candidates within the exception in s 95A(4).

Gift submission

1. The appellants submitted that s 95A(4) was an exception to the statutory prohibition against receipt of unlawful political donations and permitted the Party to accept a monetary contribution from a candidate to or for the benefit of the candidate in excess of $2,000 if such contribution was received by the Party and applied by it in furtherance of the candidate's own election campaign.
2. Although I have already rejected that submission, against the eventuality I am incorrect, I will consider the appellants' submission that such a contribution was not a "gift" within the meaning of s 85 because the candidate who made donations in excess of $2,000 had a legitimate expectation or entitlement that such monies would be applied towards their election campaigns, and, in return, the Party impliedly promised that when received, such monies would be lawfully applied to the donor's campaign in accordance with s 95A(4), such that there was consideration for the payments.
3. The appellants contend that the Party made good on its implied promise because it incurred $99,945.11 and $99,011.19 of ECE that was paid for by Mr Oueik and Mr Brookes respectively. They submit that it is inappropriate to attempt to demarcate such expenditure depending on whether it was electorate specific or State-wide because both types of expenditure contribute to the candidate's own campaign and his or her prospects of being elected. [78]
4. It must be recalled that this submission is made in the context of the Party seeking to say that the impugned deposits were not subject to any cap because they fell within the s 95A(4) exception of being funds to finance a candidate's "own election campaign".
5. However, once again, the appellants' broad-brush, non-demarcation submissions fly in the face of the statutory scheme, in particular s 95F, which draws a material distinction between ECE for a candidate and ECE for a party.
6. It is necessary to be able to distinguish between the ECE a party spends and that a candidate spends. If that were not the case, then, as the respondent submitted, the different donation caps in s 95A(1) could not sensibly be sustained.
7. It was clear from the appellants' submissions, and from the evidence, that the Party's accounts did not permit differentiation between its ECE spend overall and any part which was spent specifically for either Mr Ouiek's or Mr Brookes's electorates. The primary judge held that the "evidence contained several instances of monies being spent in areas which were of benefit to the Party generally in its campaign but only incidentally to Mr Oueik and Mr Brookes". [79] The appellants do not challenge that finding. Thus the so-called implied promise was not, in fact, fulfilled.
8. In any event, as the primary judge held, even if a monetary sum equivalent to the impugned deposits was wholly spent by the Party on the respective candidates, this would not amount to consideration since the Party had no obligation to do so. [80] The submission that the impugned funds were subject to an implied promise that they be spent on Mr Oueik's and Mr Brookes's "own election campaign[s]" should be rejected. It is both inconsistent with the facts and with the scheme of the EFED Act.
9. It would also be inconsistent, in my view, with the s 4A(a) objects of the EFED Act that there be "fair and transparent election funding, expenditure and disclosure scheme" to hold that money in a party campaign account was subject to an implied limitation on how the party could spend those funds.
10. Accordingly, the primary judge did not err in holding the impugned deposits were gifts, and therefore political donations which were unlawful because they exceeded the cap of $5000 in s 95A(1)(a) of the EFED Act.

Whether a candidate is prohibited from self-funding up to $150,000

1. The primary judge held that the distinction between party and candidate ECE "would be rendered nugatory if a candidate could 'fund' the party to spend $50,000 on ECE in his or her electorate beyond the limit of $100,000 imposed on the candidate's own campaign expenditure and have the $50,000 excluded from characterisation as a political donation by reason of the self-funding exception in s 95A(4)."
2. The appellants submit that her Honour erred in this respect.
3. The debate turns on the interpretation of s 95F. Section 95F(2) caps the ECE of a party that endorses candidates for election to the Assembly at $100,000 multiplied by the number of electoral districts in which a candidate is so endorsed. Section 95F(6) caps the ECE for a candidate endorsed by a party for election to the Assembly at $100,000.
4. However, s 95F(12) provides, relevantly, for parties "an additional cap (within the overall applicable cap) in relation to State general elections … for electoral communication expenditure incurred substantially for the purposes of the election in a particular electorate" of "$50,000 in respect of each such electorate".
5. The appellants submit, however, that s 95F(12) is expressed to be an additional cap, which on its ordinary meaning, should be aggregated with the $100,000 cap provided for in s 95F(6) for a candidate endorsed by a party for election to the Assembly. The result of this aggregation is that the Party and its endorsed candidate can incur not more than $150,000 in total on ECE in relation to an electorate, the same as the level of ECE for independent candidates for which s 95F(7) provides. The appellants argue that candidates can contribute s 95A(4) self-funded amounts to the party above the s 95F(6) cap to the extent of $50,000 to fund ECE substantially for the purpose of electing that candidate.
6. In the agreement in principle speech in the Legislative Assembly for the Election Funding and Disclosures Amendment Bill 2010 (NSW) that introduced Pt 6, Div 2B, the Premier, the Honourable Ms Keneally, explained: "Candidates endorsed by a party in a Legislative Assembly seat will have their electoral expenditure capped at $100,000. The cap for independent candidates for the Legislative Council will be $150,000, which recognises the fact that an Independent will not get the benefit of a general statewide campaign run by registered parties. [T]he bill will ensure that parties may not spend more than $50,000 from within the applicable overall cap substantially for the purpose of the election in a particular electorate. This will ensure that there is no incentive for parties to run candidates in additional seats simply to increase their access to public funding." [81] [Emphasis added.]
7. In my view, the appellant's submission is not supported by the language of s 95F(12). That provision caps the amount a party can spend within an electorate on ECE to $50,000. As the respondent submits, the reference to an "additional cap" in s 95F(12) is clearly additional to a party's other cap (that is to say, the cap in section 95F(2)). It makes no sense to read it as being "additional" to a cap imposed on a different entity, being a candidate.
8. Section 95F(12) says nothing about the candidate's expenditure, but s 95F(6) does. It caps the amount the candidate can spend on ECE at $100,000. A candidate can only expend $100,000 on ECE. Providing an additional $50,000 to the Party also to fund the candidate's ECE is not permitted by the language of s 95(6) and s 95(12).
9. In addition to the language of s 95F being clear that a candidate is confined to expending $100,000 on ECE, the Premier's statement confirms that the meaning of s 95F(6) is the ordinary meaning conveyed by its text. [82] A candidate can only expend $100,000 on ECE.
10. I would reject this ground of appeal.

Orders

1. I would dismiss the appeal with costs.
2. GLEESON JA: I agree with the orders proposed by McColl JA and with her Honour's reasons. The position in relation to the issues concerning the payments made by two candidates at the 2015 State election: Mr Glenn Brookes ($50,000) and Mr Ronney Oueik ($150,000) into an account held by the second appellant (the Party) known as the 7155 account may be summarised as follows.
3. As the analysis by McColl JA at [8]-[35] and [102]-[134] makes clear, the scheme of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (the Funding Act), distinguishes between political donations to a registered party and a candidate in a number of ways. The Funding Act also distinguishes between political donations to a candidate and self-financing contributions by a candidate.
4. First, the Funding Act applies different caps on political donations to a party and a candidate: $5,000 for political donations to a registered party (s 95A(1)(a)) and $2,000 for political donations to a candidate (s 95A(1)(e)), subject to the indexation of those amounts under s 95A(5).
5. Second, relevantly in the case of the cap on donations to a candidate, the Funding Act provides in s 95A(4) for the non-aggregation of contributions to a candidate's own campaign. It does so by providing that a candidate's self-financing contribution to his or her own election campaign is not a political donation and is not included in the applicable cap on political donations to a candidate. Thus, a candidate may contribute to "his or her own election campaign" an amount in excess of $2,000. However, and contrary to the appellants' argument, the self-financing exception to political donations to a candidate in s 95A(4) says nothing about a candidate financing his or her own campaign, by making a contribution to the party that endorsed the candidate.
6. Third, the Funding Act distinguishes between the establishment of campaign accounts and management of expenditure by a party and a candidate. While the Funding Act does not in terms require a party to maintain a party campaign account, there is a practical necessity that a party do so because it is unlawful for a party to make payments for electoral expenditure for a State election campaign, unless the payment is made from the State campaign account of the party kept in accordance with s 96: s 96(3). Similarly, there is a practical necessity that a candidate maintain a candidate campaign account where the candidate makes payments for electoral expenditure "for their own election" because it is unlawful for a candidate to make such payments unless in addition to the candidate being registered under the Act, the payment is made from "their campaign account" kept in accordance with s 96B: s 96A(5A).
7. Fourth, the Funding Act distinguishes between the management of donations and what may be paid into a party campaign account under s 96(5), subject to the exclusions in s 96(6), and a candidate's campaign account under s 96B(4). Importantly, the permitted payments into a party campaign account under s 96(5) include political donations to which the $5,000 cap in s 95A(1)(a) applies and money borrowed by the party, but do not include a candidate's contribution to finance his or her own election campaign as referred to in s 95A(4).
8. By contrast, the permitted payments into a candidate's campaign account under s 96B(4) include both political donations to which the $2,000 cap in s 95A(1)(e) applies and self-financing contributions ("money paid into a campaign account by the … candidate to whom the account belongs"). In the case of self-financing contributions by a candidate, s 96B(4) goes on to provide that the amount paid and the terms on which the payment was made are to be disclosed in the relevant declaration lodged under Pt 6 for the period in which the amount was paid. That is a reference to the declaration by a candidate as required by s 88(1)(d).
9. Thus, if a candidate wishes to take advantage of the s 95A(4) self-financing exemption from the cap on political donations to a candidate, the candidate does so by paying the amount of that contribution into the candidate's campaign account and by making the relevant disclosure in accordance with s 88 as required by s 96B(4).
10. However, that is not what occurred in the present case. Neither Mr Brookes nor Mr Oueik maintained a candidate campaign account in accordance with s 96B for the purpose of receiving self-financing contributions as referred to in s 96B(4) and making payments out for any of the permitted purposes, including electoral expenditure incurred by or on behalf of the candidate: s 96B(5)(a). Nor is there is any challenge on appeal to the proper characterisation of the 7155 account by the primary judge as a party campaign account to which the requirements of s 96 applied with respect to management of donations and expenditure, including receiving of donations of up to $5,000 for the benefit of the party under the general cap in s 95A(1)(a).
11. Unsurprisingly therefore, the primary judge found that the payments made by Mr Brookes and Mr Oueik to the Party which were deposited into the 7155 account were not self-financing contributions by the respective candidates within the exception in s 95A(4).
12. Plainly, for the reasons given by the primary judge and by McColl JA the payments made by Mr Brookes and Mr Oueik to the Party answered the description of a political donation as defined in s 85 of the Funding Act, being a gift made to or for the benefit of a party: s 85(1)(a).
13. Finally, there is no merit in the appellants' argument based on s 95F that given the applicable caps on electoral communication expenditure (ECE) (a) by a party under s 95F(2) of $100,000 multiplied by the number of endorsed candidates for election to the Assembly, (b) by a candidate under s 95F(6) of $100,000, and (c) the additional cap for parties under s 95F(12) of $50,000 for electoral expenditure incurred substantially for the purposes of an election in a particular electorate, a candidate can self-finance his or her own campaign up to $150,000 by contributing to his or her own campaign up to $100,000 and then making a further contribution to the party of up to $50,000.
14. That construction of s 95F(6) and (12) conflates the "additional" cap on ECE imposed on a party with the cap on ECE imposed on a candidate. Nor do the facts of this case accord with that construction of s 95F. As indicated, neither Mr Brookes nor Mr Oueik made a self-financing contribution to their own campaign in the manner permitted by the Funding Act, that is, by paying such contribution into a candidate's campaign account. Their respective contributions to the Party were political donations to the Party which exceeded the cap of $5,000 in s 95A(1)(a) and accordingly, it was unlawful for the Party to accept such donations: s 95B(1).
15. SIMPSON AJA: I agree with McColl JA. I also agree with the analysis of The Election Funding, Expenditure and Disclosures Act 1981 by Gleeson JA.

Endnotes

1. State of New South Wales v Wheatley [2018] NSWSC 178 (primary judgment).
2. Section 21A, Parliamentary Electorates and Elections Act 1912 (NSW); ss 3 and 4 Crown Proceedings Act 1988 (NSW): primary judgment at [2]. On 1 July 2018, s 21A of the Parliamentary Electorates Act 1912 was repealed and replaced by s 8 of the Electoral Act 2017. Both provisions are identical.
3. Primary judgment at [1] and 118. At trial, the Party contended it was a live issue whether it was a proper defendant. That issue was resolved adversely to it (primary judgment at [109]) and was not pursued on appeal.
4. Ibid at [5].
5. Ibid at [6].
6. Ibid at [103].
7. Ibid.
8. The relevant version of the EFED Act was the version in force between 1 December 2014 and 7 July 2015: primary judgment at [11]. The Act has since been repealed and replaced by the Electoral Funding Act 2018 (NSW) (2018 Act) which commenced on 1 July 2018. For convenience, I will speak of the EFED Act in the present tense.
9. Primary judgment at [9].
10. Ibid at [10].
11. Ibid at [17], the primary judge referred to "each vote in favour of a party", but s 103C(2)(a), of the EFED Act refers to "each first preference vote received by an endorsed candidate of the party" - no doubt a distinction without a difference.
12. Section 4A was inserted into the EFED Act in 2014 by the Electoral and Lobbying Legislation Amendment (Electoral Commission) Act 2014 (NSW) on 1 December 2014. It reflects the views stated in Unions NSW v New South Wales (2013) 252 CLR 530; [2013] HCA 58 (Unions NSW); as to the general purpose of the EFED Act: McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 (McCloy) at [32].
13. Primary judgment at [109]. At the time of the trial, Peter Wheatley was the party agent for the Liberal Party of Australia (New South Wales Division): primary judgment at [2]. From 21 September 2010 to 30 March 2016, which spanned the time the relevant payments were made, Simon McInnes was the appointed party agent for the purposes of the Act: primary judgment at [50]. Between 18 February 2015 and 9 April 2015 Mr McInnes was authorised to operate the Party's "7155" bank account. No allegation is made by the respondents that the then party agent knew that the payments were unlawful, nor is it alleged that there was any dishonourable conduct of the part of any individual: primary judgment at [47] and [78]. Mr McInnes was succeeded by Bruce Walton who held the position until 29 September 2017 and, in turn, was succeeded by Mr Wheatley.
14. Ibid at [18].
15. "Disposition of property" is defined in s 4(1) as "any conveyance, transfer, assignment, settlement, delivery, payment or other alienation of property".
16. At [28].
17. At [35] - [36].
18. The applicable caps on political donations in s 95A and on ECE in s 95F were adjusted pursuant to s 95A(5). Throughout the election period for the 2015 State election, the applicable caps for political donations to or for the benefit of a registered party was $5700, and for candidates it was $2400. The applicable caps on electoral communication expenditure on State election campaigns for parties and Party candidates was $111,200: Election Funding, Expenditure and Disclosures (Adjustable Amounts) Notice (NSW), Sch 1, cl 2(1) and (4). None of the parties suggested anything turned on this. I have referred to the monetary caps in terms of the original caps which are set out in the legislation, rather than the indexed figures.
19. The primary judge referred to the s 95F(2) cap as the "Overall Cap": at [30].
20. The primary judge described "[t]he effect of the cap in s 95F(12) [as being] to prevent parties disproportionately focussing their spending on ECE in marginal electorates": at [31].
21. At [32]; see also [83].
22. At [39].
23. At [40].
24. Primary judgment at [52].
25. Primary judgment at [54].
26. Ibid at [57] - [58].
27. Ibid at [59] - [60].
28. Ibid at [61].
29. Ibid at [64].
30. Ibid at [67].
31. Ibid at [68].
32. Ibid at [69].
33. Ibid at [70].
34. Ibid at [77].
35. Ibid at [71].
36. Ibid at [72].
37. Ibid at [73].
38. Ibid at [75], referring to Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
39. Ibid at [78].
40. Ibid at [81].
41. Ibid at [82].
42. Ibid at [85].
43. Ibid at [86].
44. Ibid at [87].
45. Ibid at [88].
46. Ibid at [89].
47. Ibid at [90].
48. Ibid at [92].
49. Ibid at [93].
50. Ibid at [94].
51. At [95].
52. At [96].
53. At [97] - [98]
54. McCloy at [33], [36], [38].
55. Primary judgment at [100].
56. Ibid at [101].
57. Ibid at [102].
58. Ibid at [108].
59. State of New South Wales v Wheatley (No 2) [2018] NSWSC 324.
60. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ.
61. Ibid.
62. SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 92 ALJR 1064 at [20] per Kiefel CJ, Bell and Nettle JJ
63. SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 at [14] per Kiefel CJ, Nettle and Gordon JJ; see also [35] - [39] per Gageler J.
64. Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
65. See also [49] and [53]. Paragraphs [8], [49] and [53] of Unions NSW were referred to with approval in McCloy at [7].
66. At [33].
67. See also Nettle J at [224] - [225].
68. At [36] - [38].
69. [2008] AC 1312 at [28].
70. Primary judgment at [103].
71. Ibid at [82] - [85].
72. New South Wales, Joint Standing Committee on Electoral Matters, Public Funding of Election Campaigns, (March 2010), (JSC Report) at p 11.
73. Cf Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302 per McHugh JA.
74. See primary judgment at [77].
75. Unions NSW at [7] - [8].
76. [2007] NSWCA 99; (2007) 48 MVR 136 per McColl JA (Ipp and Basten JJA agreeing).
77. Ibid at [44].
78. Cf primary judgment at [93].
79. Ibid at [93].
80. Ibid at [95].
81. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 2010 at 27169.
82. Interpretation Act 1987 (NSW), s 34(1)(a). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2018