Yesterday the High Court of Australia published judgment in Hopper & Anor v State of Victoria [2026] HCA 11, in which Victorian legislative provisions imposing caps on political donations were held to be unconstitutional.
The Special Case, brought by independent political candidates, asked the Court to consider whether Pt 12 of the Electoral Act 2002 (Vic) operating with the nominated entity exception in para (j) of the definition of “gift” in s 206(1) of the Act, is invalid (in whole or in because it impermissibly burdens the implied freedom of political communication, contrary to the Commonwealth Constitution).
The Act capped political donations at $4,970, but the exception permitted registered political parties to receive donations in excess of the cap from a nominated entity. The court observed that that the exception places “major political parties and their endorsed candidates at a significant advantage as to the sources of funds that they can spend on political communications.” The result is that the impugned provisions had “significant potential to distort the free flow of political communications” that could not be justified.
Luca Moretti of Banco Chambers appeared for the plaintiffs. Kate Bones of Banco Chambers was also briefed, albeit was unavailable at the time of the hearing.
Ruth Higgins SC appeared for the Commonwealth as interveners.
Link to Judgment