Wheatley v State of New South Wales

1. [1]

   McCOLL JA: The appellants, Peter Wheatley and the Liberal Party of Australia (New South Wales Division) (Party), appeal from Adamson J’s decision finding, in substance, that they were liable to pay to the New South Wales Electoral Commission (Commission) $200,000 in respect of monies paid to the Party bank account by two endorsed candidates for the 2015 State election which her Honour found to be unlawful political donations. [1] Her Honour characterised the payments as such for two reasons. First, because they exceeded the $5,000 cap on political donations to the Party for which s 95A(1)(a) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (EFED Act) provided and were, accordingly, unlawful by virtue of s 95B(1) of that Act. Secondly, because the $200,000 were not self-funding contributions to the candidates’ electoral campaigns.

2. [2]

   Accordingly, the critical issues on appeal are whether the payments were either political donations, and because they exceeded the applicable cap, unlawful under s 95B(1) of the EFED Act, or whether they were lawful self-funding contributions to the candidates’ election campaigns pursuant to s 95A(4) of the Act.

3. [3]

   For the reasons that follow, I would dismiss the appeal with costs. I also agree with Gleeson JA’s reasons.

Background

1. [4]

   The Commission brought proceedings under the title of State of New South Wales as it was entitled to do. [2] It sought to recover the $200,000 (plus pre-judgment interest) from the appellants as a debt due on the basis that the total sum, which was paid in three separate payments to an account in the name of the Party, by Glenn Brookes and Ronney Oueik, who were the party’s endorsed candidates for positions in the Legislative Assembly, comprised unlawful political donations. [3] The challenged payments were paid into the Party account in the four months prior to the New South Wales general election held on 28 March 2015, or in one case, shortly thereafter. They were also all paid during the “capped expenditure period” which commenced on 1 October 2014 and expired at the end of the polling day for the election: s 95H(b), EFED Act (capped period).

2. [5]

   The Commission’s claim turned on it establishing that the monies were unlawful political donations because the sums paid to the Party exceeded the cap of $5,000 on political donations to a political party: s 95A(1)(a), s 95B(1), EFED Act. The Commission’s alternative case was that part of the $200,000 it sought to recover would be found to have been lawful, and the balance of $76,508.07 would be found to be unlawful. [4]

3. [6]

   The appellants defended the case on the basis that the payments were not unlawful because they were not political donations but, rather, contributions by candidates endorsed by the Party to their own campaigns and, as such, fell within the exception which permits candidates to fund their own election campaigns: s 95A(4), EFED Act. [5]

4. [7]

   The primary judge entered judgment for the Commission, holding that the payments were “gifts” which did not fall within the s 95A(4) exemption and were therefore “political donations” because each was “a gift made to or for the benefit of a party”. [6] 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 and recoverable by the Electoral Commission as a debt due to the State pursuant to s 96J(1) of the EFED Act. [7]

Legislative framework

1. [8]

   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. [9]

   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. [10]

   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. [11]

   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. [12]

   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. [13]

   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. [14]

   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. [15]

   I return to the details of the EFED Act.

9. [16]

   The objects of the EFED Act as set out in s 4A are:

10. [17]

    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. [18]

    The Commission’s particular functions, also in Pt 3, are set out in s 23 as follows:

12. [19]

    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. [20]

    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. [21]

    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. [22]

    The following provisions appear in Pt 6, Div 1 (Preliminary).

16. [23]

    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. [24]

    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. [25]

    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. [26]

    Part 6, Div 2A (Disclosure of Political Donations and Electoral Expenditure) is at the heart of the case. It relevantly provides:

20. [27]

    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:

21. [28]

    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. [29]

    Section 95I provides:

23. [30]

    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:

24. [31]

    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. [32]

    Section 96B, also in Pt 6, Div 3 deals with campaign accounts of elected members, groups or candidates as follows:

26. [33]

    Section 96C deals with the requirement of person accepting reportable donations to record the details of the donation as follows:

27. [34]

    Part 6, Div 5 deals with miscellaneous matters. Relevantly, s 96J, on which the Commission relied to recover the amount claimed, provides:

28. [35]

    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. [36]

   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. [37]

   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. [38]

   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. [39]

   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. [40]

   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]

6. [41]

   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.

7. [42]

   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]

8. [43]

   The primary judge recorded the Party’s disclosure following the State election as follows:

9. [44]

   In addition, the Commission received disclosures from Mr Brookes and Mr Ouiek as follows.

10. [45]

    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]

11. [46]

    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]

12. [47]

    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]

13. [48]

    Following the disclosures, the Commission made clear to the appellants its position that:

14. [49]

    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]

15. [50]

    The Commission sought the following declarations:

16. [51]

    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]

17. [52]

    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]

18. [53]

    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]

19. [54]

    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. [55]

   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. [56]

   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. [57]

   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. [58]

   The first difference lay in the difference in applicable caps on electoral expenditure. As her Honour explained:

5. [59]

   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. [60]

   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:

7. [61]

   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. [62]

   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. [63]

   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]

10. [64]

    The primary judge summarised the effect of her analysis as follows: [45]

11. [65]

    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]

12. [66]

    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.

13. [67]

    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]

14. [68]

    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]

15. [69]

    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.

16. [70]

    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]

17. [71]

    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]

18. [72]

    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]

19. [73]

    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]

20. [74]

    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:

21. [75]

    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]

22. [76]

    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]

23. [77]

    In conclusion on the Commission’s primary case, the primary judge held:

24. [78]

    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).

25. [79]

    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]

26. [80]

    Her Honour made the following orders:

27. [81]

    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. [82]

   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. [83]

   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. [84]

   Resolution of the issues raised on the appeal turns on the construction of the EFED Act.

2. [85]

   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. [86]

   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. [87]

   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. [88]

   Finally, as the plurality said in Project Blue Sky (footnotes omitted):

6. [89]

   The purpose of Pt 6 of the EFED Act has been considered comparatively recently in Unions NSW and McCloy.

7. [90]

   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:

8. [91]

   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):

9. [92]

   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:

10. [93]

    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. (1)

       the exemption in s 95A(4) applied;

    2. (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. (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. (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. (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.]

11. [94]

    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.

12. [95]

    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.

13. [96]

    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).

14. [97]

    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.

15. [98]

    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).

16. [99]

    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.

17. [100]

    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.

18. [101]

    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.

19. [102]

    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”.

20. [103]

    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. (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. (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. (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)).

21. [104]

    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.

22. [105]

    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:

23. [106]

    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.

24. [107]

    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.

25. [108]

    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]

26. [109]

    In my view the primary judge did not engage in any such constructional heresy. Rather her Honour engaged in constructional orthodoxy.

27. [110]

    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.

28. [111]

    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).

29. [112]

    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.

30. [113]

    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”.

31. [114]

    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.

32. [115]

    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.

33. [116]

    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).

34. [117]

    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.

35. [118]

    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.

36. [119]

    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).

37. [120]

    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]

38. [121]

    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.

39. [122]

    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]

40. [123]

    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).

41. [124]

    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.

42. [125]

    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.

43. [126]

    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]

44. [127]

    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”.

45. [128]

    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.

46. [129]

    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.

47. [130]

    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.

48. [131]

    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.

49. [132]

    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.

50. [133]

    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.

51. [134]

    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).”

52. [135]

    The appellants submit that her Honour erred in this respect.

53. [136]

    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.

54. [137]

    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”.

55. [138]

    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.

56. [139]

    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:

57. [140]

    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.

58. [141]

    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).

59. [142]

    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.

60. [143]

    I would reject this ground of appeal.

Orders

1. [144]

   I would dismiss the appeal with costs.

2. [145]

   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. [146]

   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. [147]

   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. [148]

   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. [149]

   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. [150]

   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. [151]

   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. [152]

   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. [153]

    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. [154]

    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. [155]

    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. [156]

    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. [157]

    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. [158]

    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.