No rules for donations in Victoria leaves 'gaping hole' ahead of by-election

Lead

Australia's High Court has unanimously ruled that Victoria's political donation laws are unconstitutional, striking down an entire section of the state's Electoral Act and leaving the jurisdiction without enforceable caps or public disclosure requirements in the lead-up to a by-election and the November state election. The decision, handed down on Wednesday, followed a challenge by two independent candidates who argued that donation caps introduced in 2018 unfairly exempted fundraising vehicles tied to the major parties.

According to reporting by The Guardian and ABC Australia, the court declared the whole of Part 12 of the Electoral Act invalid on the ground that it impermissibly burdened the constitution's implied freedom of political communication. The laws had capped individual campaign donations at $4,970 per electoral term while carving out an exemption for transfers through "nominated entities." Only Labor, the Liberals and the Nationals had such entities registered before a July 2020 cut-off date; any later entities remained subject to the cap. The Victorian Electoral Commission's public disclosure page, which previously listed donations, annual reports and third-party campaigners, is no longer visible and now states that disclosures are "under review following a recent High Court decision."

The ruling lands as the seat of Nepean on the Mornington Peninsula prepares for a by-election and as parties begin organising for the broader state poll in November. Premier Jacinta Allan has said the government will move quickly to restore a framework of election integrity, while both major parties have instructed candidates to maintain donor records and transparency in the interim.

Coverage Comparison

ABC Australia and The Guardian both centred their accounts on the High Court's finding that the nominated-entity exemption rendered the donation scheme constitutionally invalid. ABC's coverage emphasised the immediate practical consequences inside Victoria: the disappearance of years of donation disclosures from the Victorian Electoral Commission website and the resulting "blackout period" that overlaps with the Nepean by-election. That reporting quoted Labor state secretary Steve Staikos telling candidates that fundraising should continue but that complete donor records must be kept so the party can comply with any future legislation, including the possible return of amounts above a restored cap. It also recorded the Liberal Party's public commitment to transparency and willingness to work with the government on replacement rules.

The Guardian framed the judgment more explicitly in terms of electoral fairness and the competitive position of non-major-party candidates. It highlighted the successful plaintiffs—independent candidates Paul Hopper and Melissa Lowe, who contested the 2022 election and intend to stand again—and quoted Lowe describing the outcome as "a great day for democracy" that helped enshrine a level playing field. Both outlets noted that the court went further than the plaintiffs had sought: rather than merely severing the exemption, it invalidated the entire donation-regulation part of the Act. Coverage across the sources also flagged potential flow-on effects for similar campaign-finance regimes in South Australia and at the federal level, though none claimed those laws had already been struck down.

Differences in emphasis were modest. ABC devoted more space to the administrative and short-term political response inside Spring Street, including the Premier's rejection of calls for an immediate parliamentary recall before the 5 May budget sitting. The Guardian gave greater prominence to the plaintiffs' arguments that the exemption had been "solely enacted for the benefit of the three legacy parties" and to the broader language of competitive equity. No source disputed the core holdings of the judgment or the identity of the parties involved.

Key Claims

• The High Court ruled Victoria's political donation laws unconstitutional and declared the entire Part 12 of the Electoral Act invalid (reported by The Guardian and both ABC accounts).
• The laws capped individual donations at approximately $4,970 per term but exempted funds channelled through "nominated entities" registered by the major parties before 1 July 2020 (multi-source).
• The case was brought by independent candidates Paul Hopper and Melissa Lowe, who argued the scheme placed an impermissible burden on the implied freedom of political communication (multi-source).
• The Victorian Electoral Commission's public disclosure portal is no longer displaying donation records and carries a notice that it is under review (ABC).
• Labor has instructed candidates and MPs to maintain integrity, retain full donor details, and anticipate possible repayment of sums above any future cap; the Liberals have pledged continued transparency and cooperation on new legislation (ABC).
• The decision carries implications for the forthcoming Nepean by-election and the November state election, and may influence scrutiny of comparable regimes elsewhere (The Guardian and ABC).
• The court found the differential treatment of nominated entities before and after the 2020 cut-off could not be justified, rendering the general cap itself invalid in its operation with the exception (ABC).

Perspectives

From the standpoint of the independent plaintiffs and their supporters, the judgment removes a structural advantage that had allowed the major parties to raise unrestricted sums through pre-2020 nominated entities while limiting everyone else. Lowe's statement, carried by The Guardian, presented the outcome as progress toward equal electoral competition. Counsel for the challengers had told the court the exemption existed solely for the benefit of the established parties; the High Court's decision to invalidate the whole scheme rather than rewrite it was welcomed as a clearer reset.

The Victorian government and the major parties have stressed continuity of ethical practice while new rules are prepared. Premier Allan, according to ABC, undertook to restore a "strong framework of election integrity" without recalling parliament before the scheduled budget sitting. Labor's internal advice, also reported by ABC, urged candidates not to accept donations from non-citizens or non-permanent residents and to keep meticulous records so that any later statutory cap can be applied retrospectively if required. The Liberal Party likewise committed to transparency during the legislative gap and signalled readiness to negotiate replacement provisions. Both parties therefore portray the current interval as a temporary administrative problem rather than an invitation to unrestricted influence.

A third perspective, reflected in the state's own submissions to the High Court and summarised by ABC, had defended differential treatment on the basis that major parties form government and that donation caps serve the legitimate aims of reducing corruption and undue influence. Once the state conceded that the 2020 cut-off itself could not be justified, however, the court held that the cap and the exception were inseverable. Legal observers note that the reasoning turns on the implied freedom of political communication, a constitutional constraint that will shape any replacement bill and that may prompt reviews of analogous "nominated entity" or party-specific exemptions in other Australian jurisdictions.

Temporal context remains important: the laws took effect ahead of the 2022 Victorian election, the challenge was heard in February, and the judgment arrives only months before voters again go to the polls. Until fresh legislation is enacted and the Electoral Commission's disclosure systems are restored, the practical onus for transparency rests on voluntary compliance by parties and candidates.