High Court excels in McCloy's case

The majority judgment repeated this in another seminal passage, adding that 'equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution'.

Professor Twomey, in a clear and succinct analysis, cites passages which leave no doubt that the remaining three judges - Gageler, Nettle and Gordon JJ., see this egalitarian principle as an essential part of the justification for limits and bans on political donations. In a submission to the Final Report of the Expert Panel on Political Donations of New South Wales, she concludes:

… the High Court gave very strong support to the imposition of limitations on political donations as a means of reducing or removing undue influence and facilitating the equal share of individuals in political power. It also recognised as a legitimate end the imposition of limits to prevent those with wealth from dominating political communication to the exclusion of others. (emphasis added).

It is easy to overstate the effect of this ruling in Australian law, because it does not create a 'right' to equal treatment comparable to the 'equal protection' clause of the Fourteenth Amendment, which famously broke the back of US racial apartheid in 1954 in Brown v Board of Education and succeeding cases. But this is no less true of the High Court's freedom of political communication - the Court has been adamant that it cannot be read as creating a 'jurisprudence of rights' under another guise.

It has taken this stance out of respect for the doctrine of separation of powers and the conviction that unelected judges must not trespass on the role of parliament to legislate social policy. The same concern helps to explain the highly structured nature of these protections, with both the freedom and the egalitarian principle defined by technical doctrines which guide their interpretation and limit their scope.

But it is also easy to understate their role as principles which justify the new protections and their limits. For whenever the ultimate court in a judicial hierarchy appeals to abstract legal and constitutional principles to modify existing rules, there is an implied invitation to counsel to participate in the process by offering better interpretations. Good lawyers anticipate this responsibility when they prepare their submissions.

McCloy's Case will be celebrated in the law schools and the after dinner speeches of judges for years to come. It deserves this status because it insists that equal respect is no less important than free speech in giving substance to democratic institutions. But also because it opens the door to a form of legal argument which ties legal principles to the abstract values of freedom and fairness which both explain and justify the system of government the nation has adopted.

It is difficult to understate the importance of this as a contribution to legal philosophy in general and to constitutional interpretation in particular. For the High Court has succeeded admirably where the current US Supreme Court failed miserably - it has shown how imaginative arguments of principle allow the constitution to be the best it can be in securing the underlying values it stands for.