Hopper v Victoria [2026] HCA 11 (15 April 2026) (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) is a unanimous High Court decision on a special case holding that Part 12 of the Electoral Act 2002 (Vic), Victoria’s political donations and expenditure regime, is wholly invalid as an impermissible burden on the implied freedom of political communication.
Independent candidates Paul Hopper and Melissa Lowe challenged Pt 12 of the Electoral Act as amended by the Electoral Legislation Amendment Act 2018 (Vic) (at [1]). The amendments imposed a “general cap” on political donations per election period under s 217D (at [2]). Transfers between a registered political party and its “nominated entity” were excluded from the cap by para (j) of the definition of “gift” in s 206(1) (the “nominated entity exception”) (at [2]).
Eligibility to appoint a nominated entity depended on s 222F. Parties that had made an appointment before 1 July 2020 could rely on the broader s 222F(3), which did not require the entity to be controlled by the appointing party; parties appointing after that date were confined to the narrower s 222F(2) (at [3]).
Only three parties qualified under the pre‑cut‑off regime — the Australian Labor Party (Victorian Branch), the Liberal Party of Australia (Victorian Division), and the National Party of Australia – Victoria — each with “substantial” pre-existing assets and funds (at [23]). As a result, those parties enjoyed “a significant advantage as to the sources of funds that they can spend on political communications” (at [134]), with the exception operating to “amplif[y]” their voices (at [135]).
The majority (Gageler CJ, Gordon, Jagot and Beech‑Jones JJ) applied the settled three‑step framework for the implied freedom of political communication:
- Whether the law effectively burdened political communication in its terms, operation or effect;
- Whether it pursued a legitimate purpose; and
- Whether it was reasonably appropriate and adapted to achieving that purpose (at [28]).
At the first step, the majority held that the general cap restricted “the funds available to [regulated persons or entities] to meet the costs of political communication” by limiting the amount that could be donated (at [30]), thereby imposing an indirect but “not insubstantial” burden on political communication (at [31], [41]). Because of the nominated entity exception, the burden was also “differential in nature”, operating more favourably for parties with pre‑capitalised nominated entities than for others (at [41]). At the second step, the majority accepted that the anti‑corruption purpose of reducing “the risk of corruption or undue influence in the government of the State” arising from office holders being beholden to major donors was legitimate (at [42]–[44]), since it is “large‑scale donations” that are most likely to generate influence or pressure (at [43]). At the third step, however, the State conceded that the temporal limitation in s 222F(3) imposed a differential burden that could not be justified (at [50]–[51]).
That left the question of severance. Section 6(1) of the Interpretation of Legislation Act 1984 (Vic) “reverse[s] the presumption that a statute is to operate as a whole”, such that legislative intention is prima facie taken to favour divisibility, allowing valid provisions to operate independently of those that fail (at [54]). The provision does not, however, authorise the Court to “redraft a statute or regulation so as to bring it within power” (at [54]). The majority rejected each option in turn.
First, excising the temporal limitation from s 222F(3) alone would leave ss 222F(2) and 222F(3) operating concurrently as two mutually inconsistent eligibility regimes. That was “sufficient reason to conclude that the time limitation in s 222F(3) is not capable of severance” (at [57]).
Secondly, severing the nominated entity exception in para (j) of the definition of “gift” would extend the real time disclosure regime to intra party transfers, render the nominated entity regime “redundant”, and amount to impermissible judicial redrafting of each substantive provision in which the defined term appeared (at [60] to [63]).
Thirdly, severing the nominated entity regime in its entirety would likewise constitute impermissible judicial redrafting (at [66]).
Finally, severing Div 3B, which contained the general cap itself, was equally impermissible because the public funding provisions and the nominated entity exception “constitute part of, and were intended only to operate in”, that wider regime (at [67]). The provisions therefore “form[ed] part of an inseparable context”, with the consequence that Pt 12 was invalid in its entirety (at [55], [68]).
In a separate concurrence, Edelman J identified the true subject of challenge as s 222F(3). His Honour characterised its purposes as twofold: a “legacy parties purpose”, namely preserving the three major parties’ access to uncapped transfers from pre‑capitalised nominated entities, and an “call exclusion purpose”, namely preventing any other party from ever obtaining that benefit (at [110]). The former was extraconstitutional and, because it was “inextricably connected with the purpose of the other laws in Pt 12”, infected the entire scheme, rendering all of Pt 12 invalid (at [119]–[120]).
Edelman J also observed that the structured proportionality test articulated in McCloy v New South Wales (2015) 257 CLR 178, which examined rational connection, reasonable necessity and adequacy in balance, had been progressively abandoned. In light of “the antipathy towards any test based upon structured proportionality now expressed by a majority of this Court”, his Honour suggested that the test “should now be treated as dead” (at [86]–[88]).
Victoria must now enact a fresh campaign finance regime. Hopper confirms that differential burdens which favour established or legacy parties will attract keen scrutiny from the Courts. The High Court found that the flawed provisions were so intertwined with the rest of Victoria’s Electoral Act that attempting to sever them would only result in further incoherence. Accordingly, the Court declared all of Part 12 to be invalid.
