In May 2018
the NSW Berejiklian Government announced plans to cap election-related spending by unions, environmental
groups, and churches at a maximum of $500,000.
The Electoral Funding
Act 2018 No 20 came into force on 1 July 2018.
In December
2018 five unions joined
Unions NSW in challenging these laws in the High Court of Australia.
Australian
Financial Review,
29 January 2019:
In July 2018, the
Berejiklian Government reduced the amount that unions and other third parties
could spend in the six months before an election from $1.05 million to
$500,000. A political party and it candidates, however, can spend up to $22.6
million if it stands candidates in all 93 seats.
The High Court said NSW
proved that aiming to "prevent the drowning out of voices in the political
process by the distorting influence of money" was a legitimate purpose.
However, it said
"the reduction in the cap applicable to third-party campaigners was not
demonstrated to be reasonably necessary to achieve that purpose".
The court did not accept
NSW's argument that $500,000 was still a substantial sum that would allow third
parties to "reasonably present their case".
The lead judgement of
Chief Justice Susan Kiefel and Justices Virginia Bell and Patrick Keane said
"no enquiry as to what in fact is necessary to enable third-party
campaigners reasonably to communicate their messages appears to have been
undertaken".
The reforms also sought
to ban third parties from acting "in concert" by pooling money into
multi-million-dollar campaigns, such as the "Stop the Sell-off"
campaign against energy privatisation for the 2015 poll. Those who breach the
act would have faced up to 10 years' jail.
Former Commonwealth
solicitor-general Justin Gleeson SC was lead counsel for Unions NSW and the
five unions which also signed up for the challenge.
BACKGROUND
HIGH COURT OF
AUSTRALIA, Judgment
Summary, 18 December 2018:
UNIONS NSW & ORS v
STATE OF NEW SOUTH WALES [2013] HCA 58
Today the High Court
unanimously held that ss 96D and 95G(6) of the Election Funding, Expenditure
and Disclosures Act 1981 (NSW) ("the EFED Act") are invalid because
they impermissibly burden the implied freedom of communication on governmental
and political matters, contrary to the Commonwealth Constitution.
Section 96D of the EFED
Act prohibits the making of a political donation to a political party, elected
member, group, candidate or third-party campaigner, unless the donor is an
individual enrolled on the electoral roll for State, federal or local
government elections. The EFED Act also caps the total expenditure that
political parties, candidates and third-party campaigners can incur for
political advertising and related election material. For the purposes of this
cap, s 95G(6) of the EFED Act aggregates the amount spent on electoral
communication by a political party and by any affiliated organisation of that
party. An "affiliated organisation" of a party is defined as a body
or organisation "that is authorised under the rules of that party to
appoint delegates to the governing body of that party or to participate in
pre-selection of candidates for that party (or both)".
Each of the plaintiffs
intends to make political donations to the Australian Labor Party, the
Australian Labor Party (NSW Branch) or other entities, and to incur electoral
communication expenditure within the meaning of the EFED Act. The second, third
and sixth plaintiffs are authorised to appoint delegates to the annual
conference of the Australian Labor Party (NSW Branch) and to participate in the
pre-selection of that party's candidates for State elections. A special case
stated questions of law for determination by the High Court.
The High Court
unanimously held that ss 96D and 95G(6) burdened the implied freedom of
communication on governmental and political matters. The Court held that
political communication at a State level may have a federal dimension. The
Court accepted that the EFED Act had general anti-corruption purposes. However,
the Court held that the impugned provisions were not connected to those
purposes or any other legitimate end.
·
This statement is not intended to be a substitute for the reasons of the High
Court or to be used in any later consideration of the Court’s reasons
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