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High Court backs unions' constitutional challenge


The High Court has today unanimously upheld a Unions NSW challenge to the validity of state election funding laws that curtail spending by "third party campaigners" such as unions. 

Chief Justice Susan Kiefel and Justices Virginia Bell, Stephen Gageler, Patrick Keane, Geoffrey Nettle, Michelle Gordon and James Edelman found the NSW Electoral Funding Act invalid because it impermissibly burdens the Constitution's implied freedom of political communication on government and political matters. 

Chief Justice Kiefel and Justices Bell and Keane said NSW had failed in reducing the spending cap to justify the "burden" on the implied freedom "as necessary to prevent the drowning out of voices other than those of third party campaigners". 

In a separate judgment, Justice Edelman said the "only rational explanation" for reducing the spending cap for third-party campaigners and introducing an acting in concert offence "is that. . . the Parliament of New South Wales acted with the additional purpose, not merely the effect, of quietening the voices of third-party campaigners relative to political parties and candidates". 

"That purpose. . . cannot co-exist with the implied freedom of political communication", he said. 

Unions NSW in 2013 won a challenge to an earlier round of election funding changes.

Unions NSW v New South Wales [2019] HCA 1 (29 January 2019)

Summary of judgment

This article was first published in Workplace Express, and is reproduced with thanks.