On 15 February 2023, the High Court handed down Judgment in Unions NSW & Ors v State of NSW [2023] HCA 4, in which G+T acted for Unions NSW, NSW Nurses and Midwives’ Association, Public Service Association and Professional Officers’ Association Amalgamated Union of NSW, and NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union. The case involved a constitutional challenge to the validity of sections 29(11) and 35 of the Electoral Funding Act 2018 (NSW), which imposed an electoral expenditure cap of $20,000 (indexed for inflation) for third-party campaigners in State by-elections, and restrictions on the campaigning expenditure permitted where third party campaigners ‘act in concert’ by campaigning together or in a coordinated way. The constitutional issue was whether these laws breached the implied freedom of political communication.
In this case the politics of the dispute got well ahead of the law. The matter was set down for urgent hearing in November last year, but just two weeks before, the NSW Parliament repealed the acting in concert provisions. The court was disinclined to rule retrospectively (or prospectively) on the acting in concert provision, given its repeal. The Court held it had no jurisdiction to consider the law on the basis of either its past operation, or the apprehension that the law might be reintroduced.
The court did hear argument on the by-election issue, but within one week of the hearing, after the release of a parliamentary committee report from the Joint Standing Committee on Electoral Matters recommending that the by-election cap should be increased to $198,750 (indexed for inflation or other increases to spending caps for parties and candidates), the NSW Government conceded that the by-election cap was constitutionally invalid. While two judges felt that the concession of invalidity by NSW made it unnecessary for the Court to consider the issue, the majority took the view that the validity of a law was not a matter for agreement between parties, and ruled the by-election cap invalid as it imposed a burden on the implied freedom which had not been justified.
This is the third win for Unions NSW in the High Court, on issues relating to electoral laws.
The G+T team was led by partners Kate Harrison and Peter Munro , with lawyers Harry Meixner and Alice Durham. Unions NSW briefed Justin Gleeson SC, Nic Owens SC, and Celia Winnett of Counsel.
