High Court upholds union campaigning rights

Jenny Diamond
General Secretary

The High Court of Australia has unanimously held that two sections of the O’Farrell Government’s amendments to the Election Funding Expenditure and Disclosures Act (the “EFED Act”) are invalid because these sections “impermissibly burden the implied freedom of communication on government and political matters, contrary to the Commonwealth Constitution”.

This statement has been strongly welcomed by Federation, one of six union plaintiffs to challenge the amended EFED Act through the launch of a special case initiated and coordinated by Unions NSW.

The High Court also consented to give consideration to the questions of law contained in the special case (see Key questions answered).

In 2011 the NSW State Parliament imposed significant restrictions through legislative change in the EFED Act at ss96D and 95G(6). The amended EFED Act restricts Federation’s freedom of political communication in the six months prior to a state election. Such restrictions have significant implications for Federation’s capacity to effectively engage in democratic representation, including election campaigning.

Federation expressed its concerns on behalf of members in a submission to a NSW Parliamentary Inquiry. In January 2012, the Inquiry initiated hearings arising from those submissions and Federation was invited to further address the matters within its submission.

Unions NSW proposed a challenge to the validity of the legislative changes and sought the support of affiliated unions to mount a joint challenge. In 2012 Federation Annual Conference delegates endorsed Federation’s involvement as a plaintiff in the special case.

The case generated considerable public interest and debate as the restrictions on the freedom of political communication pose a serious threat to representative democracy in that wealthy individuals would be free to campaign and/or make political donations without any restriction, yet organisations including trade unions and community groups which conducted campaigns in the lead-up to a state election on behalf of their members (not being “natural” individuals on the electoral roll) were significantly restricted and limited in election expenditure and communications.

The High Court of Australia heard the matter over two days in November. While the NSW Government was the defendant in the case, a number of state governments along with the Commonwealth also sought to intervene in opposition to the special case (see The parties).

The High Court summary issued on December 18 states:

“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 an affiliated organisation of that party. An ‘affiliated organisation’ of a party is defined as a body of 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)’.”

While Federation is not affiliated to any political party, it is affiliated to Unions NSW and as such is involved in joint union campaigns such as workers compensation and more recently, the State Wages Policy and its impact on public sector workers.

The court summary also said, in part: “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.”

The full judgment can be found at https://jade.barnet.com.au/Jade.html#article=311916.

Key questions answered

The following questions and answers are from the order of the High Court in the case of Unions NSW v New South Wales.

1. Is s 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?

Answer: Yes.

2. Is s 95G(6) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?

Answer: Yes.

3. Do ss 7A and 7B of the Constitution Act 1902 (NSW) give rise to an entrenched protection of freedom of communication on New South Wales State government and political matters?

Answer: Unnecessary to answer.

4. If so, is s 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid because it impermissibly burdens that freedom, contrary to the New South Wales Constitution?

Answer: Unnecessary to answer.

5. Further, if the answer to question 3 is “yes”, is s 95G(6) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid because it impermissibly burdens that freedom, contrary to the New South Wales Constitution?

Answer: Unnecessary to answer.

6. Is s 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid under s 109 of the Commonwealth Constitution by reason of it being inconsistent with s 327 of the Commonwealth Electoral Act 1918 (Cth)?

Answer: Unnecessary to answer.

7. Is s 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid under s 109 of the Commonwealth Constitution by reason of it being inconsistent with Pt XX of the Commonwealth Electoral Act 1918 (Cth)?

Answer: Unnecessary to answer.

8. Is s 96D of the, Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid because it impermissibly burdens a freedom of association provided for in the Commonwealth Constitution?

Answer: Unnecessary to answer.

9. Who should pay the costs of the special case?

Answer: The defendant should pay the plaintiffs’ costs.

The parties

Representation

•B W Walker SC with N J Owens for the plaintiffs (instructed by Holding Redlich Lawyers)
•M G Sexton SC, Solicitor-General for the State of New South Wales and J K Kirk SC with A M Mitchelmore for the defendant (instructed by Crown Solicitor (NSW))

Interveners

•N J Williams SC with C L Lenehan for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
•W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law Qld)
•S G E McLeish SC, Solicitor-General for the State of Victoria with A D Pound for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
•G R Donaldson SC, Solicitor-General for the State of Western Australia with C S Bydder for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))