Unions NSW v New South Wales

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Crennan,Kiefel,Bell JJ
• Judgment Date: 18 December 2013
• Neutral Citation: 2013-1218 HCA C,[2013] HCA 58
• Docket Number: S70/2013
• Date: 18 December 2013

[2013] HCA 58

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ

S70/2013

Unions Nsw & Ors

Plaintiffs

and

State Of New South Wales

Defendant

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))

Constitution, ss 7, 24, 96, 128.

Election Funding, Expenditure and Disclosures Act 1981 (NSW), Pt 5, Div 2, Pt 6, ss 83, 95G(6), 96D.

Election Funding, Expenditure and Disclosures Regulation 2009 (NSW), cl 34A.

Unions NSW v New South Wales

Constitutional law — Implied freedom of communication on governmental and political matters — Section 96D of Election Funding, Expenditure and Disclosures Act 1981 (NSW) (‘EFED Act’) prohibits political donations unless made by individual enrolled on roll of electors — Section 95G(6) of EFED Act aggregates expenditure by political party and affiliated organisations for purposes of cap on electoral communication expenditure — Whether political communication at State level can effectively burden federal implied freedom of communication — Whether ss 96D and 95G(6) effectively burden implied freedom of communication — Whether ss 96D and 95G(6) connected to legitimate end.

Words and phrases — ‘implied freedom of communication on governmental and political matters’, ‘legitimate end’.

ORDER

The questions asked by the parties in the Special Case dated 12 August 2013, as amended, be answered as follows:

Question 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.

Question 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.

Question 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.

Question 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.

Question 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.

Question 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.

Question 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.

Question 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.

Question 9

Who should pay the costs of the special case?

Answer

The defendant should pay the plaintiffs' costs.

1 1 French CJ, Hayne, Crennan, Kiefel and Bell JJ. Division 2 of Pt 6 of the Election Funding, Expenditure and Disclosures Act 198(NSW) (‘the EFED Act’) requires the annual disclosure to the Election Funding Authority of New South Wales (‘the Authority’) of all political donations received and all electoral expenditure incurred by or on behalf of a party, an elected member, a group or a candidate 1. A ‘party’ is defined as a body or organisation having as one of its objects or activities the promotion of the election to State Parliament or a local council of a candidate endorsed by it 2. A third-party campaigner 3 is required to disclose political donations received and certain expenditure 4. Political donations of $1,000 or more must be disclosed if made by a major political donor 5.

2 A ‘political donation’ is essentially any gift made to or for the benefit of a party, elected member, candidate or group or to a third-party campaigner 6. ‘Gift’ is defined widely and includes annual or other subscriptions made to a party by a member, or by a person or entity (including an industrial organisation) for affiliation with the party, and amounts paid by way of fund raising 7.

3 Political donations are subject to general caps provided for in Div 2A of Pt 6. The cap for political donations to a registered party or a group in a financial year is $5,000 and to an unregistered party, an elected member, a candidate or a third-party campaigner is $2,000 8. It is subject to indexation 9. There is a general

prohibition on the acceptance of political donations that exceed the applicable cap 10.

4 Division 2B of Pt 6 provides for caps on electoral communication expenditure for State election campaigns. ‘Electoral expenditure’ is expenditure for or in connection with promoting or opposing a party or candidate or for the purpose of influencing voting at an election 11. ‘Electoral communication expenditure’ more specifically includes expenditure on advertisements, the production and distribution of election material, the internet and telecommunications 12. It is not necessary to detail how caps are applied to electoral communication expenditure. An example will suffice. The applicable cap for a party that endorses candidates in a general election to the Legislative Assembly of New South Wales is $111,200 multiplied by the number of electoral districts in which a candidate is endorsed 13. It is unlawful for a party, group, candidate or third-party campaigner to incur electoral communication expenditure for a State election campaign during a capped expenditure period 14 if it exceeds the applicable cap 15.

5 The EFED Act makes provision in Pt for public funding of State election campaigns from an Election Campaigns Fund. It provides for funding of specified percentages of the total actual electoral communication expenditure incurred by a party or candidate within ranges of the applicable expenditure cap. Again, it is not necessary to detail these provisions.

6 The Authority is required 16 to publish, on a website maintained by it, disclosures of reportable political donations 17 and electoral expenditure together with any other information it considers relevant. Copies of disclosures are to be maintained for a period of years and are to be available for public inspection 18.

7 The general scheme of Pt 6, clearly enough, is to regulate the making of political donations to parties, candidates, elected members and others in New South Wales by limiting the amount or value of what may be given to them by any one person, organisation or other entity. It does not permit large individual donations. There is an obvious connection between the need to fund advertising and other methods of communication in connection with election campaigns, and political donations. Part 6 therefore also seeks to limit the amount which may be spent on such communication in the period leading up to an election. To offset, to an extent, the limit on funds available to parties and others, Pt 5 provides some public funding for the purposes of election campaigns. Additionally, the EFED Act enables the public as well as the Authority to scrutinise the donations and their sources and the electoral communication expenditure that is made.

8 The general purpose of these provisions is not in dispute. In its defence, the defendant describes that purpose as being to secure and promote the actual and perceived integrity of the Parliament of New South Wales, the government of New South Wales and local government bodies within New South Wales. More specifically, it identifies the potential risk to integrity as arising from the exercise of undue, corrupt or hidden influences over those institutions, their members or their processes. Donations are identified as a method of exercising such influence. The risks to integrity are significantly increased, the defendant further explains, where there is a need to raise large amounts of money in order effectively to compete with rivals in connection with election campaigns.

The provisions in question — the issues

9 Provisions of these kinds are not limited to New South Wales. They have counterparts in legislation of the other States and Territories 19. The plaintiffs accept that the EFED Act seeks to address the problems identified and that its general objects are legitimate. The plaintiffs do not, however, accept that those purposes are furthered by the two provisions in...