Unions NSW & Ors v State of New South Wales

[2022] HCATrans 204

[2022] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S98 of 2022

B e t w e e n -

UNIONS NSW

First Plaintiff

NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION

Second Plaintiff

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS’ ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES

Third Plaintiff

NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION

Fourth Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 NOVEMBER 2022, AT 9.45 AM

(Continued from 16/11/22)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours know from proposition 2(a) in our outline that we have drawn to attention in the references to our paragraphs 15 to 21 in our written submissions to the material falling within the description of travaux preparatoires for the law to justify the notion of a differential – that is, lower expenditure caps – for third‑party campaigners than for candidates or parties.

I do not need, I think, to take your Honours to the particular references, but as to the “drowning‑out” notion, we submit that there is real substance from more than isolated voices and very respectable voices before the panel, and then the committee, and then finally the Houses in the passages that you will find in particular in the special case book at pages 2523, 2532, 2533 and 2534.

GORDON J:   Sorry, could you give us those numbers again.

MR WALKER:   2532, 2523, 2533, 2534.

GORDON J:   Thank you.

MR WALKER:   I was asked yesterday about so‑called single issues.  That is unquestionably part of the history of experience and consideration that you will find involved in the opinions there recorded, noted and considered.  For example, a member recalling a threat from an industry that might have been the object of her political work, that there would be expenditure, obviously adverse to her prospects, were she to persist in a particular policy, et cetera.

Bearing in mind that where there are single issues, all the money for that participant in political communication can be devoted to a single issue where, as parties and candidates – no doubt, at their peril – seek government on a single issue alone, one can see, with respect, thoroughly within the so‑called domain of selections of the Houses how the notion of the differential can be justified.

GAGELER J:   Mr Walker, when you use the language “travaux”, do you accept that we are concerned with the Act as amended as 2022 so that we are entitled, in understanding its scheme and operation, to look at everything that occurred up until then?

MR WALKER:   Yes, it would be illogical otherwise.  That is, it would be illogical to treat the Act as we must treat it being in what I will call its latest iteration, which includes repeals, amendments, et cetera.

EDELMAN J:   Sorry, I interrupted you.

MR WALKER:   It would be illogical for me not to accept that that entails – to the extent it is genuinely travaux – resort to all that material.  I should say that is one of the reasons why the experience – the historical experience is relied upon in the passage of argument I am about to come to.  I am sorry, Justice Edelman.

EDELMAN J:   Does that mean that the travaux and the history in relation to the provision since 2010 becomes irrelevant?

MR WALKER:   No.

EDELMAN J:   And if not, would the starting point not be, then, what the purpose of the provision was in 2010, and then to consider whether that purpose had changed with all the changing iterations in the statutory scheme?

MR WALKER:   Yes.  While on this aspect of the travaux, and in the same spirit as some matters my learned friend referred to yesterday, the report – that is at tab 183A of the supporting documents in volume 10, that is, the report’s chapter 9 concerning third‑party campaigners, pages 2529 and following.

KIEFEL CJ:   Which report is this, Mr Walker?

MR WALKER:   This is the report of the expert panel to the Joint Committee.

KIEFEL CJ:   Thank you.

MR WALKER:   The 2014 iteration – and I need to add as a support for this proposition that you will find the terms of reference as an appendix to the Joint Standing Committee report, which is at tab 185.  I do not need to take you to it, but when you put all of that together, what you will not find are matters raised for the panel’s – thus the committee’s, and eventually the House’s – consideration of submissions, protests, assertions from persons with experience or views to the effect that an indexed $20,000 was inadequate for reasonable campaigning for such participants.

In our submission, when considering – the Court considering whether we have discharged the onus of showing the parliamentary justification for the burden, it is, of course, appropriate to bear in mind what the subject matter of any controversy or countervailing views was as presented by an inquiry which sought submissions, and obviously cast the net wide, not only from persons who were players, so to speak, but also academic and other observers.

In our submission, there is some significance, contributing, but not completing, the discharge of our onus of justification in the fact that one does not find that those are sums which were raised in those materials as being either self‑evidently or, as it happened by reference to evidence, inadequate for a purpose.

GORDON J:   Can I ask you a question about your reliance on this chapter 9 in this report?  You took us to pages 2532 to 2534.

MR WALKER:   Yes.

GORDON J:   These are the justification for the reduction in the cap ‑ ‑ ‑

MR WALKER:   That is right.

GORDON J:   ‑ ‑ ‑ which, ultimately, was found invalid.

MR WALKER:   Yes.

GORDON J:   Do you ‑ ‑ ‑

MR WALKER:   I am sorry, I was drawing it to attention for the purpose of showing that the phenomenon of so‑called “drowning‑out” or an excessive voice compared to candidates and parties.

GORDON J:   Could you just identify what you regard as the high point of that proposition?  Is it to be inferred from the 2532 to 2534?  I just could not – looking at it then – identify what it was which was addressing that issue.

MR WALKER:   That a lesser amount than for candidates and parties is a justified response to a phenomenon of third‑party campaigners who, typically, will have fewer issues – perhaps, single issues – in relation to any campaign.  That is a by‑election or a general election. 

GORDON J:   Thank you.

GLEESON J:   Does it address the issue of a multiplicity of voices in relation to a single issue?

MR WALKER:   No, only between the lines – that is, there appear to be assumptions made in some of that material as to whether voices will align or not, but I would cheerfully accept that that is not an assumption that can be substantiated.

KIEFEL CJ:   Mr Walker, does this differ in any way from the justification that was put forward in Unions (No 2)?  It is dealt with in the joint judgement most clearly, of course.

MR WALKER:   No.  The notion of it being a legitimate purpose ‑ ‑ ‑

KIEFEL CJ:   I do not think that was the way it was dealt with, at least in the joint judgment ‑ ‑ ‑

MR WALKER:   No.

KIEFEL CJ:   A legitimate purpose was assumed.

MR WALKER:   Yes.

KIEFEL CJ:   Rather, the argument that a differential approach to candidates and parties forms a basis for justification of discriminatory or differential effect.

MR WALKER:   Quite.  May I put it this way.  As your Honours know, and this is, in particular, our proposition 2(b) in our outline, we take this view concerning the stare decisis of Unions (No 2) – we urge that the ratio is that, assuming legitimacy of purpose, in Unions (No 2) the materials did not permit the State to discharge its onus of justifying.  That is, assuming legitimacy of a differential being a lower amount capping the expenditure of third-party campaigners, the ratio, plainly, is that the justification had not been achieved.  Now, that leaves not settled as binding authority in this Court as to whether a lower amount for third-party campaigners is both a legitimate purpose and therefore a footing for the justification of a burden – I say a footing, that is, it is a starting point.

GAGELER J:   If you frame the purpose in that way, that is by definition a discriminatory purpose.  That is why you put the purpose at the higher level.

MR WALKER:   Yes.  There is, of course, high level purposes, you find them in the objects of the Act; but I can hardly treat them as a trump card on my argument, they are not.  They are too general for that argument.  What we submit is that the functional difference – as Justice Gageler described it in paragraphs 90 to 91 of (No 2) – the functional distinction is clear, that is it is not really contestable, that the role of a candidate differs from people who are not candidates, and the roles of a party endorsing candidates is plainly different from ad‑hoc single‑issue, and/or shifting temporary alliances of persons coming from different sections, but not constituting any of them a political party.  That being, nowadays, a relatively formal concept.

Once one accepts that that is a functional difference, it is equally, we submit, incontestable that in representative Houses, particularly Lower Houses, that the State Constitution contemplates and the law regulates as to its election, there is a difference in the task or challenge facing candidates and parties compared with the role undertaken by participants who are neither of those in election campaigns.

That is why we identify that in the travaux there are, in ways that answer to the description of a mischief – that we would find support for in Justice Gageler’s paragraphs 90 to 91, Justice Nettle’s paragraphs 110, 113 – as being not only a legitimate purpose but also the start of an inquiry where we bear the onus to justify a burden of a lesser cap for third‑party campaigners – accepting that the burden extends to the actual amounts, both relative and absolute.  By “relative”, we mean relative to parties and candidates, and that has altered, as your Honours know, over the years.  By “absolute”, I mean perhaps the buying power matters that our learned friend raised yesterday in particular with respect to television and the like.

Though it has to be observed that the history that I am going to come to scarcely supports that these are matters either as to a justified differential or as to a justified amount, but have ever been dominated by reference to the concerns raised by people with expert panels, committees, et cetera – ever been dominated by references to the rate cards of television channels or radio stations.

EDELMAN J:   Mr Walker, what approach do you say that the Court should follow in light of Unions (No 2) to a purpose that is based upon, say, functional difference?  Does the Court assume that that was the purpose and assume that that purpose is legitimate, and then go on and test that assumed purpose and assumed legitimacy for justification?  And if it passes justification, does one then go back and test the assumptions that one started with?  Or, are you saying that no assumption need be made at all?

MR WALKER:   This case could be determined, we submit, and in our favour, without taking further what might be called a majority assumption in Unions (No 2) concerning legitimacy of purpose, and the difference between this case and (No 2) being if I can persuade your Honours that there is material to justify it.  We would put it another way that the failure shown very clearly by the history – that, for example, is very clearly brought out by paragraph 53 of the plurality reasons in (No 2) – finds no counterpart here.

Notwithstanding that this deadline to which my learned friend fairly referred yesterday, there is, in this case, history which, for the latest iteration, which is the subject matter of validity challenging this case, is available to discharge our onus of justification – namely, the actual behaviour of third-party campaigners under the evolving regimes, simply does not support that the amount in question, now at indexed 20 again, is inadequate for the purpose of reasonable campaigning.

That is the first part of my answer to Justice Edelman’s question.  The second and alternative approach is, as we urge in proposition 2(b), that for the reasons found in the travaux to which I have just referred, there is not merely to be assumed, but that there is, this Court should hold, legitimacy of purpose in a differential, that is, heavier burden imposed on third-party campaigners by a way of electoral expenditure caps, compared with parties and candidates.  That does go further than Unions (No 2), and it seeks to turn into a holding that which was assumed and is not the subject of stare decisis from (No 2).

GORDON J:   Some of us in Unions (No 2) recognised this idea of fairness.  In a sense, that is what you have got to meet, that this is – in a sense, that is the issue.

MR WALKER:   Yes, unquestionably.

GORDON J:   In other words, if we looked at the Hansard, which dealt with the issues in Unions (No 2) it was addressed at fairness.  You might call it “drowning out”.  I put that to one side, what label was attached to it.  But it was fairness of equality of voice ‑ ‑ ‑

MR WALKER:   Yes.

GORDON J:   ‑ ‑ ‑ consistent with Justice Mason’s analysis in ACTV that they are all actors, every single one of us, and we are looking at fairness of voice.

MR WALKER:   Yes.  As I hope I made clear yesterday, we are not mounting an argument on the basis that a candidate, still less a party supporting a candidate or proposing a candidate, has some institutional privilege concerning the communication.  That should then inform the whole of our argument.  We accept entirely that we are all participants in political communication and that it is not a freedom for the benefit of candidates and parties alone –an unthinkable proposition.

However, in our submission, in the world where caps on expenditure is accepted as, in broad terms, permissible – that is, not a burden which is, per se, illegal – the question then arises as to matters that might be called fairness, might with more difficulty, be called equality whether of arms or of voice.  And the need for a law which cannot obviously attend to every individual’s circumstances, when drawn in terms that are both expedient from the point of view of administration and sensible in terms of permitting people to plot their course of conduct, whether that can permit of lower expenditure caps for persons by reference to their different functional status in an election campaign. 

If – and I accept that this is necessary for me to establish – we can establish there is that functional difference, about which I do not want to say more, then there follows – simply stated, not necessarily simply demonstrated – a justification of the monetary expression of that discrimination or differential treatment.  In the nature of things, given that money here is related to expenditure, expenditure is in a market and markets are dynamic, that obviously gives rise to the question to which any law has to, as it were, smooth out particular and temporary differences.  There is nothing objectionable about that or unreasonable. 

We accept that there is a constant requirement that the burden not become unjustifiable by, as it were, caps becoming grossly anachronistic, hence indexation.  That is a problem which I have to accept as a matter of argument, if there is a radically different approach, say, to indexation.  But that is not an approach that means that amounts can only ever go up, or that they can never go down and differentially be altered up or down between parties and candidates on the one hand and third‑party campaigners on the other.  There is well within the domain of selections views concerning the nature of campaigning and, in particular, the modes of communication that require expenditure, be that television, radio or the plethora and multifarious kinds of so‑called digital communication.

We know that something which always costs money and is available in markets, namely travel and accommodation, has been removed as being, as it were, a pressure on budgets.  But we accept that there is no material in this case, just as there was no material in the last case, which has, as it were, quantity surveyors’ consideration of what it costs to do something, either in the broadcasting field or in any of their other what might be called rather newer media for communication otherwise than by face‑to‑face conversation or ‑ ‑ ‑

STEWARD J:   Is another way of looking at your case to ask the question – leave aside what candidates get and parties get as a cap, the real question is whether the cap that has been allocated to the third parties is sufficiently reasonable for them to undertake their functions and purposes.  That is really the question.

MR WALKER:   Yes.

STEWARD J:   As you say, they all have different functions and purposes and a candidate of a major party, but that is the question.

MR WALKER:   Yes, and briefly to note something I put yesterday, without needing to elaborate it again from my point of view, one does not approach that by saying that if a person, or a group of third‑party campaigners, can be found whose preference it is to do things more expensively than the cap would permit, that demonstrates the inability to justify the amount as adequate for a reasonable campaign.  That would be self‑evidently absurd; that is the limit that is only justifiable if it does not actually constrain anyone.

That is why we have drawn to attention that in the historical materials – that is, the broad sweep of travaux, including for previous iterations of the regime – there is some significance contributing towards our discharge of our onus in the fact that you do not find people saying, but for this amount of money I cannot do anything useful, you are in fact muting a voice that I wish to raise, and neither the experts nor the committee come up with anything of that kind.

GORDON J:   Can I just go back to this approach to assumption about purpose which really, I think, first raised its head in Justice Mason’s judgment in ACTV which is the way his Honour approached it?

MR WALKER:   Yes, your Honour.

GORDON J:   If one adopts that approach which, in a sense, is reflected in a number of the judgments in Unions (No 2), and one then looks to see whether or not – whether it is the approach adopted by Justice Steward or this idea of equality of fairness of voice – and answer that, is it not then necessary to ask about the size of the cap?

MR WALKER:   Yes, unquestionably.  The heart of my defence of the matter has to be to persuade your Honours – the onus being on me – that these are not inadequate amounts.  I entirely accept that.

GAGELER J:   Taking the relativities into account, of course.

MR WALKER:   Your Honour, we think so, with respect, though that will not always necessarily be the case.  That raises a different dimension which we think is, probably, not in play in this, namely – if I could put it conceptually thus – an otherwise adequate budget for third‑party campaigners but a very generous budget – not bare minimum – for parties and candidates.  Would that, on an equality of arms approach to fairness, mean that that which would otherwise have been adequate by enough television, et cetera, should, given that relativity, make it unreasonable.  There may be a case about that.  That does not appear to be this case.

GAGELER J:   What about the position of a party without a candidate in the by‑election?  I would have thought that that was an inconceivable scenario but, apparently, it has happened in the past.

MR WALKER:   Yes.  Again, if I may say so, defensively, that is not this case – that is, we do not have a concrete complaint by a party, or by somebody politically vying against such a party, concerning the operation of these laws.  But it draws to attention the definition of “third‑party campaigner”.  It would appear that the legislative choice made is that that possibility is not so dominating as a probability as to require any more attention than has been given to the definition of “third‑party campaigner” against the possibility that a party without a candidate nonetheless wishes to participate by political communication and, on the face of things at the moment, I would accept, has the higher expenditure cap which, plainly, has been devised for parties proposing candidates.

GAGELER J:   One overall impression one gets from looking at the travaux is that a great deal of attention was paid to general elections and virtually no attention was paid to by‑elections.

MR WALKER:   I have to confront that.  My friend has raised that.

GAGELER J:   Maybe some things slipped through the cracks, Mr Walker.

MR WALKER:   Your Honour might expect me to agree with that, given that a sieve is not necessarily the best legislative tool, but your Honours, it is a fair proposition as to text that our learned friend has put that you do not find by‑elections being specifically being considered in the passages to which is drawn attention.  That is a fair observation.

However, for the reasons I am going to put, it is to be borne in mind that with the 93 different districts, you do not expect there to be 92 by‑elections at the same time.  There may be more than one, but they tend to be few in number for any given election day or campaign.  It is for those reasons that, in our submission, there is ample justification in some kind of proportioning – to which I am going to come – and that there is more than enough material, given general election caps and conduct, the number of districts, the nature of by‑elections, the fact that, rarely, will government turn on the outcome of a by‑election – of course, it is possible, but rarely.  Given all of those factors, in our submission, that the numbers to which I am going to come are numbers which, in our submission, justify relatively the allocation for by‑election to third‑party campaigners.

Part of that argument – as your Honours appreciate – is that as we have put in proposition 2(c)(i) of our outline, that there is an unchallenged cap for general election.  We can start in this argument as, with respect, legislators looking from time to time at the terms of administration of this legislation can proceed, that if caps on expenditure for general elections are relevantly unchallenged, then that is a good starting point; a yardstick that can be called in aid, in any number of ways available within the domain of selections to fix differentials for by‑elections as well.

We have drawn to attention in paragraph 35 of our written submissions what we call the broad proportionality that you can see for by‑elections compared with general elections.  You have to bear in mind in the adjustment that by‑elections tend to have campaigns much shorter, and truncation of campaign, although almost certainly not in linear fashion, nonetheless probably reduces expenditure.  Bearing that in mind, in our submission, it is not possible to say that the indexed amount is, as it were, undersized compared to what is available for a general election.  As it were, you divide by 93, you make allowances for the difference in the period, and there is nothing startling or disturbing about a disparity.  There is not truly a disparity at all.

Then we come to something which I accept is a separate component of our onus of justification – but what about the actual amount, bearing in mind this is about expenditure, and so we are talking about behaviour in markets and what can you get.  Now, the Court would hesitate, particularly with a record of the kind before it in this case, before promulgating rules, so to speak, for how many radio spots per day, how many days a week, et cetera, what hours of the day are barely adequate – that is, the minimum acceptable – for a reasonable opportunity to campaign electorally on the part of a third‑party campaigner.

That is not to say those are irrelevant factors.  They are probably quite central, but it is not the stuff of judicial rulemaking, and it is the stuff of the domain of selections; that is, there is probably no uniquely correct answer.  Reasonable minds may differ, probably materially, probably depending upon their regard or not for the cacophony of an electoral campaign. 

If the choice can be shown to have a rational basis which answers to the purpose – the legitimacy of which has either been assumed or accepted – then, in our submission, the onus will have been discharged.  We submit that the empirical approach is the kind of rationality that you would look for when considering justification for an amount of money capping expenditure by reference to the conduct of persons who want to do something which will require that expenditure; that is, campaign.

That is why, in our submission, the historical experience of third‑party campaigners, by reference to their returned expenditure – their disclosed expenditure – compared with caps from time to time, does provide powerful justification for the continuation of the kind of relativity and the amount – now indexed – provided for the third‑party campaigners.

To that end, could I take your Honours, please, to the further amended special case at 4264 and following of the book.  I am sorry, I have given you the wrong number.  Page 4249, I am sorry, your Honours, and following, paragraph 22.  This is a collection of data.  Your Honours are familiar with the way it has been laid out.  The particular concern is with the electoral expenditure amount, which is the second column.

Your Honours can see immediately the experience and conduct of various third‑party campaigners in various by‑elections and, in our submission – leaving aside the difficulty of me inviting any inference any way concerning the “Nil” entries – I do not say anything can be taken from that and I, in particular, do not ask your Honours to say that third‑party campaigners could be properly regarded as people who do not need to expend anything because some of them do not expend anything.

But when one looks at the people who have decided to participate and, at the risk of stereotyping, if you go to 4252 – an item my learned friend drew to attention – the New South Wales Minerals Council – invite perhaps some marginal judicial notice that they are unlikely to be impoverished – but nonetheless, by comparison with available caps, we are not there talking about somebody who is straining at the leash to spend more than the cap permits.  In our submission, that is a pattern which, by pretty comfortable margins, by and large – subject to the anomaly my learned friend drew to attention on 425 for the AMWU – from all of those amounts.

STEWARD J:   So, the inference is that if there was a problem here, we would expect to see everybody up near the $20,000 mark?

MR WALKER:   If you want to spend more money, and you feel constrained by the amount of money that you are allowed to spend, it would be rational – no doubt with a margin of safety – it would be rational to spend as much as you can, because that would be less than you wanted to spend.  Now, that may not always be correct, psychologically, of a person.  Maybe people are demoralised by the existence of any cap, and so they do not participate at all.  But that is not something which would concern this Court, because that involves the idiosyncratic response of individuals subject to a law, in a way that is not reasonable for Parliament to have taken into account.  There is no evidence anywhere in any of the travaux of anyone saying, if there is any expenditure cap, or if the expenditure cap of the kind – of the amount you seem to be contemplating, then none of us is going to do what we would otherwise do.

KIEFEL CJ:   But there are some TPCs who are clearly right at the cap level – in Bega 2022, the FBEU, same again for then in Monaro and Strathfield.

MR WALKER:   Now, your Honour is quite correct, with respect, which is why I argued yesterday and again today that you do not show lack of reasonable opportunity that showing that some people would like to spend more.  It cannot be ‑ ‑ ‑ 

GORDON J:   You have got three problems, really.  You have – the cap is already there, so that is – and I think you just accept that governs or influences behaviour.

MR WALKER:   I accept that, yes.

GORDON J:   You have got the Chief Justice’s point where you have a number close to the cap and then you have got to meet the inability to participate in particular kinds of communication because the amount prohibits it.

MR WALKER:   I think I have, whether effectively or not, tried to answer the first two.  As to the third, could I take you to 4279 by way of an example, in paragraph 89.  The returns there concerning the Upper Hunter by-election show a level of expenditure on television and radio by the Labor Party candidate of an amount that is obviously less – considerably less – than the cap on expenditure for other kinds of people being third-party campaigners.  I only point out that a choice made by somebody who was actually a candidate, wishes to be elected, is not consistent with the notion, as my learned friend repeatedly said from the Bar table that the amounts for the expenditure cap on third-party campaigners are inadequate to permit the purchase of broadcast advertising – that is, television and radio.

By “broadcast”, I intend to distinguish that from the various kinds of new media – television and radio may be old media – but new media, which, manifestly, if you look at the same column for the Labor Party candidate in paragraph 89, the very next entry shows what might be called a “playing preference”, with respect to how to allocate a much larger sum not available to candidates and parties.

KIEFEL CJ:   Mr Walker, you said before – and I am just paraphrasing – in the context of what is reasonably necessary for expenditure, that that is not answered by whether someone would like to spend some more, that may be accepted logically.

MR WALKER:   Yes.

KIEFEL CJ:   But do you not have to deal with the fact that this is – what is reasonably necessary has never actually been examined?

MR WALKER:   Yes.

KIEFEL CJ:   That is really the issue, is it not?

MR WALKER:   That is an important aspect of what I have to deal with in addressing that issue, yes.

GORDON J:   That raises the question I was going to ask you, in a sense, that it is the non‑response to the request to the referral asking them to address that issue.

KIEFEL CJ:   And Unions (No 2).

MR WALKER:   I was concerned that somebody might raise that, your Honour, yes.  Yes, that is an elephant in the room, and there is ‑ ‑ ‑

GORDON J:   Well, let us put the elephant in the room with some paint on it.  I mean, that is the real problem.

MR WALKER:   Of course, of course, and my task is to persuade you we do not resemble Unions (No 2) in that regard, we are different, and we are different because we have this assembled history which can be called in aid to defend the latest iteration of the law.

EDELMAN J:   There is one other, as I understand your submission, significant difference between the way you are putting your case and Unions (No 2), and that is at this justification stage your focus upon the extent of the expenditure and whether it is reasonably necessary for third‑party campaigners to achieve their purposes is not a focus upon whether the expenditure drowns out other voices or the extent to which the cap would be necessary because your purpose is a broader purpose than drowning out, which was the assumed purpose in Unions (No 2).

MR WALKER:   That is right.

EDELMAN J:   Yes.

MR WALKER:   Your Honours ‑ ‑ ‑

GLEESON J:   Mr Walker, did your client’s purpose take into account the historical expenditure?  I mean, was it its purpose to set the cap by reference to the historical expenditure?

MR WALKER:   There is nothing in the record, say, of the latest legislative action that shows what might be called a gauging exercise by reference to historical expenditure.  I think that means the answer is no.  However, material available through official returns made in the administration of an Act is right at the heartland of material that might justify, or not, either the continued operation of an Act in unamended form or the operation of the Act in amended form.

In our submission, that is of the first importance, that the material available to a polity seeking to justify legislation will include the material that the polity requires to be given to officials in order to monitor the operation of the law in its present form.  In our submission, thus, historical behaviour, true, in response to the existence of a cap, is very important materially.  Great criticism would be legitimately aimed at a polity which neither bothered to collect data nor made it available for legislators and those who advise them.

It is for those reasons, in our submission, that this is not a case where there is any capacity for the Court to say, but it is the existence of a cap, the reasonableness of which – that is, the reasonable adequacy for campaigning of which – is in question, that should be taken to have produced the disparate expenditures – most of which do not approach the level of the cap.  There is nothing available either to this Court or to – from the record – before this Court, to the legislators to show that people, as it were, had dropped their bundle or become demoralised and decided not to do things.

We know that – as I say – from the data we draw to attention at 4279 that there are choices to be made.  The fact that choices are to be made in order to fit a desired campaign within the cap does not show that the cap is unreasonably low any more than would be shown by, for example, reflecting on the possibility that television and radio stations might increase their rates if they knew that expenditure caps had been raised so as to provide greater buying power for third‑party campaigners.  That is the kind of imponderable which is not the stuff of judicial consideration of legislative justification for the imposition of a burden by way of an expenditure cap.

It is for those reasons, in our submission, that the combination of there being no‑one – the broad sweep over the years of consideration of these kinds of caps has not produced people saying, look, nowadays, for what might be called a typical third‑party campaigner, you need to have – in 2022 dollar terms – $25,000 just for television, and you need to have television.  Your Honours should not proceed on the basis that television is, as it were, a sine qua non at the level of a legal rule of third‑party campaigning.  It may or may not be, but one knows that it is likely to be changing, and probably to the detriment of television channels by reason of the new media.

GORDON J:   If you put television to one side for the moment, is it sufficient for us to look at it by reference to repetition of message?

MR WALKER:   Probably.

GORDON J:    So, can you look at it in – yes, in this sense, if one can say, it is the ability to repeat the message, regardless of the avenue chosen, that is the subject of the cap.

MR WALKER:   Yes.  Can I explain?  It is very tempting for me, bearing in mind what my learned friend repeatedly said yesterday about television, that they put it to one side.  Of course, you cannot.  I do not suggest it is unimportant.  I am simply saying that there was not, and is not, material that defeats our justification by reference to the notion of impossibility, as my learned friend at some points went so far as to suggest, of television campaigning for third-party campaigners.

That is not consistent with the record, and it is not to the point that you cannot buy as much television as some people might like, that does not demonstrate a lack of reasonable opportunity to participate in campaign political communication which is, after all, the test.  Now, as the Chief Justice has reminded me, yes of course there is no material by which what might be called the specification of a reasonable third-party campaign has been quantities surveyed as to the expenditure necessary to carry it out.  If that be necessary, then we do not have it.

What we do have is, empirically, third-party campaigners being third-party campaigners and not anywhere near all of them bucking up against the limits from time to time.  That, in our submission, is the proof of the pudding that the cap does not prevent people from doing what they regard as reasonable or, at least, proof in the non-judicial setting of legislative judgments within their domain of selections for a law which is going to apply across the board, which can reasonably smooth out differences between individual third-party campaigners in order to have a generalised regime for a category appropriately treated as a general category.

GLEESON J:   Or proof that the legislation is not necessary.

MR WALKER:  I am so sorry, your Honour?

GLEESON J:   Or proof that the legislation is not necessary.

MR WALKER:   No, no, quite, exactly.  On the justification of the burden and for reasons that I think Justice Edelman has raised with me just recently, we say we no longer need to keep, as it were, looking back to the legitimacy of purpose point.  I have either succeeded or not on it being adequate either to assume or now to accept that a differential and lower cap for third‑party campaigners is a legitimate purpose.  Justification is of the actual amount and I accept – as has been put to me by Justice Gageler – that there is both a relative and absolute element to that and they probably intertwine a bit.

Justice Gordon asked me about repetition.  This is not a very elector‑friendly proposition but, yes, I suppose it is true that hearing the same slogan seven times a day is thought by some wizard campaign experts to be more effective than to hear one cogent argument two or three times.  But there is nothing in the material to suggest that there was ever a constraint by reference to either, in radio terms, a number of spots or, in flyer terms, the pages printed which suggested that the Houses ought to be concerned that the amounts in question could not print enough flyers, et cetera, et cetera.

This is not to reverse the onus but, rather, to say, when justifying, it is, of course, proper to understand what is the landscape of the area covered by the regime in question so as to understand whether the caps already in force – or the caps under consideration either by way of automated indexation or otherwise – reduction or increase – whether they are enough for a reasonable campaign.  When people are not saying, look, these are amounts that do not enable me to get my message over – either at all or with sufficient repetition to be persuasive – it is, in our submission, proper for us now in this Court to say and look at what people were doing – they were not pushing up against the cap.

GORDON J:   Can I just ask one more question about that.  Does that proposition – consistent with the evidence we have got before us of what they would have done, because they had to cut back some campaigning in ‑ ‑ ‑

MR WALKER:   That is one camp.

GORDON J:   Yes.

MR WALKER:   That is what one person would have done.

GORDON J:   Yes.  So, there is, in effect, arguably, evidence of, I wanted to do X but because of the cap, I had to do Y.

MR WALKER:   Yes, it is consistent with it, but on the basis that these caps can be a procrustean bed; you can cut off the bits that overhang without it being wrong.  So, a large player who wants to spend more than other players, so long as they are justifiably in the same category being regulated – note that does not seem to be an issue in this case – is not somebody who thereby sets what is a minimum reasonable by reference to their druthers.  That is the point we seek to make about that.

Just in an elaboration of my answer to Justice Gordon, it is when one looks at the spread of third‑party campaigners that you can see whether or not that experience justifies the Houses in the view that the amount in question provides a reasonable opportunity for what I am going to call the generality of third‑party campaigners.  It is really another way of saying a single outlier does not demonstrate the unreasonableness of what plainly accommodated the actual conduct of the others. 

May it please the Court.

KIEFEL CJ:   Mr Solicitor.

MR DONAGHUE:   Your Honours, the Commonwealth is, for the most part, prepared to rely simply upon its written submissions.  We take that course because we submit that this case does not require the Court to resolve any question of constitutional principle, great or otherwise.  I propose to address your Honours very briefly simply to emphasise three matters that are not in dispute, largely as a result of what the Court decided in Unions (No 2) and McCloy.  First, and at the highest level of generality – as Mr Walker submitted yesterday – this case obviously does not require your Honours to revisit the general question of the constitutionality of restraints on expenditure on elections.

Second, and becoming slightly more particular, it is not in dispute that one legitimate purpose for which caps on expenditure might be imposed is to level the playing field, by which I mean that:

it is permissible within our constitutional system “to restrict certain voices – those that may otherwise dominate the debate – to make room for all to be heard and thereby ensure that electoral choice is as fully informed as possible”. 

Those words are the words of the Commonwealth submission made to the Court in Unions (No 2) that your Honour Justice Gageler accepted at paragraph 83.  We had drawn those words from what the Court decided in McCloy at paragraphs 44 to 45 and at those paragraphs Chief Justice French and Justices Kiefel, Bell and Keane in turn drew on the Canadian Supreme Court’s judgment in Harper.  So that, in our submission, is not in debate, and that passage in McCloy was reflected not just in your Honour Justice Gageler’s acceptance of the Commonwealth submissions there, but by the plurality at paragraphs 5 and 31, and by Justice Nettle at 110.

Third, and at the greatest level of particularity, the plaintiff has not disputed that, in the pursuit of the legitimate purpose of levelling the playing field, Parliament might impose differential caps on the expenditure that is permitted by political parties or candidates on the one hand, and third‑party campaigners on the other provided – critically, of course – that that differential treatment is justified.

It was the failure of justification that was of course decisive of the result in Unions (No 2).  Your Honour Justice Edelman put that proposition to Mr Gleeson yesterday about the permissibility of differential treatment provided it was “justified”, and Mr Gleeson said yes at page 67 of the transcript, lines 2957 to 2970.  He said just after that there is no great dispute on the question of principle.  So, differentiation in and of itself is not in play in the case, provided that there ‑ ‑ ‑

EDELMAN J:   It must be justified and it must be for a legitimate purpose.

MR DONAGHUE:   Indeed.  But, as to my second proposition, if it is aimed at levelling the playing field, then that purpose is legitimate and it is just a question of whether or not the evidence in relation to the particular law justifies the differential treatment that you have before you.

In our submission – stepping back – that must be right because it is only by differential treatment of participants in political debate that it is possible to level the playing field.  If you have to treat everyone the same, you might be able to raise the field or lower the field, but in order to even out disparities, it must be possible to treat differentially.  In our submission, one sees support for that in Unions (No 2) and, indeed, it was not really in dispute in Unions (No 2) either.

Can I ask your Honours to go briefly back to that case, which is in volume 6, tab 28, (2019) 264 CLR 595. There is a heading above paragraph 29 in the plurality reasons, “The real issue?”. What the plurality record there was that – from four lines down:

the plaintiffs do not contend that there should be no differentiation as between parties, candidates and third‑party campaigners . . . The scheme of the EFED Act was to differentiate and the plaintiffs accept this as appropriate.  The difference in those relativities can be explained on the basis that parties must incur the expenses of mounting a campaign in every electorate on all issues –

et cetera.  Then at paragraph 30 – I do not need to read the part on the bottom of that page but over on to the next page – the Commonwealth had submitted that:

That differential treatment is properly to be seen as an effect of the pursuit of –

the levelling the playing field purpose, just as I have just put to your Honours, and ‑ ‑ ‑

EDELMAN J:   So that levelling the playing field purpose equates with what the plurality said earlier about preventing the drowning‑out of voices?

MR DONAGHUE:   Yes.  It is ‑ ‑ ‑

GORDON J:   Is that any more than what I put to Mr Walker?  That is, it is a question of fairness of participation.

MR DONAGHUE:   Your Honour, it might be.  If fairness has tied up within it a notion of non‑discrimination between participants in the debate – and your Honour referenced ACTV, and there is clearly a discrimination theme that flows through in ACTV – then discrimination directs attention to treating equals alike or recognising relevant differences.  It might be that there, the functional differences that have been spoken of in debate might mean that one can have fairness, even with quite widely differential treatment of third‑party campaigners and others, provided that differential treatment is justified.

In Unions, having noted the point that differential treatment might pursue the legitimate levelling the playing field purpose, at the end of paragraph 32, the plurality – without deciding – in the sentence three lines up talking about the real question, the plurality left open whether the Commonwealth’s submission that, really, what was involved here was a question of differential treatment in pursuit of the purpose, and that the question, really, was therefore not as to whether the purpose of this Act was justified, but whether the measures taken in pursuit of the purpose had been justified.  I put that badly, but the main point I seek to take from taking your Honours to Unions is 34, where, having noted the expert panel – I am skipping down four lines – the plurality say:

The concerns expressed in the report were directed to what might occur in the future, particularly the possibility that US‑style PACs coming to dominate campaigns.  It may further be observed that if any differential treatment is an illegitimate purpose in respect of caps on donations . . . the legislature would never be in a position to address the risk to the electoral process posed by such groups –

So, while it was not necessary for the plurality to decide, the plurality did recognise that differential treatment might be the very point of controlling the vice of the US‑style PACs and ensuring that the playing field is level and that there is no drowning‑out of voices.  Your Honour Justice Gageler at paragraph 90 reasoned to the same effect, saying that the functional distinction might justify very significant variation, and your Honour Justice Edelman at 178 said something similar. 

So, in our submission, your Honours, the substantial questions in this case are, one, whether the purpose of section 29(11) is to level the playing field in the sense just described – and that is not an evidential question.  That is a question of statutory construction informed by the legislative history in the way your Honours have often explained.  And, two, if the purpose of the law is legitimate, then has the cap imposed by 29(11) been justified by New South Wales, whether viewed in isolation – that is, the absolute amount – or having regard to the differential treatment between the cap on third‑party campaigners in 29(11) and the cap on candidates in 29(9).

EDELMAN J:   In either case, that justification must be by reference to the purpose, because it is the purpose that is being justified, is it not?

MR DONAGHUE:   In my submission it is the burden on political communication that is being justified. 

EDELMAN J:   But a burden for that purpose.

MR DONAGHUE:   A burden for that purpose, I accept that.  So, as a matter of construction, the law must have the purpose, then you identify the burden and justify the burden.  On those two questions I just identified, they are both questions of the application of established principles to 29(11) and I do not seek to be heard on those application questions, save in respect of the final point I wish to make, which really bears on some of the argument you have heard this morning about the relevance of what the third parties in the past have actually wanted to spend on campaigns.  In that regard, we offer this submission.

There is no dispute between anyone before the Court that this law does burden political communication, so the answer to question 1 is yes.  Obviously, one needs to identify the extent of the burden because it is that that must be justified.  If the absolute cap in this case instead of being $20,000 was $250,000, the burden, in our submission, imposed by that cap would be dramatically less.  Why?  Because it might not constrain the behaviour of third parties at all, because it is far in excess of the amount that any of them would actually want to spend, but it might impose some constraining effect. 

Similarly, if a much lower cap is still more than most third parties would spend anyway, then they are burdened to a correspondingly lesser extent.  So, that history, in our submission, bears on – it does not eliminate the burden.  I am not suggesting that there is no burden, but it bears on what needs to be justified by New South Wales because even if it is relatively different to the burden that is imposed on parties and campaigners, there relative difference would not matter if the caps on both were so high that they did not constrain behaviour.

GAGELER J:   That is really just saying that a lesser burden will be easier to justify.

MR DONAGHUE:   That is what I am saying; that if you were to find, on the facts – and I make no submission – if you were to find on the facts that the facts show mostly third parties could spend what they liked, the question for your Honours would be, has that much lower burden been justified, rather than has something more significant – and that might bear on what your Honours think about whether New South Wales has discharged the burden or not.  But, beyond that, I do not seek to be heard on the application of the principles.

If the Court pleases.

KIEFEL CJ:   Thank you, Mr Solicitor.  Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  Could I commence with Justice Gageler’s question and Mr Walker’s answer as to whether one looks at the current Act and material leading up to the current Act, including lack of material leading up to the current Act.  We agree that you do and, ultimately, we are looking at the version of section 29(11) that has been retained in the Act, despite the other things around it.

As your Honour Justice Gordon put to Mr Walker, is it relevant?  We say, it is highly relevant that the very question has been referred back to the committee and there has been no report from the committee.  I heard Mr Walker, at some points – and I do not wish to misquote him – say to you that there is no material that any third‑party campaigner is complaining that the caps are too low.  We have not burdened the Court with the record within the current unfinished committee because we take the view that that is simply not constitutional fact that is going to assist your question.  What you do have is the fact that the very issue has been referred to the committee of the justification, or not, of this cap and that the committee has not responded. 

What we have saved you the burden of, I hope, is that there are detailed submissions and a transcript of oral evidence before the committee – both from third‑party campaigners and from experts like Professor Twomey – talking about the question.  We submit that what it is important, is that the question has correctly been referred for consideration because it was never referred to in the past, never considered in the past, and it has not been answered.

GAGELER J:   Mr Gleeson, the committee has not reported.  Are you saying that it is inquiring and the inquiry is ongoing?

MR GLEESON:   Yes, and it has received submissions in writing, it has received oral submissions from both third‑party campaigners and experts like Professor Twomey on the very question.

GORDON J:   It was supposed to report by May.

MR GLEESON:   It was supposed to report by May.

GORDON J:   But has not.

MR GLEESON:   It has not done so.  It is ongoing.  It received submissions in April.  It received a background paper commissioned by the committee by Professor Twomey.  It had a hearing on 27 July at which it received oral evidence on the question, including from third‑party campaigners, and it, indeed, received a submission from the New South Wales Minerals Council, not just Unions.

So what we draw from that is the critical fact that a court – which brings us squarely back into Unions NSW (No 2) – is there is a question crying out for inquiry because it has never been looked at ‑ ‑ ‑

STEWARD J:   Given that there is no by‑election pending, why would we not wait?

MR GLEESON:   Well, the reason the Court would not wait is that the matter that is joined between the parties is whether section 29(11) has been invalid at all times from July 2018 at present and continuing, and that is conceded to be a matter.  In respect to that matter, it is accepted the State bears the onus of justification.  We have sought to show that in the material – charmingly referred to as the travaux, but, of course, extrinsic material – nothing has ever been done to address the key question:  is $20,000 reasonably sufficient for the purpose – I put that loop generally – and is it reasonably sufficient in the light of the relativity it bears to the caps for candidates?  I will come back to the relativity question.  We submit that is highly important.

The exercise has never been done.  The law remains on the books and the special case shows it has burdened the activities of third‑party campaigners in a series of by‑elections, and it will do so whenever the next election is called.  Our position is, in that absence of material to justify it, the law was invalid, and is invalid today, and the point in time that we are at is functionally the same as in Unions NSW (No 2) where the law is there without any material to justify it.

STEWARD J:   Well, that is the thing that just concerns me, just a little bit, is that this is a case where the absence of material is an important plank in your case, undeniably, but we have a committee looking at this very issue and taking evidence.

MR GLEESON:   When your Honour says our case, certainly, at the stage of justification it is the State’s case, it is the State’s onus ‑ ‑ ‑

STEWARD J:   With that qualification, yes.

MR GLEESON:   Yes, with that qualification.  I accept that, your Honour.  But, that is not the whole of our case.  The legal ‑ ‑ ‑

STEWARD J:   I accept that, you have other material.

MR GLEESON:   The legal question we are posing – coming back to one of your Honours’ earlier questions – is not simply in isolation, what is a reasonable amount to be able to be heard.  It cannot be looked at in isolation from the fact that it is a contest of ideas; it is a marketplace.  So, if other people in the contest are permitted, for example, to have the resources of Mr Palmer, then that will bear upon whether $20,000 is reasonably sufficient for you to be heard.  So, we would put, in answer to one of your Honours’ questions, that it cannot be ignored that the cap set for the candidates was the $245,000.

STEWARD J:   I was not intending to suggest you would ignore it.  I was trying to focus on what the ultimate issue is.

MR GLEESON:   It is a question of what happens to it legally.  Yes.  The ultimate issue is, if the alleged purpose is drowning‑out or, as the learned Solicitor said, “levelling the playing field”, it is essential to start with an understanding of what caps are allowed to those who are being protected by that process.  So, the legislative choice is $245,000 per candidate.  If your Honours took the example of ‑ ‑ ‑

EDELMAN J:   Just before you go into the evidence, can I just ask you one further question about the committee deliberations and potential report.  I understand how you can rely upon that as part of the context that leads right up to the most recent amendments to the Act ‑ ‑ ‑

MR GLEESON:   Yes.

EDELMAN J:   ‑ ‑ ‑ but there must be, at the very least, very large questions as to whether events that may or may not be predicted that occur after all amendments to the Act can be taken into account for the purposes of assessing validity.

MR GLEESON:   I do not ask the Court to do that.  I should clarify, in a time‑frame, what we are seeking to have taken into account – if the Court has volume 13, that is tab 317, page 3970, that is a reference to the committee – December, last year – of the very question, first bullet point:

whether the existing cap on electoral expenditure –

in by‑elections:

is reasonably adequate –

The reference is made in the light of the need to ensure the issues raised in the letter at the previous tab, which are that very complaint, are properly considered.  So, that can be taken into account.  The actual reference at tab 318 does that very job.  One can then take into account that when the bill was introduced and then passed, the committee has not reported.  All I wish to correct is any unintended representation that, in the period up to the passing of the Act, these issues are not being vigorously debated before the committee.  And if that is not unacceptable to Mr Walker to deal with that topic in that fashion, I will not seek to supplement the special case with all those submissions. 

That was the first matter I wish to deal with.  I was then wishing to go on the question of what is in the special case, back to the Upper Hunter by‑election because – per your Honour Justice Steward’s question – it raises concrete evidence as to how the law has operated in respect to a recent by‑election.  So, in the special case, going back to paragraphs 85 to 92, what you will see commencing with 92 is that in this hotly contested by‑election, there were candidates from eight parties and seven independent parties.  So, there were 15 candidates, eight of them endorsed by a party, and you see the range of parties beyond the major parties who, in a general election but not a by‑election, would be vying for government.  Minor parties and what look like single‑issue parties – the Animal Justice Party and the Sustainable Australia Party.  Single‑issue or narrow‑issue parties. 

In terms of the contest of ideas, we immediately see the range of parties represented by candidates.  It is not a contest, per se, for government, and so that argument about functional difference does not translate very easily to by‑elections, but one sees the breadth of those people, and each of them has a $245,000 cap.  Mathematically, the candidates could spend up to about $4 million if they had the resources and inclination in the contest of ideas.

GAGELER J:   Mr Gleeson, can I just ask this.  Do you suggest that the third‑party campaigner cap for by‑elections can have a different purpose – I am just thinking about purpose – than the third‑party campaigner cap for general elections.  Are you drawing a distinction between those two?

MR GLEESON:   I am saying that – and these may be aspects of degree – the contest within the by‑election is not identical to the contest within the general election.  Sometimes it will have similar consequences – it could be a government at stake – other times it will have far more regional consequences.  I am saying that, to the extent the State argues, the Court should doctrinally accept parties and candidates fall into a functionally different position to third‑party campaigners, that is inconsistent with the majority views in Unions (No 2), and should not be accepted.  It must be a more nuanced inquiry into the case.  Subject to that nuance, I am accepting that in a by‑election, if we are at purpose – we are not at justification – the primary purpose alleged to be the purpose is to avoid drowning‑out.

GAGELER J:   Or levelling the playing field.  That is another way of putting the same thing.

MR GLEESON:   Or levelling the playing field.  And, as your Honour expressed that at paragraph 83 of Unions, that is to say, is there a real mischief, a real risk that someone who otherwise would dominate the contest of ideas such as other legitimate voices would not be heard calling for a response through capping?  That is accepted to be a legitimate purpose if that is what the law is doing.

What I am seeking to draw attention to – and this is still at the stage of “purpose” – is, when one looks at what is happening in a by‑election – of which the Hunter is an illustration – what we see is a contest of ideas between a large number of candidates and parties – major parties, minor parties, single‑issue parties, independent candidates – and, if the purpose is to prevent those – in this case, 15 people – being drowned out by some other potentially domineering force – which, we submit, could be the only legitimate purpose of the exercise – you would at least start at the end of saying, there are 15 people who have each got up to $245,000 available to them – that is up to $4 million that Parliament has allowed in the contest of ideas.

You would then immediately say – because one of Mr Walker’s strands yesterday was about multitude of TPC voices – he said, well, it might be hard to say $20,000 is going to drown out $245,000 – maybe the problem is there will be too many TPCs.  If that is said to be the mischief, none of this material demonstrates that the number of TPCs is in some way dramatically outnumbering the number of candidates or parties.

As you see in Hunter, in paragraph 91, there were 12 TPCs.  On average, across the special case, there are five to seven TPCs in each election, and there is a larger number of candidates or parties.  So, the idea that the problem is too many TPCs – that that is a mischief – so we have to give them all a very tiny cap – that is just not supported by any of this material.

To complete that submission, what the Upper Hunter shows is that the 12 TPCs were allowed $20,000 each – or, in total, $240,000 – and on this strand of the State’s argument, it is alleged that the purpose of capping the amount – $240,000 – was to prevent the drowning‑out of the 15 candidates and parties would had up to $4 million at their disposal.  That, we submit, demonstrates the complete disconnect between the law and the alleged purpose.

GLEESON J:   Mr Gleeson, is it necessary to aggregate the candidates?  I am just wondering about the problem of a candidate with few resources or, perhaps, whether you need to do the drowning‑out analysis, if it is that, by reference to the cap on a single candidate.

MR GLEESON:   With respect, your Honour is correct in the sense that each by‑election could be different.  You could have a by‑election with one candidate and one TPC.  If one started at that end, we are where I was yesterday – you have got one‑twelfth of their cap – no drowning‑out possible there.

GLEESON J:   But I guess – just to give an example here – the Animal Justice Party here seems to be fairly poorly resourced.

MR GLEESON:   Yes.

GLEESON J:   The problem here is not about drowning out the voices of a poorly resourced candidate.  You have got to look at the cap.  But, is the problem the problem of drowning out a single candidate or a problem of drowning out all of the candidates?

MR GLEESON:   We say, there is no problem on either level on this material.  But, sorry, your Honour, to try and amplify that, your Honour Justice Gordon, raised ACTV which we accept is really the starting point for this entire analysis and expressed as the voices having the recognition that they are all valid voices in the process.  Then, each of the 15 candidates – whether poorly resourced or not – is a valid voice in the process and each of the 12 TPCs is a valid voice in the process.

So, a law which is designed to prevent someone like Mr Palmer drowning out what will otherwise be a contest between 27 voices would have a proper purpose.  But it is extraordinarily difficult on this material to say, because we set the TPC cap at one‑twelfth of a candidate, what we were doing was avoiding drowning‑out.

Your Honours, the next matter I want to reply to was that Mr Walker submitted yesterday and again today, perhaps most colourfully at page 77 of the transcript, that this Court does not sit as a remuneration-fixing tribunal when he said that it cannot be right that you have to come up with the “bare minimum broadcast participation”, you are:

not going to base a jurisprudence on a proportion of T-shirts to the number of torsos . . . corflutes and telegraph poles.

Et cetera.  Now, that submission, we submit, is a distraction from the constitutional task before the Court.  We do not ask you to do that.  The Commonwealth does not ask you to do that.  And that is not what the implied freedom requires.

It is not for a plaintiff to prove, and the Court to find, the minimum quantum of expenditure that will facilitate reasonable participation in a by‑election.  It is for the State to prove that the constraints on TPC participation in the by‑election are reasonably necessary to prevent the drowning‑out of parties and candidates, and do not prevent the TPCs from reasonably being able to put their case.  That is the way your Honour Justice Gageler framed it between paragraphs 93 and 102 in Unions (No 2) and we support that approach.

Your Honour, I notice the time.

KIEFEL CJ:   How much longer will you be in reply, Mr Gleeson?

MR GLEESON:   I will probably be 15 minutes, your Honour, or so.

KIEFEL CJ:   Please continue, thank you.

MR GLEESON:  Yes, thank you, your Honour.  So, that is what we say about the task which the Court is being asked to do.  It is not the task surveyed by Mr Walker.  That approach of your Honour Justice Gageler is also reflected in the other judgments at paragraphs 53, 116 to 118 and 151 to 153 of Unions (No 2).

The next matter I want to deal with in respect to Unions (No 2) was that the submission was made this morning, and the Court asked questions about it, as to whether the State can justify the law because it is said that past history shows TPCs are not spending up to the full cap, which we impugn.  Now, your Honours have raised questions about that.  We embrace the approach which says it would be highly misleading to rely upon actual behaviour curtailed by a law said to be invalid, which would make it criminal to even contemplate engaging in broader forms of campaigning as evidence that the cap is valid.  It would be, in fact, bootstraps.

As your Honour the Chief Justice put to Mr Walker, in respect to a number of the campaigners at paragraph 22 of the special case, they were pushing right up against the existing limit, and I have sought to demonstrate yesterday that by looking at the costs of a range of methods of campaigning, TV – not just TV, but TV, radio and staff time – one can see that one cannot survey a broadly based campaign within these caps.

I did want to note that in Unions (No 2) the State ran very much the same argument and it was rejected by the Court.  Your Honours can see that in Unions (No 2) at paragraph 44 the submission was made, building upon what had been noted at paragraph 23, that the expert report had relied upon the fact – this very sort of argument that the $500,000 was above what was spent by the third‑party campaigners in the 2011 elections.

That was attempting this form of reasoning.  Even the committee said, but it needs to be properly considered.  That approach was rejected, we would submit, by the joint judgment at paragraph 53, and was also rejected by your Honour Justice Gageler at 99, Justice Nettle at 117 and your Honour Justice Gordon, perhaps most explicitly, at 152 to 153.

In terms of material of campaigners actually saying – coming back to your Honour Justice Steward’s question – I cannot get my message out within the cap.  One illustration of that is in volume 11 at tab 269, page 3272 where in advance of the campaign, Unions New South Wales recognised the difficulties they would have in making a “meaningful impact” far from Sydney within the cap, and, on page 3273, the realistic goal was they would only be able to reach about 40 per cent of the electorate.  That is before the campaign, and then after the campaign, in the report prepared at document 271 –

GORDON J:   What page is that, please?

MR GLEESON:   Page 3284.  The summary in the first column was the “Expenditure Cap”:

Restrained expenditure to $21,600 meant limited effect.

For the campaign.  So, these are very real impacts that have been established concerning the cap.  Just to conclude on purpose, then.  Your Honour Justice Edelman asked if Mr Walker had an additional case to Unions (No 2).  He certainly seems to have the same case as Unions (No 2), which we submit the Court has fairly squarely rejected the notion that there can be a principled distinction between candidates, parties and third‑party campaigners, which leads to privileging ‑ ‑ ‑ 

EDELMAN J:   By itself.

MR GLEESON:   By itself, yes.  His primary case seems to be drowning out, and our answer to that is there is simply no connection between the asserted purpose and the law and the underlying material that you have seen.  But to the extent there is a broader case, your Honours, that he is making it, as we apprehend it, it is that, as he put it at one stage, it could be consistent with the Constitution to say, because you are not candidates you get a modest cap and if we give candidates in parties a generous cap that is all completely fine as a purpose.  Now, we would deny that as a purpose that is legitimate, and once one does that it seems to be squarely inconsistent with ACTV.

EDELMAN J:   It does make a difference though, because the justification has to be assessed by reference to – as the Solicitor‑General said – both the burden that is imposed and the purpose for which that burden was imposed.  So, depending on what the purpose is, the justification exercise will be different.

MR GLEESON:   If one gets to justification, but I think I make it clear that we would deny that that broader purpose is legitimate, and that is very thing which the plurality were, in Unions (No 2), we would say, squarely rejecting at paragraph 41 and ‑ ‑ ‑

KIEFEL CJ:   I am not sure it was rejecting that as an illegitimate purpose, it was rejecting it as a method of justification.  It accepted that the level playing field and the drowning‑out of voices were the wider purpose, and it proceeded on the assumption that that was a purpose which supported the legislation.

MR GLEESON:   Yes, I accept that fully, your Honour.  I meant to be drawing attention to 40, that the argument which had been put at 39, which bears close similarity to some of the State’s arguments, your Honours rejected.

KIEFEL CJ:   Yes.

MR GLEESON:   And so, if there was a purpose which can survive in the law through to a justification analysis, it is the purpose which your Honours – with respect – pithily summarised at 31, to:

ensuring that wealthy voices do not drown out others.  They do so by providing something of a level playing field.

That is the purpose against which the justification was to be assessed, and it is extraordinarily difficult to see this by‑election cap, either absolutely or relatively, is a response – justified or otherwise – to that purpose.

Your Honour Justice Gageler asked Mr Walker about the question of the party without a candidate, we have proved an example of that in the special case at 88D.  It also should not be thought to be a rarity where one has two parties in coalition, it would make perfect sense for the coalition partner to be campaigning in the by‑election for the candidate of the coalition partner, particularly if it is an important by‑election.  It is not a mere, as it were, minor oversight within the scheme that the parties have not been directly burdened by a cap, it is a very important part of the problem that has been created, we would submit.

Your Honours, the final submission, which is really on both purpose and justification is – in the joint judgment in Unions (No 2), there was some reference to the decision of the Canadian Supreme Court in Harper; particularly around paragraph 52 of your Honours’ judgment, where some support was given for the approach of the Chief Justice and the other minority Justices in Harper, and we would commend that approach as particularly relevant both to purpose and justification. 

If I could just give the key paragraphs – Harper is in volume 7 of the authorities at tab 31 ‑ and paragraph 2 summarised what would have been the holding of the minority, and critical to that holding is the relativity question.  One cannot assess the cap; the validity of a cap on a third-party candidate without bringing into account the much higher spending limits of the candidates.  Paragraph 14, which I will not read, is an important explanation of the level the playing field concept, and why it is that caps may be appropriate in order to more effectively allow all persons in the process to communicate their ideas.  And that, we submit, captures quite nicely, what would be the valid purpose, not the broader purpose of the State.

At paragraph 32, using the Canadian concept of “minimal impairment”, the Court pointed out that it was important in determining whether the infringement of a freedom was “carefully tailored” to the asserted goals to have some idea of the asserted seriousness of the problem, the yardstick by which excessive interference is measured is the need for a minimal infringement.  And in that case, the State had presented no evidence that the wealthier Canadians, alone or in concert, were going to dominate political debate, and was only in the area of hypothetical possibilities.

That, really, is our case, and in none of the materials described as the travaux has the State demonstrated a risk that money is going to drown out the discussion in the contest of ideas.  And finally, we would also refer to paragraph 41, which brings the reasons together.

May it please the Court, they are our submissions.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 11.29 AM THE MATTER WAS ADJOURNED