Unions NSW & Ors v State of NSW

[2013] HCATrans 118

[2013] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S70 of 2013

B e t w e e n -

UNIONS NSW

First Plaintiff

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION (AMWU)

Second Plaintiff

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

Third Plaintiff

NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION

Fourth Plaintiff

NEW SOUTH WALES TEACHERS FEDERATION

Fifth Plaintiff

TRANSPORT WORKERS’ UNION OF NEW SOUTH WALES

Sixth Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

Directions

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT PERTH BY VIDEOLINK TO SYDNEY

ON WEDNESDAY, 15 MAY 2013, AT 12.01 PM

Copyright in the High Court of Australia

____________________

MR N.J. OWENS:   If the Court please, I appear for the plaintiffs.  (instructed by Holding Redlich Lawyers)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If your Honour pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the defendant.  (instructed by Crown Solicitor (NSW))

HIS HONOUR:   Thank you.  Yes, Mr Owens.

MR OWENS:   Your Honour, this is the first return of a writ of summons filed on 8 April 2013.  Does your Honour have a copy of the outline of the defendant’s ‑ that is the State of New South Wales ‑ submissions concerning directions?

HIS HONOUR:   Yes, I have read both your submissions and theirs.

MR OWENS:   Yes.  We agree with the directions proposed in paragraph 6 of the defendant’s submissions.  The effect of that is that neither party at this point in time proposes that the matter should be remitted and essentially we are to provide a response to a request for further and better particulars, following which the State will put on a defence.  What is then proposed is that the parties will endeavour to agree a special case for the purpose of enabling the Court to determine the questions of law arising in the proceedings on the basis of that special case.

HIS HONOUR:   Yes.  Now, are you going to need 14 days to provide the particulars and, secondly, do you have any objections to the particulars?

MR OWENS:   In relation to your Honour’s first question, we will do our best to reply before 14 days, but we need to obtain some instructions about some factual matters and I am just loath to commit myself to doing that in less than 14 days.  In relation to whether we have any objection to any of the particulars, it is a matter that we are considering.  If we do, it is only to the extent that we are asked to ourselves identify whether there are any alternative less drastic means by which the end that we concede is legitimate could be achieved.  Can I just say we are considering that and if – we will not take any technical approach to whether or not it is appropriate for us to provide that by way of particulars and if it is a useful thing for us to do to advance the definition of issues by reference to which facts will need to be agreed then obviously we will do it.

HIS HONOUR:   Yes, all right.  I just wanted to ensure that you were not being locked out of just objections by paragraph 1, but if you are content with that, with that form of the direction, then I will leave it as it is.

MR OWENS:   Yes, well, I did not intend to lock myself out of objection, if I could put it that way.

HIS HONOUR:   We will qualify it, saving all just objections.  Yes, all right.  Now, that would mean that if we follow that program we would – the last item would be item 4, so the latest date for that would be 10 July, I think.

MR OWENS:   I think that is right.

HIS HONOUR:   I generally prefer to specify dates rather than periods, unless you think that any of these things are going to be able to be achieved within a significantly shorter timeframe than those provided.

MR OWENS:   No, I think dates would be useful.

HIS HONOUR:   Yes, all right.  Incidentally, could I just ask about the nature of the – just so I understand how the statutory scheme works.  Section 96D is a general prohibition affecting your clients in relation to making political donations?

MR OWENS:   Section 96D affects my clients among a much wider class of persons, namely, every person or entity who is not a person enrolled to vote, so that picks up corporations, minors, foreigners, persons who are not otherwise enrolled to vote, and so on, but including, relevantly for my client’s purposes, unions.

HIS HONOUR:   Entities with Australian business numbers are not picked up.

MR OWENS:   I do not believe so, no.

HIS HONOUR:   So how does the electoral communication expenditure capping provision, 95I I think it is, and the associated provisions, how do they apply to your clients if you cannot give donations anyway?

MR OWENS:   There are two questions.  One is the question of donations to a political party and that is what 96D deals with.  Section 95G, in connection with some other provisions, says that parties for one thing but also another group of people called third party campaigners, I think, are limited in the amount that they can spend on what is called electoral communication expenditure.  So in other words, the concept of electoral communication expenditure ‑ ‑ ‑

HIS HONOUR:   I see, it does not necessarily involve a donation.

MR OWENS:   No, quite.  So a union, quite independently of any donation it may wish to make to a political party, may wish itself to put ads on television, for example, advocating a particular point of view in relation to some matter.  What the aggregation provision does ‑ it says purely by reference to the criterion of affiliation, where a union relevantly is affiliated with a political party, the cap is treated as applying to the combined expenditure of both the union and the party.  So that is the vice of which we complain there.

HIS HONOUR:   All right.  Yes, anything further then?

MR OWENS:   Nothing further.

HIS HONOUR:   You are otherwise content with the directions, subject to specification of dates proposed by the defendant?

MR OWENS:   Yes.  No, we have no other problem.  The only uncertainty, if you like then, is the question of which particular date in order 5, and for obvious reasons we would prefer that to be a date where both Mr Sexton and myself are available, but other than that, we have no issue.

HIS HONOUR:   That could be, I suppose, either the last week of – second half of July or the first week of August.

MR OWENS:   I think Mr Sexton and I – he will correct me if I am wrong – were perhaps hoping for some time in the week of 22 July, if that was convenient to your Honour.

HIS HONOUR:   Yes, we can do that.  Yes, Mr Solicitor.

MR SEXTON:   I do not think I have got anything to add to all of that, your Honour, unless your Honour has anything to ask.

HIS HONOUR:   No, all right.  What I will do is I will fix a date in that week commencing 22 July and then if we need to vary it for logistical reasons from our point of view or yours then we can do that within a few days.

MR SEXTON:   Yes, your Honour.

HIS HONOUR:   All right, thank you.

So I make the following directions, working off the defendant’s proposal.  The plaintiffs are to provide the further and better particulars sought by the defendants, saving all just objections, on or before 29 May.  The defendant is to file and serve a defence on or before 12 June.  The plaintiffs are to serve the defendant with a proposed special case on or before 19 June.  The defendant is to notify the plaintiffs whether it agrees or objects to the plaintiff’s proposed special case, or if it proposes any amendments or additions to the plaintiff’s special case on or before 10 July.  The proceedings to be listed for further directions on 23 July at 10 am.  Yes, I think that will do.  So, subject to any variation on that last order, we will see you again on 23 July.

MR SEXTON:   I just ask, if I may, your Honour, when your Honour says 10 am, is that this time or Western Australian time?

HIS HONOUR:   No, I will probably be in the east.  If we have to vary it, we will ‑ is that inconvenient to you?

MR SEXTON:   No, that is convenient.  Yes, your Honour.

HIS HONOUR:   Yes, all right.  The Court will now adjourn.

AT 12.10 PM THE MATTER WAS CONCLUDED