Unions NSW & Ors v State of NSW

Unions NSW and others (the applicants) brought proceedings against the State of New South Wales (the respondent) concerning the validity of certain provisions of the *Industrial Relations Amendment Act 2020* (NSW) (the Act). The applicants challenged the constitutional validity of sections 5 and 6 of the Act, which amended the *Industrial Relations Act 1996* (NSW) to introduce new provisions regarding the regulation of industrial relations in NSW, particularly concerning the ability of unions to engage in industrial action. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the impugned provisions of the Act were invalid by reason of inconsistency with Chapter III of the Australian Constitution, specifically the implied freedom of political communication. The applicants argued that the amendments imposed restrictions on the capacity of unions to communicate and engage in conduct for the purpose of political advocacy and industrial campaigning, thereby infringing the implied freedom. The respondent contended that the provisions were a valid exercise of State legislative power and did not impermissibly burden political communication.

The High Court, by majority, found that sections 5 and 6 of the Act were invalid. The majority reasoned that the amendments, by significantly restricting the ability of unions to engage in industrial action and thereby communicate their views on matters of public concern, imposed a substantial burden on the implied freedom of political communication. The Court applied the established test for determining the validity of laws alleged to infringe the implied freedom, which requires an examination of whether the law is reasonably appropriate and adapted to the purpose of the law and compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. The majority concluded that the restrictions imposed by the Act were not reasonably appropriate and adapted to any legitimate purpose and were therefore invalid.

The High Court made orders declaring sections 5 and 6 of the *Industrial Relations Amendment Act 2020* (NSW) to be invalid.