Unions NSW v New South Wales

In *Unions NSW v New South Wales*, the High Court of Australia considered a constitutional challenge brought by Unions NSW and others against provisions of the *Electoral Funding Act 2018* (NSW). The dispute centred on amendments that substantially reduced the electoral expenditure cap for third-party campaigners and introduced a prohibition on third-party campaigners acting in concert to exceed this cap, while political parties and candidates faced significantly higher caps.

The primary legal issue before the High Court was whether section 29(10) of the *Electoral Funding Act 2018* (NSW), which imposed the reduced expenditure cap on third-party campaigners, impermissibly burdened the implied freedom of communication on governmental and political matters guaranteed by the Commonwealth Constitution. The Court was also asked to consider the validity of section 35 of the same Act, which prohibited third-party campaigners from acting in concert to exceed the cap.

The Court reasoned that the legislative purpose behind the reduction in the cap for third-party campaigners and the introduction of the "acting in concert" offence was to privilege political parties and candidates, effectively quieting the voices of third-party campaigners relative to established political entities. This purpose, the Court found, could not coexist with the implied freedom of political communication, which is essential for the maintenance of a system of representative and responsible government. The Court applied the established test for determining whether a law impermissibly burdens this implied freedom, requiring the law to be both compatible with the maintenance of the constitutionally prescribed system of representative government and necessary to achieve a legitimate purpose that is compatible with that system.

The High Court answered the questions stated by the parties, finding that section 29(10) of the *Electoral Funding Act 2018* (NSW) is invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution. The Court deemed it unnecessary to answer the question regarding the validity of section 35. The defendant, New South Wales, was ordered to pay the costs of the special case.