FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ
UNIONS NSW & ORS PLAINTIFFS
AND
STATE OF NEW SOUTH WALES DEFENDANT
Unions NSW v New South Wales
[2013] HCA 58
18 December 2013
S70/2013
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?
Further, if the answer to question 3 is "yes", is s 95G(6) of the Election Funding, Expenditure and Disclosures Act1981 (NSW) invalid because it impermissibly burdens that freedom, contrary to the New South Wales Constitution?
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Unions NSW v New South Wales [2013] HCA 58
Case
[2013] HCA 58
Decision Date
CaseChat Overview and Summary
In Unions NSW v New South Wales, the High Court of Australia considered the validity of provisions of the *Election Funding, Expenditure and Disclosures Act 1981* (NSW) in light of the implied freedom of political communication guaranteed by the Commonwealth Constitution. The dispute concerned section 96D, which prohibited political donations unless made by an enrolled individual, and section 95G(6), which aggregated expenditure by political parties and affiliated organisations for the purpose of a cap on electoral communication expenditure. Unions NSW challenged these provisions, arguing they impermissibly burdened the implied freedom of communication on governmental and political matters.
The primary legal issues before the High Court were whether sections 96D and 95G(6) of the NSW Act were invalid because they impermissibly burdened the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution. The Court was also asked to consider whether these sections burdened an entrenched protection of freedom of communication under the NSW Constitution, and whether they were inconsistent with Commonwealth legislation.
The Court reasoned that the implied freedom of political communication is a fundamental aspect of the Australian constitutional system, designed to ensure the proper functioning of representative and responsible government. It found that section 96D, by restricting the ability of organisations to make political donations, significantly burdened this freedom. Similarly, section 95G(6), by aggregating expenditure in a way that could limit the capacity of parties and affiliated organisations to communicate, was also found to impermissibly burden the implied freedom. The Court applied the established test for determining whether a law impermissibly burdens the implied freedom, which involves assessing whether the law is reasonably appropriate and adapted to a legitimate end. In this instance, the Court concluded that the impugned provisions were not sufficiently connected to a legitimate end to justify the burden they imposed on political communication.
Consequently, the High Court answered the first two questions in the Special Case in the affirmative, declaring that both section 96D and section 95G(6) of the *Election Funding, Expenditure and Disclosures Act 1981* (NSW) were invalid because they impermissibly burdened the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution. The Court also ordered that the defendant, New South Wales, pay the plaintiffs' costs of the Special Case.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ
KEANE J
For the reasons set out in relation to s 96D, s 83 does not quarantine the operation of s 95G(6) so as to preserve its effectiveness notwithstanding the implied freedom.Conclusions and orders The questions reserved for determination should be answered as follows:1.Is section 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.2.Is section 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.3.Do sections 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.4.If so, is section 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.5.Further, if the answer to question 3 is "yes", is section 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.6.Is section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid under section 109 of the Commonwealth Constitution by reason of it being inconsistent with section 327 of the Commonwealth Electoral Act 1918 (Cth)?Answer: Unnecessary to answer.7.Is section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid under section 109 of the Commonwealth Constitution by reason of it being inconsistent with Part XX of the Commonwealth Electoral Act 1918 (Cth)?Answer: Unnecessary to answer.8.Is section 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.9.Who should pay the costs of the Special Case?Answer: The defendant.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ,
KEANE J