Unions NSW v New South Wales

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.