Unions NSW v New South Wales

In Unions NSW v New South Wales, the High Court of Australia considered a challenge to provisions of the *Electoral Funding Act 2018* (NSW) concerning electoral expenditure caps for third-party campaigners. The plaintiffs, including Unions NSW, argued that section 29(11) of the Act, which imposed a lower cap on third-party campaigners during a "capped State expenditure period" before a by-election compared to candidates, impermissibly burdened the implied freedom of political communication guaranteed by the Commonwealth Constitution. The case also involved a challenge to section 35 of the Act, which had been repealed prior to the hearing, and questions regarding the Court's jurisdiction and the standing of the plaintiffs.

The central legal issues before the High Court were whether section 29(11) of the *Electoral Funding Act 2018* (NSW) was invalid for impermissibly burdening the implied freedom of communication on governmental and political matters. Additionally, the Court was asked to determine its jurisdiction to hear and determine the validity of section 35 of the Act, which had been repealed, and whether the plaintiffs possessed the necessary standing to pursue that claim. The Court also had to consider the appropriate costs order for the special case.

The Court ultimately determined that it was unnecessary and inappropriate to answer the question regarding section 29(11) in the manner initially framed. This conclusion was influenced by several factors, including the plaintiffs' perceived weak interest in the matter, the lack of a substantial controversy due to the State's concession, and prudential considerations. The State of New South Wales conceded that section 29(11) should be held invalid, a concession made in light of a report by the Joint Standing Committee on Electoral Matters of the New South Wales Parliament which found the $20,000 cap to be inadequate and recommended a significantly higher cap. The Court found it had no jurisdiction to determine the validity of the repealed section 35.

Consequently, the High Court answered the questions posed in the special case. It declared that it was unnecessary to answer the question concerning the invalidity of section 29(11). The Court held that it did not have jurisdiction to hear and determine the question regarding section 35, rendering the subsequent question about its invalidity as not arising. In relation to costs, the Court ordered that New South Wales pay the costs associated with the question concerning section 29(11), but otherwise made no order as to costs.