Unions NSW and Others v State of New South Wales was heard by the Full Court of the High Court on 16 and 17 November. As briefly advised in the last issue of depaNews, the primary argument concerned “acting in concert” provisions in the Electoral Funding Act 2018. The issue of the cap for by-elections was a secondary matter.
The Act regulates the expenditure and lobbying processes in elections but for our purposes it put a limit on third-party campaigners (unions, environmental organisations, carbon polluters like the coal lobby, religious organisations - anyone other than political parties) of $500,000 for state elections and $20,000 for by-elections. The problem was that the $500,000 figure was also a maximum if unions banded together, or acted in concert, and campaigned - like the Nurses, the Teachers, the public transport unions and the Public Service Association, on the public sector wage cap, or staffing, for example.
UnionsNSW had been to the High Court twice before, winning both cases. This was third case to deal with the limit on acting in concert and whether this was a valid law under the Constitution because it denied the implied freedom to fairly participate in the argument of ideas. Successful lobbying resulted in the Upper House rescinding the provisions capping acting in concert. This was then supported by the Lower House, with the Government angrily caving in because they couldn’t stop it - “under protest”, describing it as “shameful” and having “destroyed the validity of the legislation”.
Unions NSW, conscious of the State election scheduled for March next year, pursued the Government for seven months, asking for their undertaking that they would not reintroduce the arrangement as a regulation - something this Government has done in other areas - and they sounded angry and desperate enough to do so here.
But the Government refused (no wonder the rail dispute took so long to resolve) requiring a third case, about a piece of legislation rescinded but capable of resurrection. The High Court is historically reluctant to hear hypothetical arguments despite the attraction of resolving this issue once and for all and, as Justin Gleeson SC on behalf of UnionsNSW put it, also doing it in the interest of “judicial economy” - both a fabulous expression and compelling argument. This was turgidly opposed by the Government.
The Court adjourned at the lunch break for the seven Judges to determine whether the argument would proceed in the afternoon. When we resumed, the Chief Justice announced that “a majority” was opposed to continuing. Reasons for this will be published.
On the second argument, candidates in a by-election can spend $250,000 each but third-party campaigners are capped at $20,000 and that amount also applies if acting in concert. The unions argued this was unconstitutional because it inhibits debate about political ideas. The most recent by-election was Upper Hunter, there were seventeen candidates who collectively could spend $4.25 million and twelve third-party campaigners capped at $20,000 - both each and collectively. There is no possibility of running a successful campaign on that kind of money. The Court adjourned to provide a judgement later.
To complicate matters further, there had been a Parliamentary Joint Standing Committee on Electoral Matters considering the issue of caps on third-party campaigners in by-elections with a report expected in May this year, but not yet delivered.
The week after the High Court action, the report was released: finding that the current cap was “too low for TPCs to run effective campaigns and properly participate in the electoral process during by-elections”, that was “causing TPCs to choose not to participate in elections” and it “supports increasing the cap to $198,750 which would allow TPCs adequate resourcing to run campaigns in by-elections, while preserving the voices of candidates”.
That’s a tenfold increase in the current cap and led to a frenzy of communication between our lawyers and theirs, the Government agreed to jointly approach the Court to provide the Report, conceded the argument, and agreed to pay the unions’ costs.
It’s been quite a year: UnionsNSW and others successfully lobbying the Upper House to have the legislation rescinded; the Government doing so reluctantly and angrily; then refusing to cooperate by providing an undertaking they wouldn’t reintroduce the rescinded legislation by regulation; forcing an application to the High Court; a grossly overdue Report from the Joint Parliamentary Committee, and whammo, we win.
The cost of the case has been pro rata between the unions on the number of members, so our contribution has been almost infinitesimal compared to the bigger unions, but we all contributed equally per head.
Just how much of the costs will be met remains to be seen, but this is not a bad way to end the year.
