NSW unions challenge NSW Government in the High Court – again

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Published: Tuesday, 08 November 2022 09:45

In 2018 depa joined in an action which the High Court describes as Unions NSW 2 v NSW Government. It was a challenge to the legality of restrictions imposed in New South Wales legislation putting a cap on campaigning expenditure by third parties and, in particular, imposing that same cap when a number of third parties get together - or as the legislation describes it, “act in concert”. It was also the second case Unions NSW had conducted on electoral funding, the first was successful, and the second was an absolute triumph, humiliating the NSW Government with all seven judges agreeing it was unlawful.

You can check our coverage in three different issues of depaNews here:

NSW unions challenge NSW Government in the High Court

High Court to hear union challenge to electoral funding laws next week

NSW Government doesn't understand why they lost the High Court case

Section 35 of the Electoral Funding Act 2018 is the problem but successful lobbying of the NSW Upper House saw the opposition and crossbench unite to rescind that section to ensure that the acting in concert offence was repealed. The Government agreed to the Bill, and that should have been the end of it, but the Government refused requests from Unions NSW to give an undertaking that they would not reimpose that provision in a way that would prevent joint campaigns in the future.

So, notwithstanding all that, the case has been set down for hearing in the High Court on Wednesday 16 and Thursday 17 November. The High Court must be wondering how many times they have to reject the approach of the Government before they accept there is an implied freedom in the Constitution for third parties to participate in the electoral process.