On 29 January 2019, the High Court handed down its decision in Unions NSW v New South Wales, a case with implications for the 2019 State election. The case examined provisions in the Electoral Funding Act 2018, including s 29(10) which reduced the monetary limit of electoral expenditure by third-party campaigners from over $1.2 million to $500,000 in the six months leading up to a State election. The High Court found s 29(10) to be invalid as it breached the implied freedom of political communication in the Commonwealth Constitution.
In NSW, since 2011 it has been unlawful for political parties, candidates and third-party campaigners to incur electoral expenditure for a State election during the capped expenditure period that exceeds the applicable cap. Third-party campaigners can be individuals or organisations, including trade unions, business groups and motoring associations. Electoral expenditure applies to a range of activities including all forms of advertising, the production and distribution of election material, staffing costs and research.
This paper will briefly re-cap the events which influenced electoral reforms in 2018, before examining in greater detail the relevant legislative provisions, the concept of implied freedom of political communication under the Constitution, and the reasoning of the High Court in Unions NSW v New South Wales.