Recent Cases

Unions NSW v New South Wales [2023] HCA 4 (15 February 2023) (Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ)


Catchwords:


Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where s 29(11) of the Electoral Funding Act 2018 (NSW) (“EF Act”) capped electoral expenditure by third-party campaigners in “capped State expenditure period” before State by-election for Legislative Assembly – Where third-party campaigners subject to lower cap than candidates – Where s 29(11) restricted capacity of third-party campaigners to engage in political debate and imposed burden on political communication – Where State no longer sought to justify burden – Where State conceded Court should hold s 29(11) invalid – Whether Court should make declaration of invalidity.

Constitutional law (Cth) – Judicial power of the Commonwealth – High Court – Original jurisdiction – Meaning of “matter” – Standing – Offence under s 35 of the EF Act for third‑party campaigner to act in concert with other persons to incur electoral expenditure that exceeded applicable cap for third-party campaigner – Where Court had jurisdiction to determine validity of s 35 when plaintiffs commenced proceeding – Where s 35 was repealed before hearing – Whether Court had jurisdiction to determine validity of s 35 – Whether plaintiffs had standing to seek declaration of invalidity.

Words and phrases – “declaration”, “electoral expenditure”, “federal jurisdiction”, “foreseeable consequences”, “implied freedom of communication on governmental and political matters”, “judicial power of the Commonwealth”, “justiciable controversy”, “justified”, “matter”, “special interest”, “standing”, “sufficient interest”, “third-party campaigner”.