This story appeared in Workplace Express on 23 October The High Court has today confirmed that it will refer a Unions NSW challenge to restrictions on spending by third party campaigners to a full hearing in December, with South Australia the first of several states expected to intervene.
Justice Virginia Bell set down a 5 December hearing (a day later than she flagged at the last hearing, with provision for it to run into a second day.
The judge agreed last month to expedite the hearing, but the timing raises questions about any effect that the result might have on campaigning ahead of the next NSW election in March next year.
At a directions hearing in Sydney today, Justice Bell also acceded to a request by Nicholas Owens SC on behalf of Unions NSW to excuse the parties from a requirement to provide certificates of correctness for a joint book of authorities.
To give the parties enough time to reply and file, Justice Bell also agreed that she would not require intervenors’ authorities to be included in the joint book.
While SA is the only state so far confirmed as an intervenor, more are expected to follow.
The union peak body, along with the NSW Nurses and Midwives Association, ETU, NSW Teachers Federation, USU and HSU claim the Electoral Funding Act 2018 is unconstitutional, illegitimate and privileges political parties.
They say that s29 of the EF Act reduces the cap for third party campaigners› spending from the $1.3 million set at the 2015 state election to $500,000.
Carrying jail terms of up to 10 years, s35 of the EF Act also prohibits third-party campaigners from trying to get around the laws by acting in concert with others to incur electoral expenditure in excess of the new caps.
Unions NSW won a similar battle in 2013, securing a declaration that the O’Farrell Liberal Government’s restrictions on political donations were unconstitutional.
Unions NSW Secretary Mark Morey told Workplace Express in August that the laws "criminalise what we have done at the last two elections" and "our standard conduct" in pooling resources with other unions to give members a voice.
He said the most repugnant aspect of the legislation was that it imposed an “unprecedented” potential two year jail term for third-party campaigners – whether they be unions, churches, community groups, charities or industry groups – if they acted in concert.
“If this legislation had been in place in 2011, or 2015, unions officials would have gone to jail for doing what they always do: campaign.”
After today’s hearing, Morey was due to join ACTU president Michele O’Neil at a Change the Rules rally in Belmore Park in Sydney.
Morey said the rally “expresses the frustration of Australian workers who are being squeezed by flat wages at one end and rising power, housing and insurance bills at the other”.
“Australians desperately need a new system of workplace laws to restore balance and allow working people to get ahead.”
Michael Sexton SC and Brendan Lim represented the NSW Government at today’s hearing.
Former federal solicitor-general Justin Gleeson is expected to argue the unions’ case when the matter goes to the full hearing in December.