Unions NSW v New South Wales [2023] HCA 4

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

UNIONS NSW & ORS PLAINTIFFS

AND

STATE OF NEW SOUTH WALES DEFENDANT

Unions NSW v New South Wales

[2023] HCA 4

Date of Hearing: 16 & 17 November 2022

Date of Judgment: 15 February 2023

S98/2022

ORDER

1. The questions stated by the parties for the opinion of the Full Court in the further amended special case filed on 10 November 2022 should be answered as follows:

Question 1: Is section 29(11) of the Electoral Funding Act 2018 (NSW) invalid because it impermissibly burdens the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?

Answer: Yes.

Question 1A: As to proposed question 2 below:

a) Does the Court have jurisdiction to hear and determine the question?

b) Should the Court in its discretion hear and determine the question?

Answer: a) No.

b) Unnecessary to answer.

Question 2: If the answers to questions 1A(a) and (b) are "yes": was section 35 of the Electoral Funding Act 2018 (NSW), as it stood from 1 July 2018 until 2 November 2022, invalid because it impermissibly burdened the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution?

Answer: Does not arise.

Question 3: Who should pay the costs of the special case?

Answer: In relation to question 1, the defendant. Otherwise, there should be no order as to costs.

Representation

J T Gleeson SC with N J Owens SC and C G Winnett for the plaintiffs (instructed by Gilbert + Tobin)

B W Walker SC with B K Lim for the defendant (instructed by Crown Solicitor (NSW))

S P Donaghue KC, Solicitor-General of the Commonwealth, with S Zeleznikow and S N Rajanayagam for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)