Charitable advocacy wins reprieve following High Court ruling
Charities have won a reprieve from a restriction on implied freedom of communication after the High Court overturned a decision to cap campaign expenditure by half.
In a unanimous decision on Tuesday, the High Court ruled the relevant section of the New South Wales government’s Electoral Funding Act 2018 was invalid due to it being impeded by the implied freedom of communication protected by the constitution.
Justices Susan Kiefel, Virginia Bell and Patrick Keane said: “[The government] has not justified the burden on implied freedom of halving the cap….as necessary to prevent the drowning out of voices other than those of third-party campaigners.”
The laws capped campaign expenditure by third parties – including unions, business groups and charities – at $500,000. It was previously $1.05 million. Although this only governs NSW elections, the precedent would have also hindered federal, state and territory governments attempting to limit election campaign spending.
A group of unions led by peak body Unions NSW had argued that setting lower caps for groups who do not run candidates in elections was designed to handicap activism. Unions Secretary, Mark Morey, said the union movement had always pooled together its resources to get its message out during election campaigns.
“The High Court has said….that the government cannot rig an election, a government cannot silence its critics in NSW by using the parliament and passing legislation.”
Treasurer Dominic Perrottet said the decision means unions will now have “free rein” to fund wall-to-wall advertising during the upcoming NSW election campaign and said the purpose of the legislation was to “clean up politics”.
He added: “The government believes elections should be free and fair, not bought with out-of-control spending by unions and other third parties.”
The NSW Premier, Gladys Berejiklian, said she was “so disappointed” in the decision because it would have made election advertising more transparent.
“People should know that when they see an ad, what the real intention behind the ad is, and who is paying for it, and that’s why we put those caps in place in legislation but the High Court decided against it,” Berejiklian said.
“I’m so disappointed by the results but I can’t argue against the High Court.”