High Court strikes down unfair Electoral Funding Act


In a unanimous decision the High Court held the Electoral Funding Act 2018 – which halved the amount third-party groups (unions) can spend on state campaigns – breached the Australian Constitution’s implied freedom of political communication.

The Electoral Funding Act cut the amount unions could spend on election campaigns from just over $1 million to $500,000 but increased the amount political parties could spend to $11 million.

The laws also prevented unions and others pooling resources and working together, imposing jail terms of up to 10 years if the caps were exceeded.


The court ordered the state of NSW to pay the unions' legal costs.


The court challenge, which was led by Unions NSW and funded by 14 Unions including ASMOF, was based on the argument that the legislations seriously impeded the ability of unions to participate in elections and the political process and may have flow on affects that restrict the everyday work of unions. Unions NSW argued that setting lower caps for groups who do not run candidates in elections – such as unions and charities – was designed to handicap “disfavoured voices”.


In the judgment, Justice Stephen Gageler said third-party campaigners like unions "must be left with a reasonable opportunity to present its case to voters" and it was "not self-evident, and it has not been shown, that the cap set in the amount of $500,000 leaves a third-party campaigner with a reasonable opportunity to present its case" to voters.


Mark Morey from Unions NSW said the "draconian laws ... effectively stopped public criticism of the Berejiklian government" and the result was "more than just a win for third-party campaigners, it’s a win for democracy".


The NSW election will be held on 23 March.