High Court action supported by Federation

August 19, 2018

The Teachers Federation has joined in legal action to the High Court, initiated by Unions NSW, in response to the NSW Government’s attempt to severely limit the capacity of unions to vigorously and publicly articulate matters on behalf of members in the context of the forthcoming state election campaign.

The Electoral Funding Act 2018 has replaced the Election Funding, Expenditure and Disclosures Act 1981. The new Act is the NSW Government’s latest attempt to constrain third parties, particularly unions, from vigorously and publicly articulating matters on behalf of members in the context of a state election campaign. The Teachers Federation has determined to oppose the legislation by supporting the application by Unions NSW to have the legislation overturned in the High Court. The Federation will be a plaintiff in the matter.

This is not the first time the NSW Government has attempted to constrain unions from arguing on behalf of members in the public arena. In December, 2013 the High Court decided a special case, brought by Unions NSW on behalf of various NSW unions, including the Teachers Federation, against the State of New South Wales. The unanimous High Court ruling found that two NSW laws, concerning political donations and expenditure, were unconstitutional and therefore invalid. The laws were found to breach the implied constitutional freedom of political communication.

The new legislation reduces by half the amount any individual union can spend, in the lead up to an election, from just over $1 million to $500,000 acting either individually or in concert with other unions by threatening gaol of up to ten years as well as heavy fines for any breach.

Any campaign activity involving television advertising, particularly in the Sydney market, can easily exceed $1 million dollars. The “in concert” provisions significantly hamper the Federation from working with other unions on campaigns with a shared interest. For example any contribution by the Federation to a Your Rights at Work-style campaign forms part of the cap on expenditure as does the Better Services for a Better State Campaign by Unions NSW or the ACTU’s Change the Rules campaign. There are aspects of the Federation’s Stop TAFE Cuts campaign that are reflected in the broader ACTU and Unions NSW campaigns.

When the electoral funding bill was passed, Premier Gladys Berejiklian said the reforms would “drive greater integrity, transparency and accountability”. Unions are already required to provide detailed, publicly available statements of any expenditure to the NSW Electoral Commission.

The High Court has previously rejected the NSW Government’s assertion that the ability of unions to run well-resourced campaigns impeded the integrity of government. When challenged the government was unable to provide any evidence on this to the High Court.

In addition to the Federation, the NSW Nurses and Midwives Association, Electrical Trades Union, United Services Union and the Health Services Union have joined the High Court application.