Unions seek high court challenge to NSW campaign spending restrictions

The peak union body in New South Wales is seeking to launch a high court challenge against the Perrottet government amid a push to reintroduce controversial laws that cap third-party campaign spending ahead of next year’s state election.

Unions NSW filed pleadings in the high court on Thursday, targeting so-called “acting-in-concert” laws that ban unions and other third-party organisations such as religious and community groups from pooling resources during election campaigns.

The laws are essentially a zombie provision from a separate third-party cap, which was found to be unconstitutional by the court in 2019.

The court found laws introduced under the former premier Gladys Berejiklian, which halved the amount third-party groups could spend on state election campaigns from $1.05m to $500,000, infringed on the implied right to political communication.

But the court found it unnecessary to deal with the acting-in-concert provisions because the cap governing it had been rendered invalid.

The government has sought to reintroduce the third-party spending cap ahead of the state election in March, amid a fractious industrial standoff between the government and public sector workers that has seen train drivers, teachers and nurses take strike action.

Introduced into the NSW parliament by the attorney general, Mark Speakman, last week, the Electoral Legislation Amendment Bill 2022 would cap union and other third-party spending during a state election campaign at $1.2m.

The cap would be $644,300 outside election campaign periods.

The proposed cap is in line with a recommendation from a Joint Standing Committee on Electoral Matters recommendation handed down in 2020, and excludes spending on travel and accommodation linked to campaigns.

But Unions NSW said the bill would re-enliven the acting-in-concert laws, hobbling its campaign efforts in the lead up to the election.

In pleadings to the high court seen by the Guardian, it argues the provisions will have a “chilling effect” on the implied right of political communication.

The pleadings – which also include the NSW Nurses and Midwives Association, the Public Service Association and the United Services Union as plaintiffs – argue the law prevents unions from engaging in joint campaign such as Not for Sale, which rallied against privatisation.

They also argue the law is unconstitutional because it favours political communication by political parties or candidates above third-party campaigners.

“The Liberals have form when it comes to silencing the voice of trade unions, churches and community groups who wish to participate in elections,” Unions NSW’s secretary, Mark Morey, told Guardian Australia.

“They have consistently shown they will use every trick in the book to stop us making our voice heard.”

The 2019 decision by the high court found that the reduction in the spending cap was not “reasonably necessary” to achieve the state government’s aim of preventing the other voices being drowned out in the political process by the distorting influence of money.

But the government said the new bill was reasonable because it created a higher cap than the one that existed prior to the challenge, and removed travel expenditure from being included.

The new legal challenge adds yet another layer of hostility between the government and unions in the lead up to next year’s election.

On Thursday tens of thousands of public and Catholic school teachers went on strike across NSW. It marked the third teachers’ strike in six months, and the first time in 25 years that public and Catholic school teachers have campaigned together.

The state’s transport network has also been subjected to significant delays this week amid industrial action by the state’s rail union, while the nurses union also held stop-work meetings on Thursday.

The acting-in-concert provisions became particularly relevant during a byelection in the NSW seat of Upper Hunter in May last year, because the state currently has third-party campaign caps of $21,600 during those polls.

The union said, together with the acting-in-concert provision, the cap “makes it almost impossible for unions to conduct robust political byelection campaigns”.

In its high court pleadings, which also challenge the byelection cap, Unions NSW said it was unable to properly campaign, pointing out that it did not buy print, radio or television advertising, or use flyers or how-to-vote cards in Upper Hunter.

It said that during the campaign it spent about 20% of its allotted cap on only 56.75 hours of staff time.

Its total spend of $18,648 compared to $252,705 spent by the Nationals and $201,536 by Labor during the campaign.

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