ALQ March 2023 Constitutional Law

Issue: March 2023

Constitutional Law

High Court declares electoral funding law invalid

Unions NSW & Ors v State of NSW [2023] HCA 4

The Electoral Funding Act 2018 (EF Act) imposes caps on electoral expenditure for election campaigns in NSW, including by third-party campaigners (TPCs) such as the union plaintiffs. Section 29(11) provided that a TPC may only incur “electoral expenditure” of $20,000 (indexed to inflation) in a capped electoral expenditure period for a Legislative Assembly by-election. Section 35 of the EF Act made it “unlawful for a [TPC] to act in concert with another person or other persons to incur electoral expenditure … during the capped expenditure period for the election that exceeds the applicable cap [for the TPC].” The plaintiffs challenged ss. 29(11) and 35 of the EF Act as constitutionally invalid because they impermissibly burdened the implied freedom of political communication.

Shortly prior to the hearing, s. 35 was repealed and, after the Court reserved its decision, a joint parliamentary committee recommended the expenditure cap in s. 29(11) be increased to $198,750. In light of that report, the State conceded that s. 29(11) was invalid.

By majority, the Court formally held that s. 29(11) was invalid as the State, in conceding invalidity, had not justified the burden which the provision imposed on the implied freedom. As to the challenge to s. 35, the Court unanimously held that there was no longer a "matter" within federal jurisdiction which the Court could determine, because the plaintiffs lacked a sufficient interest to establish continued standing to challenge its validity following its repeal.

Power to make public health orders not constitutionally invalid

Tey v State of New South Wales; Altakrity v State of New South Wales [2023] NSWSC 266

The plaintiffs attended protests during the 2020 and 2021 COVID-19 lockdowns and are charged with offences under s. 10 of the Public Health Act 2010 for failing to comply with a direction of the Minister for Health and Medical Research made under s. 7 of the Public Health Act (a public health order) which relevantly required them not to participate in outdoor public gatherings and not to leave their place of residence. The plaintiffs sought declarations that the directions or the Public Health Act were invalid because they impermissibly burdened the implied freedom of political communication guaranteed by the Constitution.

Basten AJ dismissed the Summonses with costs. His Honour found, in accordance with the defendants’ submission, that the structured proportionality test had to be applied at the level of the statute, not to the particular orders or directions made under the Act. While the Public Health Act imposed a burden on political communication, it was for a legitimate purpose (the protection of public health), it was suitable (because it had a rational connection to that purpose) and it was necessary (as the plaintiffs had not identified any alternative law). Finally, his Honour considered that the “limited constraint” imposed by the law was not manifestly imbalanced in its effect of political communication.

No inconsistency between C’th Biosecurity Act and State legislation authorising termination of employment on COVID related grounds

Kikuyu v Minister for Health NSW [2023] FCAFC 36

The appellant was a nurse employed by NSW Health whose employment was terminated on 8 December 2021 because she was not vaccinated against COVID-19. That termination was pursuant to Determination no. 33 of 2021 made by the Secretary under s. 116A of the Health Service Act 1997 and was consistent with the Public Health (Covid-19 Vaccination of Health Care Workers) Order (No 2) 2021 made by the Minister under the Public Health Act 2010.

On appeal from a 2022 Federal Court decision that there was no inconsistency between the Biosecurity Act 2015 (Cth) and s. 7 of the Public Health Act 2010 or s. 116A of the Health Service Act 1997 for the purposes of s. 109 of the Constitution (Cth), the appellant again argued that the State Acts under which the Determination and the Order were made were directly and/or indirectly inconsistent with the Biosecurity Act once the Governor-General had declared a “human biosecurity emergency” under s. 475(1). That provision enlivened powers of the Commonwealth Health Minister in ss. 477 and 478 to determine requirements or give directions.

The Full Federal Court held that, on the proper construction of the Biosecurity Act, there was no inconsistency.

Other decisions in this issue

Last updated:

26 May 2023