A Sydney Morning Herald piece today formally announces that Unions NSW are challenging the O’Farrell government’s campaign finance laws in the Australian High Court:
Political donations laws in NSW will be tested in the High Court for the first time in a case brought by the union movement, which argues they infringe freedom of political communication and association.
The laws, introduced by the O’Farrell government in 2011, ban donations from anyone other than individuals on the electoral roll and restrict what individual unions affiliated to a political party can spend on campaigns.
They also prohibit the payment of affiliation fees such as those paid by unions to Labor and restrict the ability of Unions NSW and business or environment groups from receiving money from member organisations to run political advertising.
The case will pivot on the limits to the our constitutional right to freedom of political communication. The unions’ victory is hardly a sure thing. The High Court has applied the right very conservatively, as cases as recent as February have shown (we wrote about those here and here.)
But regardless of the constitutional issues, the O’Farrell reforms are unquestionably a limitation on freedom of speech – and a grossly excessive one at that. As I wrote in ABC’s The Drum last year:
A government’s legitimacy requires voters to make a free choice about their vote. That choice is not free if the government is managing how those decisions are made – preventing some third parties from endorsing and supporting candidates …
It’s an appealing idea to “get money out of politics”. But legislative attempts to do so have invariably punished oppositions, entrenched incumbents, and limited political participation. The O’Farrell Government’s reforms are just an egregiously bad example.
I also appeared at a Unions NSW function to express the IPA’s opposition to these laws on the grounds of freedom of speech late last year. The IPA’s James Paterson has also written in opposition to the NSW changes.