Cap on electoral expenditure by third party campaigners struck down

In 'Unions NSW v State of New South Wales', the High Court considered the validity of two provisions of the 'Electoral Funding Act' 2018 (NSW). Section 29(10) of that Act imposed caps on electoral expenditure by 'third-party campaigners'. These caps were significantly lower than the permitted expenditure of those political parties which had endorsed more than ten candidates for election to the NSW Legislative Assembly. Section 35 of the Act prohibited third-party campaigners from acting in concert with other persons to exceed the applicable cap for the third-party campaigner within specified periods. In five separate judgments, every member of the Court concluded that s 29(10) impermissibly burdened the implied freedom of communication on matters of politics and government protected by the Constitution. With the exception of Edelman J, who found that s 35 was invalid (at [160]), all members of the Court found it unnecessary to decide the question of the validity of s 35 in circumstances where there was no cap upon which that section could operate. This decision further illuminates the extent and implications of the implied freedom following the re-articulation of the test for what is 'reasonably appropriate and adapted' in 'McCloy v New South Wales' (2015) 257 CLR 178.