Unions NSW & Ors v State of New South Wales [2018] HCATrans 256 (6 December 2018)

Last Updated: 6 December 2018

[2018] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S204 of 2018

B e t w e e n -

UNIONS NSW

First Plaintiff

NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION

Second Plaintiff

ELECTRICAL TRADES UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH

Third Plaintiff

AUSTRALIAN EDUCATION UNION

Fourth Plaintiff

NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION

Fifth Plaintiff

HEALTH SERVICES UNION NSW

Sixth Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 DECEMBER 2018, AT 10.01 AM

(Continued from 5/12/18)

Copyright in the High Court of Australia

____________________

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, I had arrived at the third of the three topics identified in our oral outline, commencing at paragraph 6. The way that the plaintiffs have developed their argument in this case puts the case in two ways, one of which is focused on the inquiry identified at step 2 in McCloy and the other of which is focused on the inquiry identified at step 3. Mr Gleeson expressly noted those two ways the arguments are put at line 131 of the transcript yesterday.

As to the step 2 challenge, the argument is that it is an illegitimate purpose for Parliament to treat one source of political communication less favourably than another, with the gloss added yesterday on the basis of the functional position of that person within the system.

Our primary submission is that the premise for that argument is unsound because it is directed at the wrong level of abstraction. In our submission, consistent with the approach that the Court took in McCloy and Brown, the purpose is appropriately identified at the level of the mischief to which the law is directed rather than the legal operation of the particular provision that is impugned, which in this case obviously does draw a distinction between third parties and candidates and political parties.

So, focusing at that level, in our submission, the purpose here is appropriately identified as limiting the distorting influence of money on the political process by preventing the drowning out of voices. The purpose being identified in that way, any differential treatment of participants is an effect of the manner chosen to pursue that purpose rather than the purpose itself, in effect, that then needs to be justified at step 3. All of that is respectfully to adopt the way that your Honour the Chief Justice put it in an exchange with Mr Gleeson yesterday at lines 709 to 727.

In our submission, there is some tension in the plaintiff’s step 2 argument given their acceptance that the EFED Act was valid and that that Act involved some differential treatment of candidates and parties on the one hand and third parties because that would tend to suggest that differential treatment is not intrinsically objectionable and that the real issue is one of justification.

Your Honours – I will not take you to it but there was a passage yesterday from 629 to 727 in the transcript where your Honours, particularly the Chief Justice and Justices Gordon and Edelman, pressed the plaintiff to an extent on this topic and suggested that either it should be or at least could be, in your Honour Justice Gordon’s case, focused on the step 3 inquiry.

As we understood that exchange, at the end of it all Mr Gleeson did not abandon the step 2 argument and so on. The premise that that argument is still in play, what I now seek to address, is the proposition that the “level playing field” metaphor upon which the plaintiff relies does not mean that a law that distinguishes between different sources of political communication or different voices is necessarily invalid, that is, is invalid at step 2. Such a law will be valid if it can be justified at step 3.

In our submission, the starting point for that line of analysis is ACTV, which I do not need to take your Honours to, but which is the source in Australian law of the level playing field metaphor.

EDELMAN J: Mr SolicitorGeneral, just in relation to step two, would you accept that if a law had, not merely as its effect but as its purpose, the aim of treating differentially different persons in the political process in terms of their ability to communicate on political matters, that the law would be invalid? In other words, if no other purpose could be identified but that purpose.

MR DONAGHUE: The question, in my submission, your Honour, would be how an attempt would be made to justify that purpose in the hypothesis that there is nothing else. And my answer to your Honour’s question would be that if one did appropriately identify the purpose in that way, one would need to ask, well, why is Parliament choosing to privilege those participants over others? Does it have a reason?

EDELMAN J: But if the purpose is because they think that one player is more important than another. One player should have more access to political communication that another.

MR DONAGHUE: Well, I do not seek to defend that as a permissible purpose, but what we submit is

EDELMAN J: Is that not what the plaintiff’s argument essentially is at step two? Not that that is the only purpose, but that that is one of the purposes.

MR DONAGHUE: And part of what I am endeavouring to address now is to say partly they say that, as I understand it, on the basis of a Unions (No 1) type rational connection argument. They say, well, it does not further the level playing field or the drowningout purpose, so you should decide that there is this additional purpose to drowning out.

The weight of the submissions I am about to address is directed to seeking to establish that the differential treatment does further the drowningout purpose and therefore that you would not infer that additional and impermissible objective.

So, in ACTV, of course, the impugned provisions were held invalid – the free time provisions – in part on the basis that they differentiated between incumbents and other participants in the system. But, in our submission, the case did not decide that the differential treatment of that kind was inherently impermissible. It was decided on the basis that the differential treatment found in that legislation had not been justified – that is at step 3 in McCloy, not at step 2. Indeed, in an exchange yesterday, your Honour the Chief Justice put that to Mr Gleeson and we understood him to accept it – at lines 1049 to 1051 of the transcript.

With respect, we submit that question and the concession – if it be appropriate – we so characterise is entirely consistent with the way this Court has analysed ACTV since. In Lange, for example – and I will not take you to it, but the passage is at 568 – the Court said, in ACTV:

a majority of this Court held that a law . . . was invalid because there were other less drastic means by which the objectives of the law could be achieved.

That is obviously a step 3, as we now label it, inquiry. The plurality in McCloy approved that passage from Lange. In McCloy, your Honour Justice Gageler, by reference to your Honour Justice Keane’s judgment in Unions (No 1), identified a different way of analysing ACTV which focused on the significance of discrimination in the reasoning, particularly of Chief Justice Mason in that case, discriminating against some sources of political communication rather than others. We accept that that is also an available reading but discrimination per se was not said to be impermissible. Again, the question is, has the discrimination been justified.

In Brown, your Honour the Chief Justice, together with Justices Bell and Keane, made that very point at paragraph 93 – again, I will not take your Honours to it – but your Honour said there that Chief Justice Mason:

did not say that they were invalid simply because they effected a discriminatory burden. Rather, his Honour held them not to be “justified or legitimate” –

So, in our submission, there is good reason and it does not seem to be an issue to recognise that ACTV does not support the proposition that differential treatment is inherently impermissible. The question is one of justification. This question of how differential treatment interacts with the level playing field metaphor has been the subject of quite detailed examination by the Supreme Court of Canada and I am going to take your Honours to two cases which, in our submission, are instructive for two reasons.

The first reason is, as your Honour Justice Gageler said in McCloy at paragraph 182 and Justice Gummow said before you in McGinty at page 268. Canada has a comparable historical tradition of representative and responsible government and, in those circumstances, having regard to that comparable tradition the fact that in Canada it has been accepted by the Supreme Court on several occasions that differential treatment can advance rather than be inconsistent with the level playing field purpose, points against the idea that it is so profoundly contrary to the fundamental tenets of responsible and representative government that your Honours should find that under no circumstances can such differential treatment occur in Australia which is what you are being asked to find at the step 2 stage.

So, the comparable tradition is one reason. The second reason that the Canadian authorities are useful is, we submit, that your Honours in McCloy specifically approved the level playing field analysis in Harper which is the second of the two cases I am going to come to.

Can I start with Libman v AttorneyGeneral of Quebec [1997] 3 SCR 569. Your Honours will find it in volume 5 of the joint book of authorities behind tab 26. This decision, unlike Harper, is a unanimous decision of the Supreme Court and it is the earlier decision in point of time and what was in issue in Libman was a law governing referendums in Quebec which provided that if you wish to participate in a referendum campaign, you in effect had to join the national committee supporting that campaign and only the national committee could spend money on electoral campaigning in relation to the referendum.

So, third parties who wished to express a view in relation to the referenda outside the framework of the national committee were prohibited from doing so. That law was in fact held invalid in this case but in the course – held invalid because not justified but in the course of the analysis and I will not dwell on this case at great length because Harper is more analogous your Honours will see starting at paragraph 47 on page 598 of the report a discussion of the legal principles.

These principles are summarised in Harper so I will not dwell on this here but if your Honours could go to paragraph 50 on page 601; the paragraph numbers are found on the far righthand side next to the French text, so it is the first full paragraph on page 601. The whole court said:

It is important to limit independent spending –

independents here being third parties:

more strictly than spending by candidates or political parties. It cannot be presumed that equal numbers of individuals or groups will have equivalent financial resources to promote each candidate or political party, or to advocate the various stands taken on a single issue that will ultimately be associated with one of the candidates or political parties. While we recognize their right –

that is the independent third parties right:

to participate in the electoral process, independent individuals and groups cannot be subject to the same financial rules as candidates or political parties and be allowed the same spending limits. Although what they have to say is important, it is the candidates and political parties that are running for election. Limits on independent spending must therefore be lower than those imposed on candidates or political parties. Otherwise, owing to their numbers, the impact of such spending on one of the candidates or political parties to the detriment of the others could be disproportionate.

So that paragraph was really then the foundation, as was recognised in Harper, for the legislation that was enacted in that case which the majority described as a response to the Supreme Court’s decision in Libman.

If your Honours could go to Harper, which you will find in volume 5, tab 25, this was a challenge to legislation that was in very many respects analogous to the legislation that your Honours are now considering in that it was a challenge to a provision specifically directed to thirdparty election advertising in a context where the legislation posed a stricter limit on the third parties than it imposed on candidates and political parties.

The main difference is that this law was far more harsh in that differentiation in that here we have a third party spending half the amount of political parties. In this case, paragraph 8 of the dissenting reasons suggests that the figure was 1.3 per cent rather than 50 per cent. We have had a look at the first instance judgment and it appears that the position was, though you cannot see this from the report, that the spending limit was based on the number of voters in a seat but a candidate would have, on average, $62,000 limit and a third party had a $3,000 limit in each district and a national limit of 150.

So there was a very great disparity between third parties and candidates and that was the framework for the Court’s decision. The majority judgment relevantly for our purposes starts at paragraph 59 on page 866 where it is pointed out that:

This case represents the first opportunity for this Court to determine the constitutionality of the third party election advertising regime established by Parliament.

Then there is a reference to Libman and over the next few paragraphs the court summarises its decision in Libman including at paragraph 61, the second sentence:

did, however, endorse spending limits as an essential means of promoting fairness in referenda and elections –

including with respect to independent and third parties. Then, in paragraph 61 particularly on page 867 there is a summary of the principles that their Honours extract from Libman and of particular relevance here are three paragraphs – numbered [3] to [5] in that extracting of principles:

For spending limits to be fully effective, they must apply to all possible election expenses, including those of independent individuals and groups –

and particularly [5]:

It is also important to limit independent spending more strictly than spending by candidates or political parties –

Then, at paragraph 62, and this is one of the critical paragraphs in the judgment, there is an analysis:

The Court’s conception of electoral fairness as reflected in the foregoing principles is consistent with the egalitarian model of elections adopted by Parliament as an essential component of our democratic society.

That sentence “the egalitarian model” to the end of the sentence to “society” is one the sentences that was picked up and quoted by the plurality in McCloy. Quite a bit of this paragraph was quoted by the majority in McCloy:

This model is premised on the notion that individuals should have an equal opportunity to participate in the electoral process . . . the egalitarian model promotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to the detriment of others with less economic power.

Then, your Honours in McCloy quoted the next part:

The state can equalize participation in the electoral process in two ways –

(1) by providing funding:

the State can provide a voice –

That was quoted in McCloy as well; second - and this was also quoted in McCloy:

the State can restrict the voices which dominate the political discourse so that others may be heard as well.

KIEFEL CJ: Am I right in recalling, Mr Solicitor, that the dissentients in Harper – there was no disagreement between them either about the application of Libman or of the principles to be deduced from it?

MR DONAGHUE: You are. I was going to take your Honour to that. It was decided on justification by the dissentients.

KIEFEL CJ: Yes.

MR DONAGHUE: So there was no disagreement with these principles. At the end of that paragraph your Honours will see the court saying:

This, in turn, enables voters to be better informed; no one voice is overwhelmed by another.

In paragraphs 44 to 45 in McCloy that is all picked up and in my submission there is no sensible way to read McCloy other than as endorsing that line of reasoning. Your Honour Justice Gageler at paragraph 182 cited the majority - in McCloy also cited the majority judgment in support of, as we read it, the same principles. The next paragraph, paragraph 63, is the paragraph where the majority recognised that this law was a response to Libman:

The overarching objective of the regime is to promote electoral fairness by creating equality in the political discourse. The regime promotes the equal dissemination of points of view by limiting the election advertising of third parties who, as this Court has recognized, are important and influential participants in the electoral process.

The court was not doubting the significant role for actors or political voices other than parties and candidates but it was saying that it is consistent with the level playing field objective, partly because of the number of such persons, to subject them to tighter limits – much tighter than here – in order to ensure an overall perspective of a fair and equal system. Their Honours then recognised, as this Court would likewise recognise, at paragraph 66, that:

Most third party election advertising constitutes political expression and therefore lies at the core of the guarantee of free expression –

in the same way that this Court has recognised political speech as obviously lying at the heart of the implied freedom. Your Honours can pass over 67 through to 74 because that is dealing with another right in the charter, the right to vote, but then the court comes back to freedom of expression at paragraph 75 in its justification analysis. This really then touches on an issue that was raised in a number of exchanges yesterday in argument about the question of evidence and what kind of evidence, how much evidence, Parliament needs in order to embark upon a particular legislative program.

GORDON J: Is that the question or is that the question for it coming before the Court? Two separate inquiries, are there not?

MR DONAGHUE: I am sorry, yes. I accept that. Certainly in the Canadian system one has the question of evidence before the Parliament but one can also justify it by reference to additional evidence before the court. I accept that in this case there was some evidence before the court concerning the purpose. There had been a royal commission that had made some recommendations and there was an additional report. That material had been held in the lower courts in Harper not to provide an evidentiary foundation for the thirdparty regime that had been enacted. The Supreme Court disagreed and said that there was a sufficient evidentiary basis to justify the law, and that was the point of difference, really, between the majority and the minority.

There was a question argued in the case about what kind of justification you needed to support a judgment by the Parliament that particular legislation was called for. At paragraph 77 you will see the majority saying:

The legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address . . . the court may rely on a reasoned apprehension of that harm.

At 78:

This Court has, in the absence of determinative scientific evidence, relied on logic, reason and some social science evidence –

They give an example in that paragraph of the absence of direct evidence about the benefits of bans on tobacco advertising or package warnings, but suggest that there the court, through the application in the quote at the bottom of the page:

by the application of common sense –

was able to find a sufficient foundation.

KIEFEL CJ: I think the dissentient said that logic and common sense took them in the other direction.

MR DONAGHUE: Yes.

KIEFEL CJ: That is why the Court split 4:3.

MR DONAGHUE: I thought it was six - I will just check the number, there were certainly – 6:3.

KIEFEL CJ: Yes, 6:3.

MR DONAGHUE: Not that I rest too much on that distinction.

KIEFEL CJ: No.

MR DONAGHUE: But my point is really, and I will come back to this at the end of my submissions, but that at most there is a variable standard in terms of the kind of material that would be needed to legislate, and I will take your Honours to a passage where your Honour Justice Nettle has made this point, Parliament will often not have an evidentiary foundation for legislation particularly of a prophylactic kind that it enacts. It would, we submit, be a very major development indeed for there to be a need for an evidential record for every legislative proposal that Parliament implements, because many proposals involve a judgment.

Now, this case might be different for some of the reasons that your Honours have raised in terms of changes of existing standings – standards and matters of that kind. But there, in our submission, is no general rule as the Court recognised in an equivalent context in Harper that there must a clear evidentiary record.

The Court in paragraph 79 deals specifically with the evidence of the nature of the harm that would justify a differential treatment of thirdparty donors, and it makes the point that the nature of the harm is difficult, if not impossible, to measure scientifically. It refers to some of the evidence that was before the Court in that case and at the end of that paragraph, says:

This harm is difficult, if not impossible, to measure because of the subtle ways in which advertising influences human behaviour; the influence of other factors such as media and the polls; and the multitude of issues, candidates and independent parties involved in the electoral process. In light of these difficulties, logic and reason assisted by some social science evidence is sufficient proof of the harm that Parliament seeks to remedy.

So they did not, for the majority, impose a high standard of proof of the need for the differential treatment that was there in play.

GAGELER J: Mr Solicitor, there is a long history of this Court looking at these sorts of questions, particularly in the context of the defence power. The basic principle, I think, that emerges from the defence power cases, is that where the validity of a law is dependent upon a constitutional fact, then the law will be invalid, unsupported by power, unless the Court can be satisfied that the fact exists. Do you accept that as a broad principle?

MR DONAGHUE: Indeed. I think that is the Communist Party Case amongst others I think and I do not dispute that, but our the question in this context is not is there a constitutional fact to support a link to a head of power, but in a context where the legislative powers are subject to an implied limitation, has the justification been established. That then throws up a question, well what exactly is needed.

GAGELER J: There may be room for discussion and differences in different cases about the nature of the material that will lead to the satisfaction, but one way or another, as I understand the position, unless the Court is satisfied that a measure is justified, then the outcome is that it is unjustified.

MR DONAGHUE: That I am not disputing. The issue, in my submission, is about what the Court might need to be satisfied and you might – the Court might be properly satisfied in a prophylactic case by not very much. So to take a notorious example, the Y2K bug or the suspected Y2K bug, which attracted a wide range of responses which may have turned out to be entirely misconceived, there was no evidence of what was going to happen because no one knew what was going to happen, but there was a basis to fear what was going to happen, to which Parliament could, if it had wished to do so - I do not know whether it did or not - but it could properly have responded to the apprehension of harm without – and a law that purported to do that, would not have been invalid because it was not possible to put evidence before the Court that the measure actually was necessary.

GAGELER J: The message that comes through from the Communist Party Case and flows through to ACTV, is that the court in some contexts where the effect of the law is to discriminate against a political body, the court will be – will take a little bit more to be persuaded, will scrutinise the legislation more closely than in other cases. Do you also accept that?

MR DONAGHUE: I do also accept that. And I think, indeed, the Commonwealth put that position in Brown. But, part of the reason I introduced this submission as I did is that I am here dealing with the step 2 argument, that the discrimination is inherently impermissible. It may be that the discrimination does, for the reason your Honour puts to me, have an effect on the calibration of the inquiry that needs to be made at the justification stage.

My point from Harper is that, as the court analysed it here, because of the difficulties they identified with proof of the kind of problem – the same kind of problem now confronting your Honours – their Honours did not say that you were at the high end of the evidential spectrum for the majority. On the contrary, their Honours were prepared to give quite some weight to logic and reason, albeit that there was, as I have conceded, some evidentiary matter, albeit evidentiary matter that the courts below and the minority did not find sufficient for the purpose.

Could I ask your Honours to move on to – passing by 84 where there is an acknowledgment as to the importance of third party advertising – to paragraph 87 which is another key paragraph in the judgment where, in effect, the difficulty of the problem is acknowledged:

Parliament must balance the rights –

in the process:

candidates, political parties, third parties and voters. Advertising expense limits may restrict, free expression –

and that, the court acknowledges, is an important value, including for third parties – meaningful participation:

For candidates, political parties and third parties . . . means the ability to inform voters of their position . . . The difficulties of striking this balance are evident. Given the right of Parliament to choose Canada’s electoral model –

and that ties in to the submissions that I made in opening yesterday. It is the same kind of system where Parliament in Canada has a wide range of choices as to the choice of model – and the nuances thereof. There is some width appropriately accorded.

The Canadian court calls that “difference”. For the reasons I have already addressed, in my submission, that is not the appropriate word for recognition of a choice that Parliament gives to – that the Constitution gives to the Parliament. I was reminded overnight that your Honour Justice Gordon in Murphy, at paragraph 304, wrote in your judgment submissions that in my submission, if I had recalled them, I would have referred to yesterday in that part of my submission because your Honour talks about the application of labels, such as “deference” or “margin of appreciation” as being inappropriate in the context of Parliament’s range of options as to legislative choice.

So, then at paragraph 88, the court referred to “a reasoned apprehension” of harm as being sufficient in the circumstances. And, at paragraph 98, which your Honours will see at page 883, there having been some discussion of the evidence and a suggestion that there had not been evidence of a particular problem in the 1988 election, it was said:

The respondent alleges –

This is in the middle of the page:

that evidence of the actual pernicious effect of the lack of spending limits in past elections is necessary to establish that the objective is important and that the measures are proportional to the infringement of the rights of third parties.

And the plurality said:

Surely, Parliament does not have to wait for the feared harm to occur before it can enact measures to prevent the possibility of the harm occurring or to remedy the harm, should it occur.

We submit that must be right. It must be open to Parliament to make judgments rebalancing its electoral laws from time to time on the basis of the experience of the administration of those laws. And as your Honours know, it is a common practice for parliamentary committees after each election, certainly at the Commonwealth level and I think also at the State levels, a parliamentary committee looks back after the election at how the electoral laws worked in the context of that and produces the kind of reports that then lead to modifications or adjustments of the electoral law.

In our submission, it would be an unfortunate development if a State or the Commonwealth can never go backwards as a result of adjusting laws in that way because of a ratcheting kind of analysis whereby in the absence of concrete evidence of dysfunction in the electoral system that the balance that is drawn cannot be adapted.

GORDON J: Is that what is necessary, concrete evidence of dysfunction?

MR DONAGHUE: Well, in my submission, that is not what is necessary, that

GORDON J: You said it was in absence of concrete evidence of dysfunction.

MR DONAGHUE: I was I hope not pejoratively characterising the case against us. So, the question might be, if you do not need concrete evidence of dysfunction, then the question is, well, what do you need in order to redraw the balance between the parties, if Parliament fears on a reasoned basis and this is of course a step 3 question but if Parliament fears on a reasoned basis that there is a problem, then what more does it require in order to redraw the balance. We submit that the approach the Canadian court took in Harper to that question is right.

The last matter on this case, on the plurality, your Honour Justice Gageler asked a question about paragraph 110 and whether or not there did need to be an inquiry of that kind. We would urge the Court, and I suspect no much urging is needed given the jurisprudence of the Court against the language of minimal impairment, but leaving that aside, the substance of the question that is addressed in paragraph 110 is, we submit, quite close to the necessity inquiry that is conducted under Lange in Australia and we do accept that that is a necessary question and ultimately, in our submission, what this case should turn upon is whether your Honours are persuaded at the step 3 inquiry which includes a question of that kind.

GAGELER J: While you are looking at paragraph 110, is the opening sentence of paragraph 111 really the key to the difference between the majority and the minority in this case? That is, the majority took a deferential approach to the determination of minimal impairment and the minority eschewed that approach.

MR DONAGHUE: Your Honour, in my submission, it partly depends what you mean by deferential. In my submission, what their Honours mean by that is that in a context where, as here, Parliament has a range of choices in the design of its electoral system, Parliament does not stray outside the bounds of its permitted choices or should be found to have done so where there is evidence of the kind I have already been through that supports the decision that has been made. So, in my submission, the difference was perhaps not so much in the attitude to deference but in what was made of the evidential record upon which Parliament had acted, as I think the Chief Justice put to me. A lot of judges who looked at that evidence did not think it was enough in that case.

KIEFEL CJ: I think the minority said that, in effect, the Attorney had put on no evidence at all so there was nothing to support the need for the measure.

MR DONAGHUE: Yes, and the other thing that, in my submission, was critical to the minority’s view and you will see this particularly if you go back to paragraph 9 of the judgment which is in the judgment of the Chief Justice and Justice Major which is on page 839 is that the caps on third parties in that case were so low that their effect was to prevent any engagement by third party with television advertising or newspaper advertising because they were three and a half thousand dollars in each district.

So, the effect as summarised at paragraph 9 was, in the view of the minority, to prevent citizens from effectively communicating their views on electoral issues and if that be right then it is not surprising that their Honours thought that it was necessary to have a much better evidential foundation if it was possible to support such a deal at all. So, there was a difference between the minority and the majority as to characterisation in that the majority did not characterise the laws as preventing effective communication on political issues. Your Honours, all of that

EDELMAN J: If one were to substitute the notions of deference with essentially the definition of “deference” at the end of paragraph 111 where the majority quote from Justice Berger that:

the Court should not substitute judicial opinion for legislative choice –

does that encapsulate what you say really is the range of legislative choices that need to be left at the third stage?

MR DONAGHUE: I hope this answers your Honour’s question. In my submission, it is within the domain of selections to use McCloy language yes, the Court should not substitute for Parliament’s judgment outside the domain of selections, no. The width of the domain of selections is the matter I was endeavouring to address yesterday which, in my submission, in this context, is quite wide though I do accept not unconstrained.

EDELMAN J: But there is no dispute in Harper either by the majority or by the minority that there is some gateway – that there is some restriction upon legislative choice.

MR DONAGHUE: Indeed, yes.

GORDON J: What is interesting in that passage that Justice Edelman just took you to, is it is a qualification upon your submission about Parliament having a range of choices because the way in which it is put is genuine and reasonable attempt to balance so that you are driven back to, in a sense, your earlier submission about what is necessary to have before the Court to have demonstrated.

MR DONAGHUE: Yes, but the domain of selections observation in McCloy was, I think, in the context of that very question, the necessity question. It may well be, it is certainly possible, that there are cases where evidence would be necessary in order to inform the size of the domain of selections – it might be that you need evidence, for example, going to the available alternatives in order to weigh them.

So, I do not dispute what your Honours are putting to me, that Harper accepts them the jurisprudence of this Court accept that there are limits on the range of available choices. I am relying upon Harper to support the proposition that in a very closely analogous context to this context the range of choices was accepted to be a wide one and the extent of the evidential record needed to bring one within that range of choices was not onerous.

Principally, my focus in these submissions is not on McCloy step 3, it is on McCloy step 2, and it is to say that these cases, as picked up in McCloy, lend no support at all to the idea that the level playing field requires some sort of strict or formalistic notion of equality where everyone has to be treated the same. It just does not support that. It recognises that different participants in the system might be treated differently in pursuit of a level playing field so long as the different treatments can be justified.

Your Honours, to the extent that it is still on the table, in our submission, should not accept the plaintiffs’ submission that what they call privileging, if it be a purpose – your Honours should not accept that privileging is a purpose of the law because the differential treatment that is said to constitute the privileging is perfectly rationally explained as a measure that Parliament has chosen to adopt in pursuit of the not drowningout purpose that the plaintiff accepts is a permissible one, which takes me back to the answer I gave to your Honour Justice Edelman earlier. I do not seek to say anything more about the reasons for treating third parties and candidates differently. The learned SolicitorGeneral for New South Wales dealt with that in some detail.

On the evidence question, I think I have largely said what I wanted to say about that. Could I just ask your Honours to turn to one passage in McCloy, which is in volume 3, tab 18 of the book. This is the passage in your Honour Justice Nettle’s judgment that I mentioned earlier. In the last part of paragraph 233 your Honour has referred to the evidence that was available, and then about seven lines from the bottom of that paragraph, near the top of page 262, your Honour said:

Admittedly, those concerns are more based upon inference than on direct evidence of widespread corruption by property developers. But it is not illogical or unprecedented for the Parliament to enact

legislation in response to inferred legislative imperatives. More often than not, that is the only way in which the Parliament can deal prophylactically with matters of public concern.

We submit that that language is actually very similar to the analysis one finds in paragraph 98 of Harper in the approach in this area.

Finally, your Honours, we submit that to the extent that one is in the territory which I accepted in answer to your Honour Justice Gageler you might be in, where the Court concludes that in order to be satisfied that a measure is justified there is a need for evidence, where is that evidence deployed in the process?

We submit that the most natural point would be not at the level of identifying the purpose of the law, which you would usually do as a matter of statutory construction, and extrinsic material because it is a mischiefbased inquiry, not at the level of suitability, because that is about the rationality of the connection between the legislation and the impugned measure. Perhaps sometimes at the level of necessity, but in that context your Honours have been cautious – I refer, for example, to your Honour Justice Nettle in Brown at 288 or to the Chief Justice and your Honour Justice Bell in Murphy – because of the potential for evidence of necessity to bring the Court into an inquiry about legislative design – effectively a hypothetical inquiry about legislative design – and to press up against the boundaries of the judicial role.

In our submission, the most natural point of evidence in this system is at the balancing stage of the inquiry, if you reach it. At that point your Honours might find it necessary to consider whether the need to take this measure to limit the rights of third parties has been shown by whatever evidence your Honours require to be sufficiently compelling to justify the weight that the measure imposes on the political expression of third parties. Unless your Honours have any questions.

KIEFEL CJ: Thank you, Mr Solicitor. SolicitorGeneral for Queensland.

MR DUNNING: Thank you, your Honours. Your Honours, dealing with those matters under the heading “Proportionality testing”, the submissions we made in writing, which we do not intend to expand on at any length orally, were directed at responding to the question raised by her Honour the Chief Justice in Clubb as to if it is not the McCloystyle strict proportionality testing what else might it be. That is our endeavour to answer that question. In that regard, can we make only two further submissions beyond what is dealt with in writing?

May I ask your Honours, please, to take up McCloy, volume 3, tab 18 and ask your Honours, please, to go to the reasons of Chief Justice French, Justices Kiefel, Bell and Keane, at page 213, paragraph 68. It is particularly the last sentence that we would emphasise to your Honours regarding the distinction between proportionality testing as a tool of analysis, as opposed to compatibility which derives from the Constitution itself.

It is on the strength of that that we make the submission that appears in 4(a) of our oral outline that in addition to proportionality testing other means of justification, such as those of Justice Gageler and Justice Gordon in Brown, which we have set out at the first dot point, might also be engaged in.

The only other matter that we wish to develop orally in this regard is that which is set out at 4(c) and that is if there is to be a test other than that adopted by the plurality in both McCloy and Brown, what might it look like? That is our endeavour to answer that question, which is really to pick up the gross disproportionality that Justice Nettle refers to in Brown and which his Honour picks up earlier references to – we have set that out in our written submissions and I will not trouble your Honours to go to them.

But, by way of comparison, could we ask your Honours, please, to take up the written submissions for the plaintiffs and may I ask your Honours, please, to go to paragraph 54, page 16?

Your Honours will see at about lines 18 or 19 our friends record:

Finally, the TPC expenditure cap’s . . . restriction on the freedom is grossly disproportionate to, or goes far beyond –

Our friends apply the same measure again in paragraph 68 on page 20. Our learned friends for the Commonwealth put the matter in materially similar ways in paragraphs 48 and 49 of their written submissions. I will not trouble to take your Honours to that.

Our submissions in this regard were described by my friend, Mr Gleeson, as persistent. As I have just demonstrated, they are also consistent. Can I then move, please, to the next topic on our written outline starting at paragraph 5

KIEFEL CJ: Having said that, Mr Solicitor, the majority in both McCloy and Brown now have said something - there must be a ratio deduced about what the majorities have said on two occasions, about how one approaches testing a burden for justification. Can you deduce what that is?

MR DUNNING: In our respectful submission, that is that proportionality testing is a tool of analysis. It is available to

KIEFEL CJ: No, but you would not call that ratio with precedential value. That is your point. But what the majority must be taken to say is that it is not sufficient to have statements of conclusion such as reasonably and appropriate and adapted and unless you have – there must be something more. The rest may be tools of analysis. But that is what is being said and I am not sure that your approach is consistent with what has been held on two occasions.

MR DUNNING: Well, your Honour, the best response I am able to give your Honour to that inquiry is to make the submission that in respect of justification a court in McCloy and a majority in McCloy identified proportionality as a tool of analysis for justification. As was confirmed in Brown, it was said it was not the only means of adopting – of demonstrating justification.

Justices Gageler and Gordon approached the matter in a different way and in our submission a majority of the court in Brown did not say that their Honours were in error in doing it that way. So where that, in our respectful submission, leaves the state of the law is proportionality testing is a tool available but it is not mandated.

KIEFEL CJ: Do not let me keep you any further from your submissions.

MR DUNNING: Thank you, your Honour. Your Honours, can I move then please to the topic of the burden of justifying a measure that starts in paragraph 5 of our written submissions and can I preface the submissions I am about to make by saying we accept, as did the Commonwealth, those points that have been made by her Honour the Chief Justice yesterday and by his Honour Justice Gageler today that justification will need to be demonstrated.

To put it another away, if at the end of the case law it is not justified – sorry, a burden is not justified, then the law will be held to be invalid. But accepting that as a starting point does not lead, in our respectful submission, to a conclusion that the defendant polity bears an onus, and we make that submission based on the following propositions.

First we dealt, with respect, the reasoning of Justice Nettle both in Brown at paragraph 288 where your Honour Justice Nettle picks up similar reasoning that your Honour had made in McCloy at paragraph 233. Your Honours have been taken to each of those passages, so I was not proposing to revisit that, but we would make the submission that those
passages demonstrate, and demonstrate well, that the question is ultimately not usefully resolved by reference to onus.

But as we say in paragraph 6, we acknowledge, as I endeavoured to acknowledge at the outset, that none of that is to gainsay that at the end of the hearing a demonstrated burden must be demonstrated to have been justified. We would submit, if it needs an appellation as it were, Justice Heydon’s reasoning in Strong v Woolworths that we set out in paragraph 7 is the way one would consider any such obligation, particularly in circumstances where cases like this would inevitably turn upon constitutional facts which are going to be, in our submission, generally inapt to the sorts of “who bears the onus”type analysis.

May we make this final submission in this regard? Ultimately the implied freedom is, amongst other things, to protect representative government at the Commonwealth level. The heart of representative government is that the Houses are made up of women and men in and of their local communities. So as they go about their jobs as parliamentarians they ought to be and, in our submission, are determining what are the matters of concern in their local communities, what have been historically problems and what they perceive might be problems.

Now, when parliamentarians come to consider their legislative choices they bring all of those matters to bear, yet they cannot really be expected to have made a diary note of each of the matters that they have synthesised from their activities within their local communities, their interaction with other members of Parliament, to have come to the conclusions that they have.

That is not to say that there does not need to be a demonstration of justification, but it is to reinforce exactly the analysis of Justice Nettle in Brown and McCloy that I referred to earlier, to have regard to the fact that that is, in fact, how a representative government works and in order to protect it, one should not, in fact, impair one of its strengths. That is it reflects community values because it absorbs community values. Unless, we can assist your Honours any further, they are our submissions.

KIEFEL CJ: Thank you, Mr Solicitor. Solicitor for Western Australia.

MR THOMSON: May it please the Court. The AttorneyGeneral of Western Australia seeks to intervene because of the submission contained in paragraph 9 of the Commonwealth’s 78B notice which concerns the extent of State legislative power in respect of federal elections. That submission was also replicated in the written submissions that the Commonwealth made although those submissions accepted that it may not be necessary to decide the issue.

We think that that was also what was put by the Commonwealth SolicitorGeneral yesterday. We embrace the position that the Court should not determine the existence or extent of legislative power in respect of Commonwealth elections. We have set out in our oral outline the three reasons essentially why that is the case. The first is because the issue does not properly arise in these proceedings and that any determination of that issue will not affect the outcome in this case.

The second is that the two essential propositions that are advanced by the Commonwealth, that is, that the Commonwealth has exclusive power to legislate with respect to federal elections and that a law is with respect to federal elections if it has more than an insubstantial or incidental connection to the federal election are contentious propositions. Those contentious propositions should only be resolved in the context of an actual debate or an actual issue about those matters.

We have set out very briefly some submissions about those contentious propositions but if the Court accepts our primary position which is that the Court should not engage with the issue, then it is probably unnecessary for me to say anything more at this stage.

KIEFEL CJ: Thank you, Mr Solicitor. Yes, Mr Wait.

MR WAIT: Your Honours, South Australia has filed a short written submission addressing two issues. The first concerned an aspect of compatibility testing and the second an aspect of proportionality testing. In light of the submissions that have already put by the parties and the interveners, I do not intend to supplement the written submissions insofar as they address compatibility testing.

In relation to proportionality testing, South Australia submits that although by no means necessarily decisive to the outcome of the present case, it is relevant to the task of proportionality testing for this Court to undertake to have regard to the fact that the EF Act regulates New South Wales elections and not Commonwealth elections. The first step in the submission is to embrace various statements by members of the Court that the judgment to be arrived at in undertaking proportionality testing will be more soundly based where it is arrived at by reference to the constitutional foundation that sustains the implied freedom.

South Australia submits that these obligations are, with respect, correct irrespective of the methodology of proportionality testing that might be adopted. In this regard, the majority of the Court observed at paragraph 88 in McCloy that fundamentally, proportionality testing must proceed upon an acceptance of the importance of the freedom and the reason for its existence.

The reason for the existence of the implied freedom has been articulated in various ways by many members of the Court since it was first discerned but the constant and central notion, I submit, in the various expositions of the underpinnings of the freedom, has been to protect the sovereign power of the people of the Commonwealth over the Executive and legislative branches of the Commonwealth by means of free and informed choices at Commonwealth elections. Accordingly, the methodology to be applied in undertaking proportionality testing should take as its paramount concern the preservation of free and informed choices of electors in Commonwealth electoral processes.

In support of the submission that proportionality testing involves consideration of the fact that the EF Act regulates New South Wales and not Commonwealth elections, South Australia does not pursue arguments that were put and were rejected in Unions (No 1). In particular, South Australia does not submit that State laws including State electoral laws are incapable of offending the implied freedom by reference to Melbourne Corporation doctrine principles. Additionally, South Australia does not contend that any greater latitude should be afforded to a State law in determining its validity for alleged inconsistency with the implied freedom.

A State law that prohibits, for example protest activity, the State accepts may be capable of burdening the implied freedom in just the same way as a Commonwealth law might and accordingly there is no reason why the testing of its validity should not be treated in just the same way.

Further, South Australia accepts as a matter authority and principle that political communications that occur at the various levels of government in Australia are practically indivisible. Communications at one level of government cannot be quarantined from communications at another level of government.

KIEFEL CJ: Mr Wait, is this addressed to the issue raised by the Commonwealth that it asks us not to pursue?

MR WAIT: No, your Honour it is not.

KIEFEL CJ: Well, I am afraid I am not following where we are.

MR WAIT: I am sorry, your Honour. We make no submission in relation to the construction of section 7(2).

KIEFEL CJ: You are talking about proportionality testing.

MR WAIT: Yes, we are. Your Honour, what we are asking the Court to note in undertaking proportionality testing is that the law in question is a law that directly regulates New South Wales elections but does not directly regulate Commonwealth elections by virtue of the indivisibility of the political communications.

We accept that any burden that might be imposed by the State law on a State election may have a consequential burden and effect on communications that may be relevant to Commonwealth electoral processes. But what we say is that there is a relativity between the intensity of the justification that might be required for a law that regulates a Commonwealth election directly as compared to a law that regulates a State election or, for that matter, a local government election. We put that argument irrespective of the scope of section 7(2), on which we make no submission.

We accept that laws at one level cannot be quarantined and that communications undertaken at a local government level or State government level may bear in a meaningful way on the choices of Commonwealth electors. However, the fact that a State law may effect a relevant burden for the purposes of stage 1 testing does not mean that the same principles ought to apply at stage 3 testing and that there is not some relativity determined by reference to the electoral processes in question that are being regulated.

The focus on stage 3 should not be on whether the law is a law of a State or the Commonwealth. The focus should be on the extent to which the impugned law may be understood as likely to impair the electoral choices of the people of the Commonwealth. In Unions (No 1) at paragraph 159 Justice Keane observed that it is telling that neither in the special case nor in the course of argument was a practical example given of a political communication which might relate exclusively to the election of a candidate to the New South Wales Parliament or to local government in New South Wales with no bearing upon the political choices required of the people of the Commonwealth by the Constitution.

We accept that. However, we say that there are practical examples to demonstrate why a law that regulates political speech in a local or State electoral process may burden the implied freedom in a qualitatively different way to the same or a similar regulation of Commonwealth electoral communications.

To take an example of an election commitment that might be made in the course of a State election, assume that one of the major parties of a State election promises to build a tennis arena in the capital city of that State. Communications about the election promise are political communications under stage 1 for the purpose of the implied freedom because they may have a bearing on the choice of the people at a Commonwealth election. The promise may raise questions of Commonwealth funding; it may raise intergovernmental responsibility issues; it may enhance or damage the brand name of the political party that makes the commitment.

However, in our submission, it may readily be seen that a law that burdens a discussion about the electoral commitment will affect the State electoral choice differently to the way in which the burden on that communication in the State election will affect Commonwealth electoral choice.

In the State electoral contest the promise may be of central importance to the outcome of the South Australian election. Electors may see themselves as voting for or against the fulfilment of the election commitment. In a Commonwealth electoral contest held at a later time, where the candidates and the issues in play are quite different, the burden on the communication about the commitment made in the course of the earlier State election will be unlikely to assume the same significance. We do not say it will be of no significance and we certainly do not say it is not political communication but we say that it cannot be taken that it would be of the same qualitative effect on the Commonwealth choice.

If I move quickly away from issuesbased communications, then the examples might become more stark. Take, for example, a State law that regulates communications about the suitability of a candidate for local or State election. The fact that the law impairs discussion about whether a candidate for State Parliament is suitable – or, for that matter, whether a candidate for mayor of a local council election is adequately qualified will burden the implied freedom by virtue of the indivisible nature of the speech. But, that does not mean that the law will impair the choice to be made by electors at a federal election in the same way as a law that regulated discussion about the suitability of federal candidates.

Though, obviously, we say, a law that impaired political communication about the suitability of a prime minister to hold office will present a greater risk to the electoral choice of the Australian people than a law that supressed political communication about the suitability of a local mayor. All political communications by their qualitative effect on the elector choice of the Australian people at a Commonwealth election will be different and can be weighed differently at stage 3.

In making this submission, South Australia does not challenge statements by this Court, including the passage from Roberts v Bass at paragraph 73, to which the Court was taken yesterday, to the effect that communications in the context of elections, whether State or federal, may properly be said to be at the heart of the implied freedom. Electoral speak is, of course, inherently political and, therefore, it warrants a high measure of protection. Nonetheless, South Australia submits that recognition of the fact that all electoral speech is political does not have the consequence that impairment of electoral speech at local and State levels must be weighed in the same way as a correlative impairment of Commonwealth electoral speech. In this regard, South Australia embraces

KIEFEL CJ: I am sorry, Mr Wait. How does any of this bear upon the issues before the Court?

MR WAIT: Your Honour, we say this is relevant that, when considering the effect of the burden imposed by the EF Act on New South Wales elections, it is relevant to take into account the fact that any burden that may be imposed is a burden that, predominantly, burdens communications occurring within the context of a State election. We do not say that that does not require a high level

KIEFEL CJ: How is that relevant to how the Court should approach the answer to either of the questions before it?

MR WAIT: Your Honour, we say it is relevant to the way that the stage 3 proportionality testing is done because

KIEFEL CJ: Could you, perhaps, just summarise

MR WAIT: Yes, your Honour.

KIEFEL CJ: how that comes about because, speaking for myself, it is not at all obvious to me.

MR WAIT: Yes, I apologise, your Honour. The submission is that they are a spectrum – as Justice Gageler has expressed it – there are different expressions, we say, for similar concepts of the extent of the burden on the choice to be made by Commonwealth electors in exercising their sovereign function. We say that the intensity of scrutiny to be applied in this case is high on that spectrum but is not at the highest level if we were to assume that this law was a Commonwealth law and then to say what level of intensity would apply. We suggest a high level of intensity would apply.

Your Honour – the only – we do not suggest that the submission we put is determinative of this case in any way but we do say that it is relevant to note in the weighin process at stage 3 that the regulation here regulates a State and not a Commonwealth election. That is the ambit of the scope of
the submission and so, your Honour, I accept that, I entirely accept that the submission may well not be determinative – certainly not determinative of the present case. However, we say, by virtue of analogous reasoning to other cases it is important to bear in mind that there may be other cases where a direct impost has been

KIEFEL CJ: That is other cases.

MR WAIT: They are other cases, your Honour.

KIEFEL CJ: Do you have any further submissions?

MR WAIT: No, your Honour. Thank you.

KIEFEL CJ: Thank you. Mr Gleeson, a reply?

MR GLEESON: Your Honours, I was proposing to go for 20 to 30 minutes. I am not sure whether that is too long or inconvenient.

KIEFEL CJ: We might forego our break and hear your reply.

MR GLEESON: That might be even quicker. Your Honours, I propose to reply in reverse order but only to deal with the Commonwealth, Mr Kirk and Mr Sexton. In relation to the Commonwealth, if your Honours have the Commonwealth outline, I want to make one point in response to paragraphs 3, 4 and 5, which is to refer the Court to the passage in McGinty, which we have provided to the Court – [1996] HCA 48; 186 CLR 140, in the judgment of Justice Gummow, commencing at the foot of page 285 over to page 286, at about point 6.

We submit that Justice Gummow has denied the proposition being advanced by the Commonwealth. What he has indicated here is undoubtedly the Constitution has allowed considerable choice to the federal Parliament, not the State Parliament, in the design of the federal electoral system true. As his Honour says:

It is hardly to be expected that the Constitution was framed so as to present an impermanent or incomplete statement of the incidents of representative government on the footing that the Parliament which would make changes and remedy deficiencies perceived from time to time would be composed other than by the representatives of electors who had been free of legislative impediment in informing themselves and in receiving information and comment –

on that as a public interest. In other words, the implied freedom limitation, which is the Grundnorm, it is there in order that the people have the information they need to choose the people who, in turn, will be making the wide variety of choices about the electoral system. One does not get from that the converse proposition the Commonwealth urges that, because there is a wide variety of choices, therefore the implied freedom must be approached in some more generous fashion than otherwise available. To that point, we would add, without asking your Honours to go to it, the passages from your Honour Justice Gageler’s judgment in McCloy at paragraphs 114 to 115 and in Brown at 202 to 204, which have a similar effect.

Your Honours, the other matters we respond to in relation to the Commonwealth, which concerns paragraphs 6 to 8, as developed this morning, the first sentence of paragraph 6 does not accurately characterise our case. Our case on purpose is set out at paragraphs 43 to 46 of our written submissions and was accurately characterised by your Honour Justice Edelman this morning. We are looking at the particular purpose of this amending law in the context of a scheme which otherwise is said to be reducing the impact of money.

Could I say something about Harper, if your Honours have volume 5 again? Your Honour the Chief Justice asked about the nature of the difference between the majority and the dissentients and there is clearly a difference on the level of the approach to the evidence and that is one way of understanding the difference in the case but there is probably also a difference in principle, we would submit, which can be seen from comparing paragraph 21 on page 1923 with paragraph 111 on page 1968. In the Chief Justice’s judgment in paragraph 21, she is indicating that because:

The citizen may hold views not espoused by a registered party. The citizen has a right to communicate those views.

That is essential to democracy. That has the conclusion that any limits on that right must pass:

a clear and convincing demonstration that they are necessary, do not go too far, and enhance more than harm the democratic process.

So, it is an approach to the degree of scrutiny required where one is shutting down the speech of participants in the debate and we would suggest comparing that to 111. The contextual factors which the majority speak of which lead to deference, which are those set out at paragraphs 77 to 87 of this judgment, indicate a rather different conceptual approach to the question.

Your Honours, the one other area where, we submit, there is a difference of principle in the judgments is, if your Honours could go to the majority judgment at paragraph 74, on page 1953, and this we think is directly relevant also to Mr Sexton’s core submission. Justice Bastarache has said, in the middle:

Meaningful participation in elections is not synonymous with the ability to mount a media campaign capable of determining the outcome.

That, we think, is New South Wales’ concept of meaningful participation. You can say something but you should not have a realistic chance to win in the contest of ideas. The dissenting judges clearly took a different view to what “meaningful participation” means. We would urge, in the Australian context, that paragraph 74 does not give proper weight to our Constitution and, for that reason, the dissenting judgment should be preferred in this case.

KIEFEL CJ: The minority’s reference at paragraph 21, to which you have taken us, about the need for a clear demonstration of necessity is in the background, I think, of a limit on expenditure at $3,000 per electoral district $150,000 nationally.

MR GLEESON: Yes.

KIEFEL CJ: When the cost of advertising was – I think their Honours refer to – there must have been some evidence of the cost of advertising there which was way beyond – even a bulk mailout, I think, was $5,000 and a fullpage advertisement was something close to $100,000.

MR GLEESON: We can see that theme further from that same page, paragraph 19 at the top of 1923, the minority regarded it as an essential vice in the law that it prevented citizens mounting “effective national television, radio and print campaigns” with the result that “the only sustained messages” people would hear would be for the political parties. That is the conception of meaningful participation we submit the minority is conceiving of. You should have a chance to mount an effective campaign at a national level on a sustained basis. That is what equality of opportunity is.

Now, if that is the right conceptual framework for the present case, the Court then has the evidence of the 2015 campaign where we know it costs in excess of $500,000 to mount an effective campaign such as the nurses did. So, we have got the evidence to show that valuable speech will be shut down as against that standard.

NETTLE J: Is that not the sort of campaign that Justice Bastarache describes as a “campaign capable of determining the outcome”?

MR GLEESON: Yes.

NETTLE J: Does he not then say at paragraph 74 to which you took us that that is not what you are entitled to?

MR GLEESON: Exactly, and that is why I am pointing to the difference. We submit paragraph 74 does not represent the law in Australia because Justice Bastarache’s view is you can speak a little but never enough to have a real chance of winning the contest of ideas.

NETTLE J: You say you must have the chance to determine the outcome.

MR GLEESON: Yes, and your Honour Justice Keane’s example in Unions that we discussed yesterday, if one wants to put into the contest a policy which both parties are steadfastly against, to have a chance of perhaps persuading them, persuading the electors to generate that debate where you have a chance of actual persuasion, then that is what meaning participation involves.

NETTLE J: But does it go as far as to say that in order to have meaningful participation you must have the financial capacity or to at least be permitted to spend it to determine the outcome?

MR GLEESON: Not necessarily to determine the outcome but at least as far as that your ideas can sufficiently be deployed across the range of media that are in play – so that is media in this case across all the State and the various forms of media – and on a sufficiently sustained basis, as the Chief Justice said, to have a chance of really being heard as against the other ideas, particularly those of the parties. That is what we are submitting is the minimum that is necessary.

NETTLE J: We know that last time it took a million dollars to determine the outcome. Why do we know that $500,000 would not now be sufficient to give you a meaningful voice short of determining the outcome?

MR GLEESON: We know that last time a million dollars was sufficient to put out a campaign which not necessarily determined the outcome but gave a real opportunity to be heard in the contest over the outcome. It was a big, bold, effective campaign getting a message across to the community so that they could consider it. We do not have to go as far as saying that determined the outcome of the election; we just have to say that, in the contest of ideas, that gave that message a real chance to be there in the marketplace sufficiently sustained, sufficiently widespread, to be heard.

That is the sense in which I am urging the Constitution requires the free speech. I am not seeking to read this as it must be so much that you will necessarily determine the outcome, because you may then be tipping over into truly having one voice drowning out others. It is at the stage that I have sought to put it.

Your Honours, the last matter on the Commonwealth’s submissions was orally – the Solicitor just near the end asked you to find that if evidence is relevant in this proportionality analysis it probably only comes in, he said, at the adequacy of balance stage rather than at earlier stages in the inquiry. We would submit that the evidence can be relevant and decisive at earlier stages of the inquiry, and certainly is in this case.

As to the quality of evidence, we submit in this case it is sufficient to point to the fact that there was a preexisting scheme designed to deal with a particular problem, reducing the influence of wealth, that there was evidence of how the scheme operated across two elections, that there was no evident deficiency in the scheme’s achievement of its objectives over those two elections, there was a considered recommendation that further evidential inquiry was necessary and there is no evidence that Parliament conducted any such inquiry before it reached its conclusion and they would be sufficient facts to establish our case.

Your Honours, could I move to Mr Kirk and section 35 and ask your Honours to open that section. Our first submission is your Honours should answer the section 35 question, irrespective of the answer you come to on section 29. If we fail on section 29, section 35 is an independent way home and should be considered. If we succeed on section 29, there will then be a narrow way home and a broad way home. The narrow way home is that section 35 would fall together with section 29 as being inseverably connected with it. The broad way home is to consider our independent case on section 35 which we ask the Court to do.

On what I will call the broad case, could I group our reply under three topics? Firstly, discrimination; secondly, coordination and, thirdly, chilling effect.

KIEFEL CJ: Your case is principally discrimination.

MR GLEESON: It is principally discrimination. And, what I wanted to say on that was, Mr Kirk pointed you to another aggregation provision, section 30(4), and he said, well that is a provision. It is not identical, but it is similar. It is in the same field and these are both provisions in various ways, trying to prevent circumvention of the caps or expansion of the caps and near enough is good enough, parliamentary choice and so on.

What your Honours will see is the radical difference between those provisions. Section 34 restricts the parties only where the other expenses “incurred by an associated entity”, defined on page 23 to be something operating solely for the benefit of the party. So that captures the front entity and it is a perfectly understandable provision.

That is the only constraint the parties are under. They are under no constraint if they engage in any form of coordinated action with any other participant in the process. That is a radically different constraint to section 35 which only applies to the thirdparty campaigner; does not apply to parties or candidates. Does not even apply to counterparties to the agreement unless they are also thirdparty campaigners and then creates this particular effect. And could I indicate, with its effect under subsection (2), in particular, what this agreement is doing is imposing a very heavy bar upon the entry of a character of agreement, an agreement which has a particular object.

So the first constraint this imposes is, if you are a thirdparty campaigner and you are even discussing ideas, possible ideas, possible campaigns with another person, you know that you are under the constraint that if what you do could later be characterised as an informal agreement. You risk breach of the criminal law and a prison term. And that is a constraint, a constraint on discussion leading to an agreement only faced by one group of participants in the process.

The next aspect is Mr Kirk made an argument that it is only a narrow sort of agreement, it is only one which is for or against election of a candidate, so you can have a chat about policy issues and you can agree to campaign on policy issues as long as you do not trip the wire of turning that into a message about someone for or against.

Now, Mr Kirk admitted that line was an extraordinarily slippery line and he told you that he would not give an ex tempore judgment from the Bar table on which ads were on which side of it. Indeed, the ad at page 275 started out apparently to be on the right side of the line and then was perhaps on the wrong side of the line. In terms of the chilling effect achieved by this discriminatory law, it is pretty hard to think of a bigger burden placed on only one group in the process.

KIEFEL CJ: Mr Gleeson, if the section did extend to parties and candidates as well, there would be no difficulty with it?

MR GLEESON: There would, your Honour, but that is our separate point. Discrimination is enough to knock this provision down. That is our primary point. The secondary point is, if it extended to everyone, what it would then be is a burden on coordination but not on circumvention. It is not a circumvention provision. The provision in Canada which survived was a circumvention provision. It said in terms it is an offence to circumvent either by splitting or acting in collusion. This is not a circumvention provision. What this is saying is if two or more people spend within their cap but on a joint message which in aggregation would put one of them above the cap, that is a separate offence. So what it is attacking is any form of coordinated message.

So, it is not about people exceeding their cap; it is about saying within your cap there is a particular type of message that cannot occur, one that has a joint character to it. If the discrimination were removed, your Honour, and that was the sole provision, then the critical question for the Court would be what is the vice in people spending within their caps but giving the community messages which have the endorsement of more than one person, and what is the burden on speech by shutting down those messages and what is the corresponding mischief that requires the shutting down of those messages?

We would submit, you will not find in the materials any evidence to show that that sort of coordinated message, provided it is within the cap, provides a separate mischief requiring this sort of criminal response, but as I say to your Honours, if discrimination is enough, then this is a separate question because if it were rewritten by the Parliament to cover everyone, it would be a radically different provision and its coordination object could be perhaps considered in its own right.

Your Honours, the final matter was in response to Mr Sexton. There was one question your Honour Justice Nettle raised as to the significance of the 2011 data and what, if anything, should be inferred from the NRMA being the biggest spender but being under the putative new cap. 2011 should be treated as but one data point in a set of two data points of which the second is the more relevant one. For these reasons, firstly, it was only a threemonth period that was covered. Secondly, the panel cautioned at page 1371 of the special case book in volume 4, that this was why the 2015 data needed to be considered because it would be a better test. And, thirdly, it simply tells us that at different time periods, where there are different issues, different campaigners may perceive different needs to get their message across and so should be looked at in that context.

Your Honours, the other matter we wanted to put more squarely in response to Mr Sexton’s case was this. Ultimately, the issues between us and New South Wales probably come down to four issues, if I could just state them. The first is can you simply and should you ignore the former law, which is Mr Sexton’s urging, or is the former law relevant in
ascertaining whether there is a mischief which has been addressed in a justified fashion.

The second key issue between us is that, as he would put it, the implied freedom leaves a Parliament, federal or State, free to impose whatever degree of restriction on the speech of any participant other than a party or a candidate subject only to his constraint that the restriction does not impede meaningful participation. That is how he put it in opening up. So framed, we submit that has within it the privileging purpose that we submit is impermissible.

The third key difference between us is on what meaningful participation means and I have mentioned that in relation to the Canadian cases. In effect, Mr Sexton says you look at $500,000. That looks like what he calls a “substantial sum of money”, that is enough. Beyond that, it is simply a judgment for the Parliament. We would submit that the high purposes of the implied freedom would not be satisfied by that type of approach. Possibly the final difference between us is simply on the role of evidence and on New South Wales’ approach the Parliament is entitled to make choices, not only without evidence before it but without evidence when the matter is tested in Court to justify what are severe restrictions on the freedom of speech and we submit that approach undermines the purposes of the freedom.

Your Honours, the final matter was also related to your Honour the Chief Justice’s question on section 35 – what if all discrimination were removed, what would then happen? Another thing that would then need to be considered is, because the primary caps are so radically different in their differentials, if you were uniformly banning coordination of anyone with anyone else, in the manner contemplated, one would have to consider the interrelationship between that and the fairness of the relativities established by the primary caps – which probably goes to confirm that the coordination point, while the second element of our case, may be better considered under a separate law which removes discrimination but does solely target coordination. May it please the Court?

KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 11.39 AM THE MATTER WAS ADJOURNED