Australian Gagging Law thrown out by High Court

By Tim Ayres, General Secretary, Australian Manufacturing Workers Union and Keith Ewing, Institute of Employment Rights

Commentary icon7 Jan 2014|Comment

Keith Ewing

Professor of Public Law, King’s College London

07 January 2014

By Tim Ayres, General Secretary, Australian Manufacturing Workers Union

and Keith Ewing, Institute of Employment Rights

As the Transparency of Lobbying Bill – the more appropriately named Gagging Bill – continues its passage through the UK Parliament, Keith Ewing highlights how similar proposals introduced in New South Wales, Australia, have been overturned by its High Court. In an IER Briefing late last year, Keith commented on the human rights implications of the UK gagging law. Below he joins Tim Ayres, General Secretary of the Australian Manufacturing Workers Union (AMWU), in exposing the undemocratic, anti union nature of the successfully challenged Australian legislation. This article first appeared in the Australian press.

December 2013’s very public evisceration of Barry O’Farrell’s highly repressive political party funding legislation is a remarkable event in Australian law. The High Court’s decision is also of great global significance, with implications that will reverberate far beyond Australia.

The decision is extraordinary not only because unions (unusually) won, but also because of the manner of the victory. Powerful and unequivocal to the point of impatience with the NSW government, the decision casts a strong challenge for policy-makers, who must now design a new non-partisan party funding law.

Passed in February 2012, the NSW legislation sought effectively to ban the Labor Party in NSW, at least as the party was initially conceived. In doing so, it provided a template for liberal governments in other States, as well as now for the Abbott government in Canberra.

Under the legislation, trade unions were banned from contributing financially to the Labor party, the party they had helped to create. At the same time, if a union remained ‘affiliated’ to the Party, any money it spent at an election would be treated as the party’s spending and count as part of the ALP’s capped election budget.

The whole structure of the law was clearly designed to force the unions to split from the party, to weaken Labor politically, and to isolate the unions electorally. Unfortunately for O’Farrell, he had overlooked his constitutional obligations, of which he was testily reminded in the withering judgments of the court.

The constitutional obligation was set out clearly in the high-minded principle expressed by Chief Justice French. In essence, the legislation was rotten because it imposed ‘a restriction upon the funds available to political parties and candidates to meet the costs of political communication by restricting the source of those funds’.

If the legislation was to survive, it would have to be justified. The government tried by mumbling platitudes about corruption. But this had no impact, the court unpersuaded that sufficient evidence had been shown to excuse a total ban on donations from any source other than individual electors.

Equally, the court was not persuaded by the provision in the legislation that required union spending to be treated as party spending. After noting that this provision applied particularly to the ALP (no surprise there), the court held here too that the thin veneer of anti – corruption provided no excuse.

The High Court thus saw straight through the legislation to its real purpose, nothing less than a strategic manoeuvre by a premier with an overwhelming majority to strike a fatal blow against his political opposition. The drumbeat of conservative political editorializing about union involvement in politics and the robust claims of Mr O’Farrell and his fellow travellers carried no weight in Australia’s highest court.

A major humiliation for the NSW government and a brilliant achievement for the unions’ legal teams, the decision is no less significant than when the Court struck down the Menzies Government’s prohibition of the Communist Party in 1951. For despite the limited publicity it has generated, this 2013 decision will have lasting significance for the freedom of unions and community groups to organize politically.

It is hard to imagine Australian political and economic development without a strong labour movement active in workplaces, industry and our parliaments. Milestone developments in economic justice like the living wage, workers’ compensation, the aged pension and superannuation are only possible through the political and industrial advocacy of a strong labour movement.

Could profound social change like universal health care and universal suffrage or environmental progress like saving the Franklin River or Sydney’s cultural heritage during the Green bans really be imagined without active unions campaigning in the community and through their ALP affiliation? And what about work choices and the demands for fairness at work for Australian workers?

The NSW legislation and Premier O’Farrell’s hysterical response to the High Court decision is telling. Fundamentally, the NSW Liberals and those who supported them were blinded to good policy and good law by their obsession with a political vendetta against their opponents. Now they have the opportunity and obligation to clean up politics by addressing real rather than imaginary problems.

The labor movement is happy to sit down with Mr O’Farrell at any time to help write a new political party law. But any proposals for new legislation must recognise the critical role of unions and community groups in Australian politics. They must also recognize that the structure of the Labor party is a matter for the Labor party and its affiliates, not Mr O’Farrell and his mates.

Keith Ewing

Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is also the President of the Institute of Employment Rights