In the High Court decision of Unions NSW v New South Wales, the main issue was whether the expenditure cap of $500,000 imposed on third-party campaigners pursuant to section 29(10) of the Electoral Funding Act 2018 (NSW) was valid. It was held to be invalid because it impermissibly infringed the implied freedom of political communication. This commentary evaluates the different reasoning taken by the members of the Court. By suggesting a hypothetical example to test the reasoning of the judges, it is submitted that there remains some uncertainty regarding when an expenditure cap is justified. In terms of its precedential value, it will be argued that the plurality’s approach demonstrates that the necessity stage of the structured proportionality analysis is not only a substantive test (ie, focusing on and evaluating the measure itself), but it can also be a procedural test to determine whether Parliament has expressly justified the necessity (ie, evaluating the steps taken to justify the measure). Further, it is argued that the necessity stage may be flexibly reframable as asking whether a limit is ‘minimally impairing’, depending on the situation.
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