Australia 1:0 Canada

Canadians have much to learn from the Australian High Court’s take on election spending limits for “third parties”

The High Court of Australia has just delivered Unions NSW v New South Wales [2019] HCA 1, a decision that should be of interest to readers who are concerned with freedom of expression in the electoral context ― a topical issue in Canada, given the recent imposition of further restrictions in this area by the recently enacted Bill C-76. The decision resulted from a challenge by a number of labour unions to New South Wales legislation that reduced the maximum amount a “third party” ― that is anyone not a candidate at an election or a political party ― is allowed to spend on campaigning in a nearly-six-month period preceding an election, from 1,050,000AUD (jut under a million Canadian) to 500,000AUD. The High Court unanimously held that the legislation was contrary to the implied freedom of political communication, which it had previously read into the Australian constitution‘s provisions requiring “representative” government.

The plurality judgment, by Chief Justice Kiefel and Justices Bell and Keane, finds that the third party spending limits are unconstitutional. That they restrict the ability to communicate is not in dispute. And while the plurality is prepared to assume that these limits are imposed for the legitimate purposes of levelling the campaigning playing field and preventing the wealthy from “drowning out” the voices of the less fortunate, they are not justified. Experts consulted prior to the enactment of the legislation provided no particular justification for recommending that the then-existing spending limits be reduced. A Parliamentary committee, however, recommend that the legislature look into the actual spending needs of third parties, and this was not done either. As a result, there is no reason for saying that the reduced limits are “reasonably necessary”.

Justice Gageler agrees with the plurality’s disposition of the case. He is persuaded of the legitimacy of the state’s pursuit “of substantive fairness in a manner compatible with maintenance of the constitutionally prescribed system of representative and responsible government”. [91] This might, in principle, justify much lower spending limits for third parties, which campaign on single issues, than for parties that must address a broad range of issues in their quest to form a government. However, “[i]t is not self-evident, and it has not been shown, that the cap set in the amount of $500,000 leaves a third-party campaigner with a reasonable opportunity to present its case”. [101] Absent such a showing, the restriction on the freedom of communication is not justified.

Justice Nettle’s conclusion is similar. He accepts the legitimacy of the objective of creating a level electoral playing field ― one on which political parties will be primary players ― and agrees that a legislatures may from time to time review the measures it takes to ensure fairness, including by lowering spending caps previously enacted. However, there must be a justification for whatever measures it takes from time to time. Such a justification is missing in this case. Although it was recommended that more evidence on the needs of third parties be collected, “for reasons which do not appear, that recommendation went unheeded. It is as if Parliament simply went ahead … without pausing to consider whether a cut of as much as 50 per cent was required”. [117]

Justice Gordon, like the plurality, assumes that restrictions on third party spending pursue a legitimate purpose, which she characterizes as the privileging of political parties and candidates. However, in the absence of evidence about the actual need for restrictions set at their current level, “the Court … cannot be satisfied that the level of the expenditure cap is reasonably appropriate and adapted to achieve the asserted constitutionally permissible end”. [150] It was for the State to show that the restriction it seeks to impose was justified, and it has not done so.

For his part, Justice Edelman considers that the reduction in the spending limits imposed on third parties, even as the limits imposed on political parties rose, cannot be explained by the purposes of maintaining a fair and corruption-free electoral system. Rather, it must have had an “additional purpose”, which “was to ensure that the voice of third-party campaigners was quieter than that of political parties and candidates”. [159] In other words, the reduction’s aim was “to burden the freedom of political communication of third-party campaigners”. [160] Justice Edelman considers that, although laws that rely on the relative silencing of some views in order to ensure that all can be heard are legitimate, to aim only at silencing some voices “is incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government”, and legislation so motivated is “invalid”. [160]

Needless to say, I am not qualified to comment on whether the High Court is correct as a matter of Australian law. What I can do is compare its decision with that of the Supreme Court of Canada in Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827, which addressed much the same issues. (Readers will recall that I am not a fan of Harper, to put it mildly, and included it in my list of the Supreme Court’s five worst decisions of the last half-century in this blog’s recent Twelve Days of Christmas symposium.)

This is most obviously so on the issue of deference to the legislature on the issue of the appropriateness of a limitation of the freedom of (political) expression, and the evidence required for the government to make this case. The Harper majority insisted that courts should approach legislative choices with deference. In its view, “[t]he legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case”, and that “a reasoned apprehension of … harm” [Harper, 77] is sufficient to restrict fundamental freedoms protected by the Canadian constitution.

This approach is explicitly rejected in Unions NSW. While the Australian judges avoid directly criticizing the Harper majority, both the plurality opinion and Justice Nettle explicitly side with the “strong dissent” of Chief Justice McLachlin and Justice Major (joined by Justice Binnie). The plurality takes a dim view of the submission “that Parliament does not need to provide evidence for the legislation it enacts [and] is entitled to make the choice as to what level of restriction is necessary to meet future problems”. [44] When legislative choice are made in a way that burden the freedom of political communication, they must be justified. Similarly, Justice Gageler speaks of the need for a “compelling justification”, and insists that “[i]f a court cannot be satisfied of a fact the existence of which is necessary in law to provide a constitutional basis for impugned legislation, … the court has no option but to pronounce the legislation invalid.” [95] Justice Gordon insists that “the Court must … be astute not to accept at face value the assertion that freedom of communication will, unless curtailed by a reduction in the cap to $500,000, bring about corruption and distortion of the political process”. [148]

Another point of contrast between Harper and Unions NSW is the treatment of the so-called “egalitarian model of elections” designed in part to favour the interests of political parties and candidates over those of the civil society groups, disparagingly consigned to the status of “third parties”. According to Harper, election campaigns must focus attention on parties and candidates, including by ensuring that any other participants in the public debate, except the media, will behave unobtrusively. By contrast, the plurality opinion in Unions NSW explicitly rejects the submission that candidates and parties deserve preferential treatment, advanced in part on the basis that elections are “not a choice between ideas, policies, views or beliefs except insofar as such choice may be reflected in the electoral choice between candidates”. [39] Rather, the plurality says, “ss 7 and 24 of the Constitution guarantee the political sovereignty of the people of the Commonwealth by ensuring that their choice of elected representatives is a real choice, that is, a choice that is free and well-informed” [40] ― including by third parties. Justice Gageler, of course, takes the contrary view on this point. Justice Edelman’s position is more complex. He explicitly endorses “a Rawlsian, egalitarian model” [178] in which spending limits prevent some speakers from “drowning out” others. However, he also considers that it is not legitimate to target particular speakers for silencing apart from such an anti-drowning out purpose.

A last difference between Harper and Unions NSW worth highlighting is recognition by Justice Gageler of “the propensity of an elected majority to undervalue, and, at worst, to seek to protect itself against adverse electoral consequences resulting from, political communication by a dissenting minority”. [66] Justice Gageler refers to prior cases where the risk of a government legislating to limit political competition the better to maintain itself in office was explicitly adverted to. Such legislation, he notes, is incompatible with presuppositions of the Australian constitutional order. Although he finds that, in this case, “[t]here is no suggestion of abuse of incumbency” [85] by one party against others, this clear-eyed position is in contrast to that of the Harper majorityr, which ignored the possibility that incumbent governments favour legislation that excludes “third parties” from electoral campaigns in order to avoid unpleasant criticism and so reduce the odds of losing power.

There are more interesting things in the Unions NSW decision than I have room to discuss in this post. For example, Justice Gageler’s comments about the role courts in finding facts that are relevant to deciding whether a statute is constitutional are in contrast to the position of the Supreme Court of Canada in cases such as Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, and should be very nutritious food for thought for those who are skeptical of the Bedford requirement of deference to trial judges. Justice Eledman’s comments on identifying statutory purpose (and in particular the role of general statements of purpose in the legislation) are also very interesting.

Overall, based on this one decision, I think that Canadians have a great deal to learn from Australians. Admittedly, the length of the High Court’s decisions is a deterrent ― Unions NSW is about 85 pages long, and I take it that it’s pretty short by Australian standards. That’s the cost of so many judges delivering full individual reasons. But the upside is that interesting ideas don’t get swept under the carpet in the process of getting to a set of reasons many judges can sign onto. I’m not saying the Supreme Court of Canada should go back to having each judge deliver his or her own reasons (though I wonder sometimes) but, at any rate, reading the Australian decisions may well be worth our while. In particular, the willingness of the Australian judges to keep a legislature accountable for imposing limits on the freedom of political expression without justification is a welcome reminder that their Canadian counterparts can do much more to protect individual rights in the electoral realm, and elsewhere.

Transcending Jurisdictions

Teaching Dunsmuir in Australia

Narelle Bedford, Bond University

Australia. Canada. Kangaroo. Moose. The kangaroo and the moose are both uniquely adapted and suited to their environments. Despite these vastly different environments, the universal questions of life (movement, food and care of infants) are the same. It is in the answers to those universal questions that variations occur.

As it is with kangaroos and moose, so it is with administrative law in Canada and Australia.

I teach a full semester course in Canadian Administrative Law to Canadian students. In Australia.[i] The fact this course is offered there may be a surprise to some readers, but its existence is evidence of the impact of internationalization in legal education. The benefits of internationalization were outlined in a 2012 report on Internationalising the Australian Law Curriculum for Enhanced Global Legal Practice:[ii]

All law students’ thinking and learning is enriched by a curriculum which requires them to consider diverse approaches to common problems; to learn from differences but be alert for universals; to strive for best practice; to avoid parochialism, ignorance, and narrow‑mindedness; to cultivate the spirit and habit of open-mindedness and tolerance; and ultimately to make a contribution to advancing the common good.

Although administrative law may not be routinely thought of as a course with an international aspect, there are universal issues dealt with by administrative law in all jurisdictions – such as the regulation of executive power – that render it perfect to transcend jurisdictions. The same applies to the Dunsmuir decision.

Dunsmuir – the Australian context

The Canadian National Committee on Accreditation includes the Dunsmuir case as a prominent part of the substantive review component in the administrative law syllabus.[iii] The hurdle to teaching Canadian Administrative Law in Australia is finding ways to make it “authentic” to Canadian students who are already studying in Australia but would be seeking to return, write exams to gain Canadian accreditation and commence the journey to practice as lawyers in Canada.

Furthermore, in the book What the best law teachers do the authors identified a range of common traits amongst best law teachers that all were present regardless of jurisdiction.[iv] Amongst these was the ability to “actively engage” their students.[v] This concept has parallels to the “deep learning” (as opposed to surface learning) articulated by Professor Michael Head, who specialises in teaching Administrative Law in Australia and spent a semester at Osgoode Hall.[vi] With the key aims of authenticity and active engagement, I therefore offer two observations on teaching Dunsmuir in Australia.

Observation One – Identify the universals

By identifying the universals, even if the universals are questions ― such as how do the rule of law and legislative supremacy interrelate ― students can actively engage with topics and see their relevance regardless of the jurisdiction in which they may ultimately practice.[vii] Dunsmuir is relevant to all law students as it provides a structured consideration of key universal questions, for example deference, even though the answers may differ as between jurisdictions. Within deference, Dunsmuir grapples with questions of why, how, and when should courts defer to administrative decision‑makers.[viii] Through this discussion, broader and more fundamental questions inevitably arise, for instance what may be the parameters of judicial review itself. Moving beyond these questions, the case also raises aspects of procedural fairness including the ongoing discussion surrounding the importance of reasons and what courts should do in the absence of reasons or where only scant reasons are provided.

A further universal is the impact of privative clauses, especially given that both the Canadian and Australian parliaments/legislatures continue to insert them into legislation. Dunsmuir included privative clauses as one of the factors to be considered in a standard of review analysis, yet they are not in themselves determinative. The Australian position is similar but the means to get to that end is vastly different; in Australia the concept of jurisdictional error has a critical role.

Framing these topics as universal questions for all legal systems contributes to actively engaging students. Sometimes the detail of administrative law can be overwhelming for students who are encountering it for the first time. In an effort to help students embrace the subject, the universals provide a touchstone for them to return to as they develop their understanding of the subject. Understanding universal questions arise and that there are different ways of arriving at solutions and the solutions may ultimately be the same or may differ, helps students to appreciate the importance and complexity of administrative law in any society.

Observation Two – Embrace technology

Canadian Administrative Law is taught on campus in person via a two hour weekly participative lecture and a weekly one-hour small group tutorial of typically 10 to 12 students featuring lively discussion of problem‑based questions. To increase authenticity, I coordinated the production of a video featuring one of the Supreme Court Justices who wrote the majority judgment in Dunsmuir, Justice Bastarache. In the video he explains the key issues in Dunsmuir, the resolution reached in the case and its subsequent application. The video is played in four parts over four lectures on substantive review and also available at any time via the subject website.

The benefit of this particular technology assisted learning has been evaluated. I have collated and analyzed feedback from students spanning many semesters, and their reflections are typified by the following comments:

The Justice Bastarache videos provided a unique inside perspective on the reasoning process of the Supreme Court of Canada. The videos were helpful in illustrating that the highest court recognised the practical problem with the existing state of the law and had a clear purpose in mind when approaching Dunsmuir. It sought to clarify and better define the law surrounding judicial review. I appreciated the effort that went into obtaining these comments from the author of the judicial decision himself. The videos provided an invaluable supplementary perspective.

The videos reflected, through Justice Bastarache’s comments, the way that the Supreme Court balances its role with the will of the legislature reflected in statute. I found the videos showed a more humanised and personal look at the work of the court, illustrating that its decisions and that their effects are carefully considered beforehand.

Thus, the video capsule brings the case “alive” for students using technology and crystallises Dunsmuir’s practical relevance.


The universal issues raised in Dunsmuir endure and thus the case has the potential for enduring influence. As noted in respect of the 50th anniversary of the Roncarelli case, “normative understanding of the decision develops through reflection”.[ix] I hope this will also be true of Dunsmuir, so that judges, practitioners, and scholars are still analysing the case on the occasion of its 50th anniversary as we have for its 10th. The concept of a blogging symposium is consistent with my observations on teaching Dunsmuir in Australia ― identify the universals and embrace technology. Change is a constant, but I do note the Roncarelli analysis also included a perspective from an Australian scholar.[x] Long may the kangaroos and moose discuss and analyse the universals together and long may we teach each other’s significant cases to our students.

Bond Law has been teaching a Canadian program for over 20 years. In 2015, Bond Law welcomed its 1,000th Canadian student.

[ii] Australia, Office of Teaching and Learning, Final Report on Internationalising the Australian Law Curriculum for Enhanced Global Legal Practice (2012).

[iii] The National Committee on Accreditation (NCA) is a standing committee of the Federation of Law Societies of Canada. The mandate of the NCA is to help Canada’s law societies protect the public interest by assessing the legal education and professional experience of individuals who obtained their credentials outside of Canada or in a Canadian civil law program, and who intend to practice in a Canadian common law jurisdiction.

[iv] Michael Hunter Schwartz, Gerald Hess & Sophie Sparrow, What the Best Law Teachers Do, (Harvard University Press, 2013).

[v] There is a substantial body of academic scholarship emphasising the importance of student engagement. For example, in legal education specifically see: Lillian Corbin; Kylie Burns, and April Chrzanowski, “If You Teach It, Will They Come? Law Students, Class Attendance and Student Engagement” (2010) 20(1) Legal Educ. Rev. 13 & Bonita London, Vanessa Anderson and Geraldine Downey, “Studying Institutional Engagement: Utilizing Social Psychology Research Methodologies to Study Law Student Engagement” (2007) 30 Harv. J.L. & Gender 389.

[vi] Michael Head, “Deep Learning and ‘Topical Issues’ in Teaching Administrative Law” (2007) 17 Legal Educ. Rev. 159 at 163. This built on research by the scholars who initially proposed the distinction between deep and surface approaches, see Ference Marton and Roger Säljö, (1976), “On Qualitative Differences in Learning: I—Outcome and Process” (1976) 46(4) Brit. J. Educational Psychology 11.

[vii] Graeme Orr argues both context and coherence are necessary in the teaching of public law in “Teaching Public Law: Content, Context and Coherence” (2015) 25 Legal Educ. Rev. 299.

[viii] As identified in Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope, (Cambridge University Press, 2012).

[ix] Genevieve Cartier, “The Legacy of Roncarelli v Duplessis 1959 -2009” (2010) 55 McGill L.J. 375 at 392.

[x] Mark Aronson, “Some Australian reflection on Roncarelli v Duplessis” (2010) 55 McGill L.J. 375 at 615.

Accounts of Accountability

It’s important to keep politicians accountable. But what follows for regulation of money in politics?

Freedom of expression is necessary, among other things, to foster political accountability in a democracy. On that much we can surely all agree. But what follows from the link between the freedom of political discussion and our interest in holding our elected representatives to account? Specifically, when it comes to regulating money in politics, should a healthy concern with maintaining accountability cause us to favour more restrictions, or fewer? The answer to that question is, to say the least, not obvious, as a comparison between two judicial opinions linking democratic accountability and freedom of expression but coming to opposite conclusion shows.

In McCutcheon v Federal Election Commission, 134 S Ct 1434 (2014), the majority of the U.S. Supreme Court struck down limits on the total amount of money an individual is allowed to donate to candidates at an election. (The limit on the amount that can be given to an individual candidate was not at issue.) In dissent, Justice Breyer drew on the value of accountability to justify the limitation of the role of money in politics. He noted that “political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.” (1467) The protection of the freedom of expression, he continued, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (1467; emphasis in the original) According to Justice Breyer, the undue influence of substantial pecuniary contributions to politicians, which he characterized as

[c]orruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. (1467)

In other words, to keep politicians accountable to the voters, it is necessary to limit the influence of money on them, and in this particular case to uphold the constitutionality of limits on donations.

Compare this with the opinion of Australian High Court’s Chief Justice Mason in the case of Australian Capital Television Pty Ltd v Commonwealth, (1992) 177 CLR 106. At issue were provisions eliminating the ability of both political parties and candidates and of “third parties” to pay for electoral advertisements in broadcast media. (Parties represented in Parliament were given some free time for their advertisements.) Chief Justice Mason also extolled the virtues of democratic accountability and emphasized the link between the actions of the governors and the opinions of the governed:

the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication as an indispensable element in representative government. [37]

Democratic accountability thus required that the freedom of expression be protected (even in the absence of an explicit guarantee in the constitutional text):

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. … Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. … Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative. [38]

So far, so similar to Justice Breyer. But from this, Chief Justice Mason went on to reason that the restrictions on electoral advertising at issue could not stand, because they were incompatible with the freedom of political communication, and thus undermined democratic accountability. More money in politics, not less, was the way to keep politicians accountable to the people.

Now, contrasting these two opinions in this way is oversimplifying things. The issues in McCutcheon and in Australian Capital Television were somewhat different. The former concerned the giving of money to politicians; the letter, spending both by politicians and by civil society actors. Although both come within the general category of “money in politics” concerns, it is possible to think that one but not the other can be strictly regulated. Besides, to some extent at least, both McCutcheon and Australian Capital Television were about means, not just ends. It is possible that, confronted with different regulations, both Justice Breyer and Chief Justice Mason would have reached different conclusions by reasoning from the same values.

That said, we know that the same faction of the U.S. Supreme Court that dissented in McCutcheon was also favourable to restrictions on electoral speech by (at least some) members of the civil society in Citizens United v Federal Election Commission, 558 US 310 (2010). And while there might be a point at which Justice Breyer would have balked at the limitation of permissible financial contributions to politicians, it is not clear where that point lies. Conversely, although Chief Justice Mason suggested that a less restrictive set of regulations might have been compatible with the freedom of political communication, existing regulatory schemes, such as Canada’s or New Zealand’s, would likely not have made the cut, and I struggle to imagine one that would. The disagreement is not only, and I suspect not mainly, about means. It is driven to a substantial extent by conflicting interpretations of the value of accountability.

I’ll leave to another post (maybe, sometime) a discussion of who, if anyone, of Justice Breyer and Chief Justice Mason is right. My point here is rather that appeals to values, and even to generally accepted truths (such as the importance of free political expression to democratic accountability) are unlikely to settle the difficult disputes that arise in the law of democracy. The values may be shared at a sufficiently high level of abstraction, yet understood so differently as to lead those who hold them to starkly different conclusions.