FEDERAL COURT OF AUSTRALIA

Mulholland v Australian Electoral Commission [2003] FCAFC 91

ConstitutionAL LAW – implied freedom of communication – implied freedom of association – Commonwealth parliamentary elections – registration of political parties – object and effect of registration – proof of object of legislation – requirement that a party have at least 500 members – requirement that members be identified – requirement that where a member is a member of more than one party that member must elect for which party the member should be counted – whether requirements in breach of implied freedom – registration of DLP

Judicial Review – electoral laws – power of the Australian Electoral Commission to de-register political parties

Commonwealth Electoral Act 1918 (Cth) ss 91, 126, 133, 134, 136, 137, 138A, 299

Judiciary Act 1903 (Cth) s 78A

Mulholland v Australian Electoral Commission (2002) 193 ALR 710 considered

Levy v Victoria (1997) 189 CLR 579 considered

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 applied

McGinty v Western Australia (1996) 186 CLR 140 cited

McClure v Australian Electoral Commission (1999) 163 ALR 734 considered

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 applied

Sellars v Coleman [2001] 2 Qd R 565 considered

Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 discussed

Figueroa v Canada (AG) (2000) 189 DLR (4th) 577 referred to

Re Director of Public Prosecutions; ex parte Lawler (1994) 179 CLR 270 cited

Langer v The Commonwealth (1996) 186 CLR 302 cited

Rann v Olsen (2000) 76 SASR 450 considered

JOHN VINCENT MULHOLLAND v AUSTRALIAN ELECTORAL COMMISSION

V 6 OF 2002

BLACK CJ, WEINBERG AND SELWAY JJ

13 MAY 2003

MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs which costs are to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURT:

BACKGROUND

1                     In 1983 the Commonwealth Electoral Act 1918 (Cth) (“the Act”) was amended so as to make provision for the direct funding of political parties, for “list” voting in the Senate and for recording party affiliations on the ballot paper: see Act No 144 of 1983. These reforms necessarily required some machinery to distinguish between political parties and other organisations. The machinery adopted was a registration system contained in the new Pt IX of the Act. It would appear that the Parliament decided that only those political parties which had significant public support should be registered. In any event registration was limited to political parties with at least one member elected to the Commonwealth or a State or Territory Parliament or which had 500 members.

2                     The Democratic Labour Party (“DLP”) became a registered political party in accordance with these provisions. It remains registered. The appellant is the registered officer of the party pursuant to ss 133 and 134 of the Act and brings these proceedings in that capacity.

3                     Subsequently there have been a number of amendments to the registration provisions in Pt IX of the Act. For example:

(a) By Act No 24 of 1990, the definition of “eligible political party” was changed to require a written constitution and s 136 of the Act was amended so that a registered party was liable to deregistration if the party ceased to have a member of Parliament and the party had fewer than 500 members. Sections 91-91AA were also amended and/or enacted so as to provide to registered political parties access to the electronic information held on the electoral roll;

(b) By Act No 126 of 2000:

(i) The definition of “Parliamentary party” was amended with the consequence that a party was no longer entitled to registration if it had members in State or Territory parliaments. If a party was to rely upon Parliamentary membership for registration, it had to have members in the Commonwealth Parliament.

(ii) A new provision, s 126(1) was inserted in the Act which had the effect of preventing Parliamentary members from registering new parties whilst they were still members of another registered party.

(iii) A new provision, s 126(2)(ca), was inserted in the Act which required a party seeking registration on the basis that it had 500 members to provide to the Australian Electoral Commission (“the Commission”) in its application for registration the names of the 500 members.

(iv) A new provision, s 126(2A), was inserted in the Act which prohibited two or more parties from relying on the same person as a member in calculating the number of members. Where there was an “overlap” the relevant member could nominate which party was entitled to rely upon his membership to establish eligibility for registration.

(c) By Act No 34 of 2001, a new provision, s 138A, was inserted in the Act which gave to the Commission an express power to review the eligibility of political parties and to request specified information on the party’s eligibility to be registered. The Commission could deregister a registered party where it failed to comply with a request for information: s 137(5) of the Act.

4                     Although there had been some earlier negotiations and discussions, on or about 1 August, 2001 the Commission, acting pursuant to the new s 138A of the Act, formally requested that the DLP provide to it certain information, including the names and addresses of its members. The DLP did not make that information available. On 16 November, 2001 the Commission informed the DLP that it was considering deregistering the party on the basis of its failure to provide the information sought. A notice to that effect was published in the Government Gazette of 21 November 2001.

5                     In the result, the appellant issued these proceedings seeking to have some aspects of the legislative scheme held invalid and also seeking judicial review of the actions of the Commission.

6                     It should be noted at the outset that it is no part of the appellant’s case to challenge the registration scheme itself. As indicated above, that registration scheme affords various “privileges” to registered political parties. The extent of some of those “privileges” may not be great. For example, one of the privileges that has existed since 1983 is the payment of public funding to the political party. However, even if the political party is not registered public funding is still available although it is paid direct to the candidate or group or his or her or its agent (s 299 of the Act). Similarly, the use of list voting in Senate elections is not limited to registered parties, but can extend to “groups” or individual candidates (see ss 168, 211, 211A, 219, 272 of the Act). Consequently, the main advantages of registration are the privilege of having party affiliation recorded on the ballot paper and the privilege of having access to the electoral roll in digital form.

7                     The appellant does not argue that none should have these privileges. Instead the appellant wishes to continue to enjoy them. The appellant attacks those parts of the registration scheme that might deny the DLP an entitlement to registration. So, for example, the appellant says that the requirement of 500 members for registration and the provision preventing one person from being counted as a member of different parties are invalid for breach of the implied constitutional limitation respecting freedom of political communication. The appellant says that by reason of that requirement, the DLP cannot or may not be able to be registered and consequently will not be able to communicate with voters as to which candidates are affiliated with it. The appellant also says that the relevant provisions are invalid for breach of the implied freedom of association and freedom of participation and the right of privacy inherent in the Constitution. Finally the appellant says that the Commission acted unlawfully in commencing an investigation of the DLP and would act unlawfully if it deregistered the DLP, both because the relevant provisions of the Act are unconstitutional and because it has exceeded its statutory powers in any event.

PROCEEDINGS BEFORE THE TRIAL JUDGE

8                     The case was heard at first instance by Marshall J. His Honour dismissed the application. His reasons are reported at (2002) 193 ALR 710.

9                     In relation to the constitutional argument relating to political communication his Honour denied that there was any relevant communication but went on to hold that, even if he were wrong in that, such interference as there was with any such political communication was reasonably appropriate and adapted to a legitimate object. His Honour would appear to have accepted that the inclusion of party details on the ballot constituted a communication about a political matter. However, his Honour held (at [61]-[62]) that it was not a relevant communication for the purpose of the constitutional limitation because the ballot paper was a communication from the Executive to the voter, and not a communication between voters:

“I accept the submission of the Solicitor-General that the inclusion of party endorsement details on ballot papers is a communication between an arm of the executive government, that is, the Commission, and the electors. It is not a communication between the people of a type envisaged by the High Court in Lange at 560 (cited at [44] above), where reference was made to protection of ‘the freedom of communication between the people’. It is not to the point to contend that the only relevant issue is whether there has been denial of access to political information by voters. That denial, if it exists, must be referrable to a communication, which is between ‘the people’, and not between an arm of executive government and ‘the people’.

Consequently I consider that the inclusion of endorsement details on the ballot paper by the Commission is not a communication between ‘the people’ and is therefore not a communication that is subject to the implied limitation.”

10                  Nevertheless, his Honour proceeded to consider whether the burden on the communication (assuming it was such) was nevertheless valid. As to that, his Honour held at [82]-[83]:

“In my opinion, applying the test set out in Lange, the 500 rule is reasonably appropriate and adapted to the fulfilment of a legitimate legislative purpose, such purpose being compatible with the constitutionally prescribed system of representative government, namely the maintenance of the integrity of the system of registration of political parties and the setting of qualifications for political parties to achieve before taking the benefit of other provisions of the Act. To also adopt the words of the European Court of Human Rights (see the judgment of Brennan J in Cunliffe at 325 cited in [76] above), a ‘margin of appreciation’ must be reserved to the legislature in deciding upon the formulation of qualifications for registration as a political party. The choice of a figure of 500 is the legislature's selection of a number based on a JSCEC report. That figure is presumably indicative of a party that has some reasonable measure of public support. It is not to the point to say that a parliamentary party may only have one member. That member sits in parliament as a result of her or his attainment of a sufficient measure of public support to secure election.

The 500 rule, in so far as it may be said to infringe the relevant impliedconstitutional freedom of communication by reference to the inability of non-registered parties to have their endorsed candidates identified as such on the ballot paper, it does so in a merely incidental way which is reasonably appropriate and adapted to achieve the legislative aim of regulating registered political parties. That legislative objective is legitimate, being compatible with the constitutionally prescribed system of representative government. The aim of that regulation is to ensure that not every political party with miniscule levels of public support would be entitled to the benefits of registration. Any incidental effect upon the freedom of a political party to communicate with the electorate at the ballot box is, in the words of Dawson J in Levy at 608, an inhibition ‘which is commensurate with reasonable regulation in the interests of an ordered society’. It may be sharply contrasted with a law that seeks to ‘seriously’ impede political discussions between the people as occurred in ACTV.”

Similarly, in relation to the “overlap” requirement, his Honour found at [87]-[88]:

“In my opinion the no overlap rule does not infringe the implied freedom of communication about government and political matters. The no overlap rule was designed, like the 500 rule, to make the process of registration of political parties more effective by seeking to limit the capacity of individuals to foster a multiplicity of political parties based on an identical or substantially identical membership. The no overlap rule does not endanger the registration of a party who has, amongst its membership, a person who is also relied upon as a member by another party for registration purposes. The ‘overlapping member’ can choose her or his party for registration purposes. I agree with the contentions of the Attorney-General, as adopted by the commission, at paragraph 97 of his written submissions which read as follows:

‘In the event that two or more parties rely on the same member or members for the purposes of eligibility to register or remain registered, there is no immediate sanction against a party. The overlap provisions are on their face reasonably appropriate and adapted to allow the party to remain registered if there is an overlapping member, provided the principle of not allowing multiple parties to rely on the same member for the purposes of eligibility in connexion with registration is itself reasonably appropriate and adapted.’

I accept the submission of the Attorney-General, as adopted by the Commission, recorded at paragraph 105 of his written submissions on the policy behind the no overlap rule, where the following was said:

‘The policy behind both amendments was the avoidance of ‘entrepreneurial’ or cynical use of the same ‘block’ of members to register multiple parties with no true and discrete membership, the minimising of confusion to voters, the ‘tablecloth’ ballot paper and the use of ‘decoy’ or front parties to mislead the voter into indicating a preference for a group ticket which is merely calculated to channel preferences to another party.’

So much is apparent from the speeches of the Senators who sponsored the introduction of the no overlap rule.”

11                  The appellant also argued that the relevant provisions of the Act were in breach of various other implications said to be within the Commonwealth Constitution, including the freedom of association, the freedom of participation and the right of privacy. Marshall J held at [96]:

“In my view, taken at their highest, the parts of ACTV and Kruger referred to as support for Mr Mulholland’s contention of an implied freedom of privacy of association and affiliation, are authority only for the proposition that there may exist a freedom to physically associate and move for the purpose of so associating as an incident of or corollary to the freedom to communicate. I can discern nothing in the judgments to support the contention that persons have a constitutionally entrenched freedom to keep their political associations private. Furthermore, no textual or structural foundation in the Constitution for the implication of a freedom of privacy of political association has been demonstrated in this case. Finally, even if a freedom of association of the nature described at the relevant parts of ACTV and Kruger exists, I consider that the provisions at issue in the instant case, which have the effect of setting qualifications for political parties as a prerequisite to achieving or maintaining registration under the Act, could not reasonably be viewed as hampering that freedom. The members of the DLP or people who propose to become members of the DLP are still free to associate for that purpose notwithstanding the provisions of Part XI.”

12                  Finally, in relation to the objections raised by the appellant to the lawfulness of the inquiries conducted by the Commission, Marshall J held that s 138A of the Act authorised the actions that the Commission had taken. In particular, he held that that power was not limited by privacy considerations.

13                  The appellant has challenged each element of the decision of Marshall J.

14                  The Commonwealth Attorney-General intervened pursuant to s 78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) both before Marshall J and on the appeal and was represented on each occasion by the Solicitor-General for the Commonwealth. The Commission is a statutory authority with power to sue and be sued. In this case it is alleged by the appellant that the Commission has acted in breach of its statutory powers. In these circumstances the Commission may well be distinguishable from “the Commonwealth”, the juristic entity created by the Commonwealth Constitution. In Levy v Victoria (1997) 189 CLR 579 (“Levy”) at 602-603 Brennan J explained that the Commonwealth and the States have an interest in constitutional issues. This interest presumably justifies the statutory entitlements under s 78A of the Judiciary Act of the respective Attorneys-General to intervene in constitutional cases. On the other hand, it may be doubted whether the Commonwealth Attorney-General could intervene in a case where the Commonwealth itself was already a party. However that would not seem to be the case here. No objection was taken to the intervention and in any event, the Commonwealth Solicitor-General and Mr Hanks QC for the Commission divided the argument between them so that there was no duplication.

FREEDOM OF COMMUNICATION

15                  Prior to the decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (“Lange”) there had been considerable debate within the High Court both as to the circumstances in which it was appropriate to draw implications from the Constitution and as to what implication could be drawn from those provisions of the Constitution dealing with “representative democracy”, most particularly ss 7, 24 and 41. Cases such as Theophanous v Herald & Weekly Times (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 highlight the extent of that debate.

16                  The correct approach to the making of constitutional implications was confirmed in McGinty v Western Australia (1996) 186 CLR 140 at 168-170, 229-236 and 278-279 and subsequently by the whole Court in Lange at 566-567:

“Since McGinty it has been clear, if it was not clear before, that the Constitution gives effect to the institution of ‘representative government’ only to the extent that the text and structure of the Constitution establish it. In other words, to say that the Constitution gives effect to representative government is a shorthand way of saying that the Constitution provides for that form of representative government which is to be found in the relevant sections. Under the Constitution, the relevant question is not, ‘What is required by representative and responsible government?’ It is, ‘What do the terms and structure of the Constitution prohibit, authorise or require?’.” (references omitted)

17                  In Lange, the Court applied that approach to the question whether the legislative power that might otherwise be available to support a particular law was limited by reason of any constitutional implication. In doing so the Court expressly acknowledged that some of the reasoning in previous cases needed reconsideration (see at 556). The ratio of Lange, at least in relation to the general constitutional issue, is to be found in two passages in the judgment. The first is at 567-568:

“When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively ‘the system of government prescribed by the Constitution’). If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid. In ACTV, for example, a majority of this Court held that a law seriously impeding discussion during the course of a federal election was invalid because there were other less drastic means by which the objectives of the law could be achieved. And the common law rules, as they have traditionally been understood, must be examined by reference to the same considerations. If it is necessary, they must be developed to ensure that the protection given to personal reputation does not unnecessarily or unreasonably impair the freedom of communication about government and political matters which the Constitution requires.” (references omitted)

In the second passage the Court made further reference to the “second step”. It is to be found at 561-562:

“However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end. Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.” (references omitted)

BURDEN TO FREEDOM OF POLITICAL COMMUNICATION

18                  One of the conceptual problems in this case is in identifying the relevant burden. This is not helped by the manner in which the appellant puts his case. As noted above, he seeks to avail the DLP of the privileges afforded by registration. He does not attack those privileges. It is presumably for this reason that the Commonwealth Solicitor-General has referred the Court to McClure v Australian Electoral Commission (1999) 163 ALR 734. In that case the petitioner complained that there had been a breach of the constitutional implication because he had not been afforded the same amount of publicity as had other candidates for election. But as Hayne J pointed out at [28]:

“The short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise. The freedom is a freedom from government action; it is not a right to require others to provide a means of communication.” (original emphasis; references omitted)

19                  So, for example, the appellant could not complain if party affiliation was not included on the ballot for anyone.

20                  On the other hand, the Commonwealth submission (adopted by the Commission) goes too far in saying that a law creating a means of communication but limiting those having access to that communication merely confers a benefit and not a burden. The nature of democratic politics is competition – the discriminatory privilege of one is the burden of another. If, for example, the Commonwealth Parliament passed a law providing that the members of party X should be placed first on the ballot paper and their names be printed in bold and with a bigger font than the names of other candidates then that law would most likely be invalid. Candidates other then those standing for party X would be burdened in their capacity to communicate simply because of the legal preference created by the relevant law: see Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 (“ACTV”) at 146, 172 and 236-237. Similarly, in this case, a law which provides that only certain persons can have their party affiliations stated on the ballot paper must burden those who are excluded.

21                  Finally, reference must be made to the Commonwealth submission that the communication in this instance was communication by the Commonwealth Executive and was not “between the people”. The freedom of communication is freedom of all political communication relevant to the system of representative and responsible government established by the Constitution. It clearly includes political communication between Commonwealth voters and between those represented and their representatives. It clearly includes communication between political parties and the people. It must include communication between the Executive and the people as well: see ACTV at 139. But in any event, under the legislative scheme party affiliation is only included on the ballot at the request of the relevant party: see ss 169, 210A and 214 of the Act.

22                  Marshall J accepted the Commonwealth submission that the relevant provisions do not burden political communications, but in our view the statutory provisions confer a limited privilege on registered political parties in relation to their communication with the voters. That privilege is a burden on all those seeking election that do not enjoy it.

23                  Given the manner in which we have identified the burden it may be that if the relevant law was invalid for interfering with the political freedoms necessary to maintain the system of representative government that the Constitution provides for, the proper response would not be to give to the appellant those privileges which he seeks, but rather to strike out the entire scheme as it relates to registration of political parties, including funding. Indeed, Mr Hanks QC for the Commission submitted that this was the necessary result of the appellant’s submissions. As it happens this issue can be left for another day, and we merely point to its potential significance in an appropriate case.

REASONABLY ADAPTED TO A LEGITIMATE END

24                  Having answered the first Lange question “yes” it is necessary to address the second question: is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the system of government prescribed by the Constitution?

25                  The first aspect of the test was discussed by Pincus JA in Sellars v Coleman [2001] 2 Qd R 565 (“Sellars”) at 567:

“The Lange test -  that the law must be ‘reasonably appropriate and adapted to serve a legitimate end’ -   requires one to deduce the ‘end’ or purpose of the law. If the purpose is not ‘legitimate’, an example of illegitimacy being a purpose of suppressing political discussion, then the law is invalid. If the purpose is legitimate, then the law may still be bad, as going further in the direction of suppression of communication than could be thought to be appropriate or adapted to the law’s purpose.”

Special leave to appeal to the High Court was sought from the decision of the Court of Appeal in Sellars. That application was dismissed by Gaudron and Gummow JJ in June, 2002 on the basis that “no error of principle is to be discerned in the approach of the Court of Appeal to the question whether that right [to freedom of political communication] is infringed by [the law there under consideration]”: see Coleman v Sellars (2002) 23(12) Leg Rep SL5.

26                  The parties to this appeal referred the Court to an extensive array of reports, including reports of the Commission, of Parliamentary Committees and of Parliamentary debates. The apparent purpose of this material was to identify the relevant object of the law. This is similar to the sort of use that is made of such materials in US jurisprudence. Care must be taken with such material in Australia. Undoubtedly material may be referred to for the purpose of identifying the mischief to which legislation is directed. However, the extensive use of these sorts of materials in order to establish, as a fact, what Parliament “intended” is neither necessary nor appropriate. This was discussed by Stephen J in Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 at 600-601:

“The important place which legislative history has assumed this century in the United States seems to me likely to mislead if sought undiscriminatingly to be applied to our own legislation, the product of a legislature operating on the Westminster model. Even on its home ground its full acceptance is of relatively recent growth. Holmes J could still speak, in 1922, of speculation about the purposes or construction of a statute based upon the vicissitudes of its passage through the legislature as ‘a delicate business’…What was said by Jackson J in Schwegmann Bros v Calvert Distillers Corporation , that the court should ‘not go beyond Committee Reports, which presumably are well considered and carefully prepared’, whether or not it represents the majority view in the United States, does draw attention to one reason why United States’ practice in statutory interpretation is likely to prove inappropriate to our Westminster system. From Congress’ legislative process there emerges legislation differing quite markedly in form from that to which we are accustomed in this country; accompanying that legislation are Committee Reports of which there are here no local equivalents. Professor Corry's treatment of all this in his paper, ‘The Use of Legislative History in the Interpretation of Statutes’ demonstrates why the quite different legislative environment of the United States is inherently unlikely to provide appropriate guidance to the use of legislative history in our parliamentary system.” (references omitted)

27                  Indeed, there is no need for any evidence to establish the relevant legislative object. So long as a legitimate objective exists it does not matter whether Parliament referred to it or was even aware of it. Again we refer to Pincus JA in Sellarsat 576:

“In the present case there is no reason to think that the purpose of the by-law was other than legitimate; it was not made for the purpose of burdening ‘freedom of communication about government or political matters’. To reach such a conclusion, one does not take evidence from those who made the law, but simply considers the likely purpose of the law, on its face. The mall in question is a minute part of the area governed by the council and was established to provide comfortable access on foot to the premises which line it. The purpose of a prohibition of public addresses in the malls is likely to have been to preserve those wishing to use them from being harangued about any matters -  political or otherwise -  by public addresses.”

28                  The parties also referred us to international electoral practice and even to the practice adopted in relation to the election of the recent Constitutional Convention. However, given the fundamental and basic differences between Australian election systems, involving compulsory elections with preferential voting, with the systems to which we were referred, Marshall J found that such material was not particularly helpful. We agree.

29                  In this case the legislative limitation or burden is the requirement that a party be registered before it receive the various privileges available to registered parties. On its face the requirement of registration seems to be part of the legitimate objective of the regulation of elections. As it was put by the Ontario Court of Appeal in Figueroa v Canada (AG) (2000) 189 DLR (4th) 577 at [117]:

“By limiting identification of party affiliation on the ballot to registered political parties, the Act ensures that party affiliations listed on the ballot will be limited to those organizations that have the indicia normally associated with a political party (e.g., a minimum number of supporters, a leader, officers, an agent and an office), and are prepared to submit to the significant regulatory and reporting conditions established under the scheme.”

30                  Consequently, in our view, the registration of political parties under the Act is a necessary aspect of a valid and legitimate legislative objective. Indeed, as we have pointed out above, the appellant does not dispute this. The appellant wants to share in the privileges arising from registration, not abrogate them.

31                  Nevertheless, the appellant says that Marshall J fell into error in answering the second Lange question “yes”. The appellant says that Marshall J gave undue emphasis to the “margin of appreciation” that the Commonwealth had suggested should be given to Parliamentary legislation. As the quotation from Lange at 561-562 (supra) makes clear, however, the Court in Lange was not suggesting a test whereby the court could strike down a law merely because the court did not view the law as reasonable. In his submissions for the appellant before us, Mr Beach QC drew attention to the apparent difference between the “reasonably adapted” formulation used in Lange and the “reasonably capable of being regarded as appropriate and adapted” formulation used in other cases: see, for example, Brennan J in Cunliffe v The Commonwealth (1994) 182 CLR 272 (“Cunliffe”) at 325. However, the apparent difference may not be so great as Mr Beach’s submission may have suggested. Reference might be made, for example, to the apparent use of the “reasonably capable of being regarded as appropriate and adapted” test by a number of Justices of the High Court in Levy at 614, and 627-628. Even those of their Honours who seem to have made a deliberate choice to use the “reasonably adapted” test, have, in other cases, used the “reasonably capable of being regarded as appropriate and adapted” test. Compare, for example, Gaudron J in Cunliffe at 388 (where her Honour drew a distinction between the test applicable to a purposive head of power and the test applicable to an implied limitation) with the approach of her Honour in the earlier case of Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 286 and the later cases of Langer v The Commonwealth (1996) 186 CLR 302 at 334 and Muldowney v South Australia (1996) 186 CLR 352 at 376 in all of which her Honour used the “reasonably capable of being regarded as appropriate and adapted” test in respect of the implied limitation.

32                  The correct approach, at least for an intermediate court of appeal, is probably that identified by Kirby J in Levy at 644-647. After identifying the relevant differences between the approaches taken by individual Judges in particular contexts his Honour concluded at 646-647:

“In Australia, without the express conferral of rights which individuals may enforce, it is necessary to come back to the rather more restricted question. This is: does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides? Such cases do exist. But in the nature of their source in Australian constitutional law they will be fewer than the multitude of First Amendment cases which have engaged the attention of the courts of the United States.

Whilst bearing in mind the foregoing discussion, the test to be applied is that recently stated in the unanimous opinion of the Court in Lange v Australian Broadcasting Corporation [at 567-568].” (references omitted)

After setting out the relevant quotation from Lange his Honour, added in a footnote:

“Note that [in Lange] at 561-562 the Court acknowledged the different formulae which had been adopted within the Court in relation to the second step but, without resolving the differences, used the ‘appropriate and adapted’ formula.”

33                  The appropriate task for this Court is to apply the test as stated in Lange, acknowledging that the form of words used in Lange was intended to reflect different formulae that had been used in previous cases; which different formulae may, or may not, have reflected minor differences in principle between the judges that used them.

34                  But the Lange test should not be confused with a test of “reasonableness”. The test itself contains within it a “margin of appreciation” of the proper role of the Parliament. As was said by Doyle CJ in the South Australian Full Court in Rann v Olsen (2000) 76 SASR 450 at 483:

“In answering the question now being addressed by me, it is not for the Court to substitute its judgment for that of Parliament as to the best or most appropriate means of achieving the legitimate end. The question for the Court is whether the law is ‘reasonably appropriate and adapted to serve a legitimate end.’ In doing so the Court must give due weight to the judgment of Parliament, while acknowledging its own ultimate responsibility to determine whether the law infringes the Constitution: ACTV at 144 Mason CJ; Cunliffe at 324 per Brennan J; Leask at 595 per Brennan CJ, at 636 per Kirby J. The extent to which the Court must defer to the judgment of Parliament in such a case has been the subject of conflicting opinions in the High Court, but at a certain point the Court must do so.

It is tempting to search for other words in which one might express the question posed for this Court, but in the end one must return to the words chosen by the High Court in Lange. The question for the Court is not a question of whether there are other and better ways of achieving the legitimate end. It involves considering whether the impediment to freedom of speech generally is a result of a measure that is reasonably appropriate and adapted to achieving a legitimate end.” (references omitted)

We again refer to what was said by Pincus JA in Sellarsat [10]:

“The real question in the case, then, is whether the law is ‘reasonably appropriate and adapted to serve’ the legitimate end. Does it, trying to achieve that end, too greatly burden freedom of communication about government or political matters? Lange does not define the degree of suspicion or harshness which must be adopted, in scrutinising such a law; but the High Court could hardly have intended that Australian courts should readily conclude that laws passing the ‘legitimate end’ test are invalid because, to put it shortly, they are unreasonable.”

35                  It is clear from his reasons that Marshall J did not superimpose a “margin of appreciation” test on top of a “reasonably appropriate and adapted test”. What he did was refer to a “margin of appreciation” as an integral aspect of determining what was reasonably appropriate and adapted. His Honour was right to do so.

36                  There are two aspects where the appellant says that the registration requirements in the Act go beyond what is reasonably appropriate and adapted to achieving the legislative object. The first is the requirement for 500 members. The appellant says that any requirement of more than two members (presumably being the minimum to have a “party”) is too many. But there is no reason why the minimum requirement should be the only available requirement. At the very least the Parliament must be able to take into account issues such as the extent of public support enjoyed by the party. Maybe it can also take account of the degree of recognition of the party by the voters. The Parliament could hardly be required to arrange the publication on the ballot of party affiliations if the only effect of doing so is to create confusion. It is also likely that Parliament may take into account the potential farce of the ballot paper being so large that the public lose confidence in the electoral system. Presumably it is for this reason that there are statutory requirements that a candidate must have at least fifty signatories to his or her nomination form: see s 166 of the Act. The number “500” may well, in one sense, be an arbitrary number, but nothing was put before us to suggest that it is inappropriate. It was not suggested that a political party having what might be seen as “public support” would be unable to comply with the 500 member requirement. Indeed, the DLP, although it has not had a federal member for many years, still apparently has 500 or more members. As we understand it, it is the requirement to provide a list of 500 members none of whom are overlapping (or if they are, who will choose the DLP as their party of choice) which is causing it difficulty.

37                  This is not to deny that if the required number of members were sufficiently large it might be in breach of the implied limitation. To take an extreme case, if it were apparent that only one political party could comply, it is hard to see how such a requirement could be reasonably adapted to a legitimate object.

38                  The second objection of the appellant was that the no overlap rule in s 126(2A) of the Act, combined with the increased investigatory powers in s 138A of the Act are not “reasonably appropriate and adapted” to a legitimate purpose. At one level it is probably sufficient merely to say that this requirement has the effect of changing the requirement from 500 members to “500 members who are prepared to acknowledge their membership and whose membership is not relied on by another political party for the purpose of being registered”. In practical terms, this may operate to increase the number of required members. Given that the number of 500 is itself arbitrary there is probably no reason to think that an increased number (whatever it is) changes the scheme into one that is not reasonably appropriate and adapted to the legitimate end we have previously identified. Certainly there was nothing before us to suggest what the number might be. The Court was, however, referred to material which suggested that these changes were directed to a particular problem, namely a party registering a number of other parties with the same 500 members, but with new party names that might be attractive to the electorate and then using these “dummy” parties to direct preference votes. Apparently this problem has occurred in New South Wales. The appellant argued, in effect, that there were better or other ways to address such issues and that, in any event, it was not likely to be as significant a problem in relation to Commonwealth Parliamentary elections that it had been in New South Wales. Mr Beach QC argued that the relevant mischief would be better addressed, for example, by legislation directed to those responsible for the management of the party. Insofar as the mischief consisted of inappropriate party names, he argued that it would be better addressed by legislation directed to that topic. But these arguments do not answer the second limb of the Lange test. The question is whether the legislation is reasonably adapted and appropriate to a legitimate objective, not whether some different or other legislative approach might have been more effective.

39                  In addition, the attempt to identify a relevant “legitimate” objective by the detailed perusal of Parliamentary materials can mislead. For example, Mr Beach QC also argued that the legislation was invalid for not being reasonably appropriate and adapted to a legitimate object in so far as it empowered the Commission to seek the names and addresses of members. He said that this interfered with the privacy of members. Even accepting that it does so, the disclosure of names of members might well be reasonably appropriate and adapted to the requirements of transparency and accountability within the electoral system in the same manner, for example, as is the disclosure of funding to political parties: see s 305B of the Act. In the circumstances it is unnecessary to pursue this issue any further.

40                  In our view Marshall J was correct in his analysis and application of the reasonably appropriate and adapted test. The answer to the second Lange question is “yes”. Consequently, the relevant provisions of the Act are not invalid by reason of any implied constitutional limitation respecting the freedom of political communication.

OTHER CONSTITUTIONAL ISSUES

41                  It is unnecessary for us to determine whether the system of representative government provided for by the Constitution limits the legislative power to interfere with freedom to associate and participate for the purposes of that system, or whether any such limits are more properly to be seen as aspects of the limitation referred to in Lange and discussed above. This is because, whether such limits are seen as additional to or incorporated within the limits based upon political communication they will, in any event, not apply to laws which are reasonably adapted and appropriate to that system. For the reasons we have given, we consider that the present laws are relevantly appropriate and adapted. Marshall J so found. He was correct to do so.

42                  His Honour held that there was no right to “political privacy” implicit in the Constitution. We agree.

JUDICIAL REVIEW

43                  Once the constitutional objections raised by the appellant have been dismissed it is clear that the Commission has ample power to make the inquiries it has made and to take the steps it has taken. We refer, in particular, to ss 137 and 138A of the Act. Marshall J was correct to dismiss the applications made by the appellant for judicial review, at least in relation to actions already taken by the Commission.

44                  Mr Hanks QC, for the Commission, informed us that the Commission had not yet made any determination to de-register the DLP; nor had it determined what matters (other than those specified in the Act) might be relevant in that regard. It is obvious that the appellant’s proceedings, in so far as they involve the judicial review of any future de‑registration of the DLP, are premature. Those proceedings also must be dismissed.

45                  For these reasons the appeal should be dismissed with costs.

Associate:

Dated: 13 May 2003