FEDERAL COURT OF AUSTRALIA

Mulholland v Australian Electoral Commission [2002] FCA 1255

CONSTITUTIONAL LAW – implications from Constitution – implied freedom of communication concerning government and political matters – whether provisions in Part XI of the Commonwealth Electoral Act 1918 (Cth) which regulate the registration of political parties by way of the “500 rule” and the “no overlap rule” infringe the implied freedom.

ADMINISTRATIVE LAW – review of Register of Political Parties by the Australian Electoral Commission pursuant to s 138A of the Commonwealth Electoral Act 1918 (Cth) – review of registration of Democratic Labor Party (DLP) of Australia - whether review constitutes a decision or conduct within meaning of s 5 or s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether Commission failed to consider the merits of the particular case – whether Commission acted for improper purpose - whether no evidence or other material to justify review – whether phrase “specified information” in s 138A(3) excludes documents – whether Commission entitled under s 138A(3) to request documents relevant to the infringement of “the no overlap rule” – whether privacy of DLP members is a relevant consideration which Commission bound to take into account in giving a s 138A(3) notice – whether s 138A(3) notice invalid – whether notice that Commission is considering deregistering the DLP under s 137(1)(d) constitutes a threat to deregister the DLP.

Commonwealth Electoral Act 1918 (Cth) ss 4(1), 123(1), 124, 125, 126(1), 126(2), 126(2)(b), 126(2A), 130, 132, 133, 135, 134, 136, 136(1)(b)(ii), 137(1)(b), 137(1)(cb), 137(1)(d), 137(2), 137(5), 138, 138A, 138A(3)

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 6

Judiciary Act 1903 (Cth) s 39B(1A) & 78B

Commonwealth Electoral Legislation Amendment Act 1983 (Cth) s 42

Commonwealth Electoral Amendment Act (No 1) 2000 (Cth) No. 126, 2000

Electoral and Referendum Act (No 1) 2001 (Cth) No. 34, 2001

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

McGinty v Western Australia (1996) 186 CLR 140, referred to

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, distinguished

McClure v Australian Electoral Commission (1999) 163 ALR 734, followed

Cunliffe v The Commonwealth of Australia (1994) 182 CLR 272, applied

Richardson v Foresty Commission (1988) 164 CLR 261, cited

Levy v Victoria (1997) 189 CLR 579, applied

Kruger v The Commonwealth (1997) 190 CLR 1, considered

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, applied

JOHN VINCENT MULHOLLAND v AUSTRALIAN ELECTORAL COMMISSION

V 6 OF 2002

MARSHALL J

MELBOURNE

11 OCTOBER 2002

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     Mr Mulholland, the applicant in this proceeding, is the registered officer of the Democratic Labor Party (DLP) of Australia (“the DLP”) pursuant to ss 133 and 134 of the Commonwealth Electoral Act 1918 (Cth) (“the Act”). The DLP is currently a registered political party under Part XI of the Act. 

2                     The respondent, the Australian Electoral Commission (“the Commission”), is a statutory authority established by s 6 of the Act. The Commission has various functions and powers under the Act, including power to establish and maintain the Register of Political Parties in accordance with Part XI of the Act.

Factual background

3                     The DLP was established as a political party in that name in 1955 and was first registered under the Act on 20 July 1984. Its registration since then has been continuous. Until 1974 it had elected representatives in the Senate having lost its Senate seats in the 18 May 1974 Federal election. Since the mid-1970s, the DLP has concentrated on contesting elections in Victoria. At the 2001 Senate election for Victoria, candidates endorsed by the DLP received 66,485 primary votes.

4                     On 26 February 2002, the parties to the proceeding filed a document entitled “Statement of Agreed Facts”. Paragraphs 3 to 14 of that document state as follows:

“3.       On 3 August 2001, the applicant received a letter dated 1 August 2001 from the respondent and its attachment, which together are exhibit “JVM 1” to the affidavit of the applicant sworn 7 January 2002. The letter referred to ss 123(1), 126(2A), 137 and 138A of [the Act]. The letter stated:

            “For purposes of reviewing the Register, the AEC now gives you written notice under subsection 138A(3) of the Act, requesting that you provide the following information on the Democratic Labor Party’s eligibility to be registered under Part XI of the Act. The information must be provided by you to the AEC within two calendar months after the receipt by you of this letter:

(a)               A list of the names of the persons upon whom the Democratic Labor party relies for the purposes of the registration – that is, for the purpose of establishing that the Party has at least 500 members – including each member’s address, date of birth and contact telephone number (to the extent that this information is maintained in the Party’s records). The list can be provided electronically in either rich text, text only, Word 97, Excel 97 or Access 97 format.

(b)               Copies of the most recent application for membership or for renewal of membership completed by each person included in the list of names.

(c)                A statement by you, as registered officer of the Party, confirming that each person on the list has been accepted as a member of the Party and that the information provided to the AEC accurately reflects the Party’s records.

(d)               A copy of the Party’s current constitution.”

4.                  On 2 October 2001 (by Express Post) and 3 October 2001 (by facsimile transmission), by letter dated 2 October 2001 the applicant responded to the respondent’s letter of 1 August 2001. The letter disputed the respondent’s authority to request the information specified in the respondent’s letter dated 1 August 2001. The applicant’s letter dated 2 October 2001 is exhibit “JVM 4” to the affidavit of the applicant sworn 7 January 2002. The letter referred to:

(a)               A letter dated 29 March 2001 enclosing a copy of the constitution of the DLP which was sent by the applicant to the respondent and received on 30 March 2001. The letter dated 29 March 2001 and enclosed constitution together are exhibit “JVM 2” to the affidavit of the applicant sworn 7 January 2002.

(b)               A statutory declaration of the applicant under cover of a letter from the applicant to the respondent dated 19 April 2001 and received on 20 April 2001. The letter dated 19 April 2001 and enclosed statutory declaration together are exhibit “JVM 3” to the affidavit of the applicant sworn 7 January 2002.

5.                  On 16 November 2001 the applicant received a notice dated 13 November 2001 from the respondent. The notice referred to s 137(1) of the CEA and advised that the respondent was considering deregistering the DLP under s 137 of the CEA. The notice dated 13 November 2001 is exhibit “JVM 5” to the affidavit of the applicant sworn 7 January 2002.

6.                  In the Commonwealth Gazette No GN 46 of 21 November 2001 there appeared a “notice of intention to deregister political parties”, one of which parties was named as the DLP. The notice is exhibit “JVM 6” to the affidavit of the applicant sworn 7 January 2002.

7.                  On 11 December 2001 the applicant sent to the respondent a letter of that date, which was received by the respondent on 12 December 2001. The letter requested an undertaking that the respondent not deregister the DLP before an application that the applicant intended to make to this Court was decided. The letter dated 11 December 2001 is exhibit “JVM 7”to the affidavit of the applicant sworn 7 January 2002.

8.                  On 12 December 2001 the respondent sent a letter of that date to the applicant, which was received on or about that date. The letter referred to the applicant’s letter dated 11 December 2001. The letter did not provide an undertaking in the terms requested by the applicant in his letter dated 11 December 2001. The letter stated that the respondent would not deregister the DLP before close of business on 19 December 2001, subject to review of its position upon receiving the applicant’s proposed application and/or statement of claim in his intended proceeding in this Court. The letter dated 12 December 2001 is exhibit “JVM 8” to the affidavit of the applicant sworn 7 January 2002.

9.                  On 13 December 2001 the applicant sent a letter to the respondent of that date, which was received on 14 December 2001. The letter relevantly stated:

“On 16 November 2001, I received your letter dated 13 November 2001 advising me as registered officer of the Democratic Labor Party of your decision, relying on s.137 of the Commonwealth Electoral Act 1918 (CEA), to consider deregistration of the Democratic Labor Party.

You indicate in your letter that you are satisfied that I have failed to comply with an AEC notice of 1 August 2001, which, under s 138A(3) of the CEA, requested that “specified” information on the DLP’s eligibility to remain registered under Part XI of the CEA be provided.

In stating your reasons for considering deregistering the DLP, you have not referred to the specific information I provided in my response of 2 October 2001, not to the matters I have raised in connection therewith. Nor have you given reasons that would explain the particular basis, in law, for the “specified” information you have purported to require under s 138A(3) of the CEA.

Accordingly, and pursuant to section 13(1) of the Administrative Decisions (Judicial Review) Act 1977, I hereby request that you furnish me with a statement in writing setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving further reasons for the decision.

I request in particular, that the statement specify the basis, in law, if any, on which the Commission has determined what constitutes the “specified” information referred to in s 138A(3) of the CEA.”

This letter is exhibit “JVM 9” to the affidavit of the applicant sworn 7 January 2002.

10.              Also on 13 December 2001 the applicant sent a different letter to the respondent of that date, which was received on 14 December 2001. The letter referred to the respondent’s notice dated 13 November 2001 and set out the applicant’s “reasons, in accordance with s 137(2) of the CEA as to why the Democratic Labor Party should not be deregistered”. The letter is exhibit “JVM 10” to the affidavit of the applicant sworn 7 January 2002.

11.              On 17 December 2001 the applicant sent a letter of that date to the respondent, which was received on 18 December 2001. The letter referred to the respondent’s letter dated 12 December 2001, and requested an undertaking that the respondent not deregister the DLP without 7 business days’ prior notice. The letter dated 17 December 2001 is exhibit “JVM 11” to the affidavit of the applicant sworn 7 January 2002.

12.              On 19 December 2001, the applicant’s solicitor requested through the Australian Government Solicitor (the “AGS”) that the respondent withhold acting to deregister the DLP until February 2002, as preparation of Court documents could not be undertaken by Senior Counsel briefed in the matter before 28 January 2002.

13.              On 21 December 2002, the AGS sent a letter by facsimile to the applicant’s solicitor responding to the applicant’s letter dated 13 December 2001 which had referred to s 13(1) of the AD(JR) Act. The letter is “JVM 13” to the affidavit of the applicant sworn 7 January 2002.

14.              The applicant commenced this proceeding on 7 January 2002.”

The application before the Court

5                     The application before the Court is one for an order of review of certain “decisions” and “conduct” of the Commission and for the writ of prohibition. Mr Mulholland relies on ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) and s 39B(1A)(b) and (c) of the Judiciary Act 1903 (Cth), in support of his claims.

6                     Mr Mulholland seeks judicial review in respect of the following “decisions” of the Commission:

·                    the decision pursuant to s 138A of the Act to review whether the DLP was an “eligible political party”;

·                    the decision to issue a written notice to the DLP dated 1 August 2001 requesting “specified information” under s 138A(3);

·                    the decision that the Commission is satisfied on reasonable grounds under s 137 of the Act that the DLP has failed to comply with a notice under s 138A;

·                    the decision of the Commission to issue a written notice to the DLP dated 13 November 2001 under s 137(1)(d);

·                    the decision that the DLP has not complied with s 137(2).

7                     Mr Mulholland seeks judicial review of the following “conduct” of the Commission:

·                    its investigation into the DLP’s eligibility for continuing registration;

·                    the making of a requirement or demand in connection with that investigation;

·                    the imposition of a condition on the DLP’s continued eligibility based on a request for the provision of certain information;

·                    its consideration of the deregistration of the DLP under s 137;

·                    its intended or prospective decision to deregister the DLP.

8                     Mr Mulholland also seeks the issue of a writ of prohibition to prevent the Commission from deregistering the DLP on the ground that the following provisions found in Part XI of the Act are constitutionally invalid:

·                    s 123(1)(a)(ii);

·                    s 126(2A);

·                    s 136(1)(b)(ii);

·                    s 137(1)(b);

·                    s 137(1)(cb); and

·                    s 138A.

Mr Mulholland also challenges the constitutional validity of s 137(5).

9                     The central challenges to the constitutional validity of the provisions in Part XI of the Act are to those that underpin what counsel have termed “the 500 rule” and “the no overlap rule”.The constitutional challenge is based primarily on the implied freedom of communication concerning government and political matters in the Constitution.

The legislative context

10                  Part XI of the Act is headed “Registration of political parties”. “Eligible political party” is defined by s 123(1) for the purposes of Part XI as follows:

“eligible political party means a political party that:

(a)               either

(i)                 is a Parliamentary party; or

(ii)               has at least 500 members; and

(b)               is established on the basis of a written constitution (however described) that sets out the aims of the party.”

11                  “Parliamentary party” is defined in s 123(1) to mean:

“…a political party at least one member of which is a member of the Parliament of the Commonwealth”.

12                  The DLP’s continued registration as a political party is based on the Commission’s acceptance, as at 25 August 1992, that it had no fewer than 500 members. The DLP is not a parliamentary party, not having had representation in the Commonwealth Parliament since 1974.

13                  Section 124 provides that:

“Subject to this Part, an eligible political party may be registered under this Part for the purposes of this Act.”

14                  “Political party” is defined in s 4(1) to mean:

“an organisation the object or activity, or one of the objects or activities, of which is the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by it”.

15                  Section 125 provides that:

“The [AEC] shall establish and maintain a Register, to be known as the Register of Political Parties, containing a list of the political parties that are registered under this Part”.

16                  Section 126 deals with applications for the registration of an eligible political party under the Act. Under s 126(1)(b), a party, other than a Parliamentary party, can apply for registration by an application made by ten members of the party, of whom one is the secretary of the party. Section 126(2) provides the details that must be included in an application for registration. Section 126(2)(c) provides that the application shall set out the name and address of the person who is to be the registered officer of the party for the purposes of the Act. Section 126(2)(ca) provides that the application shall “include a list of the names of the 500 members of the party to be relied on for the purposes of registration”.

17                  The provision of the Act that has proved to be most contentious in the proceeding is s 126(2A). It is desirable to set out the provision in full. Section 126(2A) provides that:

“Two or more parties cannot rely on the same member for the purpose of qualifying or continuing to qualify as an eligible political party. The following provisions apply accordingly:

(a)               a member who is relied on by 2 or more parties may nominate the party entitled to rely on the member, but if a party is not nominated after the Commission has given the member at least 30 days to do so, the member is not entitled to be relied on by any of those parties;

(b)               the members on whom a registered party relies may be changed at any time by an amendment of the Register of Political Parties;

(c)               the registration of a party is not to be cancelled because of this subsection unless the Commission has taken action to determine whether the party should be deregistered because of paragraphs 137(1)(a),(b) or (c)”.

18                  Section 126(2A)(a) provides what has been described by counsel as “the no overlap rule”. Counsel for Mr Mulholland correctly observed that the effect of s 126(2A)(c) is that non-compliance with the no overlap rule per se is not a ground upon which the Commission may deregister a political party.

19                  Section 130 is headed “Different levels of party may be registered”. It provides that:

“The Commission may register an eligible political party notwithstanding that a political party that is related to it has been registered”.

20                  Section 132 sets out the procedure the Commission is required to adopt in dealing with an application for registration as an eligible political party. Those procedures include the following:

·                    the publication by the Commission, as soon as is practicable, of a notice of the application in both the Gazette and in a newspaper circulating generally in each State or Territory;

·                    the notice of the application is to set out the particulars required by s 126(2); and

·                    the notice is to include an invitation to objectors to provide, in effect, written grounds of opposition to the registration, those grounds being set out in s 126(2)(b).

21                  Under s 133, where the Commission has determined that a political party should be registered, it shall register the party by entering, inter alia, in the Register:

·             the party’s name;

·                    the name and address of the registered officer;

·                    where the party has stated in its application for registration that it wishes to receive moneys under Division 3 of Part XX – a statement indicating that the party so wishes.

22                  Section 135 provides the procedure for voluntary deregistration. Sections 136 and 137 deal with the circumstances in which a registered political party may be liable to deregistration.

23                  Section 136 provides for deregistration of a party failing to endorse candidates or ceasing to be a Parliamentary party. Section 136(1) provides that:

“(1)     A registered political party is liable to deregistration if:

(aa)           the party has been registered for more than 4 years and during that time has not endorsed a candidate for any election; or

(a)               a period of 4 years has elapsed since the polling day in the last election for which the party endorsed a candidate; or

(b)               in the case of a party that was a Parliamentary party when it was registered:

(i)                 the party has ceased to be a Parliamentary party; and

(ii)               the party has fewer than 500 members”.

24                  Section 137 provides for deregistration on other grounds. Section 137(1) provides, so for as is material, that:

(1)       If the Commission is satisfied on reasonable grounds that:

…

(b)               a political party so registered, not being a Parliamentary party, has ceased to have at least 500 members; or

…

(cb)      the registered officer of a registered political party has failed to comply with a notice under s 138A (Review of eligibility of parties to remain in the Register);

the Commission shall:

(d)               give the registered officer of the party notice, in writing, that it is considering deregistering the party under this section setting out its reasons for considering doing so…; and

(e)               publish a notice in the Gazette that it is considering deregistering the party under this section, specifying the paragraphs of this subsection by reason of which it is considering doing so”.

25                  The balance of s 137 provides that:

“(2)     Where a notice is given under paragraph (1)(d) in relation to a political party, the registered officer of the party or 10 members of the party may, within 1 month after the date on which the notice was given, lodge with the Commission a statement, in writing, signed by the registered officer or by those members of the party, as the case may be, setting out reasons why the party should not be deregistered under this section.

(3)       Where a statement lodged under subsection (2) is signed by 10 members of a political party, the statement shall set out the names and addresses of those members and contain a statement that they are members of that party.

(4)       Where a notice is given under paragraph (1)(d) in relation to a political party and a statement is not lodged under subsection (2) in response to that notice, the Commission shall deregister the party and publish a notice of the deregistration in the Gazette.

(5)       Where, in response to a notice given under paragraph (1)(d) in relation to a political party, a statement is lodged under subsection (2), the Commission shall consider that statement and determine whether the political party should be deregistered for the reason set out in that notice.

(6)       Where, under subsection (5), the Commission determines that a political party should be deregistered, it shall:

(a)               deregister the party;

(b)               give the person who was the last registered officer of the party written notice of the deregistration, setting out its reasons for rejecting the reasons set out in the statement lodged under subsection (2); and

(c)                 publish a notice of the deregistration in the Gazette.

(7)       Where, under subsection (5), the Commission determines that a political party should not be deregistered under this section, it shall give the registered officer of the party written notice of its determination.”

26                  Section 138 provides the formalities of deregistration as follows:

“Where a political party is deregistered under section 135, 136 or 137, the Commission shall cause the particulars on the Register that relate to that party to be cancelled.”

27                  Section 138A is an important provision in this matter. It is entitled, “Review of eligibility of parties to remain in the Register”. It provides that:

“(1)     The Electoral Commission may review the Register to determine whether one or more of the parties included in the Register:

(a)               is an eligible political party; or

(b)               should be deregistered under section 136 or 137.

(2)               The Electoral Commission may do so at any time other than during the period that:

(a)               starts on the day of the issue of a writ for a Senate election or House of Representatives election; and

(b)               ends on the day on which the writ is returned.

(3)               For the purposes of reviewing the Register, the Electoral Commission may give a written notice to the registered officer of a registered political party requesting specified information on the party’s eligibility to be registered under this Part.

(4)               The notice must specify a period within which the information must be provided. The period must be at least 2 months.

(5)               The registered officer must comply with the notice within the specified period. However, the Electoral Commission may extend that period.”

The introduction of “the 500 rule”

28                  The Commonwealth Parliament’s Joint Select Committee on Electoral Reform (“the JSCEC”) presented its first report in September 1983. It recommended a system of registration of political parties. Its recommendations included the following (which appeared at p 183 of its first report):

“In respect of a party which is not represented in a Commonwealth, State or Territory legislature but which has a membership of 500 persons or more, 10 members could apply for registration of the party. (The Committee discussed at length the basic level of total membership. As some indication of membership support was required – and the party’s constitution should provide a basis – the figure of 500 was agreed upon. The electoral Commission should accept a party’s claim of membership. Only if an objection to the registration of such party is lodged with the Chief Australian Electoral Officer on the grounds claimed should the number of members of such a party be checked).”

29                  The JSCEC also recommended the system of above the line voting which currently applies in Senate elections and the reference to party affiliations appearing on ballot papers adjacent to the names of endorsed candidates.

30                  The adoption of the JSCEC’s recommendation for the introduction of the 500 rule resulted in the inclusion of a provision to give effect to that recommendation in the Commonwealth Electoral Legislation Amendment Bill 1983 (“the Bill”). Neither the second reading speech nor the explanatory memorandum referrable to the Bill give any indication of the reasons for the choice of the figure 500. The second reading speech does, however, refer to the adoption of the recommendations of the JSCEC’s report.

31                  The 500 rule was introduced into the Act by s 42 of the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) which came into effect on 21 February 1984.

The applicant’s contentions about the 500 rule

32                  Counsel for Mr Mulholland submitted the following about the 500 rule:

·                    there was no real or legitimately perceived need for its introduction;

·                    it discriminates in favour of the major parties at the expense of minor parties in the context of participation in the electoral process;

·                    it does not satisfy any legitimate objective given that a Parliamentary party may have as little as two members;

·                    it is unnecessary, given the other conditions required for registration under the Act;

·                    it interferes with the implied freedoms of communication, participation and association in the Constitution, in that:

Ø                  the ballot paper is a form of communication to electors of the identity of candidates and the party affiliation or endorsement (if relevant) of those candidates;

Ø                  opposing candidates have an interest in each other’s proper representation of their party affiliations, if any;

·                    a political party with less than 500 members which is not a Parliamentary party cannot be registered and hence cannot have its name appear on a ballot paper;

·                    the number of members of a political party is extraneous to the voter’s choice of candidate;

·                    there is no rationale or logical reason for the 500 rule;

·                    it discriminates in favour of candidates who are incumbent and hence unreasonably in favour of some candidates over others;

·                    its existence is not justified by reference to the availability of electoral funding under Part XX of the Act, given that individual candidates can access electoral funding;

·                    its existence is not supported by international precedent from comparable democracies, namely the United Kingdom, the United States and Canada;

·                    s 15 of the Constitution, which requires casual vacancies in the Senate to be filled from the membership of a party of the former occupant of the vacant position, recognises the existence of the party system and makes no reference to any particular form of political party;

·                    an “eligible political party” should mean a political party (as defined in s 4(1) of the Act) that is underpinned by a written constitution;

·                    ss 7 and 24 of the Constitution in requiring the direct election of members of Parliament also demand that the choice of electors not be distorted by any means whereby discrimination occurs in favour of one candidate over others in the method of effecting that choice. In support of that general submission two specific alternative submissions were put by counsel for Mr Mulholland. They were as follows:

“A.      Implied in Sections 7 & 24 of the Constitution and the requirement of direct choice by electors is the proposition that legislation which is designed to implement that choice shall not distort that choice by:

(a)   discriminating in favor of one candidate over another candidate in relation to how that choice is made;

(b)   alternatively, unreasonably discriminating in favor of one candidate over another candidate in relation to how that choice is made.

B.         Implied in Sections 7 & 24 of the Constitution and the requirement of direct choice by electors is the proposition that any mode of communication created by the Federal Parliament which is designed to implement or to facilitate that choice shall not:

(a)   discriminate in favor of one candidate over another candidate in relation to how that choice is made;

(b)   alternatively, unreasonably discriminate in favor of one candidate over another candidate in relation to how that choice is made.”

33                  The alternative submissions referred to in the preceding paragraph were said by counsel for Mr Mulholland to be based solely on the text of ss 7 and 24 of the Constitution, putting aside the question of freedom of communication.

The introduction of the no overlap rule

34                  The no overlap rule was inserted into the Act by s 3C of Sch 2 to the Commonwealth Electoral Amendment Act (No 1) 2000 (Cth) No. 126, 2000 (“the 2000 Amendment Act”). The relevant amendment resulted in the insertion of s 126(2A) of the Act. That sub-section is set out at [17] above.

35                  The no overlap rule had its genesis in an opposition amendment moved in the Senate during the committee stage of the debate on the Bill which became, in an amended form, the 2000 Amendment Act. It did not follow any recommendation of the Commission, the putting into effect of government policy or any JSCEC recommendation.

36                  One of the proponents of the legislative change that resulted in the no overlap rule was Senator Bartlett. At 18253 of the Hansard Parliamentary Debate in the Senate on 11 October 2000, it is recorded that Senator Bartlett referred to the vice which the no overlap rule was intended to remedy and said, of the then system, that:

“people should not be able to register multiple political parties with the same membership base…. Otherwise you could have a situation where, once you had 500 people, you could register an unlimited number of names, all with the same membership and all with the same person as the registered officer, who could then control an unlimited number of preference distributions for an unlimited number of parties at a Senate election.”

The applicant’s contentions about the no overlap rule

37                  A central aspect of Mr Mulholland’s application is that the no overlap rule is constitutionally invalid. In this regard, counsel for Mr Mulholland made the following points about the no overlap rule:

·                    to the extent that the no overlap rule provides an additional impediment to registration over and above the 500 rule, then it suffers from all the vices of the 500 rule, in the context of infringing on the implied freedoms;

·                    there was no logical reason for its introduction given that a party’s substance or financial probity is not impugned by the fact that one or more of its members (being part of the 500 required for registration) is or are also members of another party;

·                    it encourages a restriction on political parties, that is, the adoption of a policy that its members not be members of other parties;

·                    it infringes the privacy of political association or affiliation of persons who are or propose to become members of political parties, in that the personal details of a member of a political party may be made public pursuant to a request made under freedom of information legislation; and

·                    there is no international precedent in a comparable democracy for the no overlap rule.

The freedom of communication issue

38                  In his revised application, Mr Mulholland described his constitutionally based ground of review in the following way:

“The relevant provisions of the [Act] under which the said conduct was engaged in and the decisions made were and are constitutionally invalid in part in that they impede or are the antithesis of the freedom of communication between the people concerning political matters which enables the people to exercise a force and informed choice as electors necessarily protected by the Constitution.”

39                  In the Notice of a Constitutional Matter filed on 1 February 2002, the relevant issue concerning the interpretation of the Constitution is described as follows:

“The issue which arises is whether ss 123(1)(a)(ii), 126(2A), 136(1)(b)(ii), 137(1)(b), 137(1)(cb) and 138A of the Commonwealth Electoral Act 1918 are constitutionally invalid in part in that they impede or are the antithesis of the freedom of communication between the people concerning political matters which enables the people to exercise a free and informed choice as electors necessarily protected by the Commonwealth Constitution.”

40                  It is not in dispute that the relevant test to be applied to deal with the constitutional issue raised in this proceeding is that which is set out in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

41                  At 559 in Lange, the High Court (in a unanimous judgment of all seven justices) dealt with the ambit of the freedom of communication on matters of government and politics implied in the text of the Constitution. Their Honours described the freedom in the following way:

“Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be “directly chosen by the people” of the Commonwealth and the States, respectively.…”

42                  At 560 the Court said that:

“…legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.

That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.”

43                  At 561-562 their Honours said that:

“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 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… . The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.”

            (emphasis added)

44                  At 566-567, the Court noted, “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”. By way of footnote, the Court referred to McGinty v Western Australia (1996) 186 CLR 140 at 168, 182-183, 231, 284-285.

45                  At 567 the Court outlined the test for determining whether a law infringes the relevant constitutional implication. Their Honours observed that two antecedent questions required an answer before an assessment could be made to the validity of the impugned law. Those questions were posed in the following way at 567:

“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….”

46                  At 567 - 568 their Honours said that:

“If the first question is answered ‘yes’ and the second is answered ‘no’ the law is invalid.”

47                  By way of example the Court referred, at 568, to the result of the litigation in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, stating that in that case:

“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”.

48                  In response to the Notice of a Constitutional Matter, the Attorney-General of the Commonwealth intervened in the proceeding and was represented by the Solicitor-General. In support of the validity of the impugned legislation the Solicitor-General, supported by Counsel for the Commission, contended that:

·                    the implied freedom of communication does not compel the making of communications but only protects communications made through generally lawful and available media;

·                    the inclusion of party endorsement details on ballot papers is not a communication between the people which is protected by the Constitution;

·                    the ballot paper is the medium of election, not a protected “mode of communication”; and

·                    the absence of party endorsement details is not a burden on any mode of communication.

49                  In support of the contention that the implied freedom does not compel the making of communications, the Solicitor-General referred to the statement in Lange at 560 that ss 7 and 24 of the Constitution “do not confer personal rights on individuals”. Additionally he referred to the judgment of Hayne J in McClure v Australian Electoral Commission (1999) 163 ALR 734.

50                  In McClure, Hayne J sat as the Court of Disputed Returns pursuant to s 353(1) of the Act. The petitioner was an unsuccessful candidate for a Senate election held on 3 October 1998. One of the two complaints raised by the petition was described by his Honour at [10] as “a complaint about the lack of media coverage of his candidacy in the election and of his platform of policies.” At [28], Hayne J said that:

“The short answer to this first complaint is that the freedomof communication implied in the Constitution is not an obligationto publicise. The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication. The petitioners case depends upon him having some right to require others to disseminate his views.”

51                  His Honour then referred to a passage from Lange at 560 which is in part referred to at [42] above, in which the following sentences were emphasised:

“[Sections 7 and 24] do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.”

52                  In support of his contention that the inclusion of endorsement details on the ballot paper is not a communication between the people, the Solicitor-General referred to a passage in Lange at 560 which referred to the communications subject to constitutional protection as those “between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves”. He emphasised that the communication in question in this proceeding is one between the Commission and the electors. The Solicitor-General contended that a protected communication “between the people” does not include a dissemination of information by the Executive, given that the Commission is the arm of the Executive that prints and disseminates the ballot paper. The character of that communication does not alter depending on whether party affiliation is printed adjacent to the name of a candidate.

53                  In response, counsel for Mr Mulholland submitted that the only relevant question was whether the people are effectively being denied access to the political information necessary to enable them to exercise an informed direct choice of candidate and party at the ballot box.

54                  In support of his submission that the ballot paper is the medium of election, and not a protected “mode of communication”, the Solicitor-General, inter alia, raised the following matters:

·                    the implied freedom of communication applies to ordinarily available methods of communication but not to the ballot paper itself;

·                    the ballot paper is the medium by which a vote is made;

·                    the capacity to have a party’s name printed on the ballot paper adjacent to an endorsed candidate is not aptly described as a mode of communication in the sense used by the authorities;

·                    the printing of markings on a ballot paper is not a mode of communication protected by the freedom of communication about government or political matters;

·                    the High Court has described the modes of communication which are protected by the implied freedom as being within the sphere of private interest, whereas markings to be printed on a ballot paper are within the sphere of regulation in the public interest.

55                  In response, counsel for Mr Mulholland submitted, inter alia, that it was critical that there be a free flow of political information to and from citizens and to and from organs of government or other participants in the electoral process.

56                  In support of his contentions that the absence of endorsement details is not a burden on any mode of communication, the Solicitor-General submitted that:

·                    no “effective burden” on communication is imposed by restricting a political party’s capacity to request the printing of endorsement details on ballot papers;

·                    a limitation on eligibility for registration, and hence on the incidence of inclusion of endorsement details, is not a restraint on communication;

·                    endorsement details given to the Commission would usually follow communications by the party to the electorate of the fact that the party has endorsed particular candidates, for example, by way of media appearances and advertising and the provision of “how to vote” cards;

·                    endorsement details on the ballot paper might enhance the effectiveness of earlier communications by registered parties about the candidates whom they endorse, but it does not affect the capacity of all political parties, whether registered or not, to nevertheless make such communications. Similarly, the ability of unregistered political parties to communicate with electors by the full range of available modes of communication is not affected by any restriction on the inclusion of endorsement details on ballot papers;

·                    the fact that communications by unregistered political parties are not enhanced by the inclusion of endorsement details on the ballot paper in the way that communications by registered parties may be, does not mean that the freedom of unregistered political parties to communicate with electors is denied or restricted;

·                    the provision of potential benefits as part of a statutory registration scheme in a manner that may enhance the effectiveness of communications by entities registered under the scheme, does not restrict the communication by entities not registered under the scheme;

·                    Part XI imposes no restraint on any otherwise lawful activity. The relevant provisions of the Act do not operate as any form of restriction on existing opportunities for any political party, organisation or individual to convey to electors that it supports or endorses a particular candidate; and

·                    under s 340 of the Act, how to vote cards may be disseminated up to 6 metres from the door of the polling booth. No content–based prohibition applies to those cards. Although communication of the fact of endorsement is more difficult for unregistered parties, the absence of an entitlement under the Act or a disparity in entitlement cannot be characterised as a “burden” on a “communication”.

57                  In response, counsel for Mr Mulholland submitted that unregistered political parties are denied the only mode of political communication in the ballot box. It was further contended that without knowledge of the party affiliation of all candidates, which is critical information, the members of Parliament cannot be directly chosen by the people as required by ss 7 and 24 of the Constitution. It was contended that under the Australian electoral system, the party name itself effectively communicates a manifesto or a list of policies and thereby facilitates the direct choice, as a real or informed choice, which ss 7 and 24 of the Constitution require.

Does the implied freedom of communication compel the making of communications?

58                  In my opinion, the implied freedom of communication on matters of government and political matters referred to in Lange protects the making of communications about political and government matters between the people which are otherwise lawful. There is no warrant for reading Lange, or any of the authorities to which the High Court referred in that case, to support a contention that the relevant freedom extends to compelling a person or body, in this case the Commission, to make a communication. As was said in Lange at 560, ss 7 and 24 of the Constitution:

“do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.”

59                  Further support for the view expressed in the preceding paragraph can be gleamed from the judgment of Hayne J in McClure at [28] the relevant passages from which are reproduced at [50] and [51] above.

60                  Consequently, in my view, the submission advanced on behalf of Mr Mulholland in support of a contention that the 500 rule and the no overlap rule infringe the implied freedom of communication, falls at the first hurdle. However, given that it is highly likely that the litigation in this matter will not conclude with this judgment, it is desirable that I deal with the other constitutional submissions raised by counsel for Mr Mulholland upon the assumption that the implied freedom extends to compel the making of a communication.

Is the inclusion of party endorsement details on ballot papers a communication “between the people”?

61                  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”.

62                  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. However, if I am wrong in coming to that view, it is desirable that I consider the further submissions made by counsel for Mr Mulholland on the topic of the implied limitation.

Is the inclusion of a candidate’s party affiliation on the ballot paper a protected mode of communication?

63                  The Solicitor-General’s cogent submissions on this issue are set out at [56] above and counsel for Mr Mulholland’s response is summarised at [57]. The inclusion of a candidate’s party affiliation on a ballot paper is, in my view, a form of a communication to an elector that that the person is endorsed by that political party. It is therefore a communication about a political matter. Putting to one side any difficulty arising from the source of the communication, it is nevertheless relevant information about political parties and candidates in the sense referred to in Lange at 560.

64                  While the matter is not free from doubt, I am inclined to the view that, absent any considerations about the source of the communication and whether the implied freedom can compel the making of communications, the inclusion of a candidate’s party affiliation on a ballot paper is a relevant communication for the purposes of the implied freedom of communication which the Constitution protects.

Is the absence of endorsement details a “burden” on communications?

65                  Pursuant to s 169 of the Act, a registered political party, through its registered officer, may request that the name of that party be printed on ballot papers for an election “adjacent to the name of a candidate who has been endorsed by that party”. That right is not available to an unregistered political party.

66                  A question arises whether the denial of that right to an unregistered political party is a burden on its ability to communicate with the electorate. In a real sense it is a curtailment of “the freedom to receive and disseminate information”, putting to one side the questions as to who disseminates the information (see Lange at 561).

67                  Whilst the matter is not free from doubt, and absent the preceding issues which I have determined against Mr Mulholland, I am inclined to the view that the absence of endorsement details may be said to be a burden on communications for the purpose of the implied freedom, in that it may be validly seen as a curtailment of the right to disseminate information of a political nature.

Are the impugned provisions outside the implied freedom?

68                  As the High Court emphasised in Lange at 561 “the freedom of communication which the Constitution protects is not absolute”. At 562 the Court then said that the freedom will not invalidate the impugned sections of the Act if:

·                    “the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”; and

·                    “the law is reasonably appropriate and adapted to achieving that legitimate object or end”.

69                  It has not been contended by counsel for Mr Mulholland that the impugned sections of the Act are not compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. It could not be seriously advanced that the 500 rule or the no overlap rule meets that description. What was contended on behalf of Mr Mulholland was that the impugned sections of the Act are not reasonably appropriate or adapted to achieving a legitimate object or end.

70                  Counsel for Mr Mulholland stressed that they do not challenge those parts of the Act that relate to the form of the ballot paper or the manner in which votes must be marked. It was acknowledged that such provisions are reasonably appropriate and adapted to the object of facilitating the direct choice by the people of members of Parliament as required by ss 7 and 24 of the Constitution. Rather Counsel stated that the 500 rule and the no overlap rule, or more correctly, the provisions of the Act that establish those rules, are challenged on the basis that their effect is to deny the DLP access to the only mode of communication available to communicate political information to every voter in the ballot box, when that mode is available to registered parties. Thus, it was contended, the impugned provisions arbitrarily discriminate against unregistered political parties. It was further submitted that the 500 rule and the no overlap rule do not facilitate the direct choice by the people of their elected representatives.

71                  In short, counsel for Mr Mulholland contended that the 500 rule and the no overlap rule are not appropriate and adapted to some otherwise legitimate object or purpose.

72                  The Solicitor-General and counsel for the Commission submitted that, consistently with Lange, it is important to consider the purpose of the legislation that is subject to challenge. It must (in order to be valid) be enacted “to satisfy some legitimate end” and be “reasonably appropriate and adapted to achieving that legitimate object or end”: see Lange at 561-562. That contention is not disputed.

73                  Parliament has chosen, in effecting its preferred system of regulation of registered political parties, to enact the 500 rule and the no overlap rule. It is not for the Court to gainsay Parliament’s choice of regulation and to conclude, notwithstanding that choice, that the 500 rule and the no overlap rule have not been enacted to satisfy a legitimate end.

74                  The critical issue, as stated in Lange at 567, is whether the means to achieve the legitimate end are “reasonably appropriate and adapted”. In so stating the issue, the Court made reference, by way of footnote, to various parts of the judgments in Cunliffe v The Commonwealth of Australia (1994) 182 CLR 272.

75                  In Cunliffe at 324, Brennan J said that:

“…in determining whether the law is reasonably appropriate and adapted to the achieving of a legitimate purpose or object and any infringement is merely incidental, the court may inquire into the proportionality of the means adopted by the law to achieve the postulated purpose or object.”

76                  At 325, Brennan J considered that Parliament is entitled to “what the European Court of Human Rights calls ‘a margin of appreciation’ in choosing the means which are appropriate and adapted to that purpose or object”. His Honour then emphasised (adopting the words of Deane J in Richardson v Foresty Commission (1988) 164 CLR 261 at 311) that “the function of the Court is merely to decide whether the operation of the law ‘is capable of being reasonably considered to be appropriate and adapted to achieve [the designated purpose or object]’”.

77                  At 339 in Cunliffe, Deane J said:

“…any incidental curtailment of freedom of political communication and discussion will be consistent with the constitutional implication if it is reasonably capable of being seen as necessary or appropriate and adapted to the legitimate legislative aim being pursued by the Parliament. The position is, however, different in a case where what is involved is a general prohibition or regulation of communication or discussion as such or where there is a likelihood that a prohibition or regulation of a particular kind of communication or discussion will involve a significant curtailment of the freedom of political communication and discussion.”

78                  At 388-389 in Cunliffe, Gaudron J said that:

“…a law which curtails political discussion may be valid if the curtailment is no more than a limited and incidental by-product of a genuine regulatory scheme….”

79                  In Levy v Victoria (1997) 189 CLR 579 at 608, Dawson J said that:

“Free elections do not require the absence of regulation. Indeed, regulation of the electoral process is necessary in order that it may operate effectively or at all. Not only that, but some limitations upon the freedom of communication are necessary to ensure the proper working of any electoral system. …In other words, the freedom of communication which the Constitution protects against laws which would inhibit it is a freedom which is commensurate with reasonable regulation in the interest of an ordered society.”

80                  As Toohey and Gummow JJ made clear in Levy at 614, a law which affects political communications will not be held to be invalid unless it “involved a significant curtailment of the constitutional freedom of political communication and discussion” (emphasis added). Earlier (also at 614), their Honours referred to the laws struck down in ACTV which prohibited broadcasting of certain political material during an election period. In Lange, the High Court described the finding of the majority in ACTV in relation to those laws as being laws that “seriously” impeded political discussion (see [48] above). The provisions in issue in ACTV can be starkly contrasted with the provisions of the Act which are challenged in the instant matter.

81                  Further as Gaudron J said in Levy at 619:

“If the direct purpose of the law is to restrict political communication, it is valid only if necessary for the attainment of some overriding public purpose. If, on the other hand, it has some other purpose, connected with a subject matter within power and only incidentally restricts political communication, it is valid if it is reasonably appropriate and adapted to that other purpose.”

82                  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.

83                  The 500 rule, insofar 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.

84                  The 500 rule does not effect a significant curtailment of the constitutional freedom of political communication and discussion. Its direct purpose is to secure the integrity of the system of registration of political parties.

85                  As was submitted by the Solicitor-General and counsel for the Commission, the 500 rule formed part of the new system for party registration that was introduced in 1984. It was assessed by Parliament to be necessary because of the introduction of benefits stemming from registration, including the group voting ticket system in the Senate and the inclusion of endorsement details on the ballot paper.

86                  Counsel for each party made submissions about the presence or absence of precedents in comparable democracies for provisions akin to the 500 rule. I do not find that debate to be of assistance in considering the validity of the impugned laws by reference to the Constitution. In particular, I consider that there is a danger in drawing analogies with other comparable democracies, given that the issue in this case concerns the ambit of the implied freedom of communication about government and political matters in the Constitution, for which there is no direct comparison in comparable democracies. Indeed, the Court in Lange at 567 noted the relevant differences in the United States Constitution and that of Australia, stating that:

“Unlike the First Amendment of the United States Constitution, which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution”

Furthermore, given that the Court is considering the interpretation of an implication in the Commonwealth Constitution, I consider little assistance is to be gained from a reference to legislative provisions or the absence of such provisions in the States and Territories.

87                  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.”

88                  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. See, for example, the contribution of Senator Bartlett quoted in part at [36] above.

89                  I also accept the submission that the lack of international precedent for the no overlap rule does not mean that, within the context of Australian electoral practices, the measure is not reasonably and appropriately adapted to serve a legitimate legislative object, being the protection of the integrity of the system of registration of political parties and the maintenance system of that system.

Do the 500 rule and the no overlap rule infringe any implied freedoms of association, participation and privacy?

90                  At paragraphs 23 and 24 of Mr Mulholland’s Statement of Facts and Contentions, filed 18 July 2002, it is submitted that implied in the Constitution are freedoms of association and participation, “including the steps of nominating, campaigning, advertising, debating, criticizing and voting”. Reference is made to parts of ACTV and parts of the High Court judgment in Kruger v The Commonwealth (1997) 190 CLR 1 in support of this submission. It is further submitted that the freedom of association is derived from what the freedom of political communication requires. Additionally, at paragraph 25, it is submitted that there is an implied “right of privacy in relation to electors’ participation in the electoral process including electors voting at elections and their underlying participation in political parties to the extent that such parties participate in the electoral process”.

91                  Counsel for Mr Mulholland submitted that the provisions the constitutional validity of which are challenged in the instant case, impinge upon the freedoms of association, participation and privacy in that they allow for the association of the members of the DLP to be made known or put in the public arena. Counsel contended that they infringe the privacy of political association or affiliation of persons who are or propose to become members of political parties, in that the personal details of a member of a political party may be made public pursuant to a request made under freedom of information legislation.

92                  In particular, it is contended at paragraphs 40 to 46 of Mr Mulholland’s Statement of Facts and Contentions that s 138A(3) is invalid to the extent that it is a source of power used to require personal information about 500 members of the DLP. It was submitted that electors are entitled to keep their political affiliations private and that an infringement of that privacy amounts to an infringement of “the implied freedom of association, that is, the freedom of members espousing DLP political philosophy to associate for the purpose of political expression in the form inter-alia of putting forward candidates who appear on the ballot paper as espousing similar philosophy to the expressed endorsement without publicly revealing their individual members’ personal information”.

93                  In response, the Attorney-General submitted (as adopted by the Commission) that there are no free-standing freedoms of association and participation implied in the Constitution, any such freedoms being respectively “a corollary to” or “an aspect of” the implied freedom of communication. For this reason, it was submitted that the same test of infringement and validity relevant to the freedom of communication applies. Reference was made to Kruger at 45 (Brennan CJ), 68-69 (Dawson J), 92 (Toohey J, dissenting), 126-128 (Gaudron J, dissenting), 142 (McHugh J) and 157 (Gummow J).

94                  In response to the submission about an implied right of privacy, the Attorney-General and the Commission submitted that there is no such implied freedom in the Constitution; reference was made to comments of McHugh J and Gummow J by way of obiter in McGinty at 244 and 283 respectively where their Honours said that the secrecy of the ballot is not constitutionally entrenched.

95                  It is clear that the question of the existence of an implied freedom association (and of movement) in the Constitution is left open by the High Court in ACTV and Kruger. In relation to the contention in Kruger that there is implied in the Constitution an implied right to freedom of movement and association, Brennan CJ stated at 45 that:

“No such right has hitherto been held to be implied in the Constitution and no textual or structural foundation for the implication has been demonstrated in this case. The freedom contended for is advanced as a corollary of that freedom of communication about government and political matters which is implied in the Constitution, especially by reason of ss 7 and 24….

…

It follows that whether or not some such implication … is to be found in the Constitution, its existence would not have invalidated any of the provisions impugned by the plaintiffs.”

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.

97                  Additionally, I do not accept the submissions of Mr Mulholland in relation to s 138A(3) outlined at [92] above for the following reasons. The provisions which enable the Commission to request information for the purposes of a review of the register allow compliance with the no overlap rule to be monitored. As observed by the Solicitor-General and counsel for the Commission, s 126(2)(ca) requires a party seekingregistration to provide a list of names of 500 members. That provision has not been challenged in this proceeding. It would be incongruous for s 126(2)(ca) to be permitted to stand and for s 138A(3) to be struck down. Each of ss 126(2)(ca) and 138A(3) is a provision which is reasonably appropriate and adapted to achieve a legitimate legislative purpose consistent with the maintenance of the constitutionally prescribed system of government. Each is concerned with enhancing the integrity of the registration process.

98                  No authorities were cited in support of Mr Mulholland’s submissions about an implied right or freedom of privacy in the Constitution, as distinct from other implied freedoms. No textual or structural foundation in the Constitution has been relied upon for its existence. In my view, it is unlikely that a general freedom of privacy of political affiliation could be said to be an “indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be “directly chosen by the people” of the Commonwealth and the States, respectively”: see Lange at 559 where the High Court said that the freedom of communication on matters of government and politics was such an “indispensable incident”. Indeed, in coming to this view I have had regard to the observations in McGinty of McHugh J at 244 that “(t)he Constitution makes the federal Parliament the final arbiter on … whether there should be universal suffrage, secret ballot …” and Gummow J at 283 that “the Constitution did not entrench the secret ballot”.

The alternative propositions

99                  Counsel for Mr Mulholland made some alternative propositions referrable to what was contended to be unreasonable discrimination in favour of one candidate (being one endorsed by a registered political party) and another (being one endorsed by an unregistered political party). Those alternative propositions are set out at the foot of [32] above.

100               Insofar as such discrimination exists it does not infringe any constitutional principle referrable to ss 7 and 24 of the Constitution. The discrimination is merely incidental to the achievement of a legitimate legislative purpose and is reasonably appropriate and adapted to achieve that purpose.

The section 15 issue

101               My views about the non-application of the constitutional freedom of communication concerning government and political matters implied in the Constitution, in the context of this proceeding, are not affected by the presence of s 15.  That provision was inserted as a result of the electorate’s desire to ensure that a Senator who died or retired was replaced by a member of her or his party and not by an opportunistic appointment made at the behest of a State Premier. The inclusion of s 15 in the Constitution, albeit in a way that first acknowledged the concept of a political party in that document, is not relevant to the system of registration of political parties established by the Act or to any question which requires determination in this proceeding.

Does the no overlap rule apply to the DLP?

102               It was submitted that s 126(2A) does not, in any event, apply to the DLP because it was a registered political party at 3 October 2000, being the time at which the provision was enacted by the 2000 Amendment Act. Counsel referred to the absence of transitional provisions making the new requirement applicable to existing registered political parties.

103               That submission is rejected. The sub-section is set out at [17] above. It refers to “continuing to qualify” in respect of a registered political party. No clearer indication could be made that the provision was intended to apply to political parties that were registered as at 3 October 2000. It would be exceedingly difficult to have a workable no overlap rule if the parties to which it applied did not themselves overlap. Parliament could not have intended such a consequence.

The impugned sections are constitutionally valid and apply to the DLP

104               The effect of the foregoing is that the constitutional challenge to the sections of the Act referred to at [8] above has failed. The 500 rule and the no overlap rule do not infringe any implied constitutional freedom of political communication or any implied freedom from discrimination against particular candidates for political office (see [99] and [100] above).  The contention that they infringe an implied constitutional freedom of privacy of political association or affiliation of persons is rejected. Furthermore, the no overlap rule applies to all registered political parties and not just those who have achieved registration after 3 October 2000.

The administrative law issues

105               Upon the assumption that the impugned provisions of the Act are valid, Mr Mulholland submitted that certain decisions of the Commission taken with respect to the DLP are unlawful on a number of administrative law grounds.

106               First, it was contended that the decision of the Commission, contained in its letter to Mr Mulholland of 1 August 2001, to review the registration of the DLP (as part of its decision to review the Register) was invalid. Counsel submitted that the making of the decision was an improper exercise of the power conferred by the Act, having been made in accordance with a rule or policy without regard to the merits of the particular case. Counsel relied upon ss 5(1)(e) and 5(2)(f) of the AD(JR) Act. Section 5(1)(h) of the AD(JR) Act was also relied upon in that it was contended there was no evidence or other material to justify the making of the decision.

107               The basis of Mr Mulholland’s contentions is that the Commission had reviewed the registration of all political parties and had no ground for believing there was any doubt about the DLP’s eligibility for continuing registration.

108               In response, counsel for the Commission submitted that it did not make a decision to review the Register within the meaning of s 5 of the AD(JR) Act as no final or operative decision was made when the Commission undertook to review the Register.

109               It was contended that s 138A(1) of the Act enables the Commission to review the Register and, in so doing, it is entitled to request information from political parties pursuant to s 138A(3).  The power to review, it was submitted, is one that may be exercised from time to time at the discretion of the Commission.

110               Ms Kathryn Mitchell, the Director of Funding and Disclosure for the Commission, gave evidence about the circumstances of the review of the Register that was commenced on 7 December 2000. Ms Mitchell’s evidence was to the following effect:

·                    following the amendments made to Part XI of the Act by the 2000 Amendment Act, the Commission wrote a standard letter to all registered political parties on or about 7 December 2000, inter alia, advising of the changes to the Act and requesting the parties to provide the Commission with details of the basis of their eligibility by 25 January 2001;

·                    the DLP replied to the Commission’s letter but did not produce all of the information requested;

·                    by a letter which was received by the DLP on 3 August 2001, the Commission wrote to Mr Mulholland requesting outstanding information that it required;

·                    a purpose of seeking that information was to “determine whether any of the current registered non-Parliamentary parties should be deregistered…”

·                    the information would ensure that the Commission could determine whether any party relied on the same member or members as the DLP for the purpose of qualifying or continuing to qualify as an eligible political party, contrary to s 126(2A) of the Act, and whether the DLP relied on the same member or members as another party for the purpose of continuing to qualify as an eligible political party, again contrary to s 126(2A).

111               It is not correct to assert that the DLP was in some way singled out for special treatment or that the decision to review the Register was made for an improper purpose. The Commission was entitled to review the Register following the 2000 legislative changes. Indeed it was desirable that it did so in the course of performing its review process as intended by the Act. The contention that it did so for an improper purpose by reference to a policy without regard to the merits is baseless. Furthermore, as was pointed out at paragraph 10.6 of the Commissions contentions in reply, “(t)he exercise of the power to review the Register did not depend on the Commission having any ground for believing that there was a doubt as to the DLP’s eligibility”.

112               The second administrative law ground submitted by Mr Mulholland was that the decision under s 138A(3) to issue the August 2001 request only justified the issue of a notice concerning “specified information” and not concerning “documents”. In this regard, s 138A(3) allows the Commission, in a written notice, to request of the registered officer of a registered political party “specified information on the party’s eligibility to be registered” under Part XI.

113               I see no basis for the submission that the term “information” in s 138A(3) excludes documents. Indeed such documents may contain information relevant to a party’s eligibility to be registered.

114               Section 138A was enacted by the Electoral and Referendum Act (No 1) 2001 (Cth) No. 34, 2001as a consequence of Recommendation 54 in the JSCEC report on the federal election of 1998 titled, “Inquiry into the 1988 Federal Election and Matters Related Thereto”. Paragraph 23 of the Revised Explanatory Memorandum to the Electoral and Referendum Bill (No. 1) 2001 states that the provision of power to the Commission to review the Register was to give effect to Recommendation 54.  Relevantly, Recommendation 54 provides as follows:

“That the AEC be authorised to conduct reviews of continuing eligibility of registered political parties after every federal election. The AEC should be able to require parties to produce documentation in support of their application for registration and their continued right to remain registered. The standard of documentation and the verification undertaken by the AEC can be the same as if the party were first applying to register. The AEC should also have the power to deregister a political party if it fails to produce the documentation requested by the AEC in support of its right to remain registered.”

115               I accept the submission of counsel for the Commission that a request for information that would allow the Commission to confirm that a particular political party has at least 500 members (and to confirm that those members are not relied upon by another party) is a request for information on a party’s eligibility to continue to be registered. Accordingly I accept that such a request is within the limits of s 138A(3).

116               Counsel for Mr Mulholland referred to the fact that s 126(2A)(c) does not mention s 137(1)(cb) must be viewed as an indication that the power in s 138A(3) was not intended to be used to request information relevant to the no overlap rule. That submission is rejected. The power to request specified information under s 138A(3) is not restrained by s 126(2A)(c). Section 126(2A)(c) provides that the Commission will only be able to cancel the registration of a political party, relevantly, on the basis that has ceased to have 500 members. That fact does not mean that the Commission is prohibited from requesting information that is relevant to the no overlap rule. Further, s 126(2A)(c) does not restrict the Commission from proceeding to deregister a party where the registered officer of a party fails to provide information required in a s 138A(3) notice, in circumstances where the Commission is unable to determine whether the party has 500 members. A notice under s 138A(3) will be effective, provided that it is given for the purpose of reviewing the Register and also provided that the information requested in the notice bears upon the party’s eligibility to be registered. The notice can therefore specify information, which is required by the Commission, being information that relates both to the 500 rule and the no overlap rule.

117               It was contended by counsel for Mr Mulholland that the Commission should have been alive to the privacy concerns of members of the DLP when requesting personal details of members of the parties. I reject that submission. I accept the submission of counsel for the Commission that the privacy issue is not a consideration which the Commission is bound to take into account for the purposes of exercising its power under s 138A(3) of the Act; see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 per Mason J who said “(t)he ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision…”. It is not necessary to determine, in this proceeding, whether a list of members of a registered political party may be accessed by a member of the public under freedom of information laws.

118               An additional administrative law ground relied upon by Mr Mulholland was that the 13 November 2001 notice to him from the Commission was invalid because of the provisions of s 126(2A)(c) and the inability of a party to be deregistered for failure to comply with the no overlap rule. It was contended that s 137(1)(cb) had not been enlivened and that notice was invalid.

119               Counsel for the Commission contended that as Mr Mulholland did not comply with the notice under s 138A(3), then having regard to the provisions of s 137(1)(cb), there was a sufficient basis for the giving of a notice under s 137(1)(d). I accept that submission. It is plain that s 137(1)(cb) is not limited by s 137(1)(a) to (c). Further, as counsel for the Commission contended in relation to s 137 at paragraph 12.4 of their written submission:

“Each of paragraphs (a), (b), (c), (ca) and (cb) is a separate and free-standing basis for the giving of a notice under s 137(1)(d) of the Act.”

120               It is an entirely different matter whether the Commission is empowered to actually cancel a party’s registration because of the provision of s 126(2A). The central purpose of ss 138A(3) and 137(cb), when read with s 137(1)(d), is to give the Commission powers to preserve and maintain the integrity of the Register where a registered officer of a political party fails to furnish it with information which the Commission is entitled to receive pursuant to the Act.

121               I do not accept the submission that the s 137(1)(d) notice represents a threat to deregister the DLP. It is merely a notice to the effect that the Commission is considering such deregistration. It will undertake that consideration pursuant to its statutory authority to do so. In the course of such consideration it will consider any matters relied upon by the DLP. Such matters would include the DLP’s assertion that it has already given an adequate explanation for not providing the personal details of 500 members.

122               No case has been established, especially having regard to the Court’s treatment of the constitutional issues in this proceeding, for the alleged invalidity of ss 137(5) and 137(1)(cb). However, I note that the former provision was not referred to in the notice of constitutional matter filed pursuant to s 78B of the Judiciary Act 1903 (Cth).

123               I am prepared to assume, unless otherwise expressly stated, that each action of the Commission which is sought to be challenged on administrative law grounds is one which is amenable to review under the AD(JR) Act. However, for the foregoing reasons I consider that none of the administrative law grounds of review have been established.

Disposition

124               Having regard to the foregoing it is appropriate to order that the application be dismissed, with costs.

Associate:

Dated:              11 October 2002