Mulholland v AEC

[2003] HCATrans 387

[2003] HCATrans 387

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M155 of 2003

B e t w e e n -

JOHN VINCENT MULHOLLAND

Applicant

and

AUSTRALIAN ELECTORAL COMMISSION

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 OCTOBER 2003, AT 11.31 AM

Copyright in the High Court of Australia

MR J.B.R. BEACH, QC:   If the Court pleases, I appear for the applicant with MR B.F. QUINN and MR R.J. HARRIS.  (instructed by Ebsworth & Ebsworth)

MR D.J.M. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friends, MR P.J. HANKS, QC, MR P.R.D. GRAY and MR B.D. O’DONNELL, for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Beach.

MR BEACH:   If the Court pleases, could I begin by addressing the question of “reasonably appropriate” and “adapted”, the second limb of Lange.  I want to first focus on some theoretical propositions and, second, I then want to explain how we say the Full Court erred in failing to find that the 500 rule and the “no overlap” rule was inconsistent with the second limb.

In terms of the question of the theory, we say that although we did not dispute that the relevant formulation was reasonably appropriate and adapted, we say the Full Court failed to recognise that that formulation has been used in three different contexts, and depending upon the context in which that phrase is used there are different degrees of perhaps deference or a margin of appreciation that may be given to the decision or judgment of Parliament.  Could I explain what I mean by that.

In terms of characterisation of a law where one is dealing with a head of power which is a purposive power, proportionality or the test “reasonably appropriate and adapted” has been used, we say in that context there would be a very low threshold to justify satisfaction of the test “reasonably appropriate and adapted”.  If one moves into the second context where one is dealing with infringement of an implied freedom, but where the object of the law is not targeted at communication and the relevant infringement is only incidental rather than direct, we say that although the threshold or the “reasonably appropriate and adapted” test might be stricter there is, nevertheless, a different degree of deference or perhaps margin in that context.

The third context, which we say is the present case, is where the very object of the law is targeted at regulating the matters dealt with under section 7 and 24 of the Constitution.

GUMMOW J:   Well, we are really talking about a restraint upon a particular Commonwealth head of power, are we not?

MR BEACH:   Yes.

GUMMOW J:   Now, what is the head of power?

MR BEACH: The relevant power is the power of the Commonwealth Parliament to pass laws regulating elections for the purposes of satisfying the requirements of section 7 and 24 of the Constitution. That is the relevant head of power, for want of a better expression. Section 10 of the Constitution is one of the provisions as well as sections 27, 29 and 31 of the Constitution that empower the Parliament to deal with the regulation of the Senate and the House of Representatives, and you would couple those provisions with section 51(xxxvi), and possibly 51(xxxix).

GUMMOW J:   Yes.

MR BEACH:   Now, it is all very well, we would say, to say Lange sets out the test of “reasonably appropriate and adapted” but we say you have to look at the context in which that is used in determining how strictly it is applied.  If you looked at the legislation of the type dealt with in the Australian Capital Television Case, there was a very strict ‑ ‑ ‑

GUMMOW J:   Can we just go back to 51(xxxvi).  There is no attempt to argue, is there, that Lange apart there would be any invalidity?

MR BEACH: We would say yes. We have raised it at all levels in relation to sections 7 and 24 which provide for direct choice, but legislation that was passed that was antithetical to that direct choice or in some way unreasonably discriminated amongst candidates in relation to direct choice might fall foul of an implication to be derived directly from sections 7 and 24 which might be different from the implication of the implied freedom of communication.

GUMMOW J:   Now, where do we see that in the draft notice of appeal?

MR BEACH:   Probably, your Honours, it is not as elegantly dealt with ‑ ‑ ‑

GUMMOW J:   It does not matter if it is elegant or not.  The question is whether it is there,…..or otherwise.

MR BEACH:   If one goes to the application book at page 71 and 72, if one looks at (iii) at the foot of page 71, we have there expressed a direct proposition that is not limited to the freedom of communication context, and we have also dealt with that in (iv) on page 72.

GUMMOW J:   Now, was this argued in the Federal Court?

MR BEACH: It was. If your Honours go to the decision of Justice Marshall, which begins at application book page 1, and one looks at the exposition of the arguments of the applicant as set out by his Honour, you will see beginning at page 11, about line 32, a reference to the arguments. Then if you go over to page 12, the last dot point, we put there expressly the separate propositions that we say we can derive from sections 7 and 24 of the Constitution that are not limited to the communication context. His Honour dealt with those separate and, we put, freestanding propositions in his judgment at page 30, paragraph 99, where we put the alternative propositions.

GUMMOW J:   It is not a question of constitutional principle referrable to 7 and 24.  It is a question of how far the power goes.

MR BEACH:   Yes.

GUMMOW J:   All I am saying to you is if you manage to get special leave, you would have to massage your notice of appeal.

MR BEACH:   Yes, I accept that.  It is inelegantly expressed and we will fix it up to make it a bit more transparent.  We had put those propositions and one of our complaints about what the Full Court has done is that it did not deal with the ‑ ‑ ‑

GUMMOW J:   Lange cuts down something that is already there.  That is the assumption.

MR BEACH:   Yes.

GUMMOW J:   If it is not already there, you do not get to Lange.  That is all I am saying to you.

MR BEACH:   Yes, I accept that.

GUMMOW J:   People get blinded by Lange without taking the first step.

MR BEACH: We accepted to expound both at first instance and on appeal that the implications that we were seeking to derive were directly from section 7 and 24 ‑ ‑ ‑

GUMMOW J:   Yes, I understand that.

MR BEACH:   ‑ ‑ ‑ not necessarily limited to something derived first from the freedom of communication and then to derive that as a subset, although we accept that we put the freedom of ‑ ‑ ‑

GUMMOW J:   Lange just comes out of the opening words of section 51, “subject to this Constitution”.

MR BEACH:   Yes.  Just returning to where I was starting.  We say that it is all very well for the respondent to say, “Well, Lange stipulates the test “reasonably appropriate and adapted” but Lange does not really give any guidance, particularly when one is dealing with invalidity of a Commonwealth statute, as to precisely how that limb is to be applied in the different contexts. 

One accepts that Levy, which was decided at the same time, was what I will describe as a second category case, where you had a law, the object of which was targeted at a public safety and gun regulation with the freedom of communication only being incidentally infringed.  One can understand some of the language used in Levy in that context, but where you move into the third category, and we would say here a law right at the heart of section 7 and 24, with respect to what the Full Court have said, we would say that what was said by this Court in the Australian Capital Television Case is a much closer and more appropriate way of applying “reasonably appropriate and adapted”, which is to ask yourself, after having scrutinised the legislation with scrupulous care, as the then Chief Justice referred to in the case, to look at the law and see whether it does no more or no less than is necessary to meet the object.

We would say here that no consideration at all was given by the Full Court of applying the second limb of Lange in that way.  One of our complaints is that they injected concepts such as “margin of appreciation”, which we say is a European test dealt with in a quite different context ‑ ‑ ‑

GUMMOW J:   It is designed to deal with a range of legal systems, ever expanding, that the Europeans deal with as part of the European Union.

MR BEACH:   Yes, in other words a number of sovereign states and the flexibility that has to be ‑ ‑ ‑

GUMMOW J:   And very different legal systems.

MR BEACH:   Yes, whereas here we are not dealing with a number of different sovereign states and their different jurisprudence; we are dealing with one.  We would say there was no support in Lange itself to pick up some “margin of appreciation” test.  If one looks at the footnote references in Lange to Cunliffe, there is no picking up at all of a “margin of appreciation” test.  Really, the only justice that has really been strong on the point in this context has been Justice Brennan from time to time, but most other Justices in the cases of Cunliffe, Leask, Lange and Levy have not picked up the “margin of appreciation” test at all. 

In fact, Justice Gaudron, from recollection, in Cunliffe was careful to make it clear that the margin concept should only be applied where one is dealing with the question of characterisation, but when one moves into “reasonably appropriate and adapted” in terms of the implied freedom, one is looking at a different context, and then one can debate how strictly it should be applied.  As I say, we have two scenarios.  The Levy‑type regulation, where the object was not targeted at section 7 and 24 and the freedom was incidentally infringed, and the present case which we say is much closer to the legislation dealt with in Australian Capital Television.

GLEESON CJ:   Just remind us how the “500 member” and “no overlap” requirements infringe freedom of expression.

MR BEACH:   We say registration was the procedural mechanism to facilitate ballot papers showing party affiliation for candidates, so the candidates could communicate party affiliation.

GLEESON CJ:   To help voting above the line.

MR BEACH:   And also for the list system, which only applies of course, as your Honour would appreciate, to the Senate.  A candidate could only show party affiliation if his or her party was registered.  So as soon as you say that one of the criteria for registration is that the party must have 500 members, you are then discriminating between candidates.  Candidates who are endorsed by a party of less than 500 members cannot show their party affiliation on the ballot paper. 

It is nothing to do with giving privileges to political parties.  It is everything to do with the voters being told of who the candidates are, a candidate being able to communicate his or her party affiliation, other candidates being informed of another candidate’s party affiliation.  Looked at in that context, we would say the 500 rule obviously burdens that communication and does so in a way which unreasonably discriminates amongst candidates. 

The “no overlap” rule is superimposed on the 500 rule and in fact increases the 500 rule in a practical sense because a particular political party may need to have more than 500 members to ensure that if there is an overlap between their list of 500 that is given to the Commission with another party’s list that is given to the Commission, that once the overlap is cancelled out they still satisfy the 500 rule.  Where we have an additional concern about the “no overlap” rule is that that was the genesis for this very review in the present case in relation to the DLP.  As part of the

Commission seeking to determine whether the “no overlap” rule had been satisfied, they asked for all the personal details of 500 members, which then gave rise to privacy concerns and considerations by the DLP and hence led to the non‑production of that information and then the subsequent ADJR challenge.

So it is those two rules that affect which candidates can show party affiliation on the ballot paper.  It is wrong to look at the object of the law as party registration.  The object of the Electoral Act was to regulate elections.  The subordinate objects in 1983 were to introduce three things:  public funding for candidates and parties, ballot paper party affiliation and the list system.  The registration issue was not the object of the law.  That was the mechanism or procedure by which those three subordinate objects and the primary object were ultimately to be realised. 

Once you look at it in that context and ask yourself what is the rationale for discriminating between candidates so that one candidate who is endorsed by a party where there are only 100 members cannot show party affiliation on the ballot paper, what is the logical rationale for that, as opposed to another party who has 500 members and that candidate being endorsed then able to show ballot paper party affiliation.

We have another argument, which is the discrimination argument, which is that if you are a member of the Commonwealth Parliament you do not need to satisfy the 500 rule.  You become what is known as a “Parliamentary party” and that is an eligible political party that can be registered then under section 124 of the Commonwealth statute.  We say that is an unreasonable discrimination because it gives the incumbent politician a major advantage over non‑incumbents. 

The response that was put by Justice Marshall to that is a parliamentarian has public support by definition, but if the parliamentarian such as Meg Lees resigns from her party she can set up a new party with two members conceivably.  Also one is talking about the party and its recognition.  So if you have a Commonwealth politician who sets up a party and satisfies the “Parliamentary party” limb, they can then endorse 100 candidates, each of whom are not known by the public, but they can therefore show their own party affiliation on the ballot paper.  We say none of those consequences have any rational justification and infringe the freedoms in the way we have set out in our submissions.

GLEESON CJ:   Thank you.  Yes, Mr Solicitor.

MR BENNETT:   Your Honours, so far as “margin of appreciation” is concerned, in paragraph 35 of the Full Court’s decision, which appears at page 61 of the application book, their Honours make it clear that no such test was imposed by the trial judge.  A fortiori, they do not impose one themselves.  They explain what it means in the context of the “reasonably appropriate and adapted” test.

The second aspect is this.  This case is not an appropriate vehicle for considering the various interesting arguments my learned friend has referred to, because whichever test one applies, whether it is the “reasonably appropriate and adapted” test or whether it is the stricter test which my learned friend referred to, the result in this case is that the legislation is sufficiently explained and justified.

The “no overlap” rule was introduced by an opposition amendment in the Senate which was ultimately carried and the speech which introduces that amendment makes its purpose clear.  The purpose is to avoid what is known as “preference harvesting”, which is something that can be done if the same 500 people decide to form a number of parties with different appeals in their names.  For example – one could let one’s imagination run riot – one can have a party saying increase child maintenance, one can have the Reduced Child Maintenance Party, one can have the No Badgerys Creek Airport Party, the Better Water for Broken Hill Party, the Gay and Lesbian Party and so on.  What one does by setting up these different parties is capture a small number of voters who regard that issue as central to their electoral considerations, because it is local, because it has some particular relevance to their pockets in some way, or for some other reason.

One then above the line directs the preferences from those parties to the real candidate who may be one of these parties, but it does not matter because he is the candidate, and he is then, or she is then, able to harvest from each of the special interest groups the preferences of that group.  The ballot paper of course becomes so complicated that very few people will vote below the line or trouble to work out what occurs. 

Now, there was reference made in Parliament to what was tendered below as an exhibit, showing the problem very, very clearly.  That exhibit is not reproduced in the application book but we have it in Court.  Might I just hand it up to your Honours.  This, as I say, was an exhibit below.  This is what became known colloquially as the “tablecloth ballot paper” which was used in an election in New South Wales for the Upper House.

As your Honours will see, it is not even easy to read it in the comfort of the courtroom.  Your Honours will see it has parties which run from A to CB, and the parties have such names as the No Badgerys Creek Airport Party, the Non‑Custodial Parents Party, the What’s Doing Party, the Timbarra Clean Water Party, the Euthanasia Referendum Party, the Animal Liberation Party, the Outdoor Recreation Party, which was a party to which preferences were directed and which succeeded at getting one member into Parliament, and Our Common Future Party and various others.  I will not take your Honours ‑ ‑ ‑

GUMMOW J:   This is all very inconvenient for the bureaucrats, Mr Solicitor.

MR BENNETT:   It is inconvenient for electors.

GUMMOW J:   Maybe it is what democracy is all about.

MR BENNETT:   Your Honour, the problem with that is that one has to balance, in setting up a fair electoral system, the need for the elector to be able to understand what he or she is doing and achieve his or her objective without that objective being diverted by this sort of device.

GUMMOW J:   Well, that assumes electors are tenants of large English landlords shepherded in to vote one way or another in 1850.  Well, the world has changed.

MR BENNETT:   Well, your Honour, it does not really do that as much as assume reality.  A very intelligent elector confronted with this ballot paper is likely to pick a party which represents some minor issue, which that elector regards as important, but so far from achieving that objective for that elector, what it does is divert the elector’s preferences to a particular person who, along with 500 others, has made ‑ ‑ ‑

GUMMOW J:   Anyway, you are drawing this into the merits of the appeal if we granted special leave.

GLEESON CJ:   Next thing you know you will have people voting for the candidate of their choice.

MR BENNETT:   Your Honour, that is not the problem this is directed to.  This is directed to making a ballot paper comprehensible and facilitating the elector’s choice.  In my respectful submission, that is well within, whether one wants to call it ‑ ‑ ‑

GUMMOW J:   A species of paternalism, so it seems.

MR BENNETT:   Your Honour, it is not as much paternalism as facilitating a process.  It would not be regarded as paternalistic to have a process which required electors to exercise a high degree of skill in some form of mathematical or logical reasoning before being able to express a choice.  That is what this is directed to.  In my respectful submission, when one analyses it, it is well within the tests as laid down, whichever of the tests is the relevant one, and the Full Court really put it that way.  So,

ultimately, this case is about a weighing of a judgment as to whether a particular piece of legislation falls on one side or the other of a line.  In my respectful submission, that is not an appropriate matter for leave to be granted to this Court about.

Your Honours, as I have shown, the “margin of appreciation” aspect is something which simply was not relied on by the Full Court and the Full Court itself demonstrates why it was not relied on by the trial judge.  We did not need that in order to succeed.  So if that is regarded as a point of importance, it is not a point which is going to arise in this case.  For those reasons, it is my submission that special leave should be ‑ ‑ ‑

GUMMOW J:   Mr Solicitor, it was indicated in the Federal Court that no decision had actually been made by the Commission to deregister the party in question.  Is that still the position?

MR BENNETT:   That is so, your Honour.  That is still the position.

GLEESON CJ:   Thank you, Mr Solicitor.  In this matter there will be a grant of special leave to appeal.  Mr Beach, you had better pay some attention to the form of the notice of appeal, as discussed in argument.

MR BEACH:   Certainly, your Honour.  Thank you, your Honour.

GLEESON CJ:   We will adjourn for a short time to reconstitute.

AT 11.58 AM THE MATTER WAS CONCLUDED