Mulholland v Australian Electoral Commission - [2004] HCA 41

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
JOHN VINCENT MULHOLLAND APPELLANT
AND
AUSTRALIAN ELECTORAL COMMISSION RESPONDENT
Mulholland v Australian Electoral Commission [2004] HCA 41
Date of Order: 20 May 2004
Date of Publication of Reasons: 8 September 2004
M272/2003
ORDER
Appeal dismissed with costs.

On appeal from the Federal Court of Australia
Representation:
J B R Beach QC with B F Quinn and R J Harris for the appellant (instructed by Ebsworth & Ebsworth)
P J Hanks QC with P R D Gray for the respondent (instructed by Australian Government Solicitor)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with B D O'Donnell intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia and on behalf of the Attorney-General for the State of Victoria (instructed by Crown Solicitor for the State of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Mulholland v Australian Electoral Commission
Constitutional law (Cth) – Parliament – Elections – Registration of political parties – Requirement that political parties have 500 members in order to become registered or remain registered ("the 500 rule") – Prohibition on one person being counted as a member of two or more parties ("the no-overlap rule") – Constitutional validity of electoral scheme.
Constitutional law (Cth) – Parliament – Elections – House of Representatives and Senate – Members and senators to be "directly chosen by the people" – Meaning of "directly chosen" – Whether the 500 rule and the no-overlap rule impair "direct choice" or the making of an informed choice by electors – Whether the 500 rule and the no-overlap rule unreasonably discriminate between candidates – Whether inconsistent with constitutional provision for filling of casual vacancies by persons "publicly recognized by a particular political party".
Constitutional law (Cth) – Implied freedom of political communication – Whether the 500 rule and the no-overlap rule effectively burden freedom of communication about government or political matters – Whether laws reasonably appropriate and adapted to a legitimate purpose – Whether laws proportionate to constitutional provisions.
Constitutional law (Cth) – Implied freedoms – Whether the Constitution contains an implied freedom of political association – Whether the Constitution contains an implied freedom of participation in federal elections – Whether the Constitution contains an implied freedom of political privacy – Whether the 500 rule and the no-overlap rule infringe any such implied freedoms.
Words and phrases – "directly chosen by the people".
Constitution, ss 7, 15, 24, 64 and 128.
Commonwealth Electoral Act 1918 (Cth), Pt XI.

GLEESON CJ. The appellant commenced proceedings in the Federal Court of Australia, challenging the validity of two particular aspects of the provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Act") dealing with the registration of political parties. The scheme for registration was first introduced in 1983, and later amended in 2000 and 2001. It was introduced in the context of legislative provision for direct funding of political parties, "list" voting for the Senate, and references to party affiliations on the ballot paper. The first aspect under challenge is a limitation of entitlement to registration, or continuing registration, to political parties with at least 500 members, unless they have at least one Parliamentary representative ("the 500 rule"). The second is a refinement of the 500 rule, introduced by s 126(2A) in 2000, which prohibits two or more parties from relying on the same person as a member in calculating the number of members ("the no overlap rule").
The 500 rule was adopted by Parliament following a recommendation of a Joint Select Committee on Electoral Reform, which presented its first report in September 1983. The report said[1]:
"3.43      The Committee also received many submissions ... calling for the printing of party affiliations on ballot papers. The Committee believes that the introduction of this procedure will assist voters in casting their vote in accordance with their intentions. The recommendation concerning the 'list' system for Senate ballot papers presupposes the inclusion of political party on the Senate ballot paper at least. This recommendation (amongst others) if adopted will require the adoption of a system for the registration of political parties. ...
12.1        The Committee believes that in light of its recommendations with respect to the public funding of political parties for election campaigns, the printing of the political affiliation of candidates on ballot papers and the adoption of the list system for Senate elections, provision for the registration of political parties will be necessary.
...
12.4        It would be provided that:
...
(c)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. ...)"
[1]Parliament of the Commonwealth of Australia, Joint Select Committee on Electoral Reform, First Report, September 1983.
The no overlap rule was the result, not of any recommendation of a Select Committee, or of a proposal by the Government of the day, but of an Opposition amendment moved in the Senate during debate on proposed changes to the Act. A senator who supported the amendment said that "[o]therwise you could have a situation where, once you had 500 people, you could register an unlimited number of [party] 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."[2]
[2]Australia, Senate, Parliamentary Debates (Hansard), 11 October 2000 at 18253.
The background to the appellant's dissatisfaction with the 500 rule and the no overlap rule appears from the reasons for judgment of Gummow and Hayne JJ, as do the details of the relevant legislative provisions, including those which embody the two rules. It is important to note the wider legislative context which gives content to the concept of "eligibility" of a political party.
The challenge to validity failed in the Federal Court, both before Marshall J at first instance[3], and before the Full Court (Black CJ, Weinberg and Selway JJ)[4]. The arguments relied upon by the appellant require consideration of the power of the Parliament to legislate with respect to the method of election of senators and members of the House of Representatives, and of the requirement of freedom of communication on matters of government and politics implied in consequence of the system of representative and responsible government to be found in the terms and structure of the Constitution[5].
[3]Mulholland v Australian Electoral Commission (2002) 193 ALR 710.
[4]Mulholland v Australian Electoral Commission (2003) 128 FCR 523.
[5]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Legislative power
A notable feature of our system of representative and responsible government is how little of the detail of that system is to be found in the Constitution, and how much is left to be filled in by Parliament. In Lange v Australian Broadcasting Corporation[6], this Court said that, in ss 1, 7, 8, 13, 25, 28 and 30, the Constitution provides for "the fundamental features of representative government". In other cases, such as Attorney-General (Cth); Ex rel McKinlay v The Commonwealth[7], and McGinty v Western Australia[8], it was pointed out that representative democracy takes many forms, and that the terms of the Constitution are silent on many matters that are important to the form taken by representative democracy in Australia, at a federal or State level, from time to time.
[6](1997) 189 CLR 520 at 557.
[7](1975) 135 CLR 1.
[8](1996) 186 CLR 140.
For example, while, in common with most democracies, Australia now has universal adult suffrage, this was not always so. At the time of the Constitution, most women in Australia did not have the right to vote. Aboriginal Australians have only comprehensively had the vote since 1962. Unlike most democracies, Australia now has a system of compulsory voting, but this did not exist at Federation. Members of the House of Representatives are now elected by a system of preferential voting. In the United Kingdom, as in the House of Representatives in the United States, and the House of Commons in Canada, members of the House of Commons are elected on a first-past-the-post system. One of the most striking examples of the power given to Parliament to alter, by legislation, the form of our democracy concerns the composition of the Senate. There was a major change in the method of electing senators in 1948. For many years before then, the political party that dominated the House of Representatives usually controlled the Senate. With the introduction of proportional representation in 1948, there came to be a much larger non-government representation in the Senate. Furthermore, a legislative change in 1984, increasing the number of senators from 10 per State to 12 per State, when combined with the system of proportional representation, produced the result that it is now unusual for a major party to control the Senate. This is of large political and practical significance. It was the result of legislative, not constitutional, change.
In McKinlay[9], Barwick CJ, contrasting the Constitutions of Australia and the United States, said that the Australian colonies, at Federation, "committed themselves to what the Parliament ... might do in relation to the franchise and the electoral distribution of the States, building in the safeguard of the equality of legislative power with one exception, in the two Houses." He explained the reason for this:
"Further, it must always be borne in mind that the American colonies had not only made unilateral declarations of independence but had done so in revolt against British institutions and methods of government. The concepts of the sovereignty of Parliament and of ministerial responsibility were rejected in the formation of the American Constitution. Thus, not only does the American Constitution provide for a presidential system, but it provides for checks and balances based on the denial of complete confidence in any single arm of government.
In high contradistinction, the Australian Constitution was developed not in antagonism to British methods of government but in co-operation with and, to a great extent, with the encouragement of the British Government. The Constitution itself is an Act of the Imperial Parliament which, except for a significant modification of the terms of s 74, is in the terms proposed by the Australian colonists and accepted by the British Government. Because that Constitution was federal in nature, there was necessarily a distribution of governmental powers as between the Commonwealth and the constituent States with consequential limitation on the sovereignty of the Parliament and of that of the legislatures of the States. All were subject to the Constitution. But otherwise there was no antipathy amongst the colonists to the notion of the sovereignty of Parliament in the scheme of government."
[9](1975) 135 CLR 1 at 23-24.
That is a useful reminder of historical facts that explain not only what the Constitution says, but also what it does not say. The silence of the Constitution on many matters affecting our system of representative democracy and responsible government has some positive consequences. For example, if then current ideas as to the electoral franchise had been written into the Constitution in 1901, our system might now be at odds with our notions of democracy. The Constitution is, and was meant to be, difficult to amend. Leaving it to Parliament, subject to certain fundamental requirements, to alter the electoral system in response to changing community standards of democracy is a democratic solution to the problem of reconciling the need for basic values with the requirement of flexibility. As to responsible government, the deliberate lack of specificity on the part of the framers of the Constitution concerning the functioning of the Executive was seen, in Re Patterson; Ex parte Taylor[10], as an advantage. Constitutional arrangements on such matters need to be capable of development and adaptability.
[10](2001) 207 CLR 391 at 402-403 [14].
Concepts such as representative democracy and responsible government no doubt have an irreducible minimum content, but community standards as to their most appropriate forms of expression change over time, and vary from place to place. It is only necessary to consider the differences in the present electoral systems of New South Wales, Tasmania and New Zealand, all of which would be regarded as democratic, to see the point. The system in New South Wales is preferential voting of a kind that is orthodox in Australia. Tasmania has the Hare-Clark electoral system, which is unlike any other State system. New Zealand has changed from a first-past-the-post system to a system under which the Parliament has a number of members elected in single-seat constituencies, and a number elected by proportional representation from the lists of those parties obtaining a sufficient percentage of the national vote.
Federalism itself influenced the form of our government in ways that might be thought by some to depart from "pure democracy", if there is such a thing[11]. Equal State representation in the Senate may be thought, and at the time of Federation was thought by some, to be inconsistent with a concept of voting equality throughout the Commonwealth. Voters in the smallest State (in terms of population) elect the same number of senators as voters in the largest State. In this respect, the "value" of votes is unequal. That inequality is one aspect of Australian democracy which, exceptionally, is enshrined in the Constitution. Where the Constitution contains an express provision for one form of inequality in the value of votes, it dictates at least some caution in formulating a general implication of equality on that subject.
[11]See La Nauze, The Making of the Australian Constitution, (1972) at 95.
Section 7 of the Constitution provides that the Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. The section goes on to deal with some further matters relating to Senate elections, until the Parliament otherwise provides. Section 9 provides that the Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States.
Section 24 of the Constitution provides that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and goes on to specify the method of election, until the Parliament otherwise provides.
Section 51(xxxvi) empowers the Parliament, subject to the Constitution, to make laws with respect to matters in respect of which the Constitution makes provision until the Parliament otherwise provides. That includes the matters referred to in ss 7 and 24. The expression "subject to this Constitution" picks up, among other things, the overriding requirement that senators and members of the House of Representatives are to be "directly chosen by the people". As appears from what has been said above, that qualification imposes a basic condition of democratic process, but leaves substantial room for parliamentary choice, and for change from time to time. The methods by which the present senators, and members of the House of Representatives, of the Australian Parliament are chosen are significantly different from the methods by which those in earlier Australian parliaments were chosen. Judicial opinion has been divided on the presently irrelevant question as to whether the Constitution guarantees universal suffrage[12]. No one doubts, however, that Parliament had the power, as it did, to prescribe a minimum voting age, and, later, to reduce that age from 21 to 18. Whether Parliament would have the power to fix a maximum voting age is a question that has not yet arisen.
[12]Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1.
That is the constitutional context in which the appellant's challenges to the Act are to be examined.
The Full Court made the following point:
"It should be noted ... that it is no part of the appellant's case to challenge the registration [of eligible political parties] scheme itself. ... [T]hat registration scheme affords various 'privileges' to registered political parties. The extent of some of those 'privileges' may not be great. For example, one of the privileges that has existed since 1983 is the payment of public funding to the political party. However, even if the political party is not registered public funding is still available although it is paid direct to the candidate or group or his or her or its agent (s 299 of the Act). Similarly, the use of list voting in Senate elections is not limited to registered parties, but can extend to 'groups' or individual candidates (see ss 168, 211, 211A, 219, 272 of the Act). Consequently, the main advantages of registration are the privilege of having party affiliation recorded on the ballot paper and the privilege of having access to the electoral roll in digital form."
The appellant submits that the 500 rule and the no overlap rule contravene the constitutional requirement of direct choice by the people for two reasons: first, they impede or impair the making of an informed choice by electors; secondly, they unreasonably discriminate between candidates.
As to the first reason, the respondent, and the Attorney-General of the Commonwealth intervening, accept that the choice required by the Constitution is a true choice with "an opportunity to gain an appreciation of the available alternatives"[13]. In the course of argument, examples were given of forms of ballot paper prescribed for use at elections which might not conform to that fundamental requirement. A ballot paper, for example, that had printed on it only one name, being that of the government candidate, requiring the name of any alternative candidate to be written in (a form not unknown in the past in some places), might so distort the process of choice as to fail to satisfy the test. Here, the rules in question preserve a full and free choice between the competing candidates for election. The electors are presented with a true choice. The available alternatives between candidates are set out on the ballot paper. The process of choice by electors is not impeded or impaired.
[13]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560, quoting Dawson J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 187.

As to the second reason, the argument that what is involved constitutes unreasonable discrimination, like the argument that there is an unacceptable burden on freedom of communication, to be examined below, requires consideration of the reasons for the rules.
Plainly, the reason for the 500 rule, in the wider context of a system of registered political parties for various purposes relating to the Act (a system which itself is not challenged by the appellant), is the view, taken by the Joint Select Committee, and then by Parliament, that to qualify as a registered political party a group must have a certain minimum level of public support, and that an appropriate minimum level is established by a membership of 500. As to the first part of that, it is reasonably open to Parliament to consider that, bearing in mind the practical significance of political parties in the operation of the democratic process, it would deprive the concept of "party" of any real meaning if any two or more people, who happened to agree on even one issue, could demand recognition as a "party". It may be added, as was pointed out in argument, that in Australia there is a long history of electoral systems which discourage multiplicity of candidates by requiring candidates to deposit a sum of money which will be forfeited if they do not achieve a minimum number of votes. Similarly, there are long-standing requirements for nominations of candidates to be supported by a minimum number of people. Those are well-known forms of regulating candidature at elections which have never been regarded as infringing the electors' right of choice, or as involving unreasonable discrimination. A requirement that, to be eligible to be treated as a political party for the purposes of the Act, a group must have some minimum level of public support, is not materially different. As to the figure of 500, it is, no doubt, to an extent arbitrary, and there is no logical process by which it can be demonstrated that it should be more than, say 100, or less than (as is the case in New South Wales) 750. Even so, the number 500 is not so large as to be outside the range of choice reasonably available to Parliament if a number is to be chosen at all.
American Party of Texas v White[14] is a decision of the Supreme Court of the United States in a different constitutional context. Nevertheless, it provides an interesting comparison. The Texas laws in question, which were the subject of a constitutional requirement of strict scrutiny, provided for methods of nominating candidates in a general election that varied according to levels of voter support for parties in previous elections, and that required independent candidates to establish a minimum level of support. Those provisions were claimed to infringe constitutional rights to associate for the advancement of political beliefs, and to discriminate invidiously against new and minority political parties, as well as independent candidates. The Supreme Court held that the measures were "reasonably taken in pursuit of vital state objectives that cannot be served equally well in significantly less burdensome ways."[15] White J, speaking for the Court, said[16]:
"But we think that the State's admittedly vital interests are sufficiently implicated to insist that political parties appearing on the general ballot demonstrate a significant, measurable quantum of community support."
He referred to Jenness v Fortson[17], in which the Supreme Court said:
"There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot – the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election."
[14]415 US 767 (1974).
[15]415 US 767 at 781 (1974).
[16]415 US 767 at 782 (1974).
[17]403 US 431 at 442 (1971).
A purpose of avoiding confusion, deception, and frustration of the democratic process also underlies the no overlap rule. Marshall J accepted that the policy behind the rule was "the avoidance of 'enterpreneurial' 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."
Reference was made to the recent decision of the Supreme Court of Canada in Figueroa v Canada (Attorney General)[18], which considered an electoral law providing for the conferring of certain benefits (including a right to list party affiliation on ballot papers) on registered political parties, and imposing a requirement that a political party nominate at least 50 candidates in a federal election in order to be registered. That, it might be noted, is a very substantial requirement by Australian standards. The constitutional context was as follows. The Canadian Charter of Rights and Freedoms, in s 3, confers on each citizen a right to vote and to be qualified for membership of Parliament, a right that has been interpreted to involve "the right of each citizen to play a meaningful role in the electoral process", rather than the election of a particular form of government[19]. Further, the Charter, in s 1, requires that if there is an infringement of that right, it can only be justified if it can be shown that it is reasonable and demonstrably justifiable in a free and democratic society. That involves demonstrating that the objective of the legislation is sufficiently pressing and substantial to warrant a violation of a Charter right and that the infringement is proportionate, in the sense that "the legislation is rationally connected to the objective, that it minimally impairs the Charter right in question, and that the salutary benefits of the legislation outweigh the deleterious effects."[20]
[18][2003] 1 SCR 912.
[19][2003] 1 SCR 912 at 934 [26].
[20][2003] 1 SCR 912 at 949 [59].
The requirement as to nomination of 50 members was held to interfere with the right of each citizen to play a meaningful role in the electoral process in a number of ways, including "derogating from the capacity of marginal or regional parties to present their ideas and opinions to the general public"[21]. The majority judgment stressed "the likelihood that the already marginalized voices of political parties with a limited geographical base of support will be drowned out by mainstream parties"[22].
[21][2003] 1 SCR 912 at 946 [54].
[22][2003] 1 SCR 912 at 945-946 [52].
The constitutional context in which Figueroa was decided is different from the Australian context. So also was the requirement for registration of a political party there under consideration. The decision helpfully draws attention, in a number of ways, to the practical consequences of a requirement that a registered political party be of a certain size, but it does not suggest that all such requirements offend the Charter. Furthermore, the reasoning does not support a conclusion that all such requirements are inconsistent with the stipulation, in the Australian Constitution, that senators and members of the House of Representatives shall be directly chosen by the people.
I accept that the stipulation goes beyond a mere prohibition of indirect election, as by an electoral college. I also accept that certain kinds or degrees of interference by the Australian Electoral Commission in the political process, including arrangements as to the form of the ballot paper, conceivably could be antithetical to the idea of representative democracy and direct choice. Even so, determining the electoral process in a representative democracy requires regulation of many matters, of major and minor significance, and the Constitution gives Parliament a wide range of choice. In the context of a system of registration of political parties eligible to receive the privileges referred to earlier, the imposition of a requirement of some minimum level of support, the fixing of that level at 500 members, and the avoidance of abuse by the no overlap rule, are consistent with the constitutional concept of direct choice by the people and with representative government.
Freedom of communication
In Lange v Australian Broadcasting Corporation[23], in a joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, this Court said:
"When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people ... If the first question is answered 'yes' and the second is answered 'no', the law is invalid."
[23](1997) 189 CLR 520 at 567-568.
As to the first question, there was a dispute in argument as to whether the laws presently in question effectively burden freedom of communication about government or political matters in their terms, operation or effect. The respondent pointed out that the only restriction on communication that results from the 500 rule and the no overlap rule relates to what the Australian Electoral Commission puts on the form of ballot paper it issues. The ballot paper, it is said, is not a communication between candidates for election and electors, and candidates are free, in their own communications with electors (such as "how-to-vote" cards), to declare their party affiliations. Reference was made in argument to the very high proportion of electors who vote "above the line" at Senate elections. We were given no corresponding information as to the proportion of electors who receive, and use, "how-to-vote" cards, but it is probably high. Even so, the argument for the respondent depends upon too narrow a view of what is involved in communication about government and political matters. Communication about elections takes place in a context which includes private or personal initiative, organised party activity, and public regulation. Candidates supply, and voters receive, information in a variety of ways right up to the time the ballot paper is marked. Candidates nominated by registered political parties know that information as to their party affiliation will appear on the ballot paper. At least by implication, they approve that communication of information and, in a substantial, practical sense, it is a communication for their benefit.
In a system of compulsory voting, party affiliation is of particular importance. Relatively few voters may know much about the individual candidates between whom they are invited to choose, and most voters are unlikely to be widely informed about all, or even most, of the issues that divide the candidates. When people are compelled to vote, many of them depend heavily on the guidance of others; and the party political system is the main practical source of such guidance. The so-called conservatism of the Australian people when voting in the referendum process for proposed constitutional change sometimes may be related to the system of compulsory voting, and to an absence of what voters may regard as satisfactory explanation of the proposed change. The party system provides much less guidance on such occasions. If people are compelled to vote, are not convinced of the necessity of change, and are perhaps not clear as to the reasons for, or the consequences of, change, then it is hardly surprising that they vote for the status quo. At general elections, the influence of party leaders is important. The Prime Minister is not directly chosen by the people of Australia; he or she is not "popularly elected". The Prime Minister, in a formal sense, is chosen by the Governor-General, and, in a practical sense, is chosen by the parliamentarians whose party, or coalition of parties, controls the House of Representatives. The Prime Minister, at any given time, may or may not have been a party leader at the last election. Nevertheless, many people, at a federal election, regard themselves as voting "for" or "against" a party leader, or for or against the policies of a party, rather than as choosing between the particular candidates named on the ballot paper they receive.
Party affiliation is included on a ballot paper only at the registered party's request, a request which, in a practical sense, is made in the interests of the party's candidates. It is proper, and realistic, to regard the information conveyed to electors by the Commission as involving a communication by the party and its candidates, as well as a communication by the Commission. It is a communication about a matter that is central to the competitive process involved in an election. The first question identified in Lange should be answered "yes".
The form and content of the second question was the subject of some discussion in Lange. The background to that discussion was the reasoning in Theophanous v Herald & Weekly Times Ltd[24] and Stephens v West Australian Newspapers Ltd[25]. In that connection, the Court said[26]:
"Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted."
[24](1994) 182 CLR 104.
[25](1994) 182 CLR 211.
[26]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562.
Whichever expression is used, what is important is the substance of the idea it is intended to convey. Judicial review of legislative action, for the purpose of deciding whether it conforms to the limitations on power imposed by the Constitution, does not involve the substitution of the opinions of judges for those of legislators upon contestable issues of policy. When this Court declares legislation to be beyond power, or to infringe some freedom required by the Constitution to be respected, it applies an external standard. Individual judgments as to the application of that standard may differ, but differences of judicial opinion about the application of a constitutional standard do not imply that the Constitution means what judges want it to mean, or that the Constitution says what judges would prefer it to say.
There are criticisms that can be made of both expressions, "reasonably appropriate and adapted", and "proportionality". It is to be noted, however, that, in the passage from Lange first quoted above, the test stated included the question whether the impugned law served "a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government". Identification of the end served by a law, and deciding its compatibility with a system of representative government, is a familiar kind of judicial function. To the extent to which the word "legitimate" means more than "lawful" or "within the scope of the powers of the Parliament" it may not add anything to the requirement of compatibility. For a court to describe a law as reasonably appropriate and adapted to a legitimate end is to use a formula which is intended, among other things, to express the limits between legitimate judicial scrutiny, and illegitimate judicial encroachment upon an area of legislative power.
The concept of proportionality has both the advantage that it is commonly used in other jurisdictions in similar fields of discourse, and the disadvantage that, in the course of such use, it has taken on elaborations that vary in content, and that may be imported sub silentio into a different context without explanation. Reference was made above to ss 1 and 3 of the Canadian Charter. In R v Oakes[27] Dickson CJ explained s 1:
"The rights and freedoms guaranteed by the Charter are not ... absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s 1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter. These criteria impose a stringent standard of justification, especially when understood in terms of ... the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society."
[27][1986] 1 SCR 103 at 136.
The Chief Justice went on to say that, to establish that a limit is reasonable and demonstrably justified in a free and democratic society, an important legislative objective must be identified, and the means used to achieve that objective must satisfy "a form of proportionality test". The elements of the "proportionality test" were as follows[28]:
"First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair 'as little as possible' the right or freedom in question ... Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of 'sufficient importance'." (emphasis in original)
[28][1986] 1 SCR 103 at 139.
Human rights legislation, which declares fundamental rights or freedoms but, recognising that they are rarely absolute, permits limits or restrictions provided they can be "demonstrably justified in a free and democratic society", is the context in which current jurisprudence on proportionality is most likely to be seen at work. In R (Daly) v Secretary of State for the Home Department[29], Lord Steyn said that "[t]he contours of the principle of proportionality are familiar", and, quoting from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing[30], applied a three-stage test, by which the court should ask itself:
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
[29][2001] 2 AC 532 at 547 [27].
[30][1999] 1 AC 69 at 80.
In the recent case of Campbell v MGN Ltd[31], which involved a conflict between privacy and free speech, Baroness Hale of Richmond said "the interference or restriction must be 'necessary in a democratic society'; it must meet a 'pressing social need' and be no greater than is proportionate to the legitimate aim pursued; the reasons given for it must be both 'relevant' and 'sufficient' for this purpose."
[31][2004] 2 WLR 1232 at 1269 [139]; [2004] 2 All ER 995 at 1033.

If the use, in the present context, of a test of "proportionality" were intended to pick up all that content, then it would be important to remember, and allow for the fact, that it has been developed and applied in a significantly different constitutional context.
It should also be said that the word "necessary" has different shades of meaning. It does not always mean "essential" or "unavoidable", especially in a context where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy. In Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation[32], a case concerning s 51 of the Income Tax Assessment Act 1936 (Cth), Latham CJ, Rich, Dixon, McTiernan and Webb JJ said that the word "necessarily", in the context of the allowability of deductions for expenditure necessarily incurred in carrying on a business, meant "clearly appropriate or adapted for", not "unavoidably". Under the Income Tax Assessment Act, it was not for the Commissioner to tell a taxpayer how to run its business. The primary judgment was left to the taxpayer, and the concept of "necessarily incurred" was intended to impose a limit, enforced by the courts, but allowing due regard for the consideration that it was for the taxpayer to make the business judgment in deciding what to spend. The Commissioner could not disallow a deduction on the ground that the expenditure was not unavoidable. The reference given in Ronpibon Tin in support of the Court's view of the meaning of "necessarily" was to a judgment of Higgins J in 1910, in a case concerning the validity of delegated legislation, The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Co Pty Ltd[33]. The primary Act conferred power to make regulations for matters "necessary" for carrying out the Act. Higgins J said that, in such a context, the word "necessary" may be construed, not as meaning absolutely or essentially necessary, but as meaning "appropriate, plainly adapted to the needs of the Department". He cited McCulloch v Maryland[34]. This seems almost to bring us round in a full circle. There is, in Australia, a long history of judicial and legislative use of the term "necessary", not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted. The High Court originally took that from McCulloch v Maryland. There is, therefore, also a long history of judicial application of the phrase "reasonably appropriate and adapted". It follows that, when the concept of necessity is invoked in this area of discourse, it may be important to make clear the sense in which it is used, especially if that sense is thought to differ from reasonably appropriate and adapted. Different degrees of scrutiny may be implied by the term "necessary". I have no objection to the use of the term proportionality, provided its meaning is sufficiently explained, and provided such use does not bring with it considerations relevant only to a different constitutional context. Equally, I have no objection to the expression "reasonably appropriate and adapted", which has a long history of application in many aspects of Australian jurisprudence.
[32](1949) 78 CLR 47 at 56.
[33](1910) 10 CLR 457 at 469.
[34]4 Wheat 316 at 421 (1819).
The implied constitutional requirement of freedom of communication on matters of government and politics is not absolute, as the decision in Lange demonstrates. There are many laws which affect freedom to communicate, of which the defamation laws considered in Lange are an example. Some such laws have only an indirect or incidental effect upon communication about matters of government and politics. Others have a direct and substantial effect. Some may themselves be characterised as laws with respect to communication about such matters. In Australian Capital Television Pty Ltd v The Commonwealth[35], Deane and Toohey JJ said that "a law whose character is that of a law with respect to the prohibition or restriction of [political] communications ... will be much more difficult to justify ... than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as political communications." The passage was cited by Gaudron J in Levy v Victoria[36]. Her Honour also cited Mason CJ, in the same case, as speaking of the need for "compelling justification" of a law directed to political communications, and the need to show that the restriction involved is no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked[37]. I do not take the phrase "reasonably necessary" to mean unavoidable or essential, but to involve close scrutiny, congruent with a search for "compelling justification". That is the standard to be applied here.
[35](1992) 177 CLR 106 at 169.
[36](1997) 189 CLR 579 at 618-619.
[37](1992) 177 CLR 106 at 143.
The circumstance that the appellant's challenge is not to the entire registration system for political parties, but to two particular aspects of that system, should not divert attention from the legislative context, which is in furtherance of, not derogation from, political communication. The idea behind the printing of party affiliations on ballot papers, as appears from the September 1983 report of the Joint Select Committee on Electoral Reform, was to "assist voters in casting their vote in accordance with their intentions." Public funding of political parties for election campaigns, and the adoption of the list system for Senate elections, were also measures in aid of political communication and the political process. Parliament took the view that those measures necessitated provision for the registration of political parties. That view was clearly open and reasonable. Parliament then took the view that some minimum level of public support was required for registration as a party and that 500 members was a reasonable figure for that purpose. It also, later, took the view that, to guard against obvious possibilities for abuse of the registration system, the no overlap rule should be introduced. Bearing in mind the context in which the two rules operate there is justification for them which this Court ought to accept as compelling. There is no reasonable basis on which this Court could legitimately form and substitute a different opinion. Furthermore, bearing in mind that the two rules under challenge are in furtherance and support of a system that facilitates, rather than impedes, political communication and the democratic process, there is no warrant for denying their reasonable necessity.
It is unnecessary to deal separately with what were said to be cognate implied freedoms of association and privacy of political association. Since the burden on freedom of political communication has been justified, the same would apply if and to the extent to which such other or different freedoms existed.
Conclusion
The appeal should be dismissed with costs.
McHUGH J. This is an appeal from an order of the Full Court of the Federal Court of Australia[38] upholding the constitutionality of certain provisions of the Commonwealth Electoral Act 1918 (Cth) whose operation may result in the Democratic Labor Party being deregistered as a political party under that Act. The order of the Full Court dismissed an appeal against a decision of Marshall J sitting in the Federal Court[39]. Marshall J found that the provisions were within the heads of power conferred on the Federal Parliament by the Constitution and did not infringe any express or implied limitations on those powers. The Full Court found that the challenged provisions burdened the implied constitutional freedom of political communication, but were "reasonably appropriate and adapted" to achieving the legitimate object of regulating federal elections[40].
[38]Mulholland v Australian Electoral Commission (2003) 128 FCR 523.
[39]Mulholland v Australian Electoral Commission (2002) 193 ALR 710.
[40]Mulholland (2003) 128 FCR 523 at 536-537.
The issues in the appeal are whether:
(1)the provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Act") which prescribe or rely for their operation on the so-called "500 rule" and the "no-overlap rule" ("the challenged provisions") are within the scope of the legislative power of the Federal Parliament;
(2)the challenged provisions contravene the requirements of ss 7 and 24 of the Constitution that senators for each State be "directly chosen by the people of the State" and that members of the House of Representatives be "directly chosen by the people of the Commonwealth";
(3)the challenged provisions burden the implied constitutional freedom of political communication between the people by restricting the circumstances in which a candidate's party affiliation may be included on ballot-papers used in elections for the Federal Parliament; and
(4)the Constitution recognises an implied freedom to associate for political purposes and to maintain privacy in such an association; and, if so, whether the challenged provisions infringe those freedoms.
In my opinion, the challenged provisions were validly made under s 51(xxxvi) of the Constitution. They are laws "with respect to ... matters in respect of which this Constitution makes provision until the Parliament otherwise provides". Matters that fall within this power include "the method of choosing senators" (s 9), the "elections of senators for the State" (s 10), "elections in the State of members of the House of Representatives" (s 31) and "the qualifications of a member of the House of Representatives" (s 34). Further, the challenged provisions do not contravene the requirements of ss 7 and 24 of the Constitution that senators for each State be "directly chosen by the people of the State" and that members of the House of Representatives be "directly chosen by the people of the Commonwealth". Nor do the challenged provisions infringe the implied constitutional freedom of political communication of registered political parties who do not comply with the "500 rule" and the "no-overlap rule". Nor do they infringe the implied freedom to associate for political purposes or any associated freedom of political privacy.
The material facts
Mr John Mulholland, the appellant, is the registered officer of the Democratic Labor Party ("the DLP") under s 133 of the Act. The DLP is a political party, registered under Pt XI of the Act. The Australian Electoral Commission ("the Commission"), the respondent, administers the registration of political parties under the Act. Part XI of the Act empowers the Commission to review the eligibility of political parties to remain on the Register of Political Parties ("the Register") and to request specified information concerning the continuing eligibility of a party to be registered. If the registered officer of a registered political party does not comply with a request for information from the Commission, the Commission may deregister that political party. The Commission's powers include the power to require the registered officer to provide a list of party members.
In August 2001, the Commission requested Mr Mulholland to provide it with certain information, including the names and addresses of the DLP's members. Mr Mulholland did not make that information available to the Commission. In November 2001, the Commission informed Mr Mulholland that it was considering deregistering the DLP because of Mr Mulholland's failure to provide the information.
In January 2002, Mr Mulholland commenced proceedings in the Federal Court of Australia, seeking judicial review of the decisions and conduct of the Commission under the Administrative Decisions (Judicial Review) Act 1977 (Cth). He also challenged, under s 39B of the Judiciary Act 1903 (Cth), the constitutionality of certain provisions of the Act which might operate to deny the DLP an entitlement to remain on the Register. Specifically, Mr Mulholland challenged the following provisions of Pt XI of the Act which establish, rely for their operation on or give effect to the so-called "500 rule" and the "no-overlap rule": ss 123(1)(a)(ii), 126(2A), 136(1)(b)(ii), 137(1)(b), 137(1)(cb), 137(5) and 138A.
If a registered political party has no federal Parliamentary member, the "500 rule" requires it, in order to qualify or continue to qualify for registration, to provide to the Commission a list of the names of the 500 members of the party relied on for the purposes of registration. The "no-overlap rule" precludes two or more political parties from relying on the same member for the purpose of qualifying or continuing to qualify as an eligible political party.
As I have indicated, Marshall J dismissed the applications, and the Full Court of the Federal Court (Black CJ, Weinberg and Selway JJ) dismissed an appeal against the orders of his Honour.
Subsequently, this Court granted Mr Mulholland special leave to appeal on the constitutional issues involved in the case.
Part XI of the Act
Background
Part XI of the Act is entitled "Registration of political parties". The Part was inserted into the Act (originally as Pt IXA) by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) ("the 1983 Act"). The 1983 Act introduced a system for the registration of political parties. This occurred in the context of the implementation of a scheme for election funding for registered political parties, the inclusion of party endorsement details on ballot‑papers and the introduction of group voting tickets for Senate elections (also known as the "list" system). The 1983 Act also established the Commission and the Register and empowered the Commission to register and deregister political parties in certain circumstances. Amendments to the Act enacted in 2000 and 2001 by the Commonwealth Electoral Amendment Act (No 1) 2000 (Cth) ("the 2000 Act") and the Electoral and Referendum Amendment Act (No 1) 2001 (Cth) ("the 2001 Act") expanded the circumstances in which the Commission's power of deregistration was enlivened. These provisions are the subject of the challenge in the present case.
Operation of Pt XI
Section 4(1) of the Act defines "political party" to mean:
"an organization 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."
Section 123(1) of the Act defines "eligible political party" to mean inter alia a political party that has at least 500 members (s 123(1)(a)(ii)). For the purposes of Pt XI, a reference to a "member of a political party" is a reference to a "member of the political party or a related political party" who is also entitled to enrolment to vote under the Act (s 123(3)). Under s 124 and subject to Pt XI, an eligible political party may be registered under that Part for the purposes of the Act.
"Registered political party" is defined in s 4(1) to mean "a political party that is registered under Part XI." The DLP has been registered under Pt XI of the Act since 20 July 1984. Part XI sets out the requirements which must be satisfied for a political party to qualify or continue to qualify as an eligible political party and, as an eligible political party, to be registered and to remain on the Register (ss 124, 126). Since the introduction of Pt XI, one of the requirements for a party to qualify or continue to qualify as an eligible political party has been that the party must have at least 500 members (the "500 rule").
Part XI also sets out the grounds on which a political party registered under Pt XI may be deregistered (ss 135, 136 and 137). Those grounds include:
.in the case of a political party that was a Parliamentary party[41] when it was registered, that the party has ceased to be a Parliamentary party and the party has fewer than 500 members (s 136(1)(b));
. the political party has ceased to exist (s 137(1)(a));
.the political party, not being a Parliamentary party, has ceased to have at least 500 members (s 137(1)(b));
.the registration of the political party was obtained by fraud or misrepresentation (s 137(1)(c)); and
.the registered officer of the political party has failed to comply with a notice from the Commission under s 138A (s 137(1)(cb)).
[41]"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." It is not in dispute that the DLP is not a Parliamentary party and, since its registration, has never been a Parliamentary party.
Section 126(2A) precludes two or more parties from relying on the same member for the purpose of qualifying or continuing to qualify as an eligible political party. Where two or more parties rely on the membership of a person, that person may nominate the party entitled to rely on the member. If the member does not nominate a party after the Commission has given the member at least 30 days to do so, none of the parties may rely on the member (s 126(2A)(a)). The members on whom a registered party relies may be changed at any time by an amendment of the Register (s 126(2A)(b)). Unless the Commission has taken action to determine whether the party should be deregistered on certain grounds, failure to comply with s 126(2A) does not result in the cancellation of the party's registration. Those grounds are that the political party has ceased to exist or is a non-Parliamentary party with fewer than 500 members or its registration was obtained by fraud or misrepresentation (s 137(1)(a), (b) and (c)).
Section 137 provides that, in relation to a political party registered under Pt XI, if the Commission is satisfied on reasonable grounds of certain matters, the Commission may notify the registered officer of that party that it is considering deregistering the party. As indicated above, those matters include that the party has ceased to exist (s 137(1)(a)) or, not being a Parliamentary party, has ceased to have at least 500 members (s 137(1)(b)) or the registered officer has failed to comply with a notice from the Commission under s 138A (s 137(1)(cb)). On receipt of such a notice from the Commission, the registered officer may lodge a statement with the Commission that sets out reasons why the party should not be deregistered (s 137(2)). The Commission must then consider that statement and determine whether the political party should be deregistered for the reason set out in that notice (s 137(5)).
Section 138A(1) empowers the Commission to review the Register to determine whether one or more of the parties included in the Register is an eligible political party or should be deregistered under s 136 or s 137. For the purposes of reviewing the Register, the Commission may give a notice to the registered officer requesting specified information on the party's eligibility to be registered under Pt XI (s 138A(3)). The registered officer must comply with the notice within the specified period (s 138A(5)).
Representative government under the Constitution
The scope of Commonwealth legislative power with respect to elections
The first issue in the appeal is whether the challenged provisions are authorised by any head of power granted to the Parliament of the Commonwealth. Section 7 of the Constitution declares that "[t]he Senate shall be composed of senators for each State, directly chosen by the people of the State". Section 24 of the Constitution declares that "[t]he House of Representatives shall be composed of members directly chosen by the people of the Commonwealth". These two sections are fundamental in ensuring that the parliamentary system for the Parliament of the Commonwealth is a system of representative government. Sections 9, 10, 31, 34 and 51(xxxvi) of the Constitution facilitate the carrying out of these requirements of representative government by conferring legislative power on the Federal Parliament with respect to elections for the Senate and the House of Representatives. However, although these grants of legislative power with respect to elections have been described as plenary[42] and as purposive[43] in nature, they are subject to certain express and implied constitutional limitations.
[42]Langer v The Commonwealth (1996) 186 CLR 302 at 317 per Brennan CJ, citing Smith v Oldham (1912) 15 CLR 355 at 363 per Isaacs J.
[43]Langer (1996) 186 CLR 302 at 324-325 per Dawson J.

The express limitations include, for example, that the method of choosing senators must be uniform for all the States (s 9) and that the electoral system must be such that both senators and members of the House of Representatives are "directly chosen by the people" (ss 7 and 24). The implied limitation is that the electoral system must satisfy the requirements of the constitutionally prescribed system of representative government[44]. A corollary of this requirement is that elections must result in a direct, free, informed and genuine choice by the people[45]. Another corollary of the requirement is that legislation must not infringe the implied constitutional freedom of political communication between the people[46].
[44]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567.
[45]Muldowney v South Australia (1996) 186 CLR 352 at 370-371 per Dawson J.
[46]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Lange (1997) 189 CLR 520 at 560.
However, the Constitution prescribes only the irreducible minimum requirements for representative government, including the requirement that senators and members of the House of Representatives be "directly chosen by the people". The Constitution does not prescribe equality of individual voting power[47]. Nor does it protect the secret ballot[48]. In Attorney-General (Cth); Ex rel McKinlay v The Commonwealth, the Court recognised that the concept of representative government is inherent in the structure of the Constitution, but noted that "the particular quality and character of the content" of representative government was "not fixed and precise"[49]. Stephen J observed that the concept of representative government is "descriptive of a whole spectrum of political institutions"[50]. His Honour said that the Constitution permits "scope for variety" in the details of the electoral system[51].
[47]McGinty v Western Australia (1996) 186 CLR 140 at 244 per McHugh J.
[48]McGinty (1996) 186 CLR 140 at 244 per McHugh J, 283 per Gummow J.
[49](1975) 135 CLR 1 at 56 per Stephen J.
[50]McKinlay (1975) 135 CLR 1 at 57.
[51]McKinlay (1975) 135 CLR 1 at 56.
Hence, the Constitution does not mandate any particular electoral system, and, beyond the limited constitutional requirements outlined above, the form of representative government, including the matter of electoral systems, is left to the Parliament[52]. This includes "the type of electoral system, the adoption and size of electoral divisions, and the franchise"[53]. As a result, the Parliament may establish an electoral system that includes compulsory voting[54]. It may specify a particular voting method – for example, preferential or proportional voting[55] or first past the post voting[56]. It may provide for the election of an unopposed candidate and the election of a candidate on final preferences and may limit voters' ability to cast a formal vote and to vote against a candidate[57].
[52]McGinty (1996) 186 CLR 140 at 183-184 per Dawson J.
[53]McGinty (1996) 186 CLR 140 at 183 per Dawson J. In relation to the issue of universal suffrage, see at 244 per McHugh J, 283 per Gummow J.
[54]Judd v McKeon (1926) 38 CLR 380; see McGinty (1996) 186 CLR 140 at 283 per Gummow J.
[55]McGinty (1996) 186 CLR 140 at 244 per McHugh J, 283 per Gummow J.
[56]McGinty (1996) 186 CLR 140 at 244 per McHugh J.
[57]Langer (1996) 186 CLR 302 at 333 per Toohey and Gaudron JJ.
In McGinty v Western Australia, Gummow J found "considerable force" in the following passage from Australia's Commonwealth Parliament 1901‑1988[58]:
"As numerous and as positive in expression as many of these [constitutional] provisions are, they constituted only the bare foundations of the electoral law for the representative Parliament of a new nation. The Constitution, for example, left unspecified, or open to change, a whole range of matters including: the method of voting to elect the members of the respective houses; the question of whether members of the House of Representatives would be elected by single-member or multi-member divisions; the length of time each State would continue to vote as one electorate in electing the Senate; who would be authorised to vote; the question of voluntary or compulsory registration of voters and of voting itself; the control of electoral rolls; the conduct of the ballot; the style of ballot papers; the use of postal votes; limitations on the electoral expenses of candidates; the financial deposits to be made by candidates and the conditions of their forfeiture; the role of political parties at elections; the question of financial support for political parties from public funds; the location of responsibility for the administration of the electoral law; and the extent of the delegation of authority in electoral decision-making."
[58](1996) 186 CLR 140 at 283-284, citing Reid and Forrest, Australia's Commonwealth Parliament 1901-1988, (1989) at 86-87.
The provisions of the Act that prescribe the "500 rule" and the "no-overlap rule" and confer power on the Commission to administer those rules are laws "with respect to" elections. A law of the Parliament is made "with respect to" the subject matter of a power when it relates to or affects that subject matter and the connection is not "so insubstantial, tenuous or distant" that it cannot properly be described as a law with respect to that subject matter[59]. A law that regulates the method of voting in a federal election is a law with respect to elections[60], as is a law which protects the electoral or voting system that the Parliament selects[61]. So too is a law that assists in the maintenance of the voting system and protects a particular method of voting[62]. Thus, a law which proscribes conduct that interferes with the electoral system that Parliament has chosen is a law with respect to elections[63]. In Levy v Victoria[64], Dawson J said: "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."
[59]Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 369 per McHugh J, citing Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 79 per Dixon J.
[60]McGinty (1996) 186 CLR 140 at 244 per McHugh J; Langer (1996) 186 CLR 302 at 333 per Toohey and Gaudron JJ.
[61]Langer (1996) 186 CLR 302 at 349 per Gummow J.
[62]Langer (1996) 186 CLR 302 at 318 per Brennan CJ.
[63]Langer (1996) 186 CLR 302 at 339 per McHugh J.
[64](1997) 189 CLR 579 at 608.
The provisions of the Act that prescribe the "500 rule" and the "no-overlap rule" and confer power on the Commission to administer those rules are machinery provisions the object of which is the protection of the electoral process. Neither the Explanatory Memorandum for the Commonwealth Electoral Legislation Amendment Bill 1983 (Cth), which introduced the "500 rule", nor the second reading speeches provide any reasons for the inclusion of the "500 rule". However, other extrinsic materials indicate the object of these provisions. They suggest that Parliament introduced the "500 rule" to support three amendments to the Act recommended by the Joint Select Committee on Electoral Reform in 1983. They were: the introduction of public funding of political parties for election campaigns, the printing of the party affiliation of candidates on ballot-papers and the adoption of the list system for Senate elections[65]. The Committee said that a system of registration of political parties was "necessary" in order to implement the Committee's recommendations with respect to the list system[66]. The Committee report stated[67]:
"[I]n 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 a party is lodged with the Chief Australian Electoral Officer on the grounds of membership claimed should the number of members of such a party be checked)."
[65]Australia, Joint Select Committee on Electoral Reform, First Report, (1983) at 182. The list system establishes a system of "above the line" voting for certain eligible groups of candidates. Under the list system, a horizontal line is drawn across the ballot‑paper. Eligible groups of candidates are placed above the line but described under the group name. Incumbent senators may also avail themselves of this procedure. Voters have the option of recording preferences in the normal way for all candidates who are listed below the line. Alternatively, voters can vote above the line for a particular group. If the voter votes above the line, the vote is treated as voting in the preference order lodged by the particular group or incumbent senator with the Commission.
[66]Australia, Joint Select Committee on Electoral Reform, First Report, (1983) at 182.
[67]Australia, Joint Select Committee on Electoral Reform, First Report, (1983) at 183.
The "no-overlap" provisions were inserted into the Act by the 2000 Act. The Senate Revised Explanatory Memorandum to the Commonwealth Electoral Amendment Bill (No 1) 2000 (Cth) stated that the amendments relating to political party registration[68]:
"address Government, and broader public, concerns that the political party registration provisions of the [Act] could be open to exploitation where members of parliament use their parliamentary membership to register political parties for federal election purposes, even where these parties do not have a membership base."
[68]Commonwealth Electoral Amendment Bill 2000 (Cth): Senate Revised Explanatory Memorandum at 2.
The Full Court in the present case correctly identified the system of registration of political parties under the Act as having the legitimate end of the regulation of elections[69]. The Full Court said that the requirement of registration in the Act ensures that party endorsement is limited to organisations with the features of a political party – that is, a minimum number of supporters, a leader, officers, an agent and an office[70]. The Court found that the "500 rule" provisions address valid concerns such as the extent of public support enjoyed by a party and have the legitimate objective of minimising voter confusion[71]. The Court identified the "no-overlap" provisions as having the legitimate end of preventing groups of people registering as numerous political parties with "party names that might be attractive to the electorate" in order to channel preference votes to other parties[72].
[69]Mulholland (2003) 128 FCR 523 at 533-534.
[70]Mulholland (2003) 128 FCR 523 at 533, citing Figueroa v Canada (Attorney General) (2000) 189 DLR (4th) 577 at 615.
[71]Mulholland (2003) 128 FCR 523 at 535-536.
[72]Mulholland (2003) 128 FCR 523 at 536.
The Parliament could reasonably take the view that some – maybe many – voters expect that parties identified on the ballot‑paper are real political parties with some degree of public support, a genuine organisational structure and a leader. On that assumption, voters could be misled by a party that is a "front" party or a "decoy" party – that is, a party established only for the purpose of capturing preferences and channelling them to other candidates – or a party that has a very low level of public support. The "500 rule" therefore protects the electoral process by requiring that, before a party name can be placed on the ballot-paper, its sponsors demonstrate a minimum verifiable level of public support. As a result, the "500 rule" minimises voter confusion and prevents voters from being misled by parties with no Parliamentary representation and no substantial membership. Similarly, the object of the "no-overlap rule" is to prevent voters from being misled. It seeks to prevent Parliamentary parties or groups of 500 people from registering multiple parties, each with a "single issue" party name, calculated to catch the eye of voters and to channel preferences to another party (whose policies may be entirely unrelated to the name of the "single issue" party).
Without the challenged provisions, the electoral system is open to manipulation in the manner outlined above, particularly in the context of the Senate list system. The challenged provisions are therefore laws "with respect to" elections for the Senate and the House of Representatives because they have the legitimate objectives of preventing voter confusion or deception and assisting voters to make informed choices as to the person or party for whom they wish to vote[73]. As Doherty JA, giving the judgment of the Ontario Court of Appeal, pointed out in Figueroa v Canada (Attorney General)[74], voter confusion can arise if:
"a ballot indicated a candidate was affiliated with a political party that was in fact not a political party in any real sense of the word. Political parties are understood to be organizations with members, a leader and a platform. Reference to a political affiliation on the ballot which is in reality no more than a name selected by an individual candidate is potentially misleading. The ballot is among the most cherished symbols of our democracy. It should not be a forum in which individual candidates, under the guise of listing party affiliation, are allowed to place information on the ballot that could hold the electoral process up to ridicule or advance some purely personal agenda. By limiting identification of party affiliation on the ballot to registered political parties, the [Canada Elections Act, RSC 1985, c E-2] ensures that party affiliations listed on the ballot will be limited to those organizations that have the indicia normally associated with a political party (eg, a minimum number of supporters, a leader, officers, an agent and an office), and are prepared to submit to the significant regulatory and reporting conditions established under the scheme."
[73]See also Figueroa (2000) 189 DLR (4th) 577 at 615.
[74](2000) 189 DLR (4th) 577 at 615.
Free choice
The Parliament's power with respect to elections is limited by the requirement implicit in ss 7 and 24 of the Constitution that:
"whatever system is employed it must result in a direct choice by the people. That must mean direct choice by the people through those eligible to vote at elections"[75].
[75]McGinty (1996) 186 CLR 140 at 184 per Dawson J.
Representatives must be elected in free elections[76]. While Parliament has power to select particular methods of voting and to enact laws to protect those methods of voting, such methods are valid only if they allow a "free choice"[77] among the candidates for election and an "informed choice"[78]. A choice is not an informed choice "if it is made in ignorance of a means of making the choice which is available and which a voter, if he or she knows of it, may wish to use in order to achieve a particular result."[79] The choice "must be a true choice … a choice made with access to the available alternatives."[80] Those alternatives include not only knowledge of a means of making a choice that is available and that the voter may wish to use in order to achieve a particular result but also information about the candidates among whom voters are required to choose. As Deane and Toohey JJ pointed out in Nationwide News Pty Ltd v Wills[81]:
"The ability to cast a fully informed vote in an election of members of the Parliament depends upon the ability to acquire information about the background, qualifications and policies of the candidates for election and about the countless number of other circumstances and considerations, both factual and theoretical, which are relevant to a consideration of what is in the interests of the nation as a whole or of particular localities, communities or individuals within it."
[76]ACTV (1992) 177 CLR 106 at 230-232 per McHugh J.
[77]Langer (1996) 186 CLR 302 at 317 per Brennan CJ.
[78]Langer (1996) 186 CLR 302 at 325 per Dawson J.
[79]Langer (1996) 186 CLR 302 at 325 per Dawson J.
[80]Muldowney (1996) 186 CLR 352 at 370 per Dawson J.
[81](1992) 177 CLR 1 at 72.
Party endorsement on a ballot-paper is an important piece of information that many voters use when making a choice between candidates on their ballots. It is one of the "countless number of other circumstances and considerations" upon which the ability to cast a fully informed vote depends. Because this is so, Mr Mulholland contends that the provisions that prescribe the "500 rule" and the "no-overlap rule" do not permit a "free and informed choice"[82] or a "true choice"[83] or a "fully informed" choice[84] as required by ss 7 and 24. He contends that the restrictions deny voters important information by precluding the inclusion of the party name on the ballot-paper next to the name of a candidate endorsed by an unregistered party, that is, a political party which does not meet the "500 rule" and the "no-overlap rule" registration requirements. Consequently, the result of this denial of important information is that the choice made by voters ceases to be a "true choice", that is, a choice made with all the relevant information required for a meaningful exercise of the franchise in an informed manner. Moreover, because the Act provides for the ballot‑paper to show the party endorsement of registered parties and prevents candidates of parties that do not meet the "500 rule" and the "no‑overlap rule" from doing the same, Mr Mulholland contends that the Act permits voters to be misled.
[82]Lange (1997) 189 CLR 520 at 560.
[83]Muldowney (1996) 186 CLR 352 at 370 per Dawson J.
[84]Nationwide News (1992) 177 CLR 1 at 72 per Deane and Toohey JJ.
The comment of Gummow J in Langer v The Commonwealth[85] that "the ballot, being a means of protecting the franchise, should not be made an instrument to defeat it" supports Mr Mulholland's contention. So too does the reasoning of the Canadian courts in Figueroa[86]. When Figueroa was before the Ontario Court of Appeal, Doherty JA said that the identification of party affiliation on the ballot lies at the very core of the information needed to permit electors to vote rationally and in an informed manner[87]. His Lordship noted the findings of the trial judge in that case that in practice political parties play an important role in the Canadian electoral system and that some voters base their choice chiefly on party affiliation. In emphasising the significance of the inclusion of party endorsement on the ballot-paper, the trial judge in Figueroa had said: "[The ballot-paper] is the last piece of information which a voter receives before casting his or her vote, and indeed may be the only information which the voter receives about a particular candidate." Doherty JA also held that voters may be uninformed or perhaps even misled into thinking that a candidate is not endorsed by any party if the candidate is endorsed by a party that does not meet the registration requirements.
[85](1996) 186 CLR 302 at 347.
[86](2000) 189 DLR (4th) 577; Figueroa v Canada (Attorney General) [2003] 1 SCR 912.
[87](2000) 189 DLR (4th) 577 at 613.
When Figueroa reached the Supreme Court of Canada, McLachlin CJ, Iacobucci, Major, Bastarache, Binnie and Arbour JJ said, in a judgment delivered by Iacobucci J[88]:
"Owing to the prominence of political parties in our system of representative democracy, affiliation with an officially recognized party is highly advantageous to individual candidates. In the minds of some voters, the absence of a party identifier might make candidates ... a less attractive option. It might create the impression that the candidate is not, in fact, affiliated with a political party, or that the political party with which she or he is affiliated is not a legitimate political party. In each instance, the restriction on the right of candidates to list their party affiliation interferes with the capacity of non-registered parties to compete in the electoral process.
For similar reasons, the restriction on the right of candidates to include their party affiliation on the ballot paper also undermines the right of each citizen to make an informed choice from among the various candidates. In order to make such a choice, it is best that a voter have access to roughly the same quality and quantity of information in respect of each candidate. In our system of democracy, the political platform of an individual candidate is closely aligned with the political platform of the party with which she or he is affiliated, and thus the listing of party affiliation has a significant informational component. Thus, legislation that allows some candidates to list their party affiliation yet prevents others from doing the same is inconsistent with the right of each citizen to exercise his or her right to vote in a manner that accurately reflects his or her actual preferences."
[88][2003] 1 SCR 912 at 947-948.

That argument fails. It cannot be said that elections conducted under the 500 rule and the no-overlap rule do not result in legislators being "directly chosen by the people". The "choice" must involve "an opportunity to gain an appreciation of the available alternatives"[422]. Regulation of the electoral process is necessary for its effective operation[423]. Sections 7 and 24 forbid the interposition of an electoral college between the electors and those they elect[424], but otherwise permit the legislature a wide range of choice as to how to ensure that the elected are directly chosen by the electors[425]. The 500 rule and the no-overlap rule do not prevent communication of party endorsement of candidates in any respect save one, and hence do not prevent steps being taken to ensure that electors realise that a candidate might be affiliated with a party not noted on the ballot. The goals of the legislation establishing these rules, so far as they seek to prevent electors from being misled, are substantially achieved. Hence, far from being injurious to informed choice, the 500 rule and the no-overlap rule foster it.
[422]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560, citing Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 187 per Dawson J.
[423]Levy v Victoria (1997) 189 CLR 579 at 607-608 per Dawson J.
[424]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 227 per McHugh J.
[425]Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 46 per Gibbs J.
Figueroa v Canada (Attorney General) does not assist the appellant. While in Canada a political party seeking registered party status has to have 100 members, that requirement was not in issue in that case[426]. The main question in the case concerned the requirement that a political party must nominate candidates in at least 50 electoral districts in an election before it can be eligible for registered party status, and thereby obtain the right for its candidates to have their party affiliation listed on the ballot paper, together with financial advantages[427].
[426]Figueroa v Canada (Attorney General) [2003] 1 SCR 912 at 923 per Iacobucci J.
[427]Figueroa v Canada (Attorney General) [2003] 1 SCR 912 at 929 per Iacobucci J.
The Supreme Court of Canada concluded that the 50-candidate threshold contravened s 3 of the Canadian Charter of Rights and Freedoms, and could not be justified under s 1[428].
[428]Sections 1 and 3 provide:
"1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
…
3 Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein."
However, the case has no bearing on the present appeal, because the matter in issue in this appeal was not an issue in that case (and vice versa); the criteria against which validity of electoral laws must be tested in Canada are wholly different from the criteria here; and nothing was said in that case that affords any assistance here.
The appellant's second argument: unreasonable discrimination
The appellant submitted that the 500 rule and the no-overlap rule unreasonably discriminated between candidates and thereby contradicted the requirement that legislators be "directly chosen by the people", because they did not implement direct choice. He submitted that the 500 rule discriminated in favour of parties with larger membership bases to the disadvantage of smaller parties, discriminated in favour of incumbent parliamentarians to the disadvantage of other candidates, and discriminated in favour of parties associated with incumbent parliamentarians to the disadvantage of parties without incumbent parliamentarians. He said that while reasonable discrimination would not "contaminate or undermine the choice to be made by electors", it is not reasonable that a candidate from a party with 20, 50 or 100 members cannot display party affiliation on the ballot paper, while a candidate from a party with more than 500 can, or that a parliamentarian can automatically display party affiliation (whatever the size of the relevant party), whereas other candidates who wish to do so must belong to parties with more than 500 members.
The authorities on which the appellant relied can be dealt with at the outset. The appellant referred to a statement by McHugh J that the Commonwealth Parliament could not legislate "so as to prevent members of lawful political parties from being elected to Parliament"[429]. But the legislation postulated in that example goes beyond discrimination; the legislation challenged in this case is of a totally different character. The appellant also relied on statements by Mason CJ criticising as discriminatory a legislative system which favoured established political parties in allocating free broadcasting time during elections[430]. But those comments were made in relation to the implied constitutional freedom of political communication, not in relation to the express terms of ss 7 and 24, or the "necessary implications from the text of sections 7 and 24", on which the appellant's discrimination argument appears to rest.
[429]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 227-228.
[430]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 131-132, 146.
That argument wavered between the contention that ss 7 and 24 in their terms forbid discrimination, and the contention that there is a constitutional implication forbidding it. The 500 rule and the no-overlap rule do not contravene the terms of ss 7 and 24, because they do not prevent legislators being directly chosen by the people. In McKenzie v Commonwealth of Australia[431], this Court upheld as not contravening s 7 provisions of the Act that allowed the name of "a registered political party" to be published next to the names of candidates on Senate ballot papers. Only an eligible political party could be registered, meaning a party which had at least one sitting member in a Commonwealth, State or Territory legislature, or a party with at least 500 members: ss 123 and 124. The legislation also allowed electors to vote in Senate elections either by marking boxes against the names of individual candidates set out below a line or by marking one of a number of boxes organised according to group voting tickets above the line: ss 168 and 211. Gibbs CJ said that the legislation was not inconsistent with the existence of representative democracy: any disadvantage caused to unaffiliated candidates did not so offend democratic principles as to render the legislation in breach of s 7[432]. The provisions challenged in this case are not in a different category.
[431](1984) 59 ALJR 190; 57 ALR 747.
[432]McKenzie v Commonwealth of Australia (1984) 59 ALJR 190 at 191; 57 ALR 747 at 749. See also Abbotto v Australian Electoral Commission (1997) 71 ALJR 675 at 678 per Dawson J; 144 ALR 352 at 356.
Even if there is a "necessary implication from the text of sections 7 and 24" forbidding unreasonable discrimination, it is not infringed here. In the context of s 92 of the Constitution, discrimination has been said to lie in the unequal treatment of equals and in the equal treatment of unequals[433]. Here, there is no equality between parties that have some real level of community support and parties that do not, and the requirement of a minimum of 500 members is not an irrational way of distinguishing between those two classes. In the context of s 117 of the Constitution, discrimination has been said to signify the process by which different treatment is accorded to persons or things "by reference to considerations which are irrelevant to the object to be attained", and the question therefore is whether the different treatment is reasonably capable of being seen as appropriate and adapted to a relevant difference[434]. Here, the difference exists in order to fulfil the objective of the 500 rule by informing voters about whether a particular candidate is endorsed by a "party" commanding some community support, and in order to fulfil the objective of the no-overlap rule by preventing "front" parties which might otherwise mislead voters. The 500 rule and the no-overlap rule assist an informed choice by electors. The difference in treatment that they effect is rationally based and is not unreasonable.
[433]Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 480 per Gaudron and McHugh JJ.
[434]Street v Queensland Bar Association (1989) 168 CLR 461 at 570-572 per Gaudron J.
The appellant's third argument: implied freedom of political communication
The appellant contended that the 500 rule and the no-overlap rule contravened the implied freedom of political communication, because those rules prevented electors from being able to ascertain which candidates appearing on the ballot paper belonged to which parties. He submitted that the inclusion on the ballot paper of a candidate's party affiliation was a communication "between the people". He pointed out that the ballot paper is an official form of communication printed and published by the Australian Electoral Commission; that it communicates whether or not a candidate is endorsed by a particular party; that it is the final form of political communication to a voter in that it is taken to a polling booth, read, marked and deposited in the ballot box; and that "how to vote" cards from minor parties may not be available at all polling booths. He submitted that the legislation burdened the freedom of political communication by preventing some party affiliations from being revealed, and that the two rules were not reasonably appropriate and adapted to a legitimate or lawful objective.
These submissions fail.
First, there is no interference with any implied freedom of political communication in these circumstances because it is necessary that there be some relevant "right or privilege … under the general law"[435] to be interfered with. In the absence of legislation permitting it, there is no right in any political party or candidate to have party affiliation indicated on the ballot paper. Indeed, the appellant conceded that a legislative prohibition on the appearance of any party affiliation on the ballot paper would not contravene the implied freedom. It follows that to legislate for a mixture of permissions and prohibitions, so as to permit the party affiliations of some candidates but not others to appear on the ballot paper, cannot interfere with the implied freedom[436]. The Full Federal Court saw the challenged statutory provisions as conferring "a limited privilege on registered political parties in relation to their communication with the voters", which was "a burden on all those seeking election that do not enjoy it"[437]. It would be paradoxical, however, if a complete prohibition was incontestably valid while a partial prohibition was not. It would also be paradoxical if an implied freedom created a right in individuals to have their party affiliation identified in the ballot paper, and created a correlative obligation on the Commission to include it there. Indeed, it would be contrary to principle, for "the freedom of communication implied in the Constitution is not an obligation to publicise … [I]t is not a right to require others to provide a means of communication."[438] The
[435]Levy v Victoria (1997) 189 CLR 579 at 622 per McHugh J; see also at 625-626 per McHugh J.
[436]As Marshall J held at first instance: Mulholland v Australian Electoral Commission (2002) 193 ALR 710 at 724-725 [58]-[60].
[437]Mulholland v Australian Electoral Commission (2003) 128 FCR 523 at 532 [22] per Black CJ, Weinberg and Selway JJ.
[438]McClure v Australian Electoral Commission (1999) 73 ALJR 1086 at 1090 [28] per Hayne J; 163 ALR 734 at 740-741 (emphasis in original). See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560.
[439]Mulholland v Australian Electoral Commission (2003) 128 FCR 523 at 531 [20], referring to Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 146 per Mason CJ, 172 per Deane and Toohey JJ, 236-237 per McHugh J.
[440](1997) 189 CLR 520.
Full Federal Court relied on passages[439] that predate Lange v Australian Broadcasting Corporation[440], were enunciated in a case in which a prior freedom to communicate by radio and television broadcasts was found to exist at common law, and were directed to the inadequacy of the regime which was introduced in substitution for that prior freedom.
Secondly, what appears on the ballot paper is not political communication in the sense used in Lange v Australian Broadcasting Corporation[441], namely communications between the electors and the elected representatives, the electors and the candidates, and the electors themselves – that is, between the people. What is on the ballot paper is a communication only between the executive government and the electors[442]. The ballot paper is the medium by which a vote is cast. It is integral to the election machinery. It is not part of the process of communicating information with a view to influencing electors to vote for one candidate or another. "It is for the electors and the candidates to choose which forms of otherwise lawful communication they prefer to use to disseminate political information, ideas and argument. Their choices are a matter of private, not public, interest. Their choices are outside the zone of governmental control."[443] But the conduct of the election itself is a matter of public interest and is within the zone of governmental control. That is particularly true of the form of the ballot paper.
[441](1997) 189 CLR 520 at 560.
[442]The Full Federal Court relied on statements of Mason CJ in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 139, which were not directed to the present problem and which predated the refinement of the relevant principles in Lange's case: Mulholland v Australian Electoral Commission (2003) 128 FCR 523 at 531 [21].
[443]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 236 per McHugh J.
Thirdly, the 500 rule and the no-overlap rule do not create a burden on the implied freedom of political communication in that there is no restraint on any activity which candidates or parties may engage in apart from the legislative system of registration. All opportunities for communication that existed before the impugned provisions were enacted continue to exist.
Fourthly, even if there were a relevant right to communicate party affiliation, even if the ballot paper is a form of exercising it, and even if there were a burden on the implied freedom of political communication, the requirements of the legislation are reasonably appropriate and adapted to serve legitimate ends, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government[444].
[444]The appellant advanced many detailed arguments about the meaning and application of the test stated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 in the context of electoral laws. The respondent and the Attorney-General of the Commonwealth contended that the relevant test was whether Parliament's choice of means was "reasonably capable of being seen as" appropriate and adapted to the achievement of the relevant purpose. It is not necessary to deal with either of these sets of arguments since, on any available construction of the test, and on any available way of applying it, the appellant must fail.
Legitimate ends. The ends are those described at [341] above. The appellant did not present sustained argument in support of the contention that these ends were not legitimate.
Compatibility of ends with constitutionally prescribed system of government. It is plain that the objects of the legislation are compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
Reasonably appropriate and adapted? Much of the appellant's argument analysed the structure and history of the legislation to support numerous detailed criticisms of its merits and numerous suggestions as to how the ends of the legislation could have been more effectively achieved by other means. However, the question is not whether the impugned provisions have established the most desirable or least burdensome regime to carry out the legitimate ends[445]. The question is only whether the legislation is reasonably appropriate and adapted to the achievement of the legislative purpose, and weight is to be given to the legislative judgment[446].
[445]Coleman v Power [2004] HCA 39 at [328].
[446]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 144 per Mason CJ.
The appellant's argument depended to some extent on an analogy with Australian Capital Television Pty Ltd v The Commonwealth[447]. There is no analogy between the legislation struck down in that case and the legislation challenged in this case. The legislation in that case was characterised as constituting a prohibition on a traditional category of political communications being conducted through ordinarily available media. It thus burdened an ordinary mode of communication in such a way as seriously to impede discussion about elections. This is quite distinct from the enactment of a statutory scheme regulating the content of the official ballot paper, at issue in this case.
[447](1992) 177 CLR 106.
The impugned legislation provides a system of funding to groups of politicians attracting sufficient community support to be capable of description and registration as "parties". The scheme of the legislation – to define "party" as a group having an elected legislator or 500 members; to prevent the misleading of voters by the channelling of preferences attaching to votes for "single issue" parties to other parties; and to prevent voters being otherwise misled – is a reasonable technique for achieving its goals. While many numbers other than 500 could have been selected, it provides a reasonable guide to an appropriate level of community support. And the other legislative technique, treating as a party one which counts among its members a member of the legislature, is not arbitrary since to be a member is usually to have received a significant measure of community support, namely enough votes to be elected. The no-overlap rule is a means of ensuring the effective operation of the 500 rule by preventing its evasion. The requirement of the two rules that members acknowledge their membership, at least to the Commission, also prevents evasion of the 500 rule.
The appellant's reference to derogation from grant
The appellant referred to an argument that ss 7 and 24 of the Constitution contained a "grant" to the people of "direct choice", and that the impugned legislation derogated from that grant. This was raised as a possibility rather than put as an argument, and in view of the appellant's statement that it was not necessary for his case, it need not be dealt with.
The appellant's reliance on constitutional rights of privacy and association
I agree with Gummow and Hayne JJ on these subjects.
Order
The appeal should be dismissed with costs.