HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJJOHN RUDDICK PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA DEFENDANT
Ruddick v Commonwealth of Australia
[2022] HCA 9
Date of Hearing: 15 February 2022
Date of Order: 9 March 2022
Date of Publication of Reasons: 25 March 2022S151/2021
ORDER
The questions of law stated for the opinion of the Full Court in the Special Case filed on 3 December 2021 be answered as follows:
1.Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they infringe the implied freedom of political communication?
Answer:
In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.
2.Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they preclude the direct choice by the people of Senators and Members of the House of Representatives, contrary to ss 7 and 24 of the Constitution?
Answer:
In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.
3.In light of the answers to Questions 1 and 2, what relief, if any, should issue?
Answer:
None.
4.Who should pay the costs of and incidental to this special case?
Answer:
The plaintiff.
Representation
B W Walker SC with R Scheelings for the plaintiff (instructed by Speed and Stracey Lawyers Pty Limited)
S P Donaghue QC, Solicitor-General of the Commonwealth, with B K Lim and C Ernst for the defendant (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales, with M W R Adams for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))
J A Thomson SC, Solicitor-General for the State of Western Australia, with G M Mullins for the Attorney-General for the State of Western Australia, intervening (instructed by Solicitor-General's Office (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Ruddick v Commonwealth of Australia
Constitutional Law (Cth) – Parliament – Elections – Senate and House of Representatives – Senators and members of House of Representatives to be "directly chosen by the people" – Where amendments to Commonwealth Electoral Act 1918 (Cth) ("2021 Amendments") constrained political party applying for registration from using name, abbreviation or logo which had word in common with name or abbreviation of prior registered party without that party's consent – Where 2021 Amendments provided that existing party could not remain registered if earlier registered party objected to existing party's name or logo and…
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- AGLC
- Ruddick v Commonwealth of Australia [2022] HCA 9
- Case
- [2022] HCA 9
- Decision Date
CaseChat Overview and Summary
The court was required to determine two primary legal issues. Firstly, whether the impugned amendments infringed the implied freedom of political communication guaranteed by the Australian Constitution. Secondly, whether these amendments precluded the "direct choice by the people" of Senators and Members of the House of Representatives, as mandated by sections 7 and 24 of the Constitution.
The court reasoned that while the amendments might be considered heavy-handed and could be seen as conferring monopolies on major parties, they did not, on balance, offend the essential democratic values or systems required for invalidation. The court noted that it traditionally defers to the legislature in regulating federal elections, and that the concept of representative democracy allows for a range of possibilities. The amendments were found to enhance the quality of a free and informed election by reducing voter confusion, particularly in relation to ballot papers. Consequently, the court answered that items 11 and 14 of Schedule 1 to the amending Act were not invalid on either ground, and it was otherwise unnecessary to answer the questions. No relief was granted, and the plaintiff was ordered to pay the costs of the special case.
Orders
Orders of the court
The questions of law stated for the opinion of the Full Court in the Special Case filed on 3 December 2021 be answered as follows:
1. Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they infringe the implied freedom of political communication?
Answer:
In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.
2. Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they preclude the direct choice by the people of Senators and Members of the House of Representatives, contrary to ss 7 and 24 of the Constitution?
Answer:
In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.
3. In light of the answers to Questions 1 and 2, what relief, if any, should issue?
Answer:
None.
4. Who should pay the costs of and incidental to this special case?
Answer:
The plaintiff.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, KEANE J, GAGELER J, STEWARD J, GAGELER J, STEWARD J
The best place to start to explain the pathway to that result is to note particular aspects of the pre-existing and continuing provisions of Pt XI of the Act governing the registration of political parties. The genesis and detail of the impugned Items can then be examined. Why the core operation of ss 7 and 24 of the Constitution must require the same justification as the implied freedom of political communication for a law which impedes receipt by electors of information bearing on making an informed electoral choice can then be addressed before finally explaining how those limitations are engaged and infringed by the impugned Items.The registration of political parties Political parties, being organisations the objects or activities of which are or include the promotion of the election to the Senate or to the House of Representatives of candidates endorsed by them[30], have been a constant feature of national politics since federation. Provision for the registration of political parties was introduced by the insertion of Pt XI into the Act in 1984[31]. The insertion was as an incident of a package of reforms which first allowed for the printing of the names and abbreviations of political parties on ballot papers as well as for the printing of ballot papers for elections to the Senate to include a horizontal line allowing electors the option of "above the line" voting for candidates or groups of candidates and "below the line" voting for individual candidates[32].[30]See s 4(1) of the Act (definition of "political party").[31]Upon the commencement of the Commonwealth Electoral Legislation Amendment Act 1983 (Cth).[32]See now ss 209 and 214 of the Act and Forms E and F in Sch 1 to the Act. The purpose of then allowing for the printing of the names and abbreviations of political parties on ballot papers was spelt out in a report of the Joint Select Committee on Electoral Reform in 1983 as being to "assist voters in casting their vote in accordance with their intentions"[33].[33]Australia, Parliament, Joint Select Committee on Electoral Reform, First Report (September 1983) at 69 [3.43]. Political parties at that time represented in the Senate and in the House of Representatives soon afterwards applied for and obtained registration. Those political parties included the Australian Labor Party (ALP), the Democratic Labour Party and the Liberal Party. The Liberal Party had been formed in 1945 by the then Leader of the Opposition, Robert Menzies. He deliberately borrowed the name of the party earlier formed by Prime Minister Alfred Deakin in 1909. The Australian Labor Party (originally named the "Australian Labour Party") had been formed in 1900, tracing its roots to colonial labour parties which had contested seats in colonial elections as early as 1891. The Democratic Labour Party (originally named the "Australian Labour Party (Anti-Communist)") had notoriously "split" from the Australian Labor Party in 1955[34].[34]See Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 249-250 [195], 270 [260].