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High Court of Australia Transcripts |
Last Updated: 11 February 2004
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Melbourne No M272 of 2003
B e t w e e n -
JOHN VINCENT MULHOLLAND
Appellant
and
AUSTRALIAN ELECTORAL COMMISSION
Respondent
GLEESON CJ
McHUGH J
GUMMOW
J
KIRBY J
HAYNE J
CALLINAN J
HEYDON
J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 11 FEBRUARY 2004, AT 12.09 PM
Copyright in the High
Court of Australia
MR J.B.R. BEACH, QC: If the Court pleases, I appear for the appellant with MR B.F. QUINN and MR R.J. HARRIS. (instructed by Ebsworth & Ebsworth)
MR P.J. HANKS, QC: If the Court pleases, I appear with my learned friend, MR P.R.D. GRAY, for the respondent. (instructed by Australian Government Solicitor)
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MR B.D. O’DONNELL, for the Attorney-General of the Commonwealth intervening. It has been agreed that as between us and the respondent we should proceed first. (instructed by Australian Government Solicitor)
MR R.J. MEADOWS, QC Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR R.M. MITCHELL, on behalf of the Attorney-General for Western Australia, intervening in support of the respondent. (instructed by Crown Solicitor for the State of Western Australia)
MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the Attorney-General for New South Wales, who intervenes in the proceedings. (instructed by Crown Solicitor for the State of New South Wales)
MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR C. JACOBI, for the Attorneys-General of South Australia and Victoria. (instructed by Crown Solicitor for the State of South Australia)
GLEESON CJ: Yes, Mr Beach.
MR BEACH: If the Court pleases, I propose to address six topics. First, an identification and analysis of the relevant statutory provisions in the Electoral Act. Second, I then want to identify and analyse to some extent the extrinsic material which underlines both the “500 rule” and the “no overlap rule”. Third, I then want to address the question of power. Fourth, the question of Lange and, in particular, the second limb of Lange, the “reasonably appropriate and adapted” test. Fifth, discrimination, and, sixth, the issues of privacy and the freedom of association that the appellant asserts exist.
GUMMOW J: Where do the notice of contention issues on page 5 of your reply fit into that? That is to say, communication through the ballot paper.
MR BEACH: I was proposing, your Honour, to address - - -
GUMMOW J: That is to say communications through the ballot paper.
MR BEACH: Yes. I was proposing, your Honour, to address in the context of Lange, although I am going to emphasise the second limb, I would propose in that context to identify and analyse the question of the communication; whether it is between the people and whether or not there is a burden on communication which seems of any of the issues of the notice of contention to be the live issue. In terms of the statutory framework, the Court will appreciate the relevant registration provisions are set out in Part XI - - -
GUMMOW J: Is Reprint No 9 the right - - -
MR BEACH: That is so,
your Honour, yes. I understand that that is the latest of the reprints.
The position is that eligible political parties,
as defined in
section 123(1) are eligible to be registered, and we take issue with the
second limb of that definition, that is:
eligible political party means a political party that:
(a) either . . .
(ii) has at least 500 members –
There is a
definition of “political party” in section 4(1). That contains
within it a definition for:
an organization the object or activity . . . of which is the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates –
So within the definition of “political party” one has two further issues; the issue of what is meant by “organisation” and also that that organisation has the activity of promoting candidates for election. There is, of course, a definition for - - -
KIRBY J: The section 4 definition presumably was there for a long time, and the section 123 definition came in with the funding of political parties, is that correct?
MR BEACH: The section 123 definition came in in 1983, and it was only in 1983 that there was express recognition of the concept of registered parties which, of course, included provisions dealing with the funding of parties and the list system of voting for the Senate and the question of showing party affiliation on the ballot paper.
GLEESON CJ: Is there any statement in summary form, either in the legislation or elsewhere, of what an eligible political party is eligible for?
MR BEACH: No. All that I could say, your Honour, is if you go to section 124 it provides that “an eligible political party may be registered” - - -
GLEESON CJ: And what benefits, as it were, accompany registration as a political party?
MR BEACH: Well, I was going to come to those provisions. They are not contained within Part XI of the Act, they are contained within other provisions that I will take your Honour to shortly.
GLEESON CJ: It looks as though then “eligible” just means eligible to be registered.
MR BEACH: That is so, yes. So just going back to the Section 4 definitions, you have to be an organisation, which relevantly for these purposes includes an association, and you have to be an organisation that has the object or activity of promoting candidates. In section 123 itself there is also a reference in the definition of “eligible political party” in subparagraph (b) to the political party being “established on the basis of a written constitution”. That criterion of a written constitution was added into the Act by Act No 24 of 1990 which commenced on 9 February 1990.
KIRBY J: What was that subsection you were referring to?
MR BEACH: That is 123(1), the definition of “eligible political party”, subparagraph (b). That was not in the 1983 amendment that first introduced the concept of eligibility and registration. There is also in the definition a reference to a political party being a parliamentary party and your Honours will see in that subsection there is a definition of “Parliamentary party”.
At the time that “Parliamentary party” was first introduced in 1983, that was extended out to mean not just a member of the Commonwealth Parliament, but also a member of any State Parliament or any member of the Assemblies of either of the two Territories. That definition was changed and limited to simply a member of the Commonwealth Parliament. That change was made by Act No 126 of 2000 which was deemed to come into force on 3 October 2000.
Our case is that in terms of eligibility and registration the only legitimate criteria, for want of a better expression, is that the eligible party be a political party as defined with a written constitution and engaging in the activity necessarily of, as its object or activity, promoting candidates for election to either of the Houses of the Commonwealth Parliament. I should say in that context that there is a provision that deals with deregistration where there is a failure to endorse a candidate, and that is set out in section 136(1).
So in terms of the activity of promoting candidates for election, you have that concept in two places. You have it in the definition of “political party” in section 4(1) and you have the flip side that there is provision for deregistration if you have not essentially stood a candidate in the last four years. That is set out in section 136(1).
Now, just going back to 123(2), for a moment, your Honours will see there that there is a reference to the concept of related parties. So you can have the one party with a membership base creating within that membership base what is known as related parties and related parties can be registered. That is dealt with in section 130 of the Act.
KIRBY J: What is an example of that?
MR BEACH: An example would be, say, you might have the Labor Party at a federal level being a registered party and you might have various State Labor Parties that would be related parties, but nevertheless might be separately registered. In fact, I do have a list and I can circulate it – it comes from the Australian Electoral Commission’s website – which shows a list of registered parties. Essentially, the major parties have a number of registered parties, not only federally, but also at the various State levels. That is what is essentially embraced there.
Section 124, as I have indicated, provides for registration. Section 125 deals with the maintenance of the register. Section 126 deals with applications for registration. Can I just indicate several things about that section. It was modified, that is, subsection (1), in 2000 again by Act No 126 of 2000 so that a parliamentary member, if he or she had previously applied to register a party, could not make another application to register another parliamentary party. So that provision was inserted and that essentially appears in the second paragraph of that subsection (1).
In
subsection (2)(ca), there is a requirement for applications for
registration of parties other than a parliamentary party that
a list of 500
names of members be provided. That particular subparagraph was added into the
statute by the 2000 amendment. In terms
of subsection (2)(d), there is a
provision for the application to:
state whether or not the party wishes to receive –
funding under Part XX. So you can be a registered
political party, but you do not necessarily have to receive funding. That is
something that you can
decide to be registered for or not. So – and
your Honours will appreciate this from our written submissions – the
question
of party funding or individual funding has nothing to do with the 500
rule.
A good demonstration of that is that, of course, a registered party can choose not to be funded at all, that is, that there can be separate registration for funding that a 500 member party might choose merely to have its name appear on a ballot paper, might not choose to have any funding at all. So there is an indication - - -
GUMMOW J: But can a party get funding under Part XX without being registered?
MR BEACH: It has to be registered; otherwise it is an individual candidate. Individual candidates can get funding or a party can, but an important point to note here is that a registered party is one concept, registered for funding is another. So if you did not want public funding, you might still want to be a registered party for your name to appear on a ballot paper.
KIRBY J: Why would any political party have such a self-denying ordinance and not take federal gold? Would this be a religious objection or something?
MR BEACH: It may be that, or it may be simply the reality that the party might say, “We do not stand a chance of getting more than 4 per cent of the primary vote”. The public funding is dependent upon getting 4 per cent or more on the primary vote in a particular election.
KIRBY J: They might get a surprise. That sometimes happens.
MR BEACH: They might, but they might consider that, going through the rigmarole of appointing an agent under Part XXIV, funding is simply not worth it, but they might consider that there is utility in registration to have their name appear on the ballot paper, nevertheless. Subsection (2A) is important for this proceeding. That is what has colloquially been defined by the appellant as the no overlap rule. That was added into the Act again by the 2000 amendments. I should just indicate in subparagraph (c) that there is a provision that registration of a party is not to be cancelled merely because of non-compliance with the no overlap rule.
GLEESON CJ: Subsection (2A) of what section?
MR BEACH: This is of section 126.
GLEESON CJ: Thank you.
MR BEACH: Section 129 deals with a question of party names and the refusal to register names. That is relevant to one issue that I will come to later, about the so-called vice of sham parties or calling yourself a “No GST Party” when you are something else. The Act itself has certain express provisions for names that can be used by parties and this is one of the provisions that deals with that, as well as section 134A, dealing with an objection to continued use of a name.
Section 130 provides again that you can be a registered party, notwithstanding that there is another party that is related to you that has also been registered. Section 133 deals with the formal act of registration and again can I draw your Honours’ attention to 133(1)(a)(iv) where the register may include or not, as the case may be, whether or not you wish to receive public funding, again recognising the different registration requirement, if that is what you wish, as a party.
In terms of deregistration, that is dealt with in two sections, section 136 and section 137. Section 136(1) deals with two concepts. The first concept I have already taken your Honours to, which is that you have not nominated or endorsed a candidate for election in the last four years. Section 136(1)(b) deals with the deregistration of parliamentary parties.
Relevantly to the present case, however, it is section 137 that applies to the DLP. That provides for deregistration on a number of grounds: subsection (1)(b) where you have “ceased to have at least 500 members”; subsection (1)(cb), which was added into the Act in 2001 by Act No 34 of 2001 which came into effect on 16 July 2001, provides for a ground of deregistration or for the considering of deregistration where you have not complied with a notice under section 138A of the Act. That is, of course, relevant to the DLP because, as your Honours will appreciate from the papers, a notice has been given under section 138A to the DLP requesting that it provides the names, addresses, dates of birth, et cetera, of 500 of its members. It has refused to comply with that notice on privacy grounds and the Australian Electoral Commission has therefore given to the DLP a notice under section 137(1)(d) on the ground of (cb) that we have not complied with a notice under section 138A.
I should say – and this again appears from the papers – that presently in terms of the administrative process that has been commenced against the DLP, the Commission gave a notice, as I say, under section 137(1)(d). That notice appears in the appeal book. I will just give your Honours a reference to that. That notice appears at appeal book page 115. We have given a statement of reasons as to why we should not be deregistered under subsection (2), that is the statement of reasons provision. That was given on 13 December 2001 and the letter to the Commission appears at appeal book page 126. As the matters currently stand, no further administrative step has been taken by the Australian Electoral Commission. They have not yet considered our statement of reasons or yet decided to deregister.
Now, section 138A, as I indicated, is a provision that has been enlivened in this case. It was added by Act No 34 of 2001 and came into effect on 16 July 2001 and that enabled or gave power to the Commission to review the register. Under subsection (3) it empowered the Commission to give a written notice requesting specified information and such a notice was given to the DLP. That was given on 1 August 2001 and a copy of that letter appears at appeal book page 80. Your Honours will see that there is a mandatory requirement under subsection (5) for that to be complied with.
Now, can I identify quickly the provisions of the Act that deal with what follows, or the consequences flowing from becoming a registered political party. First, if you go to section 166 of the Act you will see there the provision dealing with the “Mode of Nomination” of persons to either the Senate or the House of Representatives, and you could be nominated in one of two ways as set out in subsection (1)(b). You can be nominated by a nomination form signed by 50 persons or you can be nominated by the signature of a “registered officer of the registered political party”.
Can I just stop there for a moment. There has been reference in some of the respondent’s material to the US position and the legislation and cases dealing with ballot access in the United States. This subsection (1) is what I will describe as the equivalent provision for ballot access, and it is only threshold so far as numbers of persons are concerned of 50, not 500. So that accepting on one view the respondent’s arguments at its highest that there should be some reference to looking at ballot access provisions and whether minimum support is required for persons to get ballot access, this subsection puts the number at 50, it does not put the number at 500.
So adopting the US logic you might say that a registered political party has to have 50 members because that would be consistent with the numbers of individual persons that could nominate in the absence of a party nominating. So at its highest the respondent’s case might derive support for a 50-member requirement but not a 500 requirement, but, of course, we do not even say that 50 is essential, and I will come back to that later.
If
you go to section 168 there is a provision dealing with grouping on the
Senate ballot paper, and that is not limited to registered
political parties.
Any individuals can get together and request grouping. Section 169 is the
first of the key provisions which
tie in the registered political party status
to the showing of party affiliation on the ballot paper, and subsection (1)
provides
that a person can request, that is the registered officer:
that the name . . . of that party be printed on the ballot-papers for an election adjacent to the name of a candidate –
Of course, that is relevant to the suggestion this is really a communication from the Australian Electoral Commission to the elector. We say no. Party affiliation only appears on the ballot paper at the request of the registered officer of a registered political party. So it is the party using the vehicle of the Commission to communicate with the elector, through making this request, of what the party affiliation is of candidates on the ballot paper.
Further, subsection (4) deals with the list system, and I will come to provisions which show where that appears. Simply, the list system is what I will describe as the “above the line” voting system for the Senate only, where you can have one box above the line with a party name so that entering the number 1 in that box is sufficient to essentially give a preference vote for candidates on the relevant Senate ballot paper. But there, again, the question of showing the party name against the relevant box that would be printed above the line is triggered by the request of the registered political party.
Section 169A deals with the concept of printing the word “Independent” against a candidate’s name on a ballot paper. One of the arguments that we put, of course, is that if you deny a candidate the right to put party affiliation against his or her name on the ballot paper and nothing further is said, people might incorrectly or wrongly assume that that candidate is an independent. Obviously, you can have the word “Independent” next to your name, but not having it against your name and not having party affiliation against your name might lead people to conclude that you are independent when you otherwise are not. That provision was added into the statute in 1987.
Section 169B deals with the verification of party endorsement and there is nothing useful to note about that. In terms of polling, if you go to Part XVI of the Act and section 209, you will there see the reference to the forms that the ballot papers must take. Subsections (1) and (2) refer to Forms E and F in Schedule 1. If you go to those forms, you will see there the reference. They begin, on my print of the Act at least, at page 402 of reprint 9. There is a reference there to the Senate ballot paper and the footnotes refer to the concept of inserting the name of a registered political party.
By necessary implication, if you are not a registered political party, the only thing that can appear on the Senate ballot paper if Form E is complied with, and if Form F is complied with in relation to the House of Representatives, is your individual name – nothing more, nothing less than that.
GLEESON CJ: But it can appear above the line?
MR BEACH: Your name would not appear above the line, no.
GLEESON CJ: So that if you are not a member of a registered political party, the only people who can vote for you are people who take the trouble of voting below the line?
MR BEACH: Groups of unnamed candidates can get together and use the list system, so if you are not a registered political party and you have formed a group as individuals, you can use the “above the line” voting system, have a box above the line, and from recollection the name that would appear above the line is the first of the individual names heading the entire list of the grouped names.
GUMMOW J: This is section 168? It provides for grouping in the Senate.
MR BEACH: Yes, but that is just grouping at the moment as distinct from the list system. Grouping simply means below the line, that you can be in one column in a group together. The list system is superimposed above that so that you can have a box above the line, above the group, which can then be used to essentially list preferences for all - - -
GLEESON CJ: If you group both above and below the line - - -
MR BEACH: You group below the line.
GLEESON CJ: If you are grouped both above and below the line, the identity of all the members of the group will appear from that part of the ballot paper below the line?
MR BEACH: Yes, and it will also appear at the booth, because there are separate provisions saying that where the list system is used for a group, whether it is a registered political party or not, there has to be at the polling booth a poster or a booklet or pamphlet available, so that if a person who wants to vote above the line is interested in knowing what the list of preferences are that that group wants to use, they have that available information at the polling booth.
That is again one of the reasons why we take issue with this channelling theory of multiple parties channelling their preferences in a way that misleads and deceives voters. That does not occur because the statutory framework is such that for anybody that uses a group and uses a list system above the line, whether you are a registered political party or not, there is information available at the booth for an elector to know what the particular listing is.
GUMMOW J: Mr Beach, would you just explain to me or identify for me the sections which produce the result that your party cannot get itself above the line because it is not registered?
MR BEACH: You cannot request – if you go back to section - - -
GUMMOW J: Section 210, is it?
MR BEACH: If you go back to section 169, subsection (1) deals with where there has been a request by a registered political party for the name to appear against candidates. Subsection (4) essentially says that where a request has been made under subsection (1) then the request can also be a request to use the party name above the line against the individual box. So the consequences are that you have to be a registered party to make a request for party affiliation against candidates below the line and also be a registered party to then trigger the provisions of subsection (4). So the necessary implication is that if you are not a registered political party you cannot make a request under subsection (4).
GUMMOW J: A further request?
MR BEACH: That is right.
GLEESON CJ: But your party’s candidates can get themselves above the line by grouping?
MR BEACH: They can group and then the name of the candidate who heads the group could use the list system – say it is Mr Mulholland, his name could appear at the box above the line, but nobody would know that it was the DLP.
GLEESON CJ: What name appears in the box for a registered party?
MR BEACH: The name of the party or its abbreviation.
GLEESON CJ: Is there any evidence in the proceedings as to the percentage of electors who vote above, as distinct from those who vote below the line?
MR BEACH: I will have to that checked over lunch, if I may, your Honour. Essentially it was introduced, as your Honours would appreciate, because there was a high level of informal votings, particularly on the Senate ballots, and so it was introduced to facilitate formal as opposed to informal votes, but I will have to check that.
I have referred to section 209. Section 210 talks of the “Printing of Senate ballot-papers”. So remember that under section 168 you can have people, whether they be parties or not, requesting to group, and under 169 you can have a registered political party requesting that its party name appear against candidates below the line or against a box above the line. In terms of the actual printing of Senate ballot papers, section 210 deals with that and in subsection (1)(a) it refers to the printing in accordance with the section 168 requests.
GUMMOW J: Just explain to me again how your party candidates, by grouping, would get themselves above the line?
MR BEACH: They get themselves above
the line under section 211 that I will just come to – perhaps I will
go to it directly and come
back. If you go to section 211(1) you will see
there that if you have people that have requested that they be grouped under
168,
then they can:
lodge with the Australian Electoral Officer a written statement that they wish voters in the election to indicate their preferences in relation to . . . an order specified in the statement –
which is filed with the Commission. That is part of the “above the line” voting. So your group can lodge one statement with a list of preferences for all candidates in the election or it can essentially file two or more statements, and that is set out in subsection (2).
GUMMOW J: Then we get to subsection (4).
MR BEACH: And then you get to
subsection (4), exactly. So if there has been a statement that is lodged
then that is considered to be the
group voting ticket, and then in terms of the
“above the line” box, that is dealt with in subsection (5). So
if you
have a group voting ticket:
a square shall be printed on the ballot-papers for use in the election above the names of those candidates.
So the list system is there; not only for registered political parties, it is also there for any grouping of candidates.
GLEESON CJ: Is that a convenient time, Mr Beach?
MR BEACH: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Just before you commence, Mr Beach, we are sitting in special leave applications on Friday in two places and we have another case to deal with after this one. That case will be listed for 12 noon tomorrow on the assumption that we are still going strongly in this one at the end of today and on the assumption that that position obtains I will assume that counsel will be able to make an agreement between themselves about the division of time. Yes, Mr Beach.
MR BEACH: Your Honour, you asked how many people used the “above the line” voting system in the last election. There is some evidence about the matter in relation to the 1998 federal election. The appellants provided a bundle of supplementary materials and under tab 3 is the Joint Standing Committee Report of June 2000 after the 1998 federal election. This only includes extracts, but if your Honours go to paragraph 4.67, the Committee there noted that 94.9 per cent of voters in the 1998 federal election used the “above the line” voting system.
GLEESON CJ: What was the percentage again?
MR BEACH: It was 94.9 per cent.
GLEESON CJ: I am not surprised.
MR BEACH: That figure actually increased after the 2001 federal election to about 95.2 per cent. That is not directly in evidence, but I do not understand there is much contest about that. Can I go back to the statute and section 211. As I say, this provision deals with the preparation by a group of a statement listing the preferences for all candidates in relation to the election.
KIRBY J: Just one small matter arising out of the answer that you gave to the question earlier, if overnight you can find what the informal vote was in the State of New South Wales in the ballot paper which is an exhibit in the proceedings and which was popularly known as the “tablecloth” it would be helpful perhaps to know what impact that sort of ballot paper has on the voting of electors.
MR BEACH: Yes.
KIRBY J: Because it is put in the Commonwealth’s submission that one of the reasons behind the 500 is to whittle away the number of parties that get this advantage and thus, as it were, cut down on the size of the tablecloths.
MR BEACH: Yes. It is interesting to note that we have had the 500 rule since 1983 federally, and the Senate ballot paper for the last election, which appears at appeal book page 226 - - -
KIRBY J: I think that is just next to that exhibit?
MR BEACH: Yes. It is quite different in size, and it is different in size - and I will take your Honours to the extrinsic material - because of the much higher quota for the Senate election in each State; you are only electing a small number of senators so you have a higher quota, whereas the distinguishing feature of the New South Wales election is that you have a much lower quota because of the number of positions, but I will come to that in due course.
There is one thing though that might be useful pictorially to show your Honours by reference to the Senate ballot paper for the Victorian positions at the last federal election - if your Honours go to that ballot paper, which is at page 226, you will see the points being made about party names and grouped and ungrouped candidates and who is using the “above the line” voting.
If you go to, say, column A, you will see there that is showing you a party Liberals for Forests. They have an “above the line” box and then they list the candidates below. If you go to, say, column E, you will see there that there is a grouping of two candidates, Toscano and Reghenzani, and they have used the list system above the line. They have a box but there is nothing against that box, but it is clear that the box is those two individuals as a group using the list system. It is just that there is nothing beside the box, but if - - -
KIRBY J: What would happen if you voted in the E box above the line? That would be taken as a vote 1, 2 for Mr Toscano and - - -
MR BEACH: It would be taken as a vote 1 through to the number 60 - - -
GLEESON CJ: According to their preference.
MR BEACH: Exactly, according to the statement of preferences that they have lodged with the Electoral Commission.
KIRBY J: So, essentially, the point you make by this pictorial image is to say that not being able to use the name “DLP - Democratic Labor Party” deprives you of the communication to electors that it would induce electors to tick their box if that were the way in which they would want to vote?
MR BEACH: That is exactly right. The other point to note about this is that to the suggestion that the “no overlap” rule was introduced because of the problem with parties channelling preferences using the “above the line” voting or list system, well, unnamed groups can use the list system as much as named groups. So there is just no intrinsic logic in this so-called channelling theory to justify the restriction on what type of political parties can use it, because even unnamed groups can use the list system. If you are not a group at all, then you are known as ungrouped, and if you go to the very far right-hand column - - -
GUMMOW J: They have no box?
MR BEACH: They have no box, no.
GUMMOW J: Did your client’s party have any candidates here?
MR BEACH: Yes, Mr – that is in column B. In fact, in the judgment of Justice Marshall there is a reference to the fact that in this election – this is at appeal book page 228, paragraph 3 – the DLP received 66,485 primary votes using this - - -
KIRBY J: You are approaching the matter in the correct way, Mr Beach. You are taking us through the statute. In due course, I am sure everyone would like to know what the practical significance of your arguments are.
MR BEACH: Yes, I will come to that. Practically, this version of the ballot paper demonstrates that parties can use the “above the line” system and groups who are not parties can use the “above the line” voting system. The only difference between the two is that you will see a name for the party where it is a registered political party and if you are not a registered political party because you do not satisfy the 500 rule, you cannot use the name at all, so you have an unnamed box.
KIRBY J: Just remind me how your client got sufficiently registered to get above the line in that ballot paper and yet would not now? Did they previously supply 500 names?
MR BEACH: No.
KIRBY J: That was before the 500 was introduced?
MR BEACH: In 1983, the 500 rule was introduced and registered political parties - that that regime was introduced. The DLP then became registered in 1984 and there were earlier times when the Commission requested evidence of the fact that the DLP had 500 names – there were 500 members or more - and that was satisfied by a statutory declaration. Some evidence of that is provided in the appeal book. For example, if you go to page 194 you will see there as early as September 1991 the Commission was requesting a list of 500 members. Correspondence ensued, and I will not take your Honours through that, but ultimately in June 1992, beginning at appeal book page 205, the third paragraph, the DLP wrote to the Commission saying that they had “no fewer than 500 members” and enclosing a statutory declaration. That declaration appears at appeal book page 208, paragraph 5.
So the DLP’s position since it has been registered is that it has had 500 or more members. but that it has objected to providing the personal details of each of those 500 members for privacy reasons. What has enlivened the current dispute with the Commission is that the Commission was reviewing the eligibility of all parties through the 1 August 2001 letter, requested the personal details of the DLP’s 500 members. It has refused to provide those, and so there has been enlivened 137(1)(cb), that because the DLP has refused to provide the details that provides a basis for the consideration of deregistration.
GUMMOW J: If material were provided it would be covered by the Privacy Act of the Commonwealth, would it not? The Commission does not claim to be outside the Privacy Act, does it?
MR BEACH: Nobody has asserted that the Privacy Act would apply to protect the confidentiality of that information. If your Honours go to the appeal book, and in particular page 143, after the “no overlap” rule was introduced the Commission wrote to all registered parties by a letter of 7 December 2000, saying that because of the “no overlap” rule coming into force they required provision of the personal details of the 500 members so that they could see whether there was any overlap with somebody else’s list. That is a letter that deals with that, but if your Honours go to page 147 - - -
KIRBY J: Which page?
MR BEACH: Appeal book page 147, which is an attachment to
the letter, last sentence:
Members should be aware that, as the membership details form the basis for party registration, details may be publicly accessible.
So that was the Commission’s position at that time.
KIRBY J: This is a burden on people’s rights to join political parties and not have the whole world know about it.
MR BEACH: Exactly.
GLEESON CJ: It is said on the top of page 207 that the Commission does not require the parliamentary parties to disclose the names of their members. Do you see that?
MR BEACH: That is a letter from the DLP.
GLEESON CJ: Yes.
MR BEACH: Yes.
GLEESON CJ: If that is true, how can you enforce the “no overlap” rule?
MR BEACH: Because it does not apply to parliamentary parties. For a parliamentary party you only need one member being the incumbent. That is under the definition.
GLEESON CJ: So the “no overlap” rule does not apply to them?
MR BEACH: No. The only restriction on a parliamentary party is that if you have a politician who has set up a party, a one-member party, he cannot set up another party without resigning from the first party. That was set out in section 126(2). So the “no overlap” rule is relating to where you are not a parliamentary party and you are the subject of the 500 rule.
KIRBY J: So do I understand it that the Liberal Party, the National Party and the Australian Labor Party do not have to publish the names and addresses of 500 members?
MR BEACH: It is unclear as to whether they have called themselves a parliamentary party, in which case they would not have to worry about the 500 rule, or whether they have not relied upon the parliamentary party limen of sought to justify their position under the 500 rule, in which case they would have to provide the names and addresses. This is one of our discrimination arguments, that a parliamentary party can be just one person, it does not have to be 500 members, no privacy concerns, and they can set up a party and then endorse 20 candidates who have no public support whatsoever for a party that really has no public support at all.
KIRBY J: Well, they have the assurance of having got into Parliament.
MR BEACH: Only the individual. Say an individual gets into Parliament, say a senator, and then resigns from a party - - -
KIRBY J: You do not do that by accident. You have to pick up quite a few votes to get into Federal Parliament.
MR BEACH: Yes, but if you are talking about the public support for the party, if you have a parliamentarian, a senator, who resigns from a party, say the Democrats, sets up a new party, that party has no public support, it can endorse as many candidates as that party chooses to and there is no question of public support. The only public support was for the original parliamentarian at the time that he or she was a member of the party at the time of the election that resulted in that person becoming a politician.
Whilst I have this point on confidentiality, with reference to what the Commission’s position was then, there was some cross-examination of Ms Mitchell, the director of funding and disclosure, at trial, and the question of confidentiality was raised. The position is that the Commission apparently now consider that if somebody sought the information under a freedom of information request, the Commission could, in all likelihood, claim an exemption from producing that information. That appears at appeal book page 64. In fact, the relevant passage begins on page 63, top of the page, going through to page 64, about halfway down that page.
But
there is a problem with that response, because if you go back to the statute,
other people are entitled to challenge the registration
of a party. That
provision appears – I will just see if I can find it – in
section 132(2). So when an application for
registration has been lodged,
the Commission gazettes it, then, under subsection (2)(b), the gazettal
notice invites:
any persons who believe that the application:
(i) does not relate to an eligible political party . . .
to submit written particulars –
It might be said that
if there is capacity for a person to challenge the ability of a political party
to become eligible for registration
that that would carry with it the
entitlement to review the information that is made available to the Electoral
Commission to see
whether or not that justifies eligibility and, of course, the
information made available to the Commission under section 126(2)(ca)
includes a list of the names of 500 members. So to make sense of the right to
oppose an application, arguably, a person opposing
an application could obtain
access, necessarily to the list of names filed with the Commission. That is the
issue dealing with confidentiality.
I will go back to the statutory provisions
because there are some secrecy provisions in the statute itself, but they do not
cover
at all the keeping confidential of this type of information.
I was
before lunch dealing with section 211 and subsection (5) is the
provision dealing with the square above the line and that applies
to any group.
It is not just limited to a registered political party. Subsection (6)
talks about who is providing the statement
and your Honours will see that
(a) and (b) deal with the registered parties and (c) deals with, by implication,
candidates or groups
other than registered parties. Subsection (7) is
important because it says that:
A group that lodges a statement under subsection(2) shall indicate in the statement the order in which the voting tickets of the group are to be displayed in the poster or pamphlet prepared for the purposes of subsection 216(1).
Just going to section 216 - - -
HAYNE J: That is the alternative preference lists, is it not?
MR BEACH: That is all statements. If you have lodged a statement under subsection (1) or you have two or more statements as referred to under subsection (2) - - -
HAYNE J: Subsection (7) concerns the case where there are alternative preference lists?
MR BEACH: Yes, I accept that, your Honour. Yes.
That refers you over to section 216 which is not itself limited to two or
more lists. It
says that:
If one or more group voting tickets are registered –
Then there has to be –
prominently displayed at each polling booth –
either a poster or a pamphlet. So this concept that people are being misled by sham parties and that this system is being used to channel votes does not work very well in terms of the statutory framework because the statutory framework provides necessarily that electors have available to them if they want it the full statement of preferences and a full statement of the list order if “above the line” voting is being used.
In fact, interestingly enough, section 216 originally only required a poster to be put up on the polling booth and then that was changed in 2001 to provide the alternative of a pamphlet. The rationale was that there are too many posters, people were being confused, better to give them a pamphlet if they were seriously interested in using the “above the line” voting and wanted to know precisely the list. So the very existence of 216, we say, negates the sham party or parties being used as some channelling to channel preferences in a way which is misleading for voters because voters have the choice as to whether or not they vote above the line and they have the choice as to how much they want to inform themselves as to the statement of preferences filed by the people that are wanting to use the “above the line” voting system.
Section 214 deals with the printing of party names. So you have a request made under section 169 by the registered officer of the registered political party and section 214 then provides for the printing of the name of the party adjacent to the candidate. Where there has been a request to use the list system, then under subsection (2)(e) you have the name printed against the box above the line.
GLEESON CJ: Does the burden on freedom of communication for which you contend arise from the negative implication in section 214, that unless the conditions in subsection (1) are satisfied the name of the party shall not be printed adjacent to the name of the candidate?
MR BEACH: That is exactly right. That either arises by necessary implication from section 214 or by necessary implication from section 209, which actually prescribes the form of the ballot paper and then the forms only refer to the names of registered political parties appearing against the box of either candidates below the line or of the box above the line.
GLEESON CJ: Does that involve an impairment of some right or is it the limitation on the right extended by 214 that is involved?
MR BEACH: I would prefer not to talk about rights. The statutory framework creates the opportunity to communicate through the ballot paper and at the same time as the creation of that opportunity limits it to registered political parties.
GLEESON CJ: Yes, it creates an opportunity of the kind you find in section 214.
MR BEACH: Yes, exactly, creates it simultaneously with limiting it and we say that that is a burden, but I want to address that a little bit later when I deal with the burden of communication argument and the first limb of the Lange test. Just quickly with some other provisions. Section 210A is another provision dealing with the party name but it deals with abbreviations. Section 211A is a special provision for senators who can use the “above the line” voting and use a party name, so that is a special provision for them.
In terms of the consequences of using the list system to vote that is dealt with in section 239, which talks of the marking of votes above the line or below the line. Section 272(1) then talks of the deemed marking above the line being then effectively a vote in the order of the ticket or the statement that has been lodged with the Commission, and section 273 deals with the scrutiny of the votes and how they are to be counted and the calculation of a quota for the Senate.
In terms of the question of funding, this is dealt with in Part XX, section 288 requires “A political party shall have an agent”. What is interesting is that it talks of a political party rather than a registered political party, so you have an agent appointed by a party for the purposes of the part. That is just administrative so that the Electoral Commission can deal with the agent who has certain responsibilities.
Section 289 talks of individual candidates. So subsection (1), an individual candidate can appoint an agent. Subsection (2), a group can appoint an agent. So the concept of funding is you can have an individual candidate getting funding, you can have a group getting funding or you can have a registered political party getting funding. So the 500 rule has nothing really to do with the question of public funding. That is all outcome driven and that is made clear by section 294 - - -
GUMMOW J: Section 299 is critical, is it not?
MR BEACH: Yes. So 294, you get $1.50. Now, that has been indexed, and you get $1.50 as indexed for each first preference vote; 297, but you need four per cent at least of the primary vote. So it is all outcome driven; nothing to do with the underlying public support for the party or its number of members. Section 299 says to whom the Electoral Commission is to make a payment. It can make a payment to the agent of the party, the agent of a candidate or the agent of the group. So realistically when you analyse these provisions of the 500 rule, the “no overlap” rule has little to do with the public funding question.
It is put that one of the benefits of being a registered party is that you can get a copy of the electoral roll. The provisions dealing with that are section 90, that is the general provision where the roll is available for public inspection; section 91, where a registered party can automatically get a copy of the roll, and section 91A provides for restrictions on the use of information. I should say when the party registration provisions were introduced they were not introduced with reference to or justified by the so-called benefit that a registered party can also get a copy of the electoral roll, and that will become clear shortly.
In terms of the secrecy provisions, section 139 of the statute provides for the register, that is, the register of political parties, to be open for public inspection. Query what is on the register – on one view of the matter, it would include the application, including the list of 500 names. Section 233 deals with votes to be marked in private. Section 323 deals with officers and scrutineers being prohibited from divulging voting information. Section 393A talks about the preservation of what I will describe as electoral documents, or documents pertaining to a particular election. The other provision to note is section 320, dealing with the entitlement to inspect copies of the annual returns or donation disclosures - - -
GUMMOW J: You cannot be right about section 139, can you, given 125?
MR BEACH: It is not quite clear what is kept on the register. It may be just the list of names.
GUMMOW J: That is what 125 says.
MR BEACH: That says what it has to contain, but it is not quite clear whether that is all that it contains. It is not clear, but we, in a sense, rely upon what was said to us in December 2000 about “information may be publicly available”.
The other provisions to note are those dealing with electoral offences. Section 329 is a provision dealing with a prohibition on printing or publishing material which is misleading or deceptive; 334 dealing with restrictions on signage. In other words, if there is a vice in using a name for a party to mislead people, you can either deal with that in the naming provisions in the registration section of the Act, or you can have a special section making sure that people use names that validly conform with the objects under the party’s constitution. There are clear ways to deal with it.
So that is the statutory framework. In terms of the justification for registration, can I very briefly take your Honours to the 1983 Joint Select Committee report, a copy of which appears in our supplementary materials under tab 1.
KIRBY J: What is the status of these supplementary materials? They were not exhibits - - -
MR BEACH: Yes.
KIRBY J: They were?
MR BEACH: They were, and in the index we have given the exhibit numbers. They were all tendered.
KIRBY J: I see that, yes.
MR BEACH: Yes.
CALLINAN J: I think most of them would be admissible under the Evidence Act anyway, would they not?
KIRBY J: It is just a question in appeals.
MR BEACH: Yes. They were used at trial and in the intermediate appellate level.
KIRBY J: Justice Callinan and I take a broader view of this than the Court has. We are stuck with the record. But they are on the record, so there is no problem.
MR BEACH: As to the list system, if your Honours
go to paragraph 3.9, there begins a discussion of the operation of the
voting systems for
the Senate. At 3.23, it is stated that:
The aim of the Committee was to ensure that electors who wished to cast a valid vote were assisted in having that vote considered valid –
because the problem at that stage was the high level of
informal votes for the Senate. At 3.26 the Australian Electoral Commission
itself proposed an “above the line” voting system and at 3.27 the
Committee essentially recommended a dual system. You
could have an “above
the line” system as well as, if you wanted to, having a full preference
listing below the line.
What is clear is that this was not introduced as a
privilege for registered parties. It was introduced to assist the casting of
votes to ensure that they were valid.
This idea that it is a privilege for parties is really reversing the correct analysis. One of the objectives of the 1983 amendments was to introduce a list system to assist voters to cast valid votes. The registration system was the mechanical or the procedural process put in place to achieve that result so when you are considering the “reasonably appropriate and adapted” test the question is, is the 500 rule or the “no overlap” rule reasonably appropriate to ensure that the list system works in a way that achieves the objective of valid voting by electors in Senate elections.
HAYNE J: What do we make of paragraph 3.32?
MR BEACH: That is conformity with what has been said. All the discussion up to 3.32 is that it is saying because we want to have a system to assist electors to cast valid votes, this “above the line” voting is a good way to do it, but the corollary of that is that we will need a registration system to achieve that which really is consistent with the way we would say the analysis should proceed which is that we have registration, not as a privilege of parties - there is no discussion here about privileges for political parties - it is really a procedural mechanism to implement as a corollary of the list system to benefit voters.
In terms of the format of ballot papers, that is dealt with in
3.40 and following. At 3.43 the Committee noted that it had received
in those
submissions from parties calling for the printing of party affiliations:
The Committee believes that the introduction of this procedure will assist voters in casting their vote –
Again, the
inclusion of party details or party affiliation on the ballot papers was not a
privilege for political parties; it was
all designed to assist electors in terms
of the information that was to be given to them. That theme is followed through
in 6.28
in the second half of that paragraph:
In addition, the Committee’s recommendations concerning the printing of candidates’ political affiliations . . . will assist voters –
and 6.31, a reference again to the
recommendation that political affiliation be concluded. The last four lines on
that page:
The Committee recommends that voters should be provided with information that enables them to identify each candidate’s political affiliation . . . It will be necessary for the party designation of specific candidates to be certified by the party.
KIRBY J: Do we have to know all of this about
the Electoral Act? My concentration is beginning to
fade - - -
MR BEACH: I accept that.
KIRBY J: - - - given the relevantly small section of divisions you are attacking.
MR BEACH: The point is simply this, the Full Court - - -
KIRBY J: It is a horrible Act. It has been developed since 1918 and there are all sorts of bits and pieces in there and I just do not quite see where you are going.
MR BEACH: It appears from this report that registration was a procedural mechanism to facilitate the introduction of three important reforms: the introduction of the list system or “above the line” voting for the Senate, the introduction of party affiliation being shown on the ballot paper and also the question of public funding. The first two objectives were all designed for the benefit of voters. They were not to be privileges of parties, although they might be seen as that by parties. So they were all designed to assist voters.
So in that context, if that was the objective to assist voters, we say that the 500 rule and the “no overlap” rule have no appropriate adaptation to achieving that objective. In fact, it is antithetical to have a threshold of 500 because electors are not being assisted. They will face a ballot paper that I showed you where they will have candidates that do not show anything one way or the other or a box that has nothing beside it. They will not know what to make as to whether that person is associated with a party or what political affiliation or policies that they might have. So if the objective is voter communication to assist voters, the 500 rule is not appropriately targeted to assisting voters.
HAYNE J: That all has to be read and understood in the light of chapter 12 of this report, because the 500 rule comes in in consequence of chapter 12.
MR BEACH: Yes, exactly. That is why I wanted to take you to these other paragraphs so that you can then understand what - - -
HAYNE J: You segment them out and look at them separately from what appears in chapter 12.
MR BEACH: No, because chapter 12 is a conclusion. So you have the list system dealt with in those passages in chapter 3; you have the format of the ballot papers being dealt with in chapter 6; you have the funding of parties being dealt with in chapter 9 – and I will just give your Honours the references, paragraphs 9.1, 9.2, 9.22, 9.31, 9.37, 9.39. There is no discussion at all of questions of privileges of the parties or that some public support is necessary as the corollary of some registration process. The only time you can find reference to electoral support or public support is in relation to funding in paragraph 9.31. That, as your Honours will appreciate, under the statute is shown at the other end. It is outcome driven; it is not by reference to the number of members of the party.
So that
when you come to chapter 12, which deals with registration, it has to be
seen in the context of the other substantive reforms,
and chapter 12 then
does deal with the procedural mechanism of registration. The only reference to
public support as being necessary
or 500 as a number as being necessary is
provided in paragraph 12.4(c). It does not even refer to a voter confusion
argument expressly,
or that they are trying to keep the numbers of candidates
down on the paper. It just refers simply that:
As some indication of membership support was required –
that the number of 500 is chosen. Now, our point is simply that when you look at what the objectives underlying the list system, party affiliation on the ballot paper and public funding were, there is just simply no rationale or logic in the 500 rule or showing some public support in advance by having the 500 rule.
KIRBY J: Is it not the rationale, good or bad, that it has been chosen is to ensure that the party is of a certain size, that can be checked and not merely a matter of assertion, in order to cut down on the number of parties of dubious distinction that have proliferated in recent times?
MR BEACH: That is put, but this proliferation of numbers is not put anywhere in the 1983 report that is the genesis for the party registration system. This is put as a rationale later when something occurs in New South Wales and then is put as a rationale for the “no overlap” rule - - -
KIRBY J: It was a pretty awful ballot paper in New South Wales and all these strange parties that were self-serving names and so on. One can understand that the electors responded rather adversely to it and, therefore, that Parliaments did so too. I do not want to take you off your path because you are laying the ground, but the mind races ahead to see - you say that there is no basis in 500. Well, the Canadian Parliament chose 100, I think.
MR BEACH: Yes.
KIRBY J: And our Parliament chose 500, and you have to say that that is outside the constitutional authority of the Parliament.
MR BEACH: That is so. Can I take you to the consideration of the New South Wales experience at the federal level and how that was distinguished - - -
KIRBY J: Not if it takes you off your track.
MR BEACH: It is convenient to go to the Joint Standing Committee’s report of June 2000, and a copy of that appears under tab 3. There is a discussion of the list system appearing from paragraph 4.61. Your Honours will recall that I said earlier that they considered the inadequacy of just showing posters for the lists at polling booths, so they considered pamphlets. A discussion of that begins from paragraphs 4.63 through to 4.66, so that people that were oppressed by large numbers of people using the “above the line” voting, or if they wanted to know what their lists were they could find them out at the polling booth, but as to the New South Wales experience that is dealt with from paragraph 5.49.
KIRBY J: Which paragraph?
MR BEACH: Paragraphs 5.49 to 5.52. The Commission distinguishes the New South Wales position in 5.51, in particular with reference to the higher quotas. The ultimate recommendation of the Commission - - -
KIRBY J: You have to be a little careful about excluding parties because in the Netherlands a party called the....., which was the dwarves, stood and they had large success.
MR BEACH: Yes.
KIRBY J: So you can think that they will not succeed, but they can do well.
MR BEACH: Perhaps this is a very simple position, but once a candidate gets onto the ballot paper and has satisfied the 50 member requirement, what further logic is there in restricting that candidate as to how he or she communicates on the ballot paper - - -
KIRBY J: But it is not a question of addressing that question to us. It is a question the Federal Parliament elected by the people have decided this, but we have to keep in the back of our mind they are elected generally on party tickets and those parties will advance their own interests rather than necessarily that of electors.
MR BEACH: Yes. That was posed rhetorically. There cannot be any – or there should not be any further impediment. It cannot be right, with respect, to say we want to keep the number of candidates low because of voter confusion. How is there voter confusion? People either know or do not know candidates that are listed. If there is confusion in relation to “above the line” voting, there are pamphlets and posters available at a polling booth for people to know what the listing of preferences is. So there cannot be confusion. What occurred in New South Wales is explained quite rightly by the Joint Standing Committee as in part explicable by the much lower quotas there are and, indeed, the - - -
GLEESON CJ: Once you introduce the concept of political party, the meaning of which is itself not self-evident, into a legislative structure, then you have to give that expression some content.
MR BEACH: I accept that - - -
GLEESON CJ: And perhaps content as to size. I mean there might be a group of people in my street who support the restoration of the Stuart monarchy and meet every Friday night to drink to the King across the water.
MR BEACH: Well, in England there is no restriction on size. You can become a registered party of two, but the criteria which is relevant to whether you are a political party is, one, that you have a written constitution that has the objective of standing candidates, two, that there is a requirement to stand candidates for election. Both of those exist under this statute. It is the third element that you have to show that they are a party of 500 or more members that we say is superfluous.
Say I wanted to form a party and have a very exclusive membership. Say I only wanted 100 people or I had talked of a party which was exclusive and perhaps only 100 people would satisfy the exclusive requirement for membership. I would still want to engage in the political activity of standing candidates and having those candidates show their endorsement of my party on the ballot paper. The 500 rule does not do anything other than to advantage those who satisfy it and disadvantage those who do not. When you step back and analyse it, whether you have more or less than 500 does not really say whether or not you are a political party. You could be much more active as a political party with only 100 exclusive members.
KIRBY J: I wonder how many members there were of the Liberal Party of Australia when Mr Menzies formed it.
MR BEACH: Well, I suspect very few. Like all fledging parties, it grows and takes on shape and momentum with time, and that is the whole idea. The smaller the party - - -
GUMMOW J: It is not as simple as that, is it? You have to understand the United Australia Party, which preceded it, do you not?
MR BEACH: Yes. But the smaller the party, even the more reason why they need some form of communication of, say, party endorsement on the ballot paper. They might not have large funds or the size to go off and wage a campaign in the electronic or print media. This may be the only way of them communicating or their candidates communicating their party endorsement.
Just to finish off what I was going to say on this Committee report, in fact, overlap of membership was, in fact, sanctioned by this recommendation of the Joint Standing Committee report, and that is set out in paragraph 5.57.
HAYNE J: At the end of the day, what do you say we take away with us from these documents you have taken us to? What is the proposition that you say is identified?
MR BEACH: If there are different levels of stringency of the “reasonably appropriate and adapted” test and assuming that we are into the second limb of Lange, analysis of this type of material is going to inform the Court as to whether or not these rules are appropriate and adapted. In other words, if you accept that these rules burden not only the mode of communication, but the content of communication, we would say that you are into territory similar to what was in the Australian Capital Television situation, where there has to be, to use the words of Justice McHugh, “some compelling justification” for each of these rules. When you look at this material, whether the 500 rule or the “no overlap” rule, that compelling justification is simply non-existent.
In Australian Capital Television the Court went through all of the extrinsic material, including, from recollection, one of the Joint Standing Committee reports and the parliamentary debates, and concluded for itself that, nevertheless, the relevant provisions of Part 3D of the Telecommunications Act were invalid, nevertheless. So this type of material informs that consideration, so that is simply the reason for taking your Honours to it.
HAYNE J: I was after a proposition, not the reason for taking us to it. What is the proposition you draw from these documents?
MR BEACH: That there is no compelling justification for either the “no overlap” rule that was introduced shortly after this June 2000 report – that was introduced by amendments in October 2000, which commenced on 3 October 2000 – no compelling justification for the “no overlap” rule – you take that from this document – and, from the 1983 report, you take the same proposition, that there is no compelling justification for the 500 rule, if you accept the prior thesis that these rules either burden the mode or the content of political communication. If you accept that – I know that there is a debate about that.
I took your Honours to the Joint Standing Committee report, but the Australian Electoral Commission report following the 1998 election made similar conclusions. That appears under tab 2, and discussion begins at paragraph 7.11. What the vice was that was perceived to be happening in New South Wales was an abuse of their parliamentary party limb. In other words, what was actually going on in New South Wales was not an abuse of parties with 500 members setting up multiple parties with misleading names. The real abuse was that two Upper House members, from recollection, Ettridge and Oldfield, were setting up front parties – because, do not forget, you can have a parliamentary party with one member at the State level. So they were setting up a number of parties and calling themselves the “No GST Party” and the “No Nuclear Waste Party”.
The problem in New South Wales is really something quite different and so the Commission, in analysing that problem, does not make any recommendation for a “no overlap” rule or changes to the 500 rule. It was targeting the abuse by two people in the New South Wales Upper House of the parliamentary party limb and there you will see its recommendation at the top of page 26 as to how it was designed to deal with that vice.
What the respondent wants to do and has done at all levels in this proceeding is take the New South Wales “tablecloth” ballot and try and reinvent the New South Wales experience: one, as being relevant to the federal experience; and two, as being evidence of multiple parties being set up with 500 members and using the same 500 to set up multiple parties to deceive voters. When you analyse out what was happening in New South Wales through the two expert committees or authorities looking at this at the federal level, they either distinguished the New South Wales position or explained it as being something that has given rise to an abuse of a different variety.
When you come to the October 2000 Bill in its original form, it did not make any recommendation for the inclusion of a “no overlap” rule. That was actually introduced in the Senate during the course of the debates by reference to the abuse by Oldfield and Ettridge, apparently, of the parliamentary party limb in New South Wales. We have included the debates in the materials and they are under tab 10, the Senate debates, and I will just give your Honours the page references; 20649, 20688, 20690 to 91, 94 and 97. I should say those are the page references to the House of Representatives debates which appear under tab 9. As far as the Senate debates are concerned, the page references are pages 18103, 18250, 18251 through to 53, 18347, 18355, 18421, 18422, 18430.
When you read pages 18250 to 18251 you will see where the Commission’s case comes from because there Senator Bartlett refers to problems in New South Wales of - - -
KIRBY J: Would you give me that page again.
MR BEACH: Pages 18250 to 18251. The high point of the respondent’s case appears on 18251. In the last paragraph in the second column there is a reference to the New South Wales position where there were very low quotas required and then there is a reference to the channelling of preferences.
Then on page 18,252, first column, you will see there reference to the One Nation MPs and how they were abusing the parliamentary party limb. That was the debate, but it moved beyond the consideration of the parliamentary party limb into this idea that there were multiple parties being set up with, you know, 500 members and using funny names and misleading voters and, again, at page 18,253, first column. But that is really the only justification that exists for the “no overlap” rule and we say it is misconceived. The abuse in New South Wales was the parliamentary party limb. They had much lower quotas there because of the higher number of candidates that needed to be elected.
If there was a problem in naming of parties, that could be dealt with by the current provisions in the Electoral Act or changes to those provisions. As far as this notion of channelling preferences, we say simply that does not exist because it is a voter that controls whether or not he or she votes above the line. It is a voter who determines how much they want to inform themselves about the statement of preferences that the groups have to file with the Electoral Commission. So there can be no misleading or deceptive conduct that you need the “no overlap” rule to deal with.
KIRBY J: But the more above the line you have, the bigger the Senate paper has to be and, therefore, by inference, the more confusing it is going to be to some electors and the more temptation then or risk of informal ballots. Is that not a way the Parliament could reason?
MR BEACH: If it reasoned that way, we would say that it is the reverse. The larger the Senate ballot paper, all the more reason that people, if they have party affiliation, should be able to communicate that, because otherwise if there is nothing beside their name, people will either assume that they are independent or simply not know for whom they stand. As far as the list system is concerned, that is really a function of the number of individual candidates that are standing. You see, the parties do not appear on the ballot paper; it is actually candidates. This idea that you want to restrict the size of the ballot paper, you are restricting candidates.
KIRBY J: You say the candidates appear anyway, so what is the big deal about not allowing the party banner under which they say they operate to appear?
MR BEACH: Exactly. As long as you might have a provision in the statute saying that they have to use a name that is consistent with their Constitution, there is nothing further to do because - - -
KIRBY J: What you say seems reasonable to me, but I am not sitting there in Federal Parliament and it is up to Federal Parliament to decide what is reasonable or what they want to do. Then you have to try and attack it on a constitutional footing.
MR BEACH: Exactly, and that is why we say when you get to the second limb of Lange you do not give the Parliament a margin of appreciation and you do not show it judicial deference. You do not use a “reasonably capable of being regarded as appropriate and adapted”. It is for the Court itself to determine whether it is reasonably appropriate and adapted.
KIRBY J: But you have to get past the first limb first and there was a difference between Justice Marshall and the Full Court.
MR BEACH: I understand that and I will address that.
KIRBY J: So first things first, because there is a real issue there.
MR BEACH: Yes. Well, perhaps I can deal first though with the question of power before I get to the Lange issue. In terms of the source of power for these provisions, one source would be 51(xxxvi) which would attach to the subject matter in sections 10 and 31. Conceptually you then get to the question: how do you bring into play section 7 and 24? Do you say that they are an express limitation on the head of power derived from section 51(xxxvi), sections 10 and 31, or do you say that it is necessarily part of the head of power that embraces sections 10 and 31 that elections are to be understood in the light of the direct choice effect set out in sections 7 and 24, so that elections should be read as elections which result in direct choice or in conformity with the provisions of sections 7 and 24?
I do not think whichever analysis you take, the result of this case, will change. Clearly there are passages in Langer, Justices McHugh and Gummow at pages 339 and 348 that talk of sections 7 and 24 as being a limitation on power. Perhaps another way of looking at it was Justice Dawson in Langer at pages 324 to 5, where he considered that, in effect, the head of power was purposive and the purpose to be achieved was direct choice provided by section 24 on the case he had before him, but also section 7. The only difference in bringing in the concept of a purposive head of power is, of course, to bring in at a very early level of characterisation the concept of proportionality.
KIRBY J: Yes, but, Mr Beach, we would not want to take a narrow view of the power of the federal Parliament to provide properly for elections, the conduct of federal elections. I mean, look at the mess the United States got itself into. India and Australia have, with different populations, impeccable records for the conduct of federal elections. It is a very detailed business. You cannot take a narrow view about how you deal with it.
MR BEACH: I accept that. What troubled us about the respondent’s argument was the idea of divorcing the head of power relating to elections from the result of sections 7 and 24, in other words, reading up the head of power dealing with elections and then reading narrowly sections 7 and 24 and sort of segmenting the analysis. We rather would say it is preferable that in considering elections under sections 10 and 24 you are informed by – any law has to achieve the effect, or not be antithetical to the effect set out in sections 7 and 24.
GLEESON CJ: Well, it is the expression “until the Parliament otherwise provides”, is it not?
MR BEACH: Yes.
GLEESON CJ: That empowers Parliament to otherwise provide.
MR BEACH: It does, but if you first start off with section 51(xxxvi) which says subject to this Constitution you have to go back and bring in section 7 if you are talking about section 10, and also section 10 itself uses the expression “but subject to this Constitution”. So you cannot divorce section 7 from any head of power that includes section 10.
GLEESON CJ: One of the most striking features of the Constitution, I would have thought, is the width of the power it confers upon the Parliament to determine the method of election.
MR BEACH: McGinty says that, and we do not quibble with that, so long as it results in direct choice. Whether you talk about that as a limitation on a broader head of power or whether you define your head of power with that limitation inbuilt into it, perhaps that is a semantic difference.
GLEESON CJ: Well, look at the practical consequence that followed from the alteration by Parliament of the number of members of the Senate. I mean by that the position that obtains now is, for practical purposes, it is extremely likely that the party that controls the Lower House in the foreseeable future will control the Senate, whereas after World War II there was a time when there is only one opposition member I think in the Senate. That change just resulted from a change in the electoral system decreed by Parliament.
MR BEACH: That resulted in a change in the number of senators, as distinct from a change in the method of election.
GUMMOW J: You have to allow for Territorial senators, too.
MR BEACH: Yes, I accept that.
GUMMOW J: Not controlled by these sections, necessarily.
MR BEACH: No, perhaps 122, anyway.
GUMMOW J: That is what the decisions say.....122.
GLEESON CJ: What is there in the legislation or the legislative provisions that you are attacking that is inconsistent with Parliament’s power to determine the electoral system?
MR BEACH: That the electoral system has to result in direct choice, whether you say that is a limitation on power or inbuilt into the power, and that these provisions and really the unreasonable discrimination are created between parties with more than 500 members, as opposed to parties with less, and the parliamentary parties – that you can have an incumbent who has the benefit of being able to set up a one member party, and all other parties, we say that that is unreasonable discrimination, antithetical to direct choice, and therefore if the head of power - - -
GUMMOW J: Antithetical to direct choice. Now, what does that mean?
MR BEACH: By unreasonably discriminating, you infect the choice that electors make. They have a ballot paper. They have the major parties that show their political affiliation on the ballot paper. The ones that do not satisfy the 500 rule, they do not have anything there. That is contaminating the choice.
HAYNE J: But the argument at the moment as you state it, Mr Beach, depends entirely on your choice of epithet and verb – “unreasonably discriminate”, “contaminate”, the like. Strip those words out. What is the proposition that you are advancing?
MR BEACH: The concept of direct choice – we do not focus on the word “direct” - - -
GUMMOW J: I know.
MR BEACH: We focus on the word “choice”.
GUMMOW J: Yes, quite, but the fact is, the phrase is “directly chosen”. It is not “chosen directly”, it is “directly chosen”.
MR BEACH: That is true.
GUMMOW J: We talked about that in McGinty.
KIRBY J: You say that the electors do not get a direct choice because they are not given essential information that is necessary for the direct choice by the electors. Is that it?
MR BEACH:
They do not get the choice that was discussed by Justice Dawson in
Langer at page 324, where the choice involved must be:
a genuine, or informed, choice which requires access on the part of the voter to the available alternatives - - -
GUMMOW J:
The view of Justice Dawson in Langer was not a majority view, as
I remember it.
MR BEACH: That is so on the ultimate issue, but Justice Dawson said similar things in the Australian Capital Television Case.
GUMMOW J: I know, but did he have any other support?
MR BEACH: In Australian Capital Television at page 187, Justice Dawson said a similar thing and that importantly - - -
GUMMOW J: Apart from reiteration, did he have any other support?
MR BEACH: Yes, he has support, because Lange itself picked up what Justice Dawson had said at page 187. If you look at Lange at page 560 - - -
KIRBY J: You say this is where Justice Dawson came in from the cold?
MR BEACH: Yes.
A perfect phrase. About a third of the way down the page in
Lange:
Furthermore, because the choice given by ss 7 and 24 must be a true choice with “an opportunity to gain an appreciation of the available alternatives” –
So we say that if you create a situation where, unless there is a compelling justification, which we say there is not, you create a situation where an elector is faced with a ballot paper - - -
GUMMOW J: No, you have to read the whole of the sentence in Lange, Mr Beach. I mean, really. It is 3.35 after a hard day. It is getting harder.
MR BEACH: True, but when your Honour says that he was - - -
GUMMOW J: What is the “absolute denial of access by the people to relevant information”?
MR BEACH: It is an opportunity to gain an appreciation of the available alternatives at the ballot paper, at the very point where the vote is going to be cast. I look at a ballot paper, I see a list of names which have party affiliation, I understand it. If I know a party and its philosophy and I know who that person is, I know what their policies are. If I do not know that party, well, that is - - -
HAYNE J: The ballot paper does not disclose the date of birth of each candidate.
MR BEACH: That is true.
HAYNE J: Some may see that as relevant, some may see it as utterly irrelevant. We may - - -
MR BEACH: I agree. That is why I took your Honours to the 1983 report because they saw that showing party affiliation on the ballot paper was a fundamental piece of information for electors. That is why it was introduced.
KIRBY J: Date of birth is not critical to the way you will vote in Parliament if elected, whereas one might think that a party connection and a party platform and a party constitution and so on is significant for that vote.
MR BEACH: Yes.
GLEESON CJ: There is no upper limit on the age of people who can stand for election, is there?
MR BEACH: Not from recollection.
GLEESON CJ: Well, if the date of birth of a candidate was shown as 1 January 1905, that might be regarded as a critical piece of information.
MR BEACH: It would.
GUMMOW J: You might think we have an Australian Senator Thurman.
MR BEACH: But you are not starting with that scenario. You are starting with the Joint Standing Committee saying the party affiliation on the ballot paper is a critical bit of information. So we can all accept that premise. We do not have to have a debate about it. Then the question is: why should certain candidates be able to communicate that essential piece of information and some not?
McHUGH J: But they do not communicate.
MR BEACH: Well, no, but they do - - -
McHUGH J: It is a paper that is put out by the Executive Government.
MR BEACH: Well, it is literally, but the party affiliation only appears on the ballot paper because of the request of the registered officer of the party under section 169.
McHUGH J: Yes, but supposing the legislature decided that it would not put any party names on. Now, how would that be an interference with any communication that the Constitution guaranteed?
MR BEACH: It would not. If there is no mode of communication - - -
McHUGH J: Well, then, you have to find some right. You were asked that question by the Chief Justice earlier, what right to have your name put on the ballot paper has been interfered with in a way that offends the Constitution’s freedom of communication?
MR BEACH: We do not put a right at all, we say this - - -
McHUGH J: I know you do not, but if you do not, I do not see how your case gets off the ground.
MR BEACH: Because we put it this way. We say Parliament created a mode of communication in 1983 which did not otherwise exist, which was putting party affiliation on the ballot paper. Just like when television came in, the Broadcasting Act created for the first time, by licensing people to broadcast, the mode of communication of television. If Parliament had limited that to the ABC and said only the ABC could take the advertisements of political parties - - -
GUMMOW J: The party imposed a prohibition or lifted in favour of licensees. That is how that Act worked, and many federal Acts.
MR BEACH: Yes, but assuming that when television was introduced the ABC was the only person licensed, and the Act provided that only the major parties could advertise on television, is it being suggested that a different result would entail validity in that case, as distinct from invalidity in the Australian Capital Television Case?
McHUGH J: Well, it might. After all, the plaintiffs in ACTV were television stations. It was their freedom.
MR BEACH: Let me deal with the question of the burden on the freedom then. The Full Court and also Justice Marshall both accepted the position that there was a burden on communication. So that was a point that was held in our favour at both levels, in terms of the burden on communication. That is dealt with in the Full Court.
CALLINAN J: Mr Beach, could I just ask you this. Do you press as a separate argument your discrimination argument which is in section D of your submissions, beginning at page 20?
MR BEACH: Yes, we do, because we have put that - - -
CALLINAN J: So you do not want to put anything other than what you have in writing in relation to that?
MR BEACH: I was going to add something to that, but we do press that as a separate argument.
CALLINAN J: It is separate from your Lange argument.
MR BEACH: Exactly. We pressed that at first instance and right through. It does not depend upon any burden of communication being established or the second limb of Lange being established.
CALLINAN J: There are a couple of things I wanted to ask you about your discrimination argument. Would you prefer to leave that till later?
MR BEACH: I am happy to deal with them now, but I was going to finish off what I was going to say about Lange.
CALLINAN J: Yes, you do that.
KIRBY J: Can I just ask, before you go to this, have you finished what you were going to say about lack of power, because I see your arguments in different terms and I will be starting a new.....if you have finished power.
MR BEACH: I will only say one thing further about - - -
KIRBY J: I do not want to take you off answering Justice McHugh.
MR BEACH: I will say one thing further about power, that Justice Dawson was in the minority in Langer, when he talked about it as being a purposive head of power. But we would still put that as an appropriate characterisation, that you cannot divorce sections 10 and 31 from section 7 and section 24.
The other thing that I should have mentioned but I did not, when I said that section 51(xxxvi) was a head of power, there is also another head of power and that is section 9 itself, which is a direct head of power. That uses the expression “method of choosing senators”, which is much closer to the language of section 7 “chosen by the people”. So that is another head of power. That is all I wanted to say about head of power. We dispute that either there is a head of power or that there is a sufficient connection or, if Justice Dawson’s purposive analysis is correct, we say that it does not satisfy the proportionality test. If you accept the Commonwealth’s submission that it is a very broad head of power with an express limitation, we say that the express limitation is being infringed, certainly by the unreasonable discrimination argument.
Now, in terms of Lange and the burden issue, at paragraph 20, appeal book page 289, paragraphs 20 through to 22, the Full Court correctly accepted that there was a burden argument, but they expressed the burden differently. They looked at the advantage that major parties were getting and said in terms of the general communication of minor parties it may not satisfy the rules in terms of their political communication. What advantages the majors must surely burden those that do not have that advantage, but that appears to be an analysis looking at communication in a very broad context.
Justice Marshall dealt with the matter slightly differently and he dealt with that at appeal book page 249, paragraphs 65 to 67, and he expressed it slightly differently, but we say something a little bit different again - - -
KIRBY J: Do I understand it right, that Justice Marshall found against you on the communication?
MR BEACH: He did. He said it was not a communication - - -
KIRBY J: So that would have effectively been the end of the Lange argument for him?
MR BEACH: That is so.
KIRBY J: The Full Court found in your favour on communication?
MR BEACH: Yes.
KIRBY J: But found that it was a reasonable burden or proportionate burden or, using those ghastly words, appropriate and adapted.
MR BEACH: Your Honour, I will come back to the “between the people” point, but on the burden point, taking what was said in various of the cases, including Levy, about the opportunity to communicate, you create this mode of ballot paper party affiliation, that is a new mode, it is an opportunity to communicate, and then you simultaneously limit that to major parties. We would say on a broad view – and the pages in Levy are at 623 to 624, Justice McHugh and Justice Kirby at 644 – by limiting this mode to major parties, you are necessarily limiting the opportunity to communicate by minor parties using this mode.
Further, if the real focus of the implied freedom is on communication to electors, this nicety about burden and otherwise lawfully available really is an unnecessary gloss. The whole idea of the implied freedom against legislation that prevents or inhibits political communication – what underlies that is the choice of electors. If you step back and look at the 500 rule and the “no overlap” rule, it is necessarily impacting on the choice of electors who have the ballot paper and see some with major party political affiliation shown and some not. So trying to convert our case - - -
HAYNE J: That seems to be an argument simply that voters are more likely to vote for those who have demonstrated that they can assemble a group of 500 about them, or are founded by somebody already in Parliament, than they are for someone else.
MR BEACH: No, voters are more likely to vote for somebody if, one, they have the party affiliation and they have heard of that party. They do not make an inquiry as to whether that party has 100 people – it might have 100 millionaires – as to whether it has 100 or 500. They are voting on the platform or policies, and that is what is communicated by the party affiliation, not necessarily the underlying number of members. Not one of us asks, when we vote above the line, “Gee, I wonder how many members they have”. We are more concerned with what their political platform is, and if we have not heard of them before, well, that is easy; we are not going to vote for them.
In terms of the “otherwise lawful means of communication” argument, that was said by three of the seven Justices in Australian Capital Television at pages 171, 228 and 236, but if one looks at the Lange formulation, that explained the facts of this case, where there was an otherwise lawful means of using the television or radio, but that should not be grafted on as further codification of the test to be applied. That was simply explaining the facts and the legislation in that case.
In terms of the question of “between the people”, the Executive represents the people, so we would say that “between the people” still includes a communication between the Executive and the people, if that is the proper analysis of a ballot paper. We go back to the point that under section 169 it is only the party making the request that gets that information onto the ballot paper in the first place, so the Australian Electoral Commission should, in that context, be seen as the agent or vehicle for the party to communicate its endorsed candidates and the fact that they are endorsed to the electors, that is, through the medium of the Commission - - -
McHUGH J: There is a question of interest here. Mr Mulholland is a potential candidate for election and, therefore, you are talking about his communication. After all it is candidate. It is not political parties. Most of them are not legal entities. They are unincorporated associations in many areas. So let us assume that Mr Mulholland stands for election. How is his communication to the electorate burdened? What is his communication to the electorate?
MR BEACH: If you look at the ballot paper it is only his name. He cannot communicate anything further.
McHUGH J: Well, that is right. It does not give his record, what his policies are.
MR BEACH: If he is able to communicate that he is an endorsed candidate of the Democratic Labor Party that is telling people something.
McHUGH J: Of course it is. That is right. But you are asking for a right. He has no right to do it. If this Act was repealed tomorrow he would have no right to insist that the DLP be put after his name.
MR BEACH: True, but everybody else would be in the same position.
McHUGH J: That may be.
MR BEACH: But that is the difference - - -
McHUGH J: That has nothing to do with it. It may be discriminatory, this legislation, but that is nothing to do with a burden on communication.
MR BEACH: It is.
McHUGH J: It does not burden his communication.
MR BEACH: Your Honour uses the expression “burden”. It precludes him from using this mode to communicate party affiliation.
McHUGH J: No, it does not preclude him because he has no right. He has no right other than the Act gives him, and the Act does not give him a right.
MR BEACH: We are not into rights.
McHUGH J: No, I know.
MR BEACH: Parliament has created - - -
McHUGH J: It is like cases like Levy. Protestors cannot complain about interference with their freedom of communication when they are prevented from going on land if they have no right to go on the land.
MR BEACH: So the logical corollary, if that is correct, is that Parliament could have provided that only the Liberal Party of Australia be permitted to show its endorsed candidates on the ballot paper and that would be valid.
McHUGH J: It may be.
MR BEACH: We would say the consequences of our argument - - -
McHUGH J: You are looking for an implication in the Constitution. The only one you can point to is the Lange implication.
MR BEACH: The Lange implication and separately the direct choice, which is inconsistent with unreasonable discrimination.
KIRBY J: That is your discrimination argument.
MR BEACH: Yes, I accept that.
KIRBY J: You were going to come to that.
MR BEACH: Can I just pare this back a bit. The Canadian Supreme Court in Figueroa did not have any problems of the sort of burden. It accepted the ballot paper communication of party affiliation was essential. In fact, the smaller the party the more important that mode. That was held, with the 50 endorsed candidates, to infringe section 3 of their Charter.
GLEESON CJ: That is, the people’s right of choice?
MR BEACH: Yes.
GLEESON CJ: That was the infringement?
MR BEACH: That is exactly right. There is nothing novel in the case that we put. It is just that it is an implied freedom of communication, so you are deriving the implication differently.
McHUGH J: No, but you have a freedom of communication under the common law. Statute may give you further rights, but this does not impede any common law right of yours.
MR BEACH: No, but it is not to the point to say that there are other ways to communicate them and there are other ways to communicate in Australian Capital Television, but that did not mean to say that that legislation did not infringe the implied freedom.
McHUGH J: Yes, it did. They had a licence and they had a statutory right to televise matters and then the Parliament came in and said, “You cannot televise political matters”. So their statutory right to run their business, to communicate to the public was cut down, just as the newspapers would have been in the same circumstances.
MR BEACH: You see we accept that you are not talking about rights. You are just talking about mode of communication - - -
McHUGH J: No, you are not. That is the point, and it seems to me, your argument runs into the same fallacy as in McClure. You are seeking to erect a right out of the constitutional implication, and it has been said again and again, it restricts government laws that interfere with your rights to communicate. You have to identify a right to communicate.
MR BEACH: McClure was about somebody asserting a personal right to have the Court order that media provide access and that the Electoral Commission provide McClure with a mode of voting. We are not in that territory at all. We are in the territory of statutory invalidity and we are simply saying that if you create a mode of communication – if Parliament had created a mode of communication television, and then said that only the Liberal Party could advertise on television through the State-owned and only telecaster of television, the ABC, that would infringe the implied freedom.
McHUGH J: Why?
MR BEACH: Because you are - - -
McHUGH J: You see, you use this term about creating a mode of communication – no, just listen. You use this term about creating a mode of communication which is a non-term.
MR BEACH: Because you are focusing – if you are looking at direct choice which is where the implied freedom is derived from, you are looking at the electors and the communication to them. This idea of burdens or otherwise lawfully available, that really is peripheral if you focus on what direct choice entails which is communication to electors in a way that does not involve discrimination or does not distort choice. That is what the implied freedom is dealing with.
McHUGH J: I cannot see how it distorts choice, but anyway, that is another point.
MR BEACH: “Between the people” – well, we have, in our reply submissions, dealt with that in some detail. This is set out in our reply submissions, paragraph 15(b). We say the words “between the people” are very general and words that are not to be construed literally. They certainly include, if this is the proper characterisation of the ballot paper, what the Executive tells electors in order to facilitate direct choice, but we in any event say that the Commission is the vehicle for – and it is a registered officer of the registered party that makes a request under section 169, so it is the party that requests the Commission to include on the ballot paper, against a candidate’s name, the party endorsement. So if the registered officer is a representative of the party, it is the party communicating. In all events, if you say it is the candidate communicating - - -
McHUGH J: But what you have to show, Mr Beach, is that your right to communicate with electors has been burdened in some relevant way. Now, your common law right to communicate with the electors has not been burdened in any way. What you are seeking is a privilege. You say, “I want the same rights as other people and this legislation denies it to me”, but there is no relevant communication.
MR BEACH: But your Honour focuses on privilege, and that is why I took you to the 1983 report. This should not be seen as a privilege issue at all. It should be seen as information necessary for electors to make a proper and informed choice of the available alternatives.
McHUGH J: Let that be so. Accept that point. It is irrelevant from the point of view of analysing a constitutional implication. Let it be assumed that it is very necessary for you to put this information through. You have to find some right to do it that is interfered with and you do not have a right. You can put this right out; you can put out “how to vote” cards; you can put newspapers advertisements. There is no interference with any of those rights. But you want the same statutory right that the legislature has given to somebody else.
MR BEACH: Your Honour’s analysis of rights is inconsistent with the way this matter was analysed by analogy in Canada. Further, we say that - - -
McHUGH J: I will not lose any sleep over that.
KIRBY J: I would like to know how they dealt with it in Canada. Was it founded in the Charter?
MR BEACH: Yes.
KIRBY J: That is a point of distinction, is it not?
MR BEACH: Not a relevant one because there it was the same provision of the Charter which is analogous to section 7 or 24, which is - - -
McHUGH J: But it is not, is it? The Charter gives you rights, as the First Amendment has been interpreted to give you rights, but the Constitution does not give you rights.
MR BEACH: Yes, it does. It gives us a right to vote. It gives me a right to vote.
McHUGH J: No, it does not.
MR BEACH: With respect, it does.
McHUGH J: It strikes down legislation that would prevent you from voting. Well, it might, but that is another question.
MR BEACH: Section 7, I would, with respect, say gives people the right to choose their representatives in Parliament.
McHUGH J: What about convicts? What about infants? What about people overseas?
MR BEACH: That would depend upon who the electors are, which is dealt with separately under other sections of the Constitution and under statute. It is the right to vote. That surely cannot be denied and it is the same right to vote that is dealt with in section 1 of the Canadian Charter.
GLEESON CJ: Could Parliament enact a law fixing a maximum voting age?
MR BEACH: Yes.
GLEESON CJ: So it could say people over 80 are not allowed to vote?
MR BEACH: Yes. Sections 7 and 24, when they use the expression “directly chosen by the people”, in a sense, that – you might have to look at that phrase in contemporary circumstances. Today, it would not be appropriate for the Parliament to pass legislation which says that women cannot vote. That might be antithetical to sections 7 and 24, whereas at one stage it might not have been. But, yes, it is conceivable - - -
KIRBY J: Well, do not assume that I accept that answer.
MR BEACH: No.
KIRBY J: I mean, if you look at, say, the decision on the jury, you have to draw lines as to what the jury is and so on, but the traditional vote in England, certainly at the time of the Constitution and up until now, did not limit the electors of the Commonwealth by reference to the attainder of a particular age.
GUMMOW J: It did by gender, though.
MR BEACH: Yes, but the words “directly chosen by the people”, those words do not use the word “electors”, so there seems to be some concept of directly chosen by the people that is outside the strict concept of electors, and directly chosen by the people – you might need to look at the contemporary context.
KIRBY J: But it is stronger, is it not? Because it means that it has to be an election of a particular quality and you cannot, by defining electors, confine the obligation of directly elected by the people.
GUMMOW J: At the time of the Constitution, the United States Senate was not directly elected by the people.
MR BEACH: That is so.
KIRBY J: The President is not, either. That we learnt in Bush - - -
GUMMOW J: The President still is not.
MR BEACH: That is so. In fact, even the Congress – the US Constitution Article I does not use the words “directly chosen”. It uses the word “chosen” and picks up the state legislative regimes and applies them.
KIRBY J: I think I read in one of the submissions that the reason for inserting “directly” was to avoid electoral colleges and other such paraphernalia that they have in the United States Constitution.
MR BEACH: Yes.
GUMMOW J: That is what we said in McGinty.
MR BEACH: But in terms of the analogy with the Canadian case, we say it is a good one. Can I just refer the Court’s attention briefly to tab 14, and ask the Court to note the following paragraphs of the judgment. Paragraph 19 - - -
KIRBY J: You had better put the citation on the record.
MR BEACH: Yes. It is 227 DLR (4th) 1 and section 3 of the Charter, which is discussed, which is the right to vote, is paragraph 19, page 16.
GLEESON CJ: In relation to the facts of this case, it was the 50-candidate threshold that was the subject of the polling.
MR BEACH: That is right.
GLEESON CJ: Was there any limitation of the kind with which we are concerned on the number of members of the party, and if so how was that dealt with by the Supreme Court?
MR BEACH: Yes. It was not. It was not the subject of challenge. The number of members is 100 members.
KIRBY J: Did they have to reveal their names? Did their names have to be publicly disclosed?
MR BEACH: From recollection they did, but I am not convinced, your Honour. I will need to track this through, as to whether that was a continuing requirement. There are provisions for deregistration if the party did not satisfy the 50 candidate endorsed - - -
GLEESON CJ: Did the members of the Supreme Court who wrote reasons say anything about that membership number requirement? Even though it was not, as you say, directly under challenge.
MR BEACH: From recollection, there was only one expression used. I am just looking at paragraph [19] where the discussion under section 3 begins. Paragraph [38] - - -
GLEESON CJ: Perhaps your junior can look at this overnight, Mr Beach, and you can tell us in the morning. The 50-candidate requirement seems a pretty high hurdle to have to surmount, does it not?
MR BEACH: I accept that that was - - -
GUMMOW J: What is the total membership of the House of Commons - - -
MR BEACH: I do not
know, your Honour. The other passages are paragraphs [38] through to
[46]. Paragraphs [55] through to [58], in particular
paragraph [56]:
As Molloy J observed, political parties play such a prominent role in our democratic system that the choice of candidates by some voters is based largely, if not exclusively, on party affiliation. Many individuals are unaware of the personal identity or background of the candidate for whom they wish to vote. In the absence of a party identifier on the ballot paper, it is possible that certain voters will be unable to vote for their preferred candidate.
KIRBY J: Which paragraph was that?
MR BEACH: That is paragraph [56].
HAYNE J: Come down to
the last half-dozen lines of the same paragraph:
It might create the impression that the candidate is not, in fact, affiliated . . . or that the political party with which she or he is affiliated is not a legitimate political party.
What is the value that is buried in that word “legitimate”?
MR BEACH: “Legitimate” we would take to mean a party that has political objectives engaging in the political process, not necessarily 500, 1000, 100.
McHUGH J:
But, Mr Beach, the problem with this decision is, as I said to you, the
Charter creates rights and it is interpreted in a very
broad way. The Supreme
Court starts with section 3 which says:
“[e]very citizen of Canada has the right to vote in an election of members –
and it so interprets that provision, but
it holds that the 50-candidate threshold infringes section 3 because it
undermines the capacity of the individual citizens to influence policy by
introducing ideas and opinions into public discourse.
It is not for me to say
whether the decision is right or wrong in Canada but they are interpreting a
right and they are giving it
the fullest scope. You have to deal with a
negative implication in our Constitution. You are not dealing with a
right.
MR BEACH: No, your Honour is, with respect, shifting - we have a right to vote. I have a right to vote so long as I satisfy provisions dealing with - - -
McHUGH J: Yes, but not under the Constitution.
MR BEACH: Your Honour, I suppose I am repeating myself, but essentially there is a grant to the Australian people under the Constitution of the direct choice method for choosing their House of Representatives and Senate people. I might not have a personal right but sections 7 and 24 must be a grant to the “people of Australia”, using that wretched expression, I will use the expression “people of the Commonwealth”.
KIRBY J: I suppose you contest it by saying, “What would happen if the Electoral Act was repealed”? Would it mean that there could be no vote at all in Australia?
MR BEACH: It cannot be right, your Honour.
KIRBY J: I think the Electoral Act was one of the first Acts that was enacted by the first Federal Parliament.
GLEESON CJ: If that happened and the Constitution directly had been the basis of the election in 1901, would women have had the right to vote?
HAYNE J: While on this Canadian case, it is also relevant to notice paragraph [91], where Justice Iacobucci makes plain that even under section 3 there is no absolute prohibition against differential treatment of political parties.
MR BEACH: Yes, that is true. That is why we have used the expression “unreasonable discrimination” rather than “discrimination” per se. We accept that. I mean, some of the cases like McKenzie, Abbotto, the very issue of voting above the line or groups being able to group is, in a sense, discriminatory, but it is not unreasonable discrimination. So we do make that distinction.
In terms of the question of privacy, your Honours will appreciate that one of the reasons why this proceeding has arisen is because of the privacy concerns that the DLP has in terms of giving over the personal identities of 500 people. Can I just draw your Honours’ attention to the evidence that deals with that question, and that appears at appeal book page - - -
KIRBY J: Now, this is not the discrimination point, is it?
MR BEACH: No, it is not, yet.
KIRBY J: How do you get the privacy? I mean, one can have sensitivity to privacy concerns, but how does it become legally normative in this context?
MR BEACH: If you accept that there is an implied freedom of association - which is either a corollary of the freedom of communication, or perhaps it is even anterior to that – freedom to associate, to form a party that can then communicate, then to impinge on the DLP’s membership privacy in this way impinges on their freedom of association. So the privacy issue is - - -
KIRBY J: But looked at from the point of view of Federal Parliament, especially if indirectly funding attaches to it, may it not be a reasonable proportionate decision of the Parliament to say, “Well, we won’t just accept people’s say-so. We want to have an assurance that this is a party of a particular size”?
MR BEACH: If the funding issue was related to the 500 rule, I would agree with your Honour, but that is why I made the point that funding can be given to one person, an individual candidate.
GLEESON CJ: Mr Beach, I remember you saying that a little earlier. I may have misunderstood what was going on, and I never made any attempt to follow the legal detail of what was going on, but I thought there was some recent litigation in Queensland in a number of jurisdictions that related this question that we are now concerned with, 500 and no overlap, and questions about checking up on the identity of members of parties to a funding issue.
GUMMOW J: Because the party machine gets hold of the money.
MR BEACH: That seemed to be more the State electoral provisions rather than the federal.
CALLINAN J: I do not think there was any constitutional point taken or argued.
MR BEACH: No, but under the federal statute one person can get funding. The candidate can get funding. If you are a political party, you appoint an agent and the agent receives the funding for the party which is derived from the candidate’s success in the primary votes.
GUMMOW J: Yes, that is right.
MR BEACH: But the funding is not referable at all to the underlying numbers.
GLEESON CJ: But if, contrary to your argument, it is legitimate to have an electoral system that attaches significance to parties and defines party by reference to number of members, amongst other things, you have to have a way of checking up on it, have you not?
MR BEACH: And hence the constitutional challenge to the 500 rule and the “no overlap” rule, because if you accept the validity of those then clearly a statute which then says that the Commission can seek details to see whether the 500 rule and the “no overlap” rule have been satisfied would be appropriate and adapted. That would be valid. Hence, part of the challenge is to the 500 and the “no overlap” rules, but they do not play any part in relation to the objectives for which registration was introduced in the first place.
GLEESON CJ: And do you have some separate argument about freedom of association?
MR BEACH: We do, which is that if you require the DLP’s members to provide the personal details of 500 people, that acts as a disincentive to their being members of the party. That undermines the party, impinges on the freedom to associate, if one exists, and, of course, then carries over and then impedes that party in relation to how it performs in the political process and how it communicates in the political process.
GLEESON CJ: Now, you still have not addressed separately your discrimination point that Justice Callinan wanted to ask you a question or two about.
MR BEACH: Yes. The unreasonable discrimination point, we say, comes directly out of the words “direct choice”. Putting aside whether this Act creates unreasonable discrimination, if the act of choice by an elector is made on the ballot paper, and the ballot paper allows certain candidates and their parties to communicate valuable information and denies it to others, and there is no other proper objective that is being satisfied by that discrimination, then that amounts to unreasonable discrimination and impinges on the choice that the elector made – focusing on the word “choice” rather than the word “direct”.
CALLINAN J: Mr Beach, I think you used the words “level playing field” in some instances which seems to have been taken from what Chief Justice Mason said in ACTV, in particular at page 146. What I want to know, and perhaps you can tell me in the morning – could I just add this. It did not seem to me that Justice McHugh at the other pages to which you refer in your paragraph 57, that is Justice McHugh at pages 222 and 228, went as far as Chief Justice Mason. Do not try to answer it now. Also I would like to know what the other members of the Court said about discrimination in ACTV.
MR BEACH: In terms of the level playing field, it is fair to say that what we attributed to - - -
CALLINAN J: That is only Chief Justice Mason, is it not?
MR BEACH: Yes, but what we attributed to Justice McHugh is probably not quite on point.
CALLINAN J: No, it is not the same, is it?
MR BEACH: He was dealing with a different argument and responding to another argument on a level playing field. It is really the passages from the Chief Justice.
CALLINAN J: It did not seem to me – and this is what I really need to know and you can tell me in the morning – that any other Justice in that case went nearly so far as the Chief Justice. Look at that overnight and let me know in the morning.
GLEESON CJ: Is that a convenient time, Mr Beach?
MR BEACH: Yes, your Honour, it is
GLEESON CJ: We will adjourn until 10.00 am
tomorrow.
AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL
THURSDAY, 12 FEBRUARY 2004
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