Mulholland v Australian Electoral Commission [2004] HCATrans 8 (12 February 2004)

--

Mulholland v Australian Electoral Commission [2004] HCATrans 8 (12 February 2004)

Last Updated: 13 February 2004

[2004] HCATrans 008

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 THURSDAY, 12 FEBRUARY 2004, AT 10.03 AM

(Continued from 11/2/04)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Beach.

MR BEACH: Your Honours, we have had discussions about the time allocation. We have agreed on a time but it goes out to 12.15, so I will try to be a little bit shorter than the agreement, but essentially I have got 15 minutes now and five minutes in reply and the other time is broken up between the parties and the Solicitors.

Could I return to the issue of discrimination and Australian Capital Television and just go through the passages. The Chief Justice is the strongest in terms of the discrimination argument and its significance for his Honour’s conclusion on invalidity. The pages where his Honour dealt with that are at pages 132, top third of that page about halfway down that page, where his Honour talked about:

The provisions of Pt IIID manifestly favour the status quo.

Then towards the foot of that paragraph. Page 145, the last paragraph on that page, and page 146, the paragraph at the middle of the page beginning with “The replacement regime”. Justices Deane and Toohey - - -

GUMMOW J: What is being said? We can write all this down, but what is being said in these passages? What is the principle that is being laid down and how does what is being laid down here stand after Lange? The world has moved since ACTV.

MR BEACH: Yes. If you fit ACTV within the Lange formulation, this would probably fit in at least to the “reasonably appropriate and adapted” test, that if there is unreasonable discrimination then it is less likely that a law that might be otherwise targeted to a particular objective is reasonably appropriate and adapted.

GUMMOW J: You fix on this phrase “no reasonable justification”, for example, in 147, do you, at the beginning of the paragraph there?

MR BEACH: Yes, so that it ultimately goes to that issue for his Honour, but we put it more directly outside the Lange point.

GUMMOW J: Yes.

MR BEACH: Justices Deane and Toohey at page 171 in the middle paragraph discuss three aspects of the regime in Part IIID. The second aspect, which is the free advertising issue which raises the discrimination question, is dealt with at the top of page 172, where they in that paragraph deal with the fact that the free time provisions are heavily weighted in favour of the established political parties. They then go on deal with a third aspect, so they have three aspects that they deal with, and then they conclude at page 174, the first complete paragraph about a quarter of the way down that page:

It is in the context provided by the abovementioned aspects –

and then they go on to conclude invalidity. So they are not as strong as the Chief Justice but they seem to consider that the free time provisions and how they are weighted in favour of the political parties was one of the factors – perhaps not the most important factor, but one of the factors they took into account in relation to invalidity.

Justice Gaudron does not deal with the discrimination argument. She holds that other parts of Part IIID, other than the free time sections, are invalid and then she concludes that because those other sections are invalid and they are not severable from Part IIID generally, the whole lot falls, including the free time provisions.

Justice McHugh, at page 237, about two-thirds of the way down the page, deals with the issue that the free time provisions are heavily weighted in favour of the political parties, but it is fair to say that at page 239 his Honour was using the heavily weighted free time provisions as an argument, perhaps, to negate the Commonwealth’s suggestion that this was legislation that was introducing a “level playing field”. So it seems to have been more a reaction to the Commonwealth’s argument than something that was expressed more strongly by the Chief Justice. Those are the only passages that we want to refer to.

Just in terms of the discussion in the submission that I put yesterday about what can be gleaned from sections 7 and 24 in relation to a right to choose, if we expressed ourselves ambiguously yesterday, we apologise, but what Justice McHugh said at pages 288, 230, 231 in relation to the right to choose, with reference to sections 7 and 24 – we, with respect, would adopt his Honour’s formulation and say that the Canadian case which dealt with the Charter and the right to vote, although it might have a different foundation, nevertheless is a useful analogy in the present case.

In terms of the discrimination argument, we put two aspects of discrimination; first, that there is discrimination in favour of major parties over the minor parties. The second element of discrimination was the discrimination in favour of parliamentary parties, who strictly can be one-member parties, over all other parties. It might be said that, well, that is reasonable discrimination because a parliamentary party might, by definition, have some measure of public support.

That is consistent with the so-called rationale underlying the 500 rule, but the Electoral Commission itself seems to have rejected that notion that a parliamentary party necessarily has public support. They dealt with that in the document that I took your Honours to yesterday, which was the report of the Commission of 3 October 1998 under tab 2 of our supplementary materials at paragraph 7.11, where they recommended, in fact, consideration of the abolition of the parliamentary party limb because it is not clear at all that a parliamentary party necessarily has public support, as distinct from the parliamentarian that actually was voted into office.

In terms of Figueroa, the Chief Justice asked me yesterday whether there is reference to the 100 member rule or any discussion of that in that case. The only reference expressly to that is in paragraph [2] of the judgment of Justice Iacobucci, where he refers to the 100 members but says, “These requirements are not at issue in this appeal”.

So they are careful to say that is not an issue in the appeal. So you cannot glean from this decision one way or the other what their Honours would necessarily say about that requirement. Also on Figueroa there is a discussion of the discrimination issue at paragraphs [51] and [54,] and I should have perhaps referred your Honours also to the minority judgment of Justice LeBel and others and the paragraphs at paragraphs [147] to [149] where they discuss what are the necessary indicia for a legitimate party that is a legitimate participant in the political process. They focus not on questions of underlying number of members but, rather, from paragraphs [147] to [149], on participation in the political process, including the endorsement of candidates; particularly that is discussed at paragraph [149]. So it is in that context perhaps that the reference to a legitimate political party, that passage in paragraph [56] of the majority, might be read in the light of what Justice LeBel and others said at those later paragraphs.

Two further points. I was indicating to your Honours yesterday on the question of privacy that there was some evidence at the beginning of appeal book page 189, an affidavit of Mr Mulholland, paragraphs 3 and 4, which deal with the question of privacy and the problems for the DLP. I should say there was an objection at trial to the admissibility of those paragraphs. His Honour allowed them into evidence as something that the registered officer of the DLP could say, although clearly hearsay statements made to the officer by others was not being sought to be adduced as evidence of the truth of contents, but no more no less than that others had made statements and this was the position of Mr Mulholland based upon his experience.

KIRBY J: What was the essence of the privacy concern? If you are going into a political organisation which, by reason of its registration, is going to get certain benefits, maybe it is a trade-off that you have to expect from your privacy that it will be disclosed.

MR BEACH: Well, if you only have 500 members, the 500 rule would, on one view, entail that 100 per cent of your members disclose their personal identity, and if you only want to put party affiliation on the ballot paper, we would say that there is no compelling rationale for overriding privacy if that is all you want to do. If you were seeking public funding, there may be a different consideration, but you can register and be a registered political party without seeking to also achieve public funding.

CALLINAN J: Could the Parliament legislate for voting to be other than secret?

MR BEACH: Yes. Justices Gummow and McHugh said that the secret ballot was not enshrined in the Constitution.

CALLINAN J: If the Parliament could legislate for disclosure in a way which would have the effect of disclosing how people voted, why cannot the Parliament legislate for disclosure of membership of a party?

MR BEACH: There is a conceptual difference. Disclosing how I might vote on one occasion might not say much about my political - - -

CALLINAN J: But a member of a party might cease to be a member of a party next week.

MR BEACH: That is true, but, in terms of membership of a political body, you are more directly impeding the freedom of association which that - - -

CALLINAN J: Why? It did nothing to prevent you from associating. If you want to keep it secret and do it in a cell somewhere, that is one thing, but if you want to get the financial benefit you cannot do that.

MR BEACH: That is a different issue. We might be arguing a different case if it necessarily was the case that every registered political party had to get pubic funding, but if you are a registered party and all you want to do is not make any claim on the public purse but simply to have your name on the ballot paper, we put that there is no compelling justification for overriding privacy. Privacy in relation to membership of a party, we would say, is conceptually different to privacy in relation to the secret ballot.

I should say McGinty, where these observations were made, was not about the secret ballot, so it has not really been looked at. We can put two points, first, that there is a distinguishing feature here between membership and the reference to freedom of association and ultimately freedom of communication, and say that you could find invalidity - - -

KIRBY J: I can understand your client’s concern about this, but the fact of the matter is we do not have a First Amendment in this country to stand against privacy invasions. In the Law Reform Commission report on privacy, it revealed hundreds and hundreds of statutes that invade people’s privacy and there is no First Amendment to stand against it.

MR BEACH: We do not put freedom of privacy or freedom of association generally, we just say where we are dealing with the formation and operation of a political party that is actively involved in the political process there is a limited, but very important, privacy consideration.

KIRBY J: I am just looking for the normative foundation for your submission.

MR BEACH: If you accept that there is a freedom of communication, the anterior freedom would be a freedom of association because you would want to associate first to then communicate. We would say the anterior freedom to the freedom of association can also include a freedom of privacy, working backwards.

HAYNE J: That would sit oddly with the notion of being a registered Democrat voter in the US, would it not?

MR BEACH: Yes, that might.

KIRBY J: They have to go to different tables. I have seen it on the television. They have to disclose what their voting is.

MR BEACH: But, as I say, disclosure of who you are as a voter may be less draconian than disclosure of being a member of a party, if there is some opprobrium associated with that party’s policies, or - - -

KIRBY J: I can well understand in the 1950s to disclose 500 members of the Communist Party might have been quite dangerous.

MR BEACH: Yes. At all events, there was a discussion of the privacy issue in those Senate debates in 2000. I gave your Honours the page references. I did not go to them specifically, but there is some reference to privacy concerns that have arisen. So it is not just something peculiar to the DLP. It was recognised also by those that were debating the 2000 “no overlap” rule amendment.

KIRBY J: I repeat, I can see your concern. What I cannot see clearly is the normative foundation for the Court to do anything about it.

MR BEACH: Yes. All I can do is work backwards. There are observations of Justice Gaudron and, from recollection, Justice McHugh in Kruger and also Justice McHugh in ACTV about freedom of association, so we would work back from that as the starting point, although we accept that we are not putting out into the ether a general freedom of privacy or a general freedom of association.

McHUGH J: The problem with my judgment in ACTV is it has to be read in the light of what the Court as a whole decided in Lange. I spoke about rights inhering in the people in ACTV , but it is very difficult to reconcile that with the unanimous holding in Lange where we held that the freedom operated purely in a negative fashion.

MR BEACH: Yes. The only way I could reconcile it is to say that your Honour did not intend or mean personal rights in ACTV.

McHUGH J: No, I did not. I am pretty sure I did not.

MR BEACH: Then to say that, although strictly Lange was talking about the freedom from legislation or a common law rule that might impinge on political communication, it was not saying anything about general constitutional rights, using that expression very, very loosely. It was not about that; it was about a case of defamation. The Court did not have to go into the sorts of issues that we are dealing with here on power and statutory invalidity.

KIRBY J: It seems to me you have to somehow construct a right from the fact that the Parliament has given certain entitlements to some people but held it back from other people and that that, allied with the constitutional language, is offensive to the structure and terms of the Constitution.

MR BEACH: We would like to eschew the expression “right” and we just simply say that if you have direct choice you are focusing on communication to electors, so communications, whether created by statute by the Commonwealth Parliament and limited or whatever, if that in some way distorts the communication that electors are ultimately getting, then the implied freedom would be sufficient to invalidate without talking about whether there is some prior common law right before the legislation comes into force or dealing with it in that sense. Just looking at it from what are the communications that electors are getting, how does this legislation distort it?

Finally, on proportionality, there is a lot said in the written submissions so I will not repeat that, but we say in terms of the “reasonably appropriate and adapted” test that we are into the most stringent form of the application of that limb and closer to the situation in Australian Capital Television than the situation in Levy because these provisions are directly targeted at the ballot paper and communication.

In fact, the justification for limiting the registered political parties is somehow to keep down the number of parties and candidates on the paper, so it is directly targeted at communication to electors and it targets the mode of communication, that is that the mode is available to some and not others, and it targets the content of the communication that a candidate can give. A candidate that is not endorsed by a registered political party can only have his or her name on the ballot paper, so you are regulating both the mode and the content by denying to that candidate the opportunity also to refer to party endorsement.

McHUGH J: Mr Beach, your submissions seek to invalidate certain sections and subsections so that your client would get the benefit of the privileges granted to other people, but why is the logical consequence of your submission not that the whole edifice comes down?

MR BEACH: For the reasons explained by the Supreme Court of Canada in Figueroa. They actually analysed each of the so-called benefits or privileges that a party were getting and decided nevertheless that they could invalidate the impediment or the burden, which was the 50-candidate endorsement, but leave the entire registration regime and the benefits that it delivered otherwise intact. We say here you can sever out that criteria of registration and keep the registration system intact, with all of its consequences.

GUMMOW J: That runs into the sort of problem discussed many times, beginning perhaps with Sir Owen Dixon in Poole, does it not? You ask yourself, “If told that they could only have this reformulated package, would the Parliament have gone ahead?”

MR BEACH: We would say that they would have because on the list system that was only for the electors benefit, not a privilege for parties. On the party affiliation, again, that 1983 report only referred to the benefit to electors of getting better information. The only issue is the public funding issue and, as I say, that is given to individual candidates or unnamed groups. So, when you break down the three objectives of the 1983 amendments, there is nothing that ties the 500 rule necessarily into any one of those three objectives.

KIRBY J: Yes, but that is attributing highly noble objectives to the Parliament. It could be, thinking of level playing fields and then remembering the Senate report that you took us to, that this was not so noble, that it was designed to ensure protection and benefits for the major players, the parliamentary parties and parties like them, and that Parliament would not have gone ahead if it had thought it was going to help parties like yours.

MR BEACH: I understand the point. There is nothing much I can say because we would only be speculating because there is just no discussion or debate about the previous 500 rule.

KIRBY J: This is a very political thing. This is the heart of politics, getting elected.

MR BEACH: Perhaps I am just cynical, your Honour.

GUMMOW J: No, I think you are being naïve, actually, that is why I asked you.

KIRBY J: It is a reason for a court to be rather cautious about, as it were, remodelling the legislation which Parliament has enacted in a particular form.

MR BEACH: Or, expressing it another way, if you assume that they have done this self-interestedly, all the more reason for this Court to be scrutinising this fairly carefully in terms of its perceived justification and rationale.

KIRBY J: Quite, but it leaves open Justice McHugh’s question to you about whether we can by severance, as it were, make a significantly different scheme.

MR BEACH: Yes. The high point is that that did not seem to trouble the Canadian Supreme Court.

GUMMOW J: But they had their Charter.

KIRBY J: They have a Charter.

MR BEACH: That is true, but there is nothing in the extrinsic material to suggest that you could not sever it out if you accept our analysis of the underlying objectives of the 1983 report, in terms of why registration was introduced in the first place. Those are our submissions, if the Court pleases.

GLEESON CJ: Thank you, Mr Beach. Yes, Mr Solicitor.

MR BENNETT: Your Honours, I propose to deal first with the issue raised by the notice of contention about political communication, then about the identity of the relevant test to be applied, then specifically with the 500 and “no overlap” rule to demonstrate that they satisfy the test and, finally, very briefly, with the question of severance.

Your Honour, there is a short list of corrigenda to a number of footnotes, which I hand to the Court and which we have distributed. I will not address any of those; I simply ask your Honours to put them with our submissions. We have also prepared for the Court a list – which we have set out in full to save the time of reading some of them – of statements by this Court on the scope of sections 7 and 24 of the Constitution. Most of these are referred to in our submissions, but the extracts we have given set them out in full for the convenience of the Court.

GLEESON CJ: Thank you.

KIRBY J: Just whilst that is being distributed, the question I asked concerning the Communist Party in the 1950s, is really the sort of extreme area of concern here, that requiring 500 people’s names to be revealed publicly is a burden, a significant burden, on the political process. Whether it is on political communication you will now address, but it is a burden.
There are people who are happy to join political parties, but do not think it is anyone else’s business. They may not even turn up at the barbeques – it is just something that they are happy to give their small subscription to. In the 1950s, being known that you were a member of the Communist Party of Australia would have been a very big burden on you, and that will come again, or may come again.

MR BENNETT: Yes. Your Honours, first, that issue is to be dealt with by my learned friend Mr Hanks, the issue of privacy. But, your Honour, there are a number of cases - - -

KIRBY J: It is also the issue of discrimination, I suppose.

MR BENNETT: Your Honours, there are a number of cases in which this Court has referred to what might be said are extreme and distorting examples.

KIRBY J: We had that in the last case, but for myself, I mean, the whole point of having the Court is to look at the logic of arguments, and the logic of arguments, history suggests, can sometimes press the envelope. So it is not irrelevant to look at what happens. History teaches that you have to think of what can happen. The Communist Party is in living memory.

MR BENNETT: Yes it is, your Honour.

KIRBY J: It is curious that I should be mentioning the Communist Party of Australia in a case brought by the Democratic Labor Party, but one must be even-handed in these things.

CALLINAN J: Well, the Canadian Communist Party Case is really - - -

MR BENNETT: Yes it is, your Honour.

CALLINAN J: 50 minimum for the Communist Party there.

MR BENNETT: Yes. It may be doubted whether, in modern Australia, there is a serious risk a person would face from being publicly identifiable as a member of a political party.

KIRBY J: Well, I wonder. What if there were the Islamic Fundamentals Party of Australia? It is not beyond question. These things may be decades down the track, but have to be considered by the Court.

MR BENNETT: Yes, your Honour, but one must weigh against that the other factors, and there is a question as to how public it would be. Your Honour recalls the evidence in this case. This is why I have left this matter to the Commission. The evidence in this case was to the effect that the Commission takes the view that the document is not one which can be made public. Now, there may be different views on that and that is a matter my learned friend will address, but the question of privacy I will leave, except for the purpose of reminding your Honours of what was said in a string of cases, including, most recently, Shaw [2003] HCA 72, where at [32] there was the reference that one should not give a term a meaning:

narrowed by an apprehension of extreme examples and distorting possibilities - - -

HAYNE J: You can go back, at least, failing that proposition, to Engineers.

MR BENNETT: Yes, your Honour, it is in Engineers [1920] HCA 54; (1920) 28 CLR 129 at 151 to 152.

KIRBY J: Well, maybe that is an example that makes the point, because Mr Menzies said that that was the end of the federal era in Australian history. Engineers is a case that really changed the federal structure of this country.

MR BENNETT: In some respects, yes, your Honour.

KIRBY J: In a very significant respect.

MR BENNETT: Yes. It is also dealt with in Western Australia v The Commonwealth, where the spectre was raised of the Commonwealth having 100 territorial senators so as to dominate the Senate. That was referred to also in Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337 by your Honour Justice Gummow and your Honour Justice Hayne, at paragraph 88.

The present case is not, in our submission, one which has any relationship to the implied freedom of communication. What is sought is to require communication, and that communication is not between the people, but a communication between the Electoral Commissioner and voters and the communication on a voting paper. The logic of my learned friend’s submission would extend to a requirement that the Electoral Commissioner publish, if so requested, a political advertisement such as “Vote for me for a better Australia” or some phrase like that. Clearly, the question of what appears on the ballot paper and how it is constructed is one which is of great importance and is an essential part of the democratic process laid down by, among other things, sections 7 and 24 of the Constitution.

KIRBY J: But when 92 per cent of the people vote above the line, what appears above the line is very important.

MR BENNETT: Yes, your Honour. I do not for a moment - - -

KIRBY J: You have to have them in a column, so what is the problem about putting the name of what they say is their party?

MR BENNETT: Your Honour, the problem is that it opens itself to various forms of abuse and it subjects the electoral system to a number of problems which impede the free exercise of choice. I will take your Honours in due course to examples of that and to how that occurs. What has been said in a number of cases, and, indeed, was said by my learned friend at one point yesterday, is that one of the purposes of identifying political parties is to enable voters to realise that people belong to substantial organisations which have particular policies and are genuine political parties in the sense that they are known to have a general overall approach.

If one allows every group of two people to form an association, give it a name and put that name on the ballot paper, one gets a much more complicated ballot paper and many people will use it merely for the purpose of advertising. A name, of course, as we have learnt in recent years, even a person’s name when changed by deed poll, can be a form of electoral advertising.

GLEESON CJ: Well, presumably you could have many valid criticisms of legislation about the form of a ballot paper, but unless you can bring your criticisms under a constitutional rubric such as freedom of communication or direct choice, then they are political criticisms.

MR BENNETT: Precisely, your Honour. The point we make – and it becomes apparent when your Honours see the judicial statements made that I have handed up to the Court, particularly, and perhaps most importantly, the judgment of Justice Stephen in McKinlay, but it does appear elsewhere – one does have, and the Constitution permits, a wide rang of political systems.

Now, yesterday the question was asked, suppose there was no Electoral Act and the Electoral Commission was charged at some early date with organising an election for two Houses in such a way that people were directly chosen by the people without an Electoral Act describing the method. There are, as has been said, hundreds of ways they could go about achieving that, with huge variations. To take the most obvious examples, one could have for the House of Representatives a system of proportional representation under which each State was a constituency, so long as one complied with the numerical rules laid down by the Constitution. One could have, as we have, a number of individual constituencies. One could have, as we have seen in Tasmania, a Hare-Clark system with multi-member constituencies. One could have a system under which those constituencies are not exactly equal in size – that has been demonstrated by McGinty and - - -

KIRBY J: Marquet.

MR BENNETT: Yes, those two cases. One could have a system under which one had functional constituencies. So instead of having constituencies based on area, they were based on groups in the community such as labourers, lawyers, homemakers, unemployed and so on, students and various other groups. One could have a whole variety of systems. We know that the smaller the number of constituencies, and a fortiori if one has total proportional representation so each State is a constituency, we know that that favours small parties and we know, looking around the world at countries such as Italy and Israel which have such a system, that one has a far larger number of small parties which mean that governments are almost always coalition governments. There are two views on whether that is a good thing or a bad thing. The recent debates in New Zealand illustrate that.

GLEESON CJ: If you introduced a system of “first past the post” voting of the kind they have in the United Kingdom, you could virtually wipe out small parties.

MR BENNETT: That was the next example I was going to give, your Honour. Indeed, that occurred in the United Kingdom for many years. The argument against it was that the major parties could say, “If you vote for a minor party, you have wasted your vote”.

McHUGH J: Well, it occurred in Queensland until 1956.

MR BENNETT: Yes, precisely, your Honour, but the questions as to which of these systems one has are political questions. They are questions which have been left initially to State Parliaments and subsequently to the Federal Parliament. One could have compulsory or not compulsory voting. One could have secret or not secret ballots. One could have - - -

GUMMOW J: There was no compulsory voting for the first 20 years of the Commonwealth.

MR BENNETT: Precisely, your Honour. One could have disclosure of names of some or all political parties on the ballot paper or, as we had until 1983, one could have no disclosure of the political parties on the ballot paper.

GLEESON CJ: That is the argument. I think you have passed over – the argument is whether you could have disclosure of some political parties on the ballot paper but not others.

MR BENNETT: Yes. In relation to that, your Honour, one characteristic which seems to have been found as almost a common characteristic in electoral systems in democratic systems is a requirement of some minimum level of support before one can even stand, before one gets to the question of political parties and the presence or absence of some of them on the ballot paper.

One matter which has been recognised frequently is that it is open in a democratic system to have some limitation on who stands and some limitation on what that person can have placed after that person’s name on the ballot paper. Some of the reasons for that are amply illustrated by the parliamentary debates and by the incident concerning the “tablecloth” ballot paper which, at some stage, I will take your Honours to. The way we would put the problem is this, that it is open to the Parliament, having adopted a particular method of voting, to deal with abuses or excesses which that method may throw up. That is largely what has happened here.

One very serious problem which is thrown up by a combination of the preference system and the “above the line” voting system, which this Court has held on a number of occasions is permissible, is the problem of what has been described in various articles that your Honours have as preference harvesting or decoy voting.

GLEESON CJ: Would it make any difference to your argument if the figure 500 were 5,000?

MR BENNETT: Your Honour, we would accept that a point might arise where what was done was so much to skew the choice of electors as to take it outside sections 7 and 24.

GLEESON CJ: What if the figure were a figure that could be comfortably achieved by the so-called major parties and could not be achieved by the so-called minor parties?

MR BENNETT: Your Honour, there would be a strong argument that that would be on the other side of the line.

GLEESON CJ: Under the rubric of direct choice or freedom of communication?

MR BENNETT: Direct choice, your Honour. It has nothing to do, we would submit, with communication. But may I just, while I am dealing with this, although it is out of the order I initially opened, just explain to your Honour what decoy parties or preference harvesting is and how it works. It is not suggested that this is what was done in New South Wales at the “tablecloth” election, as it has been described, but that election demonstrated the possibility of doing it.

What one can do is this. Assuming one has the 500 rule, but not the “no overlap” rule, the same 500 people can form a number of parties. They give those parties names which are likely to appeal to single issue voters. In fact, one can see examples of that sort of name on the “tablecloth” ballot paper itself. Might I just show it to your Honours. It is in the appeal book at page 225.

Let us assume - and I do not suggest this was the case, it was not the case – that what this does is demonstrate how it can be done. Let us assume that a single group of 500 people form a number of parties with this sort of name. Many of them would appeal simply to local interests. For example, one has parties which – Group W, the Outside Newcastle Sydney Wollongong Party. There was another one which I cannot find quickly, dealing with a particular - - -

GLEESON CJ: Hotel patrons.

MR BENNETT: Yes, Group AZ, the No Badgerys Creek Airport Party. There is one – I am sorry, I have lost it, your Honour - - -

GLEESON CJ: We get the drift.

MR BENNETT: Yes, and one can also have parties that are likely to appeal to particular single issue voters, such as Group B, the Marijuana Smokers Rights Party, and there are other examples of that. There are other ones which are in many ways slogans, such as Group R, Jobs for Everyone - Futures for All.

KIRBY J: Yes, but this gives electors choice, Mr Solicitor. I know that is sometimes uncomfortable to the large parties, but to some people Republic 2001/People First, Group AI, could be the most important thing in their lives.

MR BENNETT: That exactly is the problem, your Honour, because it does not really give a choice. It gives a choice and then distorts it because what happens then is that the parties the same 500 people have set up all direct their preference to the real candidate, whoever that is, or at least direct their preferences to him or her, before the major parties. That means that the people who see a single interest which they are particularly interested in in one of these slogans have their vote diverted through the “above the line” voting to that person.

KIRBY J: What is wrong with that? That is their choice.

MR BENNETT: It is their choice, but they are choosing based on a name, which may be no more than a slogan, of a party which is merely the same 500 people having registered another slogan. They could even register opposing slogans, like Group AF and Group C, for example.

HAYNE J: Why do we need to get into these colourful examples, Mr Solicitor? Does your argument depend upon making good this proposition that the purpose is to avoid preference channelling?

MR BENNETT: The reason I take your Honours to this is that speeches in the Senate where the amendment was introduced - - -

HAYNE J: There is a lot of political debate about that, I understand that, but does your argument depend upon identifying this as a vice or the vice that was to be dealt with?

MR BENNETT: No, your Honour, it is one of the vices to be dealt with.

HAYNE J: At root is the proposition any larger than the proposition in the 1998 Commission report to which Mr Beach took us, at paragraph 7.11, where it said that:

The membership criterion is effectively the legislative control that prevents unlimited numbers of parties being registered. Its intention is to ensure that parties demonstrate a level of support within the community –

MR BENNETT: Yes, your Honour. That is the background purpose, but in order to illustrate that background purpose one needs to identify various vices. One vice is the size and complexity of the decision facing electors confronted with a ballot paper like this. The second is, what this illustrates is the way - - -

HAYNE J: But that takes us off into discussion of which voters we are to consider. Are we to consider the informed voter, the voter who goes in and simply becomes the donkey voter? Why do we get into that kind of fine political analysis of the character of the electorate in Australia? What is the legal principle that takes us in there?

MR BENNETT: The legal principle that takes us in, your Honour, is if one treats it as a freedom of communication and exception, then it is whether it is reasonably capable of being seen as appropriate and adapted. The other way of putting it is, under sections 7 and 24 themselves, whether it relates specifically to the phrase “directly chosen by the people” and the latitude which that gives to the legislature.

In showing that it comes within that latitude, I am simply demonstrating that there is a legitimate function in having this sort of provision, as there is in the 50 people to nominate one or the payment of a deposit which is forfeited if one does not get a certain number of votes. All those are part of the political process which, like a choice between first past the post and preferential, or a choice between above the line and not above the line, or size of constituencies, may favour major parties or may favour minor parties. That is a political choice.

KIRBY J: I take the force of your argument, and I do think it illustrates that there is arguably a problem which Parliament was entitled within its powers to address. But the counter-argument is that the words in the Constitution are “directly chosen by the people”, and by, as it were, signalling the party affiliation of some but not others, you diminish the effectiveness of the choice that the people have. In a sense, you concede that by accepting that a point is reached where you go beyond the pale. So we are really asking, is 500 at that point? Is it night turned into day?

MR BENNETT: Your Honour, my submission is that the number 500 is - one has to select a number, obviously. One does not - - -

KIRBY J: The Canadians selected 100. 500 is five times that, and we are a smaller country.

MR BENNETT: New South Wales is 750, I am reminded. Different States have different numbers. But the purpose of that - - -

KIRBY J: If I can be quite brutal, being a member of the Democratic Labor Party, which had an established history in Australia, I could understand would be an attraction to some voters to vote for you, whereas your name will not. So that it is not an insignificant factor. It is a party which has resonances in the collective political memory.

MR BENNETT: Yes, it does, your Honour, but that is not the issue in this case.

KIRBY J: Well, deleting it and removing that from a candidate’s chances is reducing, so it is said, the direct election by the people, because you have given it to some, given them their advantages, but you have denied it to others, denying them their advantages.

MR BENNETT: Your Honour, that assumes that they cannot get 500 signatures.

HAYNE J: That apart, how do you say, and you seem to concede it, that the kind or quality of information conveyed on the ballot paper about a candidate relates to the question of “directly chosen”? What is the connection that you are drawing when you say there comes a point where it would prevent attribution of the expression “directly chosen”?

MR BENNETT: Your Honour, I suppose if I can take extreme examples, if one looks at the system which existed in the Soviet Union where one had the Communist Party’s candidate name on the ballot paper and if one wanted to vote for anyone else one wrote it in. That might well be a system as to which one could say that the choice given to the elector is so skewed by the system as to take it out of the concept of “chosen by the people”. Similarly, if one said, as in one of my friend’s examples, that only one party could have its name on the ballot paper - - -

HAYNE J: That is different from one candidate. I can understand the proposition that the tendering of one candidate affects the notion of choice, but how does the kind or quality of information supplied about some but not all relate to this notion of “directly chosen” which we find in 7 and 24?

MR BENNETT: Your Honour is asking me to argue my learned friend’s case.

HAYNE J: No, I am asking you to explain your concession which is a concession that seems to me to be founded on ground that I do not yet understand.

MR BENNETT: Your Honour, it is based on the same principle as the tendering of only one name, with the right to add any name one wishes. That, in one sense, may be said to give the elector a choice, but we would submit that the skewing of the choice to that extent may go too far and identifying one party only may be said to give such an advantage or to skew it to such an extent that it cannot be justified under any of the other matters. But, here, we submit, the other extreme which is illustrated by the “tablecloth” ballot paper of allowing any group to think up an electoral slogan and place that on the ballot paper by making it the name of what is described as the political party is clearly something which goes to the other extreme and distorts the electoral process in ways which it is legitimate to avoid.

Conceding the extreme case does not in any way, I submit, accept that having a system of registered political parties which requires a certain minimum size and in order to limit it to parties which have shown a significant measure of community support and knowledge is different.

Now, the answer to the question I was asked about the history of the appellant is this, that once one decides on a line to achieve a particular general result, it is no answer to say that in particular cases that line may not achieve that result, that there may be particular cases where a party with 499 members might have significant community support and be an established party, whereas another one with 501 members might not be. That is always possible when one has a line.

KIRBY J: Credulity or credibility? It is the voters who have credulity.

MR BENNETT: I thought I said credibility, your Honour, but if I did not I apologise.

KIRBY J: I suppose it is like if you had the United Australia Party or the Protectionist Party, some of the old names of the past. In a sense, it is an irrelevancy, or at least it is open to Parliament to consider it is not a significant matter.

MR BENNETT: Your Honours, there would be great difficulty in establishing such a test. A test which actually reflects directly a policy behind the need to have the rule would be a subjective test. It would require a tribunal with appeals and prerogative writs and so on.

KIRBY J: I suppose behind my questions lies an issue of whether this Court should exercise heightened scrutiny of a provision like this, given that it is in the interests of those who are presently dominant in the political process to shore up their position and to minimise the chances that outsiders can challenge it. Did the Canadian Supreme Court say anything about that? It is an established area of doctrine in the United States Supreme Court about heightened scrutiny in certain cases.

MR BENNETT: I am not sure if there is a reference to that in the very lengthy judgments in Figueroa, your Honour.

KIRBY J: It has a resonance in what Chief Justice Mason said about level playing fields.

MR BENNETT: Yes. There is a statement in the course of the debates in the Senate, where, at page 18252, Senator Bartlett says:

This is not a matter of politicians and political parties changing the rules to suit themselves; it is a matter of parliament acting responsibly to ensure that the Commonwealth Electoral Act does not become a joke that is misused by any spiv who comes along.

Now, your Honour, that is the answer which – perhaps in less colloquial language – I would give to this Court.

KIRBY J: There would be some out there who would say, “Well, they would say that, would they not?” I am not saying that I would say that.

MR BENNETT: Yes. The other passage which perhaps makes it clearer - on the same page, 18252, he says:

When the public think of a political party they think of a group of people, a sizeable, coherent group of people, with an agreed philosophy that is seeking electing to parliament to try to implement social or legislative change or to highlight particular issues. In this case –

that is, the New South Wales case –

it was an attempt to . . . basically just register a good label, something that might grab people’s attention and get some votes. So you could register yourself as the ‘No GST party’ despite having no policy about the GST.

He goes on to develop that thought. Now, my learned friend’s answer to that is, he says, “The Electoral Act has provisions about false and misleading names”, but those provisions are very limited in their nature. The reason they are limited is that it would clearly be a very difficult and invidious task for a body like the Electoral Commissioner or any other tribunal to investigate the names of political parties and see to what extent those names genuinely represented the parties’ policies.

One would have a problem, both with major parties in the United States that use the names “Democratic” and “Republican”, for example, and, of course, the major parties in Australia. One could argue about words like “Democratic”, “Liberal”, “Labor”, “National” and so on. Even in relation to minor parties, it would be difficult to investigate, and it would be time-consuming and expensive to investigate, the extent to which a particular name was accurate or inaccurate in that way.

In my respectful submission, it is a legitimate means of managing the electoral process to say that the concept of identification with a political party is to be satisfied by identification with something of some substance, as opposed to something which either has only two or three members or has the same 500 registering a number of different names so as to achieve the result that it is not hard to imagine many of the names on that “tablecloth” ballot paper are designed to achieve.

Many of them are either appeals to small special interest groups, which are likely to regard the special interest as more important than other aspect of their overall selection of the candidate, or to be a political slogan or catchphrase and, in effect, use the ballot paper as a form of advertising, and that is before one gets to - - -

KIRBY J: This is all posited on a theory that politics should basically be the two-party system.

MR BENNETT: No, your Honour. It is not, your Honour.

KIRBY J: And resisting the notion that politics is about freedom of citizens to gather together and to directly vote in who they choose to be their representatives. After all, we have seen in Australia in the past 15 years or so an increase in the significance of smaller parties and maybe that is a process – we have seen it in State Parliaments as well, very small parties. Maybe that is a process that is leading to our electoral system being a bit more like the European system with special interest parties. That is political freedom.

MR BENNETT: Your Honour, 500 names, bearing in mind the number of voters one needs to get elected, is simply not an onerous requirement. It is not a large number for that purpose.

McHUGH J: But it may not be the answer. Do you not have to look at the issue under section 7 and 24 in that social context? Assume legislation prohibited all forms of canvassing and advertising of political matters and you had this current legislation concerning political parties on the ballot paper. Surely you could then say not only would the legislation about canvassing and advertising be unconstitutional but so would this particular legislation because it would effectively hinder the choice of people, because in the social context the only information the people were getting would be about those candidates whose names were alongside – his party’s name was alongside the candidate’s. So in that context this legislation might be invalid, but if you look at it in the total context can you really say, it seems to me would be the question, “Does this legislation effectively hinder the choice of the people when you have all other means of communication open to you?”

MR BENNETT: We would submit not, your Honour, but if I can go back a second. The example your Honour puts, in the circumstance where there were no political parties on the ballot paper and one had that type of legislation - - -

McHUGH J: No, I am assuming you would have some political parties on the ballot paper, but you could not canvass, you could not advertise, et cetera. So the only means of information for the voters about political parties would be what is on the ballot paper. Now, it would be very difficult to defend the legislation if that was the social context, would it not?

MR BENNETT: Your Honour, we would say it would make it harder, if it needed to be harder, to defend the legislation banning political advertising in that context.

McHUGH J: Of course. I think it would go without saying that would not be invalid, but I was also suggesting to you but so would this legislation which brought about that result concerning the ballot paper. It would go down as well.

MR BENNETT: We would submit not, your Honour, because it would be an additional reason for the other legislation to be rejected. But once one had the ability to advertise, that would be something mitigating against the importance of names being on the ballot paper because one can hand out “how to vote” cards, one can tell people, “The candidate Smith is the X party candidate” and so on.

McHUGH J: Well, suppose you get a social context where – let us assume you did not have radio or television, you had large electorates, little communication with people. It may be to only put some party names on the ballot paper would be an infringement of section 7 and 24 because in the social context it would effectively hinder the choice of a large number of people to vote.

MR BENNETT: Your Honour, certainly in the extreme cases – I have made a concession about the extreme case and the imaginary context your Honour puts to me is one that would make that extreme case even more likely to be held invalid. It may be that a stricter test would be applied in that social milieu, but in a social milieu where one can have “how to vote” cards and where one can have political advertising, it is certainly less important to have the names of parties on the ballot paper.

KIRBY J: Yes, but we have all seen people sweep past those who are handing out the “how to vote” cards and just go in and get the ballot paper. Some people do not take them or screw them up.

MR BENNETT: Probably more since 1983 than before.

GUMMOW J: We cannot speculate about these things, Mr Solicitor. I think we are not in the real world. Can I just say this. I have never subscribed to this theory that sections 7 and 24 dissects the phrase “directly chosen by the people”. It seems to me it comes back to a falsity in Justice Murphy’s dissenting judgment in McKinlay [1975] HCA 53; (1975) 135 CLR 1 at 68 to 69. It seems to me what you do get out of it, looking at the whole of these sections, not just 7 and 24, is some broad notion of representative government, which is a very broad notion. It would involve extremes of situation before you could get the Court into invalidating laws of the nature we have here.

MR BENNETT: Yes, precisely, your Honour. That is why we have given your Honour this bundle of material which we would respectfully submit basically says that, particularly the judgment of Justice Stephen in the McKinlay Case.

GUMMOW J: The relevant passage I was referring to in McGinty [1996] HCA 48; (1996) 186 CLR 140 is at 278 to 279. I have not yet read a convincing refutation of it.

KIRBY J: Yes, but we have to respond to the appellant’s submission. The appellant says this is an extreme case.

MR BENNETT: Your Honour, I respond to it by saying there is in the present case a clear reason for the limitation. The public would be misled in many ways by that “tablecloth” ballot paper into thinking that some of those names indicate that they are a significant and organised body of people, with genuine electoral aspirations, who have the particular policy that the name or slogan indicates.

KIRBY J: Has there been a vote in New South Wales for the Upper House since the “tablecloth” election? Did it significantly reduce the numbers, do we know that? Was that in the evidence?

MR BENNETT: I am not sure, your Honour, but that is a matter perhaps which my learned friend, Mr Hanks, can address.

KIRBY J: Mr Hanks will deal with that.

MR BENNETT: The vices which the “tablecloth” ballot paper present are not limited to the issue of preference harvesting. What in fact occurred in that election, as is shown by some of the reports which we have provided your Honours with, is that there were preference arrangements between various of the minority parties which had the result that someone was elected with 0.02 per cent, I think it was, of the total vote, that person having – I think it was the “Outdoor Recreation Party” – arranged with various other candidates that preferences would be exchanged at levels - it did not have to be second preferences - above those of the major parties. So that as the preferences came down from people who saw a single issue which attracted their eye, the votes went ultimately to that candidate.

Now, what Parliament has said in the passages that we have provided your Honours with is that that demonstrates the risk of the use of what I have described as preference harvesting and they sought to avoid that possibility by having a “no overlap” rule. In a sense, it is a necessary corollary of the 500 rule because once one says one should have 500 people to form a party sufficiently serious to embark on the political process, something which would certainly include what is sometimes described as the minor parties in Parliament today, one would not have thought the 500 rule would have any deleterious effect on them.

Once one has that, it clearly defeats the purpose if some or all of those 500 are people whose name is used for the purpose of someone else getting to the number of 500. As was said in Parliament, one can then have the same 500 people forming a large number of parties with a view to getting particular election slogans appealing to special interest groups or, indeed, to the general public, as some of those names would do. A lot of them were simple populist issues. There was one, I think, the Make Billionaires Pay More Tax Party and there were a number of names - - -

KIRBY J: What is so wrong with that? I mean, populism is not unknown to all major political parties. Why should it be denied to minor ones?

MR BENNETT: Your Honour, it is not denied to them. They can have any name they like, but the problem is, if one allows any group of any size without – or if one has a size limit but does not prohibit overlaps, if one allows those groups to form parties and to have the names on the ballot paper, the result is that the elector is confronted not with a choice between candidates for a number of genuine parties, but what he is told are parties which may be nothing more than people choosing to put a slogan in front of the elector.

KIRBY J: It is that word “genuine” that I stumble over. You are submitting a somewhat authoritarian view of the Constitution. The other view is a liberationist view, let a thousand flowers bloom. That is how “directly chosen by the people” operates.

MR BENNETT: Your Honour, people can stand. They can advertise. They can get their message before the people in any of a number of ways.

KIRBY J: But they cannot have it at the most critical moment – the vote.

MR BENNETT: What is being done, in effect, is to say the ballot paper is not a place for political advertising.

KIRBY J: But it is for some.

MR BENNETT: Your Honour, for some it is genuinely descriptive.

KIRBY J: How can you say it is not genuinely descriptive?

MR BENNETT: In many cases it is not, your Honour. That was the vice Parliament was concerned about. In order to deal with it it selected a number, and we submit a low number, and it is of interest, of course, that the “no overlap” rule was the result of an opposition amendment accepted by the government.

GUMMOW J: We cannot get into all of this, Mr Solicitor, your combination of anecdote and rumination. We just cannot deal with this in a judgment.

MR BENNETT: Well, that last comment, your Honour, appears from the Hansard.

GUMMOW J: I do not care whether it came from an opposition motion or a government motion or an independent motion.

MR BENNETT: Except, your Honour, that my learned friend seeks to get comfort from the fact that he looks at reports which preceded the legislation.

GUMMOW J: Yes, I know he does. I do not think that is very suitable either, really.

MR BENNETT: Your Honour, if that is eliminated, I do not mind the question of whether it is - - -

GUMMOW J: I am just speaking for myself and looking at the clock, that is all.

GLEESON CJ: Have you made a timesharing agreement with Mr Hanks? We have a number of people to hear from before we go on with the next case.

MR BENNETT: Yes, your Honour. I will not be much longer, your Honour. In relation to the communication issue, all I wish to say is that the various definitions of political communication – and we have referred to these in our submissions – simply do not permit the description of what occurs here as communication of the relevant kind. This is simply requiring a particular method of conducting an election and the sort of considerations that led to the political communication rule are simply inapplicable. We have given your Honours the authorities in relation to that.

In relation to the question of the nature of the test, may I just say this - again we have given your Honours the authorities - the test, if one is imposing a burden, is not whether it is appropriately adapted but whether it is reasonably capable of being regarded as appropriate and adapted. There is a discussion, which we have given your Honours the reference to, in Lange about the various tests, but if one looks at the judgments in some of the later cases including Langer and Levy, we would submit that – as we have said in paragraph 28 – the question is whether the law is reasonably capable of being regarded by the Parliament as appropriate and adapted to a legitimate end. Now, your Honours have the Senate debates where the amendment was introduced, and your Honours have the debates which discuss the various vices we are concerned with.

In relation to overseas analogies, obviously one cannot place too much emphasis on them because they are dealing with different systems. The usefulness though of the case we have referred to in footnote 82 of American Party of Texas v White [1974] USSC 83; 415 US 767 (1974) is that some of the matters said by the court there in relation to restrictions for getting on the ballot paper are matters which are relevant in the present case. The court referred in that case to, at page 782 – the question there was whether the “State’s admittedly vital interests are sufficiently implicated” for it to impose the relevant requirements. The phrase used at page 782 in the opinion of the court was this:

But we think that the State’s admittedly vital interests are sufficiently implicated to insist that political parties appearing on the general ballot demonstrate a significant, measurable quantum of community support.

In the footnote there is a reference to an earlier case where they said:

“There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot-the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.”.

KIRBY J: That, of course, is written against the social context where the United States has basically stuck to a two-party system through thick and thin.

MR BENNETT: Yes, your Honour.

KIRBY J: We have not done that here.

GUMMOW J: That is not quite right, is it? Ralph Nader’s party caused a fair amount of dislocation in the last election.

McHUGH J: And in the 1912 elections, Taft was defeated by the Bull Moose Party, the break-away Republican.

KIRBY J: I used an adverb, “basically”.

MR BENNETT: Yes. Your Honour, the effect of our overall system is to favour a substantially two-party system with some largish minority - - -

KIRBY J: It is not in the Constitution.

MR BENNETT: Of course it is not, your Honour. But that itself is not all that different from the United States. Even in the system I have described which existed in the Soviet Union there were occasionally people who were not Communist Party members who were elected to the parliamentary body.

KIRBY J: There were some Democratic Labor Party members elected and they had a great influence early in the last century, early in their history.

MR BENNETT: Yes, they did, but they either do or do not have that significance today, which can be determined fairly easily by asking whether they satisfy the “bright line” test that has been chosen to draw a convenient line of 500 members. The reason I read these passages is not because I suggest that the principles applied there are necessarily applicable here. They are applying a different test with a different social context. The reason I read them is to demonstrate to your Honours that there is a recognition in other places of the problems which can exist if one permits every group of two people to be a party and have a name which it thrusts in front of the electors.

One can have too much information. We all know in relation to discovery that a party anxious to frustrate the purpose of discovery may do so by discovering too little or too much and the “tablecloth” ballot paper may well be seen, and is legitimately seen or reasonably capable of being seen, as something which does not make the democratic process work more smoothly or more accurately in permitting people to express their choice bearing in mind that the word “party”, indeed, would be construed by most people as referring to something which demonstrates a significant measurable quantum of community support, to use the phrase used by the Supreme Court of the United States.

Two people who form a party and call themselves More Dams for Canberra Party, or whatever name they choose, are simply not in that category. There is an element of misleading in suggesting to the public that these are parties of that type, of the type referred to by the Supreme Court, and that is something the Parliament is entitled, in my respectful submission, to regard as being of significance in relation to the present problem. Your Honour, once one applies the test of reasonably capable of being seen as appropriate and adapted, in my respectful submission, these two requirements pass easily.

May I just say this about “margin of appreciation”, which is a phrase referred to in disgust in some articles in some cases. While it is a phrase which comes from the European Union and was invented there for a different purpose, its meaning is, on the face of it, no different to “reasonably capable of being seen as appropriate and adapted”. That simply means that this Court does not make the decision of whether it is. It leaves it to Parliament to some extent and within limits. If I can use the word which caused some problem in an earlier case, it may be a question of finding a core beyond which Parliament cannot go.

GLEESON CJ: Yes, well, do not go back for your hat.

MR BENNETT: I will not go back to that, your Honour, maybe an outer circumference beyond which we cannot stray, if I can again mix metaphors. In my respectful submission, that phrase itself implies the level of margin of appreciation and that is implicit in the fact that the choice of electoral system is going to have far more political effect on the ultimate constitution of Parliament than details like this. In my respectful submission, these details are well within the margin of appreciation, or what is reasonably capable of being there, once one looks at the justifications which have been given.

The justifications, therefore, are of two categories: the avoidance of electors being confused by the sheer size and difficulty of the ballot paper and the problem of the fact that many names, if one does not have a limit of some type, are likely to be no more than slogans which may be used for preference harvesting, as we have described it.

Now, your Honours, finally in relation to severance, severance does not seem to be controversial. It is accepted by the appellant and it is accepted by us, and I understand the respondent will adopt our submissions. I simply hand up to your Honours some supplementary submissions on severance.

GLEESON CJ: Thank you.

MR BENNETT: The most similar case, if I can go to a case before I go to the principle, is the recent decision of the Full Federal Court in Sportodds Systems Pty Ltd v State of New South Wales [2003] FCAFC 237; (2003) 202 ALR 98, in relation to which I think there may be an application for special leave pending in this Court. That was a case where some provisions were enacted in New South Wales prohibiting certain betting activities, and the provisions did not apply to licensed bookmakers. The Full Federal Court held invalid, because of section 92 of the Constitution, certain restrictions on who could be a licensed bookmaker, and it was then said that those restrictions were severable. Now, the result of that was that a broader range of persons were eligible for the benefits of being a licensed bookmaker. In that sense, there is a little bit of analogy in this case.

Here the scheme which has been set up, involving registered parties having their names on the ballot paper, involves a number of matters other than the 500 rule and the “no overlap” rule. As my learned friend has shown your Honours, it involves having a constitution and it involves a number of other very broad matters. The ancillary provisions are clearly applicable in relation to them. So we have submitted in this document for a
high degree of severability. If your Honours please, those are our submissions.

GLEESON CJ: Thank you, Mr Solicitor. Mr Hanks.

MR HANKS: Your Honours, before I deal with the question of privacy, may I deal with a point that emerged yesterday from our friend’s submissions in relation to what was said to be a bifurcated registration system. Registration is one concept, registration for funding is another concept, our friend said. We do not agree with that. There is but a single registration system which applies and is relevant to attracting the three, one might say, advantages or benefits provided under the legislation: public funding, the list system – the ability to participate in a list system for the Senate, and the right to have the endorsing political party, where it is registered, printed against the candidate’s name on the ballot paper.

KIRBY J: What is the list system? What does that involve?

MR HANKS: The list system is essentially the “above the line” voting system for the Senate, your Honour. It is true that an application for registration will state, according to section 126(2)(d) of the Commonwealth Electoral Act, whether or not the party wishes to receive moneys under Part XX – that is the public funding part of the Act – and it is true that the register which is maintained by the Commission will recall that wish, as it is called in the Act. Section 133 deals with the contents of the register – and I will come back to that when I am dealing with the privacy issue – but the statement of wish has no effect because a political party, whether it is registered or not, is required to have an agent for the purposes of Part XX of the Act and that obligation emerges from section 288(1).

Although election funding is attracted where a candidate or a group receives at least 4 per cent of the total formal first preference votes – and that is the effect of section 297 – however, where the candidate or the group are endorsed by a registered political party the Commission is obliged, it “shall make the payment to the agent” of that party. That is the effect of section 299(1) and 299(4)(a) which deals with groups - subsection (1) deals with candidates, subsection (4) deals with groups. So, regardless of the expression of the wish, if a candidate endorsed by a registered political party obtains the necessary minimum, the obligation then falls on the Commission to make the payment to the agent.

GLEESON CJ: Even if the candidate should leave the party.

MR HANKS: If the candidate is an endorsed candidate, that is so, your Honour, yes.

GLEESON CJ: Yes.

MR HANKS: For that reason we say – well, there is a single registration system and if one comes to the point of assessing whether the 500 rule or “no overlap” rule serves some legitimate object one would not ignore the fact that this is an integrated system related not only to names on the ballot paper, not only to the list system, but also related to public funding.

KIRBY J: Does that have any significance for severance if that issue should arise?

MR HANKS: No, I do not think so, your Honour. It does not have any significance for that, as we - - -

KIRBY J: You say part of the integrated system falls out and it is de-integrated.

MR HANKS: Your Honour has some submissions from the Attorney-General on the question of severance. We do not have any submissions to make on that subject, your Honour. Now, could I turn to the privacy issues. It is necessary to go back to 126. It is necessary to understand the statutory environment in which it might be thought that there could be disclosure of the names of members of a registered political party. Section 126(2) sets out the required contents for an application for registration, and amongst those is that the application must, according to paragraph (ca):

include a list of the names of the 500 members of the party to be relied on for the purposes of registration –

If one then turns to section 132 which sets out, according to the heading, a procedure for dealing with the application, the initial requirement on the Commission is to publish a notice in “the Gazette and . . . in a newspaper circulating”, it appears, in each State and Territory.

The content of the notice, according to subsection (2), includes or is to set out the particulars specified in the application in accordance with section 126(2). On one reading, it may be thought that the notice should include every item to be found in 126(2)(a) through to (f), (f) being the constitution of the party, (ca) being the list of 500 names. That is not the view that the Commission takes of the effect of 132(2)(a). The Commission does not take the view that it is required to publish the 500 names supporting an application for registration any more than it is required to publish the constitution as supplied with the application in the gazette and in each of those newspapers.

Once a party is registered, the Commission then enters on the register various details and those details do not include the names of the members upon whom the party has relied to obtain registration. What is included in the register is set out plainly in section 133(1)(a): the name of the party, the abbreviation of the party, the name and address of the registered officer and whether the party has stated its wish to receive or not receive funding. Four items go on the register and one can see from section 134, which deals with changes to the register, that the items that can be changed are specified in paragraphs (c), (d), (e), (f), (g). Of course, none of those refers to the names of the 500 persons on whom the party relies for registration.

KIRBY J: Does the record show whether there have been requests for the names from other political parties? These sorts of things happen in industrial unions.

MR HANKS: Does your Honour ask me whether my client has made a request?

KIRBY J: No, whether a request has been made to your client by other political parties for the 500. I do not want to know anything that is outside the record.

MR HANKS: The record does not reveal the answer to that question and I will not answer it before your Honour. The register, of course, is available for public inspection, pursuant to section 139, but, as it does not contain the names of members of the party, they are not revealed through public inspection.

I might also make this point, your Honours, that where the Commission comes into possession of information identifying members of the party subsequent to registration; for example, it might make a request under section 138A when it is reviewing the register, as, indeed, a request was made in the present case of Mr Mulholland, and if it receives a response to that request identifying the members on whom the party now relies for registration, there is no provision in this Act for that information to be published, no provision for that information to be placed on the register.

Now, bearing that in mind and bearing in mind the constraints that would be imposed by the Privacy Act on the Commission as an agency, bearing in mind the specific exemption under section 41 of the Freedom of Information Act for personal information, we would say that there is no threat to privacy of the kind that might infringe or burden some freedom of association which might be thought to be implicit in sections 7 and 24.

GUMMOW J: Is there any particular provision in the Privacy Act?

MR HANKS: I think information privacy principle 11 would operate, your Honour.

GUMMOW J: I find it a very difficult Act to work with.

MR HANKS: Your Honour will find that on page 58 of the reprint.

GUMMOW J: Thank you.

MR HANKS: If I might use the acronym IPP11 is a constraint on the disclosure of personal information that applies to a record-keeper. There are a series of exceptions. We cannot see that any of those exceptions would operate here. The Commission is a record-keeper in relation to this information. Your Honour can find definitions of those terms “agency” and “record-keeper” - - -

GUMMOW J: It is certainly an agency.

MR HANKS: Yes. Section 10 of the Act, your Honour, I think defines a “record-keeper”.

GUMMOW J: Yes, thank you.

MR HANKS: Without going into the detail of those provisions, they would reinforce, we would say, the general protection of this information which arises from the terms of the Act itself, and, for that reason, if one is thinking of some constitutional principle that might be offended by disclosure, we think that there is no plausible argument of any such offence.

Your Honour Justice McHugh said in Kruger [1997] HCA 27; (1997) 190 CLR 1 at 142 that the implied freedom of political communication, that is, that freedom which is implied essentially from sections 7 and 24, does require that people must be free from laws that prevent them from associating with other persons for political purposes. I have paraphrased what your Honour said, but, as I understand it, that is the essence of the proposition. There is nothing in Part XI of the Commonwealth Electoral Act that would answer that description. Your Honours would be aware that in the same case Justice Gaudron identified at pages 115 to 116 that:

freedom of political communication . . . entails, at the very least –

freedom of association. Her Honour, later, at page 128, made this point:

the test applicable in the case of the implied freedom of political communication is equally applicable to the subsidiary freedoms of movement and association which support that freedom, namely, whether the purpose of the law in question is to restrict those freedoms.

Earlier on that page, at about point 3, her Honour teased out what was meant by the purpose of the law being to restrict freedoms, namely, where the law in terms is:

a prohibition or restriction on political communication –

and one might there substitute “association” or “freedom of association” –

or which operates directly to prevent or curtail discussion of political matters –

one might substitute “which operates directly to curtail freedom of association” for political purposes.

GUMMOW J: You cannot cherry pick in Kruger with this phrase “freedom of association”. A whole lot of Justices said a whole lot of things.

MR HANKS: I think, your Honour, what I am attempting to do is to take at its highest the concept of a freedom of association for political purposes, and I am merely making the point that here there is no burden in that sense. There is no direct restriction on freedom of association. At most, we would say, if the names of the 500 members supporting an application for registration were disclosed, at most there would be perhaps discouragement for some persons to come forward and have their names included amongst the 500, but there would be no prevention in the relevant sense, no restriction on persons associating with others for political purposes.

Finally, one might say this. Even if, contrary to the propositions that we put to the Court, there was some violation of freedom of association within Part XI because of the risk of disclosure of the identities of the 500 persons, that violation could only be found in section 132(2)(a); not in the 500 rule, not in the “no overlap” rule, but in the requirement that the notice which is to be published of the fact that the party is seeking registration is to include those details, if that is its effect. It could not bring down the edifice, the 500 rule that is, and “no overlap” rule, that the appellant attacks.

Now, could I answer a question that Justice Kirby asked yesterday. Your Honour asked whether there was some material relating to the New South Wales Legislative Council elections. There are papers produced by the New South Wales Parliamentary Library Research Service. There is a paper dealing with the 1999 election, it is called Background Paper No 4 of 1999 and it records the results of the Council election. It provides an analysis. It includes a number of informal votes in that election, and there is a similar paper for the 2003 election, again published by the New South Wales Parliamentary Library Research Service and it is Background Paper No 6 of 2003. That paper records the same information, your Honour.

KIRBY J: Are they publicly distributed documents of an official kind?

MR HANKS: I am confident that they are not private documents, your Honour. They have ISBN numbers, so I assume that they are publicly available, yes.

KIRBY J: Would they be admissible, having regard to Mickelberg? I do not wish to receive anything that I should not.

MR HANKS: I cannot answer that question, your Honour.

KIRBY J: Perhaps I will ask Mr Beach - - -

HAYNE J: You certainly cannot answer it positively, can you, Mr Hanks?

MR BEACH: I will object to the admission.

KIRBY J: Mr Beach objects, does he?

MR HANKS: Yes.

KIRBY J: Very well. Well, we will not receive it.

MR HANKS: Thank you, your Honour.

KIRBY J: At least I will not ask for it.

MR HANKS: I will not press the tender, if that might be suggested. There is a final point that we would like to make about the question of direct choice. One might say that the 500 rule and the “no overlap” rule operate to restrict or limit in some way the number of parties whose endorsement can be included on the ballot. There is, we would suggest, an analogy with the longstanding rule that the Solicitor referred to, the rules requiring candidates who nominate for the election to deposit a sum of money with the Commission and to forfeit that deposit if they do not achieve a minimum number of votes.

Your Honours would know that these provisions have a long history. In Australia at least, they go back to the 19^th century and colonial times
when a number of colonies had quite restrictive rules relating to the size of the deposit that was to be paid by a candidate. Likewise, the rule that the nomination of a candidate must be supported by, at present, 50 voters or 50 persons who are eligible to vote in the relevant election has a long history. It goes back again into the 19^th century, although the number 50 is an increase on the number to be found in the colonial legislation.

They are examples of provisions that are calculated to control the growth in the number of candidates, but they do not deny the opportunity to stand as a candidate. They regulate that opportunity. In the same way, we say the 500 rule is calculated to control the number of parties named on the ballot paper, but it does not deny the opportunity to any party to become registered and then to endorse a candidate on the ballot paper. It does not prevent registration. It is a qualification for registration that is not inherently incapable of being met, which was a point made by the Full Court in this case. Your Honours will see on page 295 of the appeal book in paragraph 36, their Honours in the Full Federal Court deal with this issue, noting that the party whom the appellant represents is apparently a party that has 500 members.

Finally, might I remind the Court that we were given what might be described as an accelerated hearing in this matter because of some questions of public interest associated with the outcome of the litigation. My client has presently, as it were, suspended the administration of the relevant provisions of the Act. My client indeed has been enjoined to do so by orders made by Justice Hayne on 27 November. We appreciate that your Honours will understand that from the point of view of my client, there is a degree of - - -

GUMMOW J: Are those orders in the book?

MR HANKS: No, I believe not, your Honour.

GLEESON CJ: I saw a transcript of the hearing.

HEYDON J: Page 317.

MR HANKS: We think they are in the appeal book, your Honour.

GLEESON CJ: Yes, we understand, Mr Hanks.

MR HANKS: Thank you, your Honour. Those are our submissions, your Honours.

GLEESON CJ: Mr Solicitor for Western Australia.

MR MEADOWS: May it please the Court, we rely on our written submissions and have one additional matter to which we wish to refer. The appellant’s real complaint is not that his freedom of political communication has been burdened. Rather, he is concerned that a benefit conferred upon candidates of registered political parties, a benefit which the appellant party currently enjoys, might be lost if the party is deregistered. It is this discriminatory failure to provide a benefit to non-registered parties which is the only source of potential difficulty in this case.

When you have a situation where the Constitution leaves most aspects of the electoral system to the choice of the Commonwealth Parliament, this is inconsistent with the existence of any rule which would prohibit the discriminatory conferral of an advantage on particular political groups, especially one which is as inconsequential as this one where a party which cannot muster 500 members is not entitled to have the name of the party on the ballot paper.

KIRBY J: According to the appellant it is not that it cannot muster them; it is that it says it is not obliged to provide them.

MR MEADOWS: No, that, with respect, is not the issue in the case. The issue is about the ability of the party to have its name designated on the ballot paper alongside its candidate. The reason why in this particular instance the party may have not provided the names of the members is really not relevant to that issue. But when you look at the situation where the method of election can have such a dramatic effect on the outcome of who might be elected, such an inconsequential provision cannot have any impact.

Your Honour the Chief Justice mentioned yesterday the position in the Senate and it illustrates the point quite dramatically. If I could simply refer the Court to Professor Crisp’s work, Australian National Government, at pages 146 to 149, your Honours will see there that when the Senate was first elected it was elected on a “first past the post” system. Then in 1919 it moved to a preferential system and, again, in 1949, I think it is, it moved to the current proportional system. It can be seen from the tables in Professor Crisp’s book what a dramatic difference that made to the outcome of the election and your Honours can see that in the table at page 147 there were times when no candidate was elected for the other side of politics. Similarly, with the preferential voting outcomes of that kind were also arrived at.

In our submission, what this demonstrates is that where the Constitution leaves it to the Parliament to establish electoral systems of that kind, where it could not be disputed that the candidates would be directly
chosen by the people, impediments of the kind complained about here could not affect that direct choice. May it please the Court.

GLEESON CJ: Yes, Mr Solicitor for New South Wales.

MR SEXTON: If the Court pleases. There is only one point that we would add to our written submissions, if I could just deal with two minor matters first. My learned friend, Mr Hanks, took your Honours to the relevant provisions of the Privacy Act and the Freedom of Information Act. We would simply add that section 41(1) of the Freedom of Information Act says that:

A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information –

We would say that would be so in this case, in the context of the collection of this material under the electoral legislation, and that would, in our submission, dispose of the privacy issue. The second matter, your Honours, is that I can give Justice Kirby the two figures that he asked about from the 1999 and 2003 Legislative Council elections. They come from - - -

KIRBY J: I think that Mr Beach objects to the Court receiving this.

MR SEXTON: He does, your Honour, but - - -

KIRBY J: If it is new material, it is not really essential.

MR BEACH: I have not seen the reports that were being referred to, so I objected to that, but I do not mind your Honour getting the figures that your Honour asked for.

MR SEXTON: They come, your Honour, from the New South Wales electoral returns. We would say it is something the Court could take notice of, so if your Honour wants them - - -

KIRBY J: Well, if you have them there.

MR SEXTON: The short answer is, your Honour, that in 1999 the informal vote was almost 7.2 per cent and in 2003 it was approximately 5.3 per cent. The difference between those two figures is approximately 65,000 voters.

Finally, your Honours, can we say generally that, putting aside the question of burden for the moment, it seems to us that it would be very difficult for the Court in this case to say that the two requirements in question are not reasonably adapted to a legitimate purpose and that this is
perhaps underlined by the appellant’s own arguments where many of the criticisms directed to those two requirements are really criticisms of a political nature, going to their merits for the system of government and the community generally rather than raising questions of constitutional validity. In those circumstances we would say there is a wide area for debate and one that therefore the Court would be reluctant to enter when a question of validity is not really raised. Those are our submissions, your Honour.

GLEESON CJ: Mr Solicitor for South Australia.

MR KOURAKIS: If the Court pleases, we rely on our written submissions and have no further submission to make.

GLEESON CJ: Thank you. Mr Beach.

MR BEACH: Just a few matters. In terms of the New South Wales informal vote to be meaningful in terms of the analysis you would need to look at the informal percentage before the 1999 election. You would also need to identify what type of informality it might be. There are various types of informality. You might have a Langer-style voting informality; you might have other types of informalities. So it is not meaningful statistics at all to take a figure of 7.2 and then reduce it for the following election by 5.3 and conclude causally that it was the “tablecloth” ballot change or the introduction of the “no overlap” rule that was the relevant cause or feature to explain the differences.

The second point is that in terms of White’s Case in the United States, that was dealing with ballot access, that is, a candidate getting onto a ballot paper under restriction. Our point is once a candidate is on the ballot paper there should be no further impediment. So the United States ballot access provisions are not really to the point, because what we are saying is when you do satisfy whatever ballot access provision there is under the Commonwealth statute there should be no impediment to the further communication.

Justice Kirby asked a question about whether in Figueroa there was an analysis of the equivalent of the “reasonably appropriate and adapted” Australian limb. At paragraph [60] of that decision what the court said that it was required not to give deference to Parliament but to carefully examine effectively the justifications that were given for the 50-candidate rule in that case. There is a further phrase in that paragraph “that great care must be exercised in determining whether or not” justification has been shown. So they were adopting a very high level of stringency.

In terms of the privacy argument, the nub or the foundation of the privacy argument is derived from section 132 and the construction given.
We say when you look at 132 that it seems fairly clear on its face that whatever was set out in the application in section 126(2) had to be the subject of the notice under section 132(2). There is nothing to indicate that when (ca) was added that somehow that was to be carved out of the particulars otherwise contained in section 126(2) and to be excluded from the notice under section 132(2) of the statute.

The further point about section 132 is that if it is meaningful for a third party to oppose an application because the relevant party is not an eligible political party, that could only be given meaning and content if the third party was given access to all of the information in the application that was said to justify registration.

One final point is there are references in Figueroa - in fact, we have put them in our written submissions - that the smaller the party the less its financial resources, therefore, the less it has a capacity to engage in other modes of communication such as television, printing leaflets, having people at polling booths giving out “how to vote” cards and the like. So, the smaller the party, the greater the disparity that arises if you allow a registered party, that is, a major party, to show party affiliation on the ballot paper, but preclude a minor party from showing that party affiliation.

GLEESON CJ: Thank you, Mr Beach. We will reserve our decision in this matter and we will adjourn to reconstitute in Court No 2.

AT 12.12 PM THE MATTER WAS ADJOURNED