Ruddick v Commonwealth of Australia [2022] HCATrans 7 (15 February 2022)

Last Updated: 17 February 2022

[2022] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S151 of 2021

B e t w e e n -

JOHN RUDDICK

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON TUESDAY, 15 FEBRUARY 2022, AT 10.00 AM

Copyright in the High Court of Australia
KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR R. SCHEELINGS for the plaintiff. (instructed by Speed and Stracey Lawyers Pty Limited)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MR B.K. LIM and MS C. ERNST for the Commonwealth. (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales, appears for the Attorney‑General of that State with MR M.W.R. ADAMS. (instructed by Crown Solicitor’s Office (NSW))

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia, appears for the Attorney‑General of that State with MS G.M. MULLINS. (instructed by Solicitor General’s Office (WA))

KIEFEL CJ: Mr Walker, before you commence, we have received an affidavit which I understand was filed by the defendant. Mr Solicitor for the Commonwealth, what is the relevance of this affidavit?

MR DONAGHUE: Your Honours, the purpose of the affidavit is to give the Court some information that relates to matters that occurred since the special case was filed, which occurred on 3 December last year. I emphasise immediately not for the purpose of altering the factual basis upon which the proceedings should be resolved. We are not seeking to have your Honours go outside the boundaries of the special case for that purpose. The affidavit is filed to provide your Honours with information that the Court might think is relevant concerning the urgency with which it would be appropriate for the Court either to make orders or to give orders and reasons, and I can shortly explain that if I might.

The affidavit reveals that yesterday – and this is in paragraph 4 of the affidavit of Ms Lenagh‑Maguire affirmed on 14 February – that the AEC published notice of an application made by the Liberal Party to change its registered name. Your Honours will see on the last page of the affidavit exhibit NLM‑2 that the application is made to change the name of the party to the “Liberty & Democracy Party”. We do not suggest that that means the proceeding is moot or that your Honours should not decide it, but the effect of that notice having been published yesterday is that it sets in train a set of procedures in the Act, the substance of which is first that, as the notice contemplates in the middle of the page, objections to the change of name can be made pursuant to procedure in the Act by 14 March 2022.

The practical effect of that is that the Commission cannot make an application on the change of name application that the Liberal Democratic Party has now made before, at the earliest, according to the AEC’s processing guidelines and matters of that kind, about a month and a week from now. In other words, the party will remain the Liberal Democratic Party at least until just over a month from now.

What then happens in terms of timing depends upon how that process plays out. If objections are lodged then the AEC has to give the Liberal Democratic Party an opportunity to respond to those objections and it has to specify a time which of course will have to be a reasonable time for the Liberal Democratic Party to respond to those objections before a decision is made, so there might be in addition to that a little over a month be a period of another considerable number of weeks while the LDP responds to that objection process or, if the Commission were to refuse the name change, it must publish a notice of that decision and again there is a statutory requirement for at least a month to pass before a final decision could be made on deregistration.

All of that, your Honours, and I can give your Honours the details of the statutory scheme if it would assist, but in practical terms what that means, in our submission, is that nothing will happen, relevantly, for at least a little over a month at the shortest period of time, and it may well be that nothing will happen for a period of at least some weeks longer than that. And if the process is not completed by the time writs are issued for the next federal election, then everything stops by reason of section 127 of the Act as applied to name change applications by 134(4), and therefore if the name has not been changed the Liberal Democratic Party would be able to contest the next election under its existing name.

So, we thought – and I understand Mr Walker had no objection to this course – that your Honours should know that those things have happened because otherwise the special case would have left your Honours in a situation where you were informed by paragraph 115 that there had been an objection to the party’s name, but not what happened since that point in time.

So, really, that is all I wanted to say your Honours other than if it would assist the Court I have instructions that we can update the Court if the name change application is refused, which would then trigger the next one‑month period when the party must have an opportunity to respond to that. As to what otherwise might happen, that is a matter with the name change application in terms of objections and responses, that is a matter between the Liberal Democratic Party and the Commission. And, if the Court wishes to be updated in that regard, that would be a matter more for my learned friend than for us, in my submission.

KIEFEL CJ: Yes, thank you, Mr Solicitor. Mr Walker.

GAGELER J: Mr Solicitor, before you sit down, are we allowed to know, for the purposes of the special case, what has happened to the Democratic Labour Party?

MR DONAGHUE: Your Honour has no facts in that regard. So, I think the answer is, no.

GAGELER J: Why not?

MR DONAGHUE: I, actually, would need instructions in that regard but I think my learned friend and I would have to agree an amendment to the special case in order to achieve that outcome.

KIEFEL CJ: It is a question of record, though, is it not, Mr Solicitor?

MR DONAGHUE: Your Honour, I have no objection to your knowing if we can find out the facts in the relevant way. I just do not know at the moment and so there is no evidence before the Court as to that topic. But if your Honours are asking us to agree an amendment to the special case, I would certainly speak to Mr Walker in that regard.

GAGELER J: The material is on the AEC website, Mr Solicitor.

MR DONAGHUE: Yes. I was not anticipating it would be hard to find, your Honour. It is the public notification that.....the running of the relevant timeframes that I have just been referring to in the context of the LDP. But, ultimately, in my submission, it will not change the constitutional question that is posed for your Honours to know that additional factual application of this particular statutory regime. If the Court pleases.

KIEFEL CJ: Yes, thank you, Mr Solicitor. Mr Walker, could you respond to both matters, please?

MR WALKER: Your Honours, as to the affidavit, we do not wish to spend any time concerning any procedural quiddities. Rather, since the special case was settled, and on, as it happens, the latest time provided, it is as the affidavit says, that we have taken what might be called the prudential defensive and decidedly second‑best position to enable the possibility of registration to continue, notwithstanding by a decision we may be denied the continued use in the community, not just on ballot papers, of our preferred party name.

It is, as we understand it, the Commonwealth’s concern that the Court not be under a misapprehension as to what might be called the pressing exigency of a decision with respect to what might be called the stability or certainty of a party name in the shadow of an impending election. However, for the reasons my friend points out, the actual occurrences which have been as recent as one of the one‑month periods being triggered yesterday, does not show any difference in terms of what might be called the pressing exigency of the case, at least from the point of view of knowing what one group of people, called a party, can use by way of a name.

And, in our submission, it would be of no assistance to the Court, obviously, on any substantive issue conceded by the Commonwealth, nor in terms of the Court’s ordering its business about which we would not presume to be heard, in relation to the making of a decision or the delivery of reasons. And so for those reasons, we submit that this material does not assist the Court one way or the other, but we make it very clear we have no problem at all with the Court knowing these things.

So far as concerns the second question, Justice Gageler’s question concerning matters of incontestable history, some of which, of course, finds more than slim trace but rather considerable discussion in reported decisions of the Court, otherwise irrelevant to this case, such as concerns of the existence and circumstances of the DLP, and I suppose I ought very ponderously say, and also the ALP, as well as, presumably, other parties using the word “Labor”. CLP, Country Labor, is referred to, along with DLP, Democratic Labour in, as your Honours know, a portion of the special case.

So, in our submission, there is absolutely no call for a special case to be understood as if it remained an exhaustive document supplying all of the context necessary to understand it, notwithstanding it speaks about elections, political parties and, therefore, an aspect of the history of the country. These are matters which, in our submission, are a matter of common sense, including, as applied to the doctrine of constitutional facts, could not possibly prevent the Court from paying regard to the actualities rather than the hypotheses of a party called the Democratic Labour Party alongside, obviously enough, a party called the Australian Labor Party. So, those are our submissions on the second of the points. If it please the Court.

KIEFEL CJ: Yes, thank you, Mr Walker. Would you like to proceed?

MR WALKER: May it please the Court. Your Honours, in a nutshell, the use of a party’s name is a liberty by conduct to convey messages to invite affiliation and support, ultimately, but not only, culminating in the casting of votes by choice on the part of electors. The use of a name is a significant aspect of a liberty to use language – if it need be added – concerning matters of politics relevant to the constitutional freedom, outside the privacy of the premises in which a postal vote is prepared and sent – or a booth in which the ballot paper is filled out. It is also substantively significant and self‑evidently so during a campaign as it is called, following the issue of writs assuming – as would now be dangerous – that campaigns do not start beforehand.

That leads to the final general character upon which we rely, namely, the use of party name for the communicative and persuasive purposes to which I have referred – cannot be confined to a campaign either because the identity by name of the party which urges support during a campaign will often, if not always, refer to the conduct of that named group or party in the past, previous to the campaign.

Against that background, in our submission, the amendments that we impugn in these proceedings can be shown, in our submission, to go very considerably further as a matter of principle – perhaps policy – in a way that, in our submission, infringes the relevant limits that must be imposed once we can persuade your Honours that there is a relevant burden imposed by their provisions, and to that end may I first briefly remind your Honours that the provisions in question in this case, which are the amendment provisions, are found in Part B of the joint book, starting at page 141, namely, the schedule to the Electoral Legislation Amendment (Party Registration Integrity) Act, introduced as a Bill in 2021.

I do not need to dwell in detail on all of the items, but your Honours will have seen that item 7 which sets out to amend section 129, contains the provision there seen in subclause 3(b), to which I will come in the form of the amended Act in just a moment. In subsection (5) of section 129, sought to be introduced by clause 5 of the Bill, one sees some exceptions germane to the common word scheme, which is the heart of the amendment. I will come back to those exceptions, they are for, among other things, so called “function word”, “collective noun”, “the word ‘country’”, “the name of a country”, “or a recognised geographical place in Australia”, and “the word democratic”.

Item 9 contains, if I can draw to attention in particular, proposed there by clause 2(b), the proposed amendment to section 129A concerning the consent of what I will call an incumbent. Over to page 143 and item 11 is the heart of the amendment in.....to which we advance our invalidating arguments, namely, the introduction in the scheme to which I will come in a moment of this concept of a:

(iii) the name or logo of the second party contains a word that is in the name, or abbreviation of the name, of –

what is called – curious figurative language:

the parent party ‑

If it is parentage involved, your Honours, all I can say is it is a very atavistic approach to illegitimacy, as it was once called, that seems to be set up by these provisions. In item 14 one sees some ancillary - important ancillary provisions concerning what I am going to call incumbency and priority and having drawn to your Honours’ attention in that fashion the provisions shown in the amending Bill, which was enacted so as to carry out the amendments, could I now take you to critical parts of the amended Act. I stress it is the amendments that we attack.

Could I pick it up please in Part A of the joint book of authorities at page 31 with section 129 of the Commonwealth Electoral Act 1918 as amended by the impugned provisions. Your Honours see that there is given to a governmental body, one plainly acting impartially and not in the interests of any particular party or person, a duty to consider and, if conforming with the statutory requirement, then to act in accordance with the words of section 129 involving the refusal of “an application for the registration of a political party”.

I interpolate at this point in the interests of brevity it is, of course, common ground that registration has a variety of consequences. To the forefront for the purposes of this case is the consequence of the possibility of appearing, as it is called, above the line for the Senate and the possibility of having the party name, abbreviation or logo appearing to accompany the names of candidates in either House.

It need hardly be said that insofar as our argument is concerned a response to the holdings in Mulholland is that we naturally rely upon the state of affairs that existed both by reason of a common law liberty, to use words, and a statutory position, that is, the unamended position, that obtained before the amendments. We are not in a position, so to speak, of seeking laws to be made so as to eliminate a disadvantage or to bestow an advantage. We complain about a position brought about by these amendments.

Your Honours see that the grounds upon which this impartial government agency is to refuse an application for registration first depends upon the opinion, impartially and reasonably formed, of the Electoral Commission. There is what might be called a spartan approach to verbosity, so six words maximum. There is a decency requirement or a seriousness requirement not to be “obscene, frivolous or vexatious”. Then, in paragraph (c) there is what might be called the invitation, without there being an actual relation of the part name, et cetera of another party. In paragraph (d) and paragraph (da), there appear then in this duty to refuse an application for registration what might be called loosely, but I hope usefully, provisions the evident purpose of which is to address the possibility of confusion on the part of some electors. So there is the near resemblance of a name, et cetera, of another party not being related to the applicant, that is recognised:

that it is likely to be confused –

et cetera, and in (da), this notion of a “reasonable person” thinking that the content of the name, et cetera, is such that it would suggest:

a connection or relationship –

which:

does not in fact exist ‑

And then there is special protection given to cases which employ the epithet of “independent”, as you see in paragraph (e), and that as well, as well as applying when it is simply pendant to the name of another party, also to cases where the possibility of a relevant confusion emerges, again by the near resemblance, et cetera, et cetera.

Could I draw to attention, while in section 129 on page 33, the provisions of subsection (5) which also apply to provisions to which I am about to come, that is, not only to section 129 but also to sections 129A and 134A, that the provisions of subsection (3), which are at the heart of the matter, concerning an applicant party’s name containing a word that is in the name of a registered political party, and is not accompanied by the written consent of that other party, that that does not apply to what are called “function” words, obviously the definite article would be one of those, prepositions and other connectives as well:

a collective noun for people –

which I suppose your Honours might reasonably regard in politics as including party, and then:

the name of a country –

That means any country, but the very word “country” itself, as well as what is called:

a recognised geographical place –

A bit difficult to understand a word describing a geographical place which is not recognisable, in any event, and then finally:

the word “democratic”.

Which is given a special role, by being removed from the list of words, commonality of which will trigger the very harsh outcomes to which we draw attention, which are not politically in play in this case in subsection (3) of section 129, by that I mean, we are not applicants for registration.

Could I then take your Honours please to section 134A, starting on page 43 of the book? This introduces the concept of parent party, and by reason of provisions that we do not need to dwell on but which would be found in subsections (1)(a), (1)(b), that will include the first in time with respect to registration, if the parent party was registered before another registered party – so, this is a case concerning parties that have been registered. That so‑called “second party”, therefore, is in contest – at least, possibly politically with the parent party – subject, of course, to questions of connection and subject, of course, to questions of self‑interested political calculation on the part, in particular, of the parent party to which I am about to come.

Under paragraph (a) of subsection (1), of section 134A, there is a list of three possible states of affairs concerning the Commission’s state of satisfaction. Before going to the detail of them, could I draw to attention that then, conjunctively, paragraph (b) of subsection (1), refers to the fact of there being a written objection by “the registered officer of the parent party”.

It would appear that the obligation that then follows, “the Commission must” – and then in what is called paragraph (d) – “uphold the objection” – is an outcome required by Parliament upon what might be seen as the simultaneous existence of the two states of affairs and one of the three possible ones in paragraph (a) and the one in paragraph (b). But you can see from that structure, in terms, the sitting, as it were, of a contest between a parent party and second party by reason of the provisions at paragraphs (a), (b) and (d) of section 134A.

Can I go back then to paragraph (a), which now displays the pre‑amendment form – subparagraphs (i) and (ii) – and the post‑amendment form – subparagraphs (i), (ii) and (iii). Subparagraphs (i) and (ii) might be regarded in the shorthand I have tried to adopt to be aimed and self‑evidently so at the kind of confusion which it must always be within Parliament’s undoubted broad powers in electoral matters to address and to address by a variety of means, the merits of which are not for the Court. But, subparagraph (iii) is separate from those and cannot be read as, so to speak, a subset of those in the sense that subparagraph (iii) could only exist if there was the risk of confusion that is explicit in subparagraph (i) and (ii).

So, that as a matter of ordinary English and legislative history, in context, subparagraph (3) covers, importantly, cases where the Commission would not be satisfied of the species of confusion risk covered by subparagraphs (1) and (2). Rather, it contains a matter which is unlikely ever, not just in practical terms but in legal terms, to give rise to the possibility of differences between reasonable minds addressing the question. The Electoral Commission could scarcely agonise or weigh up much concerning the question of whether it is satisfied that the name of the second party contains a word that is in the name of the parent party.

Now, there is a question of grammatical cognates which is a technical linguistic matter, scarcely productive of realistic dispute. There are, of course, spelling differences and the like that, similarly, will not produce any difficulty.

So 134A(1)(a)(iii) is, in our submission, an expedient introduced which has the effect on its face, given paragraphs (b) and (d), that the parent party is given a decisional role power dominance analogous to the evaluative exercise that would produce the Electoral Commission’s satisfaction under subparagraphs (1) and (2) of confusion, because the Electoral Commission’s satisfaction as to the same word appearing has no evaluative element with respect to confusion. The decision making – we would call it discretion – shifts to the parent party in substance and on the face of the statute.

EDELMAN J: Mr Walker, why does it need to be seen in that way? Why could it not be seen as effectively a blunt deregistration scheme with effectively a power to waive and a power to waive that deregistration is by not taking the objection?

MR WALKER: Your Honour, there are temptations in that route. May we say, if there is one thing that the wording of the amendment, read so as to produce the amended form, displays it is not that kind of bluntness. In due course we submit it can be seen from understanding the meaning of the words, their legal effect and the evident purpose to be understood from them, particularly given the legislative history to the extent that it is useful to your Honours, that in truth, as I have said, these are words that shift an evaluative assessment by an impartial government body charged with the integrity, among other things, of elections, concerning the possibility of confusion to the self‑interested machinations – I do not shrink from that word.

There will be political calculation that informs any likely or any likely intelligent exercise of the veto in 134A(1)(b) with respect to matters that do not involve any possibility of the Electoral Commission saying, but there is no confusion by way of risk and any possibility of there being an administrative decision reviewable on the merits, say, in the AAT – because it will be the registered officer of the parent party who lodges an objection, and whether to lodge an objection will not be reviewable. The obligation to uphold in that event is equally not a matter that has any discretionary element.

GORDON J: Mr Walker, may I ask one question about that – I am sorry to interrupt.

MR WALKER: Not at all.

GORDON J: Is that analysis equally applicable to the legislation before (iii) was introduced?

MR WALKER: No. I am juggling two balls here. I think I can enlist my answer to Justice Gordon’s question to complete and emphasise my answer to Justice Edelman’s question as follows. The point about the amendment was to add by (iii) a matter through – said to be the necessary subject of satisfaction by the Electoral Commission – that involves no real evaluative element at all, that is, it involves nothing to which the quality of impartiality would be so important and significant to Parliament’s choice and, in particular, nothing concerning confusion, that is, deflection from the integrity of choice by electors so as to satisfy the qualitative requirements of the Constitution, freely chosen.

In our submission, there is a radical change of kind introduced by the bland, not blunt, insertion of subparagraph (iii) into paragraph (a), as if that is just another matter of which the Electoral Commission, who is impartial - and it may be considered appropriate for Parliament to see as expert - a matter which, with great respect to the officers of the Electoral Commission, they are no more expert in than any of us speakers, native or required, of English.

That is why what I have called the discretion, or the evaluative assessment, if you like, is removed as to confusion altogether by subparagraph (iii), and a discretion in the sense of a choice, now by a self‑evidently, self‑interested entity, the so‑called parent party, is the decisive factor which automatically produces, by the Commission’s duty, the upholding of an objection.

Now, I am yet to come to paragraph (c), but it follows, then, in answer to Justice Edelman by way of summary, yes, it can be seen that the effect is radically to alter the scheme which has, as its purpose, the reduction of risk of confusion, that is, nomenclatural confusion, confusion by reference to name or names, to a matter that need not have any serious risk of confusion by ‑ ‑ ‑

EDELMAN J: Mr Walker, is that right? I mean, if one drew an analogy, for example, with a trademarks registration scheme, which could operate bluntly in the same way by reference to date of registration, one would not ever say that that blunt operation of a trademarks registration scheme had nothing to do with preventing confusion, even if there might be very, very few people who would be confused between an earlier and a later registered trademark.

MR WALKER: I think the most important distinction between registered trademarks and registered political parties and their names is what might be called the milieu in which they operate. Subject to falling into abeyance, registered trademarks are not a reflection of market success or presence in any particular segment or area. They are not the subject, obviously, of any constitutionally protected discourse between people. It is for those reasons that one should not see, on its face, a priority by time as a sufficient justification, perhaps by reference to the crude simplicity of the date order, where there is a burden imposed that would need justification to be demonstrated.

None of that has any analogy, with respect, in the purely statutory, not constitutional, aspects of trademark legislation from time to time, the wisdom of which, with great respect, is never subject to judicial checking in the same way as the appropriateness of the imposition of burdens on political communication are subject in cases such as the present.

It is for those reasons, in our submission, that, properly understood, this cannot be seen.....a scheme for the simple temporal priority for all names except – for all words, I should say, except for those which are protected by the exceptions contemplated in subsections (5) and (6) of section 129. It is more than that. It is, in particular, a case where there is given to one of the political competitors, the so‑called parent party, against all others, not just the so‑called second party, a capacity to decide one way or the other whether to prevent the common word continuing to be used in a rival party’s name without having to show or justify anywhere a risk of confusion.

It is for those reasons, in our submission, that one needs to understand to what extent, if that imposes a burden, there could be any justification by that simple true temporal priority, and when one considers some of the words in question which have historically and traditionally been used generically to indicate a position on what might be called a spectrum, it is not only “democratic”, effected by 129(5), enabled thus to be used in common by more than one party if there is no risk of confusion – it is not only the word “democratic” that falls into that category. “Socialist” could be one. “Liberal” is obviously another, as is, obviously enough, “Labor”.

Now, that does not exhaust the examples. These are generic descriptions. Being generic, they are of course of arguable and sometimes chameleon‑like semantic content, meaning different things to different people. The word “liberal” is quite enough when one travels across the Pacific from Australia to understand how its semantic content can be radically different according to different people, times and places, all of which rather would indicate that the notion of confusion by reason of the use of a common word ought to be scrutinised with some care.

Your Honours know what the consequence is of the compelled upholding of the objection if the so‑called parent party exercises its discretion to lodge an objection. One sees in paragraph (e) of subsection (1) of section 134A that there is then triggered a one‑month period within which the application of the kind you have heard about at the beginning of proceedings this morning must be made, lest there be a deregistration under section 137.

Now, I do not want to labour the point about the importance of registration beyond what we have already written and I have already mentioned, but your Honours can have an understanding of the significance of deregistration under 137 by going to page 47 to see that, in the familiar form, such an important change of status is premised on the Electoral Commission, this probably expert, certainly impartial, body, being satisfied on reasonable grounds of certain things, and you then see a list, I will not need to go through all of them, but one sees, for example, the minimum membership provision, which obviously has a history, in and out of this Court, the obvious integrity provision in paragraph (c) against fraud and misrepresentation and then in paragraph (ca), the objection, to which I have been addressing my remarks, and then what might be called disciplinary matters in paragraph (cb) and (cc).

Then there is set in train a process by which there can be response to those possibilities. It therefore can scarcely be gainsaid that the amended provisions, those added by addition to 134A, have.....exposing, not theoretically but very immediately, a so‑called second party such as our client represents to the consequence of deregistration which, in our submission, it is common ground, represents, in electoral terms, a disadvantage compared to those who are counted as for a registered party.

It is for those reasons, in our submission, that the proper analysis of these provisions with respect to the burden they impose on communication needs to be recognised as involving the difference between the use of the party name by an unregistered party and the use of a party name by a registered party.

It is true that groups of people can, subject to presently irrelevant exceptional provisions such as in the Criminal Code, call themselves what they would like to call themselves, so as to garner votes. But what they cannot do, as your Honours appreciate is common ground, is, without registration, participate in the kind of contest which is in the Senate above the line, or in both Houses involves the candidate’s name being accompanied by a party name or logo, we would submit, self‑evidently, to be regarded by the Court as plainly appropriately regarded by a large number of successive Parliaments as being matters of potential advantage electorally to those enjoying the benefit of those provisions. It thus follows ‑ ‑ ‑

KIEFEL CJ: Mr Walker, I understand from your reference to “purpose” in the submissions that it is said to have - these provisions – the amendments are said to have an anti‑competitive effect. But, under your first ground which relies on sections 7 and 24 of the Constitution, the question is the choice of the electors.

MR WALKER: Yes.

KIEFEL CJ: That question is to be assessed by reference to how the amendments affect their choice.

MR WALKER: Yes.

KIEFEL CJ: In summary, how would you say that is affected?

MR WALKER: My first proposition in answer to the Chief Justice’s question is that those matters, of course, are not remote or unconnected with questions of electoral competition. That is the first point. The next point is this. Electors’ choice is ultimately made – in the paradigm case – in the booth. The choice is supposed, by the decisions of this Court, stating the existence, content and rationale for the freedom, sufficient communication – or as I would call it “discourse” – between and among relevant actors that include, at least, electors – so as to enable the choice to be what is called, by a kind of politeness, an informed choice.

So, a choice made in light of individuals’ considerations that all the material which such discourse or communication can produce. It follows that the capacity to identify in the booth, the candidate about whom you have been informed favourably or unfavourably during campaign and even antecedent discourse or communication goes to an aspect of the capacity to give effect to the summation of your considerations which immediately precede your making of the choice by way of vote.

That is why, self-evidently, there is advantage by permitting people to identify a candidate’s declared identification with certain policies or record or promise by way of a party name. In our submission, it follows that matters which control, regulate – or as we would submit in this case – distort use of a party name, are matters which are apt to deflect or distort the facility with which electors can make the choice by reference to a name.

And, in particular, these provisions place a party such as our client represents in the following position: if it is not to be permitted as a registered party to use a name which has a word in common that a parent party objects to, then its position in the antecedent and community‑wide discourse it has is one which is markedly, substantively different from every other registered party with a name.

If it uses, in that discourse – beyond a name on a ballot paper and beyond a position above the line in the Senate – if it uses that name to which the parent party objects as an unregistered party in campaigning, then it will not be able to complete the exercise of persuasion which is the central core of elective politics, the attempted influence of choices by individual electors in sufficient number. And, in our submission, it can therefore be seen that the – we would submit – discriminatory position – discriminated position – of a party that is not the parent party, using a word that does not need to conduce to any risk of confusion, is one which directly affects one of the means by which electoral choices can be made, that is, identification with the party and its policies and persons et cetera through a name.

There can hardly be any doubt that even without further using the economic and business figures of speech that we have put in our written submissions, that it is surely acceptable colloquial English to describe a party name as within elective politics and its context, part of the brand and a very important part of the brand.

EDELMAN J: Mr Walker, why could not those identical submissions be made of the 500 rule and the no overlap rule in Mulholland?

MR WALKER: Neither 500 nor 1500 has anything to do with the presentation by an identifying feature called a name of a group of people. It is the inherent, probably peculiar, capacity of names and logos to identify a group so as to play a part in choice. That is, in our submission, quite distinct from the requirement by way of acceptable minimums for the registration of the party such as one has in 500, no overlap, 1500, whatever it may be, has anything to do with branding. I am not sure your Honours would ever have seen political advertising that says, and we have more than 500 members ‑ ‑ ‑

STEWARD J: Mr Walker, can I ask you a question. Is there anything in the law that would prevent your client from campaigning as the Liberal Democratic Party and then giving how‑to‑vote cards to people at an election booth saying, tick the box for Liberty Democracy Party on our how‑to‑vote card? Is there a law against that?

MR WALKER: No. There is, of course, self‑evident disadvantage involved in that, and your Honour, with great respect, has put your finger on the burden – the nature of the burden is that we cannot use in campaigning the name, if any, that we are entitled to have on a ballot paper or by way of an above the line in the Senate. That is a real burden, that we cannot have what a party whose name is not required to be changed can have, namely, the identity of the brand during campaign and in the booth or for the postal vote.

That is why we submit this is very clearly a burden on the use of a name because by these provisions one is deprived of a name at the point of indication on a ballot paper. As Justice Steward’s question asks me to consider, giving rise then to something by way of response on the part of such a party, affected as our client’s party is, namely, anticipatory remedial communications of the kind that amount to saying when it comes to the ballot box your choice for the Liberal Democrats has to be made by going to the candidate against whose name there appear different words.

That, in our submission, does not require any degree in marketing to appreciate is a decided disadvantage in terms of what might be in a mass phenomenon such as compulsory adult suffrage voting an effect on the facility with which the choice can be invited of favourable votes for our party.

KIEFEL CJ: How does that translate to the elector then, Mr Walker? Is it simply a case of a reduction in the information about the candidate’s identity? Is that essentially it?

MR WALKER: It is more than reduction, though it is reduction. It is actually a form of confusional misleading, for Liberal Democrats read Liberty and Democracy when Liberty and Democracy is a second best not preferred, not the banner under which the history is created or the policies have been developed, but not the name under which existing supporters who might be supposed to be a source of recruitment of new supporters have come to know the party.

And, in our submission, it is both by way of a reduction, in the sense the Chief Justice has asked me, but also in that deflection of obvious identity between the group of people who have called themselves the Liberal Democrats, up to and including now, being required, if they are to have any name attached, by reason of being a registered party, to change that name.

GORDON J: Mr Walker, can I just ask something about that, please. I am sorry, Mr Walker, may I ask a question?

MR WALKER: Of course, your Honour.

GORDON J: You have, in response to the Chief Justice, said it is a reduction in information but it is also misleading with respect to the party’s name. Is that not the same position, though, in respect of those parties that have less than 1500 members that cannot also have their name on the ballot paper? And I ask that because it seems to me that it boils down, as I understand your argument, to whether or not these provisions are truly directed at confusion or not. So, for example, if one went to Mulholland, one of the reasons why the 1500 law was brought in was because it was to avoid a proliferation of, in effect, very small parties, bringing about a reduction, they saw, in a truly free, fully informed vote.

MR WALKER: Your Honours, the first part of my answer is that this case does not raise questions turning on any limit in Parliament’s power to rid the political contest of small people, the distraction of sole candidates or small groups of people. Neither did Mulholland, in terms, address that as what might be called a threshold question of principle. It was a case, obviously, decided on the basis of what I will call the facts, and did not involve such threshold matters. This case has nothing to do with it, that is, the question of minimum numbers.

And so our first response to Justice Gordon’s question is that there cannot be transferred to a case of a pre‑existing use of a name, lawfully, use of the name, by us, being burdened by the provisions in question, that is, if we continue to use this name it will not be the name that appears on the ballot paper or above the line, and indeed, if we do not get a change to the name, you cannot be above the line or have a party name on the paper.

None of that in terms turns on such a threshold question as minimum numbers of members. It only has to do with a matter which, because it is communicative, that is, its words or logos, has to do with what I call brand, that is, identification in discourse and communication of what it is by a shorthand reference that the user hopes will encompass or conjure up a constellation of associations that the user hopes will be in enough cases favourable to enable acts of influence, attempted influence and persuasion to be ultimately successful by a choice in the booth or in the postal ballot.

None of that is informed by a consideration of the capacity for Parliament to impose with constitutional propriety minimum numbers of party members, and our case raises the burden in the sense that the name under which we have existed can only be used at the risk of being different from a name that is on the ballot paper or, worse, only at the price of not being a registered party with the concomitant difference that we cannot be above the line, it obviously cannot have a name.

It is that burden on what might be called the utility or efficacy of using the name we have been able hitherto to use and still technically are able to use today but are threatened not to be able to continue to be registered, and therefore the use of that name becoming a self‑evident form of deflection by way of confusion or bluntening of the clarity of the communication conducted by the use of a name by way of a brand.

It is for those reasons that Mulholland, in our submission, is to be treated in this argument as an authority that does not deal with the burden on communication introduced by the amendment to a liberty previously enjoyed both at common law and facilities of party names on ballot papers by previous legislation in a way that aims squarely at one of the most centrally communicative acts, which is the use of the party name.

If that be true then, as we have tried to point out in writing, what the Commonwealth needs to show are the requisite qualities of that law with respect to a legitimate end, and we have conceded there cannot be any dispute that appropriate attempts to minimise so‑called confusion of what in mercantile law would be a passing off.....is plainly legitimate, indeed, laudable.

KEANE J: Mr Walker, I am sorry to interrupt, but can I just ask – referring back to the question you were asked by the Chief Justice – is your point that it impermissibly distorts the choice by the people, if a law denies electors at the option of one participant in the election the benefit of the identification of a candidate with a party record or leadership or platform that is made available to that objecting party by the system?

MR WALKER: Yes. That is the discrimination and unreasonableness that is at the heart upon which we rely. There is no reason, if one is concerned with confusion, to give to what I am going to call – and deliberately – an incumbent, any such veto unaccompanied, as I have tried to demonstrate – by an impartial evaluative assessment by the Electoral Commission. And particularly that is so when, as I am about to come to, the material that is historically, currently what was available to Parliament, scarcely permits, even after the event and even with what we might call the re‑engineering seen in what the Commonwealth relies upon, scarcely amounts to an understanding of these provisions as appropriately aimed and tailored in visiting the burden they undoubtedly visit, nonetheless to the legitimate end of the avoidance of confusion.

And of course, we start with saying, if this was a law to avoid confusion why on earth would you give to a self‑interested parent party the unexaminable discretion to permit a state of affairs to continue that may well be to some people confusing. And the answer is, of course, so as – and I am talking here about the legal effect, not the motivations of legislators – so as, as the words must be understood to mean, to give to so‑called parent parties, the capacity to keep out of play other parties, competitive parties, about whom all that can be said is one of the unprotected words used in common in their names.

STEWARD J: Mr Walker, in relation to that submission and answer you gave to Justice Keane, is there a distinction to be drawn between the provisions relating to registration for the first time and the use of protected words, as against in 134A, the taking away of registration in relation to a party that may have built up what in business we call goodwill, but perhaps we will call that brand power, over many years?

MR WALKER: Yes. Would your Honours just give me a moment? Could I, in order to answer that, go back to section 126, and your Honours will see that there is an elaborate process. I have already drawn to attention the limitations on registration in section 129. Nowadays one sees in the provisions introduced by item 7 of the Bill, now appearing as subsection (3) of the Act, page 33 of the authorities, that there is a corresponding element in the scheme, we would say, blatantly protective of an incumbency, conveyed by section 129(3)(b). So that a rival’s registration can be stymied by a party, called in other provisions the “parent party”, pointing to a, what I will call, unprotected word in common in their names, not needing to point to any question of confusion, and the application therefore mandatorily being refused ‑ see the opening words of subsection (3).

Now, that contrasts with the pre‑existing, that is, pre‑amendment requirements for refusal on the evaluative assessments, apart from the simple count in 129(1)(a), committed to the impartial Electoral Commission by paragraphs (b), (c), (d), (da), and elements of (e), of subsection (1) of section 129. So the fact is, and this is not our case, it did not happen to us, we are registered and had the advantages of registration before these amendments, the fact is that, under these amendments, for people in a different position who are now seeking, for the first time, registration, they will also suffer a burden on their intended and pre‑existing, that is, pre‑registration, use of a party name, the incumbent veto inherent in the requirement for written consent to accompany an application for registration.

Now, it need hardly be said that incumbent veto is not, in itself, one way or the other, informative of, let alone of assistance to, the legitimate end of either eliminating or reducing confusion because the discretion, obviously, not to veto is one which might be exercised because the political calculation that a measure of confusion may assist the party holding the veto. Nothing in the statute would prevent that self‑interested political machination being the motivation for the unexaminable decision not by an impartial administrator but by competitive political parties.

Your Honours, I do not need to dwell at any great length on what has been written concerning the legislative history, but could I remind you of the way in which – as we have put it in our written submission – the matter is, as it were, exhausted in the history. To that end, if I could conveniently go, in the special case book, to ‑ ‑ ‑

KIEFEL CJ: That might be a convenient time ‑ ‑ ‑

MR WALKER: Sorry, your Honour, yes.

KIEFEL CJ: The Court will adjourn for 15 minutes.

AT 11.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.38 AM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours. As your Honours know from the written materials, there was a very sparse amount of material which the legislative history shows can be called in aid so as to justify this burden. Could I take you in the special case book volume 2 to page 551 which, as your Honours know, is an extract from the report of the Joint Standing Committee on Electoral Matters of December 2020 to which reference is made in the explanatory memorandum. The explanatory memorandum does not rise higher than or go further beyond the materials at page 551 of the book.

There is there a reference to commentary, and one sees immediately in 7.41 that the DLP is called in aid as part of the, we now know, invoked state of mischief to which these amendments are supposedly directed. There is also then a reference to the party represented by our client with respect to the Liberal vote.

Paragraph 7.41, though it commences the section called “Distinguishing party name registrations”, introduces immediately what appears to be the real object of commentary and that to which, in the special case itself, the extensive paragraphs 57 and following, to which I will not be going in detail, is entirely directed, namely the apparent importance of position on ballot paper, whether it be above, below or to the left or to the right.

Paragraph 7.42 makes it clear that that is the subject matter that 7.41 is interested in. Paragraph 7.43 then transfers that concern to the notion of distortion by duplicative names:

that voter choices and election outcomes should not be distorted by duplicative names -

That of course is the confusion risk to which the pre‑existing provisions about which we have no objection and scrutiny under which we have survived already addresses. The amendment, as I have tried to persuade your Honours, is an amendment that cuts clear from the need, let alone by an impartial arbiter, for there to be a perception of a risk of confusion by similarity of name. In 7.43 the reference back to “the two instances referred above” characterises as minor parties, obviously enough, the DLP and LDP as opposed to the major parties, namely the ALP and LPA.

In our submission, this is a Committee report and not to be captiously or irrelevantly criticised, but there is a danger of, from the point of view of constitutional propriety, an inappropriate concern for incumbency being introduced by the notion of major and minor, it being difficult to see how it is consistent with the appropriate quality of choice by electors that major parties be preferred to circle minor parties.

In 7.43, your Honours will see that the members of the Committee chose to express themselves as the DLP being a party “copying” the name of a major party, running into, of course, some, one would have thought, historically‑excited scepticism as to how many people thought the DLP was the same name as the ALP. The same may be said for our position. Then in 7.44, what might be said, with respect, to be a somewhat glib reference to the richness of English vocabulary:

to warrant party name registrations being distinguishable.

Now, read rapidly, and no doubt as it was intended to be understood, with respect, that seems to be a suggestion the DLP is not distinguishable from ALP, et cetera, et cetera, a matter which it need hardly be said would require rather more than mere assertion to demonstrate, and which the pre‑existing state of the law, both the common law liberty and the statute position before these impugned amendments, appropriately controlled, by giving to an impartial agency the evaluative assessment concerning the risk of confusion, a matter that Parliament understood could scarcely be a mechanistic verbal comparison - see what we have drawn to attention in subsections (5) and (6) of section 129.

Now, when that evaluative assessment is discarded as it is in subparagraph (3) introduced by the amendment, one sees, with respect, the lack of any demonstrable, let alone empirical support, for the presumption, explicitly made as a presumption, in the last sentence of 7.43, expressed by the members of the Committee. “Copying names” is a crude way of describing the distinction between the DLP and the ALP, and:

presumably for purposes of appealing to part of the same voter base -

is, of course, an extremely terse way of describing what came to be capitalised as the split. For those reasons, one can see 7.41, 7.42. 7.43 as coming nowhere near an actual antecedent availability of material to justify the scheme that I have already characterised in my address before the adjournment.

Now, the distinguishable characteristic thought desirable in 7.44 is, we have conceded, one way – if not the best way – to describe the desirable avoidance of confusion by name to which the pre‑existing provisions were an adequate answer, and to which the addition of subparagraph (iii) adds nothing, except for the removal of evaluative assessment by an impartial arbiter, and thus the promotion to a veto position of the objecting rival parent party.

Now, the notion of free loading, like the statements in 7.41 concerning ballot position really expose what, in our submission, drawing on an approach this Court took in Palmer, ought to be regarded very circumspectly concerning the support now sought to be obtained by the Commonwealth from materials that were not part of the legislative history. I do not say they were not part of history, they were not part of the legislative history.

Now, the principal matter that we wish to draw to attention is the highly contestable, and by no means solely operating factors which are said to be thrown up by the arithmetic – perhaps they can be grandiosely called statistical observations contained in the long passage commencing in paragraph 57 and going through to 81 of the special case.

The detail, as we have tried to point out in our written submissions and in accordance with proposition 8c) in our outline, would be inappropriate for the Court to be overly engaged in, and for this reason. It is surely plain to demonstration – I shall try in a moment to do that succinctly – that it cannot simply be that position on the ballot and commonality of unprotected words in party names – two party names – explain disparate outcomes (a) between two parties and (b) for any one or both of them as between different elections.

I will try to explain. If it is obvious that there are other matters – may I be so naively earnest as to suggest perhaps the perceived quality of policies and promises by candidates associated with parties and relative to each other and proportionately among the population, and what might be called events that happen – if those are matters which explain differences between parties and between elections for parties, then the observation to which the list of matters in paragraph 37 of Palmer at 269 CLR 196, to which we have drawn attention, those observations apply with at least equal, perhaps more force in this case.

That last proposition is, for reasons that make the inference impossible, for which the Commonwealth after the event of legislation has proffered in its argument based upon these materials in the special case. The first point that we wish to emphasise – and it is, undoubtedly, grandiosely expressed by reference to asymmetry – can be put, I hope, a bit more plainly. There is nothing in any of the materials – apart from the tendentious use of the word “major” as if it were a term of praise or entitlement of incumbency – which could possibly explain why it be supposed that there might be a ballot position effect in favour of so‑called minor parties but not in favour of major parties.

If your Honours will forgive me the earthy image, the notion that major parties do not care and do not have the champagne on hand for a successful ballot in the randomising process that 213 requires is too silly for words. Of course, it is valued by major parties because they may benefit from it as well. That surely is enough – there being no material to suggest anything so psychologically remarkable and statistically obscure – that ballot position only ever favours a minor party. That is the first point.

The second point is this. Where there are more than two candidates – which, for good or ill, is sufficiently frequent for the statistics to be dominated by such reports – where there are more than two candidates, relative ballot position would need far more than has ever been assembled in the materials incorporated in the stated case to demonstrate that relative ballot position where a minor party is in the putatively favoured position compared to what I will call a major party – those with words in common in their names – there is nothing to suggest that any favourable outcome from ballot position for that minor party is at the expense – either only or appreciably – of the competitive so‑called major party rather than at the expense of every other party in the paradigm case to the right of that favoured minor party.

Nothing in the material suggests there has been any attempt to explore those matters which are not nuances but which are basic questions of logical analysis of differential results.

It is for those reasons, in our submission, that the entirety of the ballot position matter ought to be regarded by the Court as fundamentally, that is, basally, incapable of providing the kind of justification that the authorities call for with respect to the burden that comes by these laws, the burden, after all, being that thereafter, if you are to continue to use the name, for wearing of which you have been deregistered, you do so knowing you cannot have it used on materials which accompany the final act of choice, which, in our submission, on all sides, would be regarded as a disadvantage, namely, a burden.

Now, it is for those reasons, in our submission, that when one puts together the consequences that are threatened by application of this amendment, these amendments to our case, the propositions that one sees numbered in our outline as 10 through 14 are, in our submission, made good. Propositions 15 to 18 equally so, and drawing those threads together, in our submission the authority to which attention we accept must be paid, Mulholland, does not stand in a way, properly understood, those propositions being held not only to be correct but to produce the outcome for which we contend, the invalidity.

The key point concerning Mulholland is that it lacked any antecedent liberty and, for that matter, statutorily‑protected right of a kind which exists in this case, which was registration under the name that is now the subject of attack by reason of the objection of one of our rivals, I stress, a matter which, when the law turned upon confusion, saw no successful challenge.

It is for those reasons, in our submission, that the amendment can be seen as having introduced a scope or content of consideration (a) by the wrong kind of person, a political rival, an incumbent, and (b) of a kind alien to the concerns which can properly actuate, even precautionarily or very cautious, legislative choices by Parliament to avoid confusion, which is one of the many matters to which Parliament can have regard in regulating elections for the choice under sections 7 and 24.

Your Honours, I do not wish to repeat what has been written. Conscious of the limited time, relying on our written submissions, those are my submissions‑in‑chief.

KIEFEL CJ: Thank you, Mr Walker. Solicitor General for the Commonwealth. I think you are muted, Mr Solicitor.

MR DONAGHUE: Sorry, your Honours, a different set of equipment to usual. The provisions that are presently found allowing for the registration of political parties in Part 11 of the Commonwealth Electoral Act were introduced with effect from 1984 and at that time by reason of the one amending Act, the Act both specified requirements for eligibility for registration of political parties and it specified various benefits that would be conferred upon parties that met the conditions for registration, relevantly including the provision now found in section 214 for having a party name appear on the ballot, or a registered abbreviation of that name if the party so chooses.

In their terms, those provisions conferred that entitlement to have the party name appear on the ballot only upon parties that satisfied the statutory conditions for registration as they then existed, and ever since then, in 1984, the structure has remained the same such that the entitlement to the benefits of registration only accrue to a party that meets the conditions for registration as they exist from time to time.

That point was at the heart of this Court’s ruling in Mulholland and just as it was determinative of the result in that case, it is likewise determinative of the result in this case, for reasons that I will come to develop before too long.

I do not seek to take your Honours back through the text of the impugned provisions – my learned friend has done that adequately, although we do not accept the way that he characterises them, but I can draw out those issues as I go. What I do, however, seek to do initially in these submissions is to situate those provisions within the pre‑existing regime a little more than has been done up to this point.

To that end, if your Honours could go back to the Act in volume 1, tab 3 and go back to section 129 that my learned friend has taken your Honours too. You will see that right from the start – because 129(1) relevantly appeared with the exception of subsection (da) from the time that this regime was first enacted - Parliament had a concern as to the possibility that the name of a registered party might mislead. That concern was manifest in the terms of subsection 1(d) that my friend has taken your Honours too.

So, there was a capacity in the Act right from the start for the Commission to form a judgment as to whether the name so nearly resembled the name of another party to which it was not related that it was likely to be confused or mistaken for that name. So, the Commission had to make an evaluative forward‑looking assessment as to the risk of confusion and if it thought that the proposed name was likely to be confused or mistaken with, then it was required to refuse registration to the new party.

Having dealt with or tried to deal with the problems of misleading party names in that way, Parliament did not just forget the topic and move on. It continued to evaluate whether or not its first attempt at dealing with this topic was working as it intended that it would do so. It reviewed it, relevantly, by adding subsection (da) in 2004, so in addition to the forward‑thinking assessment about confusion or mistake, there was an additional requirement to look at whether a reasonable person would think that there was a relationship or connection, connection or relationship between the party and the registered party.

In the context of those two provisions, (d) and (da), the Joint Standing Committee on Electoral Matters reviewed whether it was satisfied with the operation of those provisions in a report in 2005, that your Honours will see in volume 2 of the special case book. It is.....21 beginning at page 366, but if your Honours could turn to page 370, going from the red numbers in the top right‑hand corner, you will see that there, having the context of summarising the current political party registration arrangements, there is a summary - the second bullet point is a summary of 129(1)(d), the next bullet point is 129(1)(da) that had just been added for the previous election, and then at 4.5 the Committee said:

The intention behind these legislative amendments, which were introduced in 2004 –

which is the (da) amendment, was:

to address public concerns that the political party registration provisions in the CEA may be open to exploitation by parties seeking to confuse voters by registering a name that is similar to another well‑known political party.

The Committee then went on, over a few pages, at 375 of the book, under the heading “Confusion over party names”, having noted the addition of subparagraph (da), said in 4.3:

Confusion still arises, however, because parties that registered names prior to the 2004 amendments are still permitted to use those names. This has created the situation where the previous system directly contradicts the current party registration system.

So it recommended back as far ago as 2005 that there be further changes made to deal with the confusion that might arise notwithstanding the existence of 129(1) and 129(1)(da), particularly with respect to pre‑existing parties, but Parliament did not take up that recommendation at that point in time. Parliament returned to this topic in 2016 when it inserted section 214A into the Act which provides for party logos to be printed on ballot papers in addition to party names and the explanatory memorandum for that Act – I will not take your Honours to it, but there is a quote in paragraph 98 of the special case which explains that that was directed to:

‘reduce the confusion that may arise with political parties with similar names’.

So Parliament has recognised the confusion issue repeatedly since 1984 when party names could first appear on the ballot and has adjusted the way that it deals with that topic through a number of iterations over time. Critically to this case, and contrary to the main thrust of my learned friend’s submissions this morning, notwithstanding that suite of provisions, the problem of voter confusion has persisted, and I will take your Honours in just a moment to both the pleadings in the case in the special case to show why that is so. But in the 2020 JSCEM Report that Mr Walker has taken your Honours to and that I do not need to go back to, the JSCEM was referring to commentary that it said had occurred in relation to repeated elections about those confusions and it said in paragraph 7.42 that that confusion:

can make a few percentage points difference to the result in a seat, because [parties] have been misled.

So the view that was formed by the JSCEM, very much borne out by the facts that I am about to come to, was that despite the fact that there were provisions dealing with voter confusion, they were not achieving the objective of preventing that confusion to the tune of a few percentage points difference in elections that were occurring. That, in our submission, is a problem to which the Parliament was entitled to respond, notwithstanding the fact that the confusion was resulting from voters mistaking one already registered party with another already registered party. The fact that the parties were already registered did not take them somehow out of the realm of parties that Parliament was entitled to adjust the electoral law so as to prevent a few percentage points going to the wrong party by reason of voters being mistaken.

So, in our submission, it is just not right to say, as I think Mr Walker’s submissions implied, that voter confusion had already been addressed by the pre‑existing provisions, so that when you look at the amending Act adding the new regime about duplicative names, it must be doing something else or it was not addressing the voter confusion problem. What it was doing was addressing the voter confusion problem differently by reason of an objective standard rather than a predictive forward‑looking standard because the predictive forward‑looking standard had not done the job to the tune of eliminating the problem to which it was targeted.

EDELMAN J: Mr Solicitor, what is the purpose of giving the choice to the party to apply if that is the case?

KIEFEL CJ: Justice Edelman, I am sorry to interrupt but it appears that Western Australia has dropped out. Solicitor‑General for Western Australia, can you year us? No.

MR THOMSON: Yes, your Honours, we can hear you and we can see you. I am sorry that you cannot see us but, at the moment, we are not doing anything more than just sitting here. So, if you would like us to rectify it over the lunchbreak, we are very happy to leave it until then.

KIEFEL CJ: We will leave it until then. Thank you very much, yes. Yes, Justice Edelman, Mr Solicitor.

MR DONAGHUE: Your Honour, insofar as the explanatory material shed light on the answer to that question, you see it in – if your Honour wants to go there, it is in volume 9, tab 42, of the book. But the answer is that it said that:

The amendments also provide a mechanism for a party to agree or consent to the use of the word in their name by another party. This is intended to allow parties which mutually agree they are related to utilise the same name.

So, it was not intended to as a wholesale shift in decision‑making authority from the Commission to the registered party, it was to carve‑out a situation where duplicative names might not be misleading because they actually refer to parties that do have a relationship to one another. That is the explanation that appears in the explanatory material.

We note, also, that it is apparent from the structure of 129, dealing with new parties, that the mechanisms are cumulative so that even if the consent was achieved under 129(3) so that no objection was made to the overlapping names, if the AEC thought that there was, nevertheless, likely to be confusion as a result of the names, then (1)(d) would bite and the AEC could say, I do not care about your consent, I will not allow – indeed it would have to say if it thought there was going to be confusion – I will not allow the party to register with that new name. So, these mechanisms are cumulative ways of addressing the vote confusion problem.

It appears that in the context of existing parties, Parliament recognised that it was more of a burden to take away from an existing party a name that was already there. So, in circumstances where nobody is objecting – if everybody is happy with the present state of affairs – it not only was prepared to allow that to continue, but recognise, perhaps, that in the absence of objection there was – or that there was likely to be objection in circumstances where there was a reasonable basis to apprehend that voters were actually voting for another party in preference to the party for which they intended to cast their vote.

Against the background of that legislative context of this being a different way to address voter confusion, without taking your Honours to the EM that I was just mentioning in answer to Justice Edelman, if I could give your Honours to reference to paragraph 19, where the purpose of this law was identified as being – or the mischief to which it was directed was:

the risk that a voter might be confused or potentially misled in the exercise of their choice at an election due to a political party having a registered name or abbreviation similar to that of an unrelated registered political party.

So, that was the mischief identified, and in the course of negotiating the special case – there having been an implied freedom challenge – it was possible, depending on how your Honours analyse the case, that we would reach a point where the burden was on the Commonwealth to justify the existence of that problem to which Parliament was responding and the special case contains various facts in that regard. But, before I come to the facts of the special case, your Honours, it is critically important that you appreciate the state of the pleadings against which the special case was identified.

So, can I ask your Honours to take up volume 1 of the special case book and to turn to – if your Honours’ version is tab 7 – it starts at page 32, which is the amended defence of the Commonwealth. And then to turn to page 38, paragraph 25 (a). So, this is the amended defence, 25 (a) is the main amendment that was made. And your Honours will see in 25 (a) the defendant says:

in at least the 2013 and 2016 elections for the Commonwealth Senate, some voters who intended to vote for the Liberal Party instead unintentionally voted for the Liberal Democratic Party because they were confused as to the party affiliation of Liberal Democratic Party candidates ‑

So, in at least those two elections, voters mistakenly voted for the Liberal Democratic Party instead of the Liberal Party, because of confusion as to affiliation. That allegation in the reply, which your Honours will find behind the next tab, page 41 of the book, is admitted in respect of the 2013 election. So, there is no dispute between the parties that at least in one relatively recent federal election, the very problem – the exact problem that Parliament identified as the mischief to which this regime is directed – in fact occurred, voters mistakenly voting for the LDP instead of the Liberal Party.

That state of the pleadings is a critical factual context to the special case, because as your Honour Justice Edelman might recall, the Commonwealth was extremely reluctant to agree to a special case in circumstances where it seemed that there was a real risk that there would be a factual dispute breaking out in this Court about what inferences could be drawn from the special case as to whether or not voter confusion was or was not a problem. And, in that context the plaintiff said, well, we will admit that if you plead it, we pleaded it, they admitted it, and the special case was signed a day or two later. So, it really is not open to our friends to come to this Court and say, well, voter confusion is just an alleged problem, you should not draw the inference that this problem exists at all. We are here on the factual record because they admitted that that was the case.

GAGELER J: Mr Solicitor, can I just ask a factual question about the 2013 election. It is dealt with at paragraph 75 and stop me if you are going to come to this anyway, but there is an extract from the JSCEM Report. In paragraph 1.14 of that it says that on the ballot paper the words “Liberal” and “Democrats” somehow got split. Can you describe the ballot paper? I do not have a mental picture of it.

MR DONAGHUE: Across two lines, one above the other, so “Liberal”, “Democrat”, so they were only split in the sense that it was a very large ballot paper, and the names were all squeezed together, so instead of it being “Liberal” to the left of “Democrat”, “Liberal” was above the word “Democrat”, but they were otherwise together on the ballot. I am about to come to some of the detail about the 2013 election.

So if your Honours could go to the special case, and turn to page 57 of the special case book, you will see at page 57 that – and I am going to come back to some of the earlier paragraphs in just a moment, but focusing on 2013, you will see at paragraph 64, that there has only ever been one Liberal Democratic candidate party elected, it was Senator Leyonhjelm, he was elected for the first time at the 2013 federal election, that is paragraph 64. Paragraph 65, you get some details about how Mr Leyonhjelm appeared on the ballot paper, so the LDP was above the line, under the name “Liberal Democrats”, registered abbreviation, “in the very first position”. So in the left‑hand column on the ballot paper, and well to the left of the coalition parties who appeared as the Liberals and Nationals.

There is actually, your Honour Justice Gageler, a copy of the ballot paper, although it is very small, at page 263 of the special case book behind – it is SC 15, if that helps your Honour to visualise it, it is very small, and in the left‑hand column you can see the Liberal Democrats and, almost just to the right of the middle of the page, in a column that challenges my eyesight too much, but I think is column number 25, you can see the Liberal and Nationals.

Now, in paragraph 66 of the special case book, there is agreement between the parties that the matters about to be listed:

are consistent with some voters who intended to vote for the Liberal Party instead unintentionally casting votes for the Liberal Democratic Party –

And our submission, your Honours, is that you should infer, on the facts that appear there, that that is in fact what did happen, particularly bearing in mind that there is absolutely nothing that would explain why voter confusion had happened, or – sorry, your Honours do not need to infer that ‑ it is admitted that it happened in 2013, the same inference should be drawn in relation to other elections, but here it is admitted on the pleadings that there was confusion. So, 66.1:

The Liberal Democratic Party received 9.5% of votes for the NSW Senate . . . which far exceeds the party’s vote in any other Senate election for NSW.

Just for reference without needing to go there, you can see at 61 to 63 of the special case that the LDP’s vote has otherwise ranged from 1.19 per cent to 3.09 per cent. So, they did more than three times better than their previous best result. In that election, as your Honours see at 66.2:

there was an average swing to the Liberal Party –

albeit small in the lower house, but a swing of almost:

4.75% against the Liberal Party –

in the upper house. At 66.3, in this election:

In the four States . . . the Liberal Democratic Party appeared above the line to the left of the Liberal Party . . . the Liberal Democratic Party polled an average of 4.70% of the vote, whereas in Queensland, where they appeared above the line to the right of the Liberal Party, they polled 0.69% of the total vote.

Lest it be thought that all of this difference might be explained by being in the left‑hand most column on the ballot paper, 66.4 shows you the votes that have been received in New South Wales for the party in that position at the 2010, 2016, and 2019 elections, and it is very small. The highest is 1.18 per cent and in the other two occasions it is well under one per cent difference. So, there may well have been some effect by reason of being in that left‑hand most position, but not an effect that in any way accounts for the 9.5 per cent vote that the Liberal Democrats received, three times better than any other New South Wales election.

Commenting on those outcomes, those figures, Senator Leyonhjelm himself admitted that they were likely explained by voter confusion, and you see that most relevantly at paragraph 74 of the special case. Senator Leyonhjelm was interviewed just after the election occurred. And, if your Honours look near the bottom of page 59, about two answers up from the bottom, he was asked if it came as a surprise – if the result came as a surprise, and he said:

We had done projections using Antony Green’s calculator and based on a vote of about two and half to three per cent, we were reasonably confident that we might win. We thought we would probably get about four per cent because we had the donkey position . . . at that level that we were pretty . . . pretty likely to get in.

It is said:

Yes, you’ve got something like nine per cent of the vote ‑

and he said:

Yes ‑

and it is asked:

if you were anticipating 4 per cent –

. . .

you were hoping for four, and you get nine per cent, does that mean at least half of the people who voted for you did so by mistake?

Senator Leyonhjelm says:

There’s two explanation . . . we’re first on the ballot.

So, you get a little bit for that. But that had of course been factored into his previous answer that they were hoping to get four. And then at about point 4 on the page:

there is a factor of some . . . Inevitably, you know, you can’t deny that some people would have . . . mistaken us for the Liberals.

A couple of answers further down the interviewer says:

It looks as though it could’ve contributed, you know, seventy‑five per cent of your vote ‑

and the Senator said:

I really don’t know . . . it could . . . It’s possible ‑

Now, that all happened, your Honours, in a legislative context that included section 129(1)(d) and 129(1)(da). So, for our friends to say.....can solve the problem of mistaken or voter confusion is not a tenable position for them to take in the face of their own admission about what happened in 2013 and the facts of what happened in 2013 in New South Wales.

At bottom, our friend’s case in this Court today amounts to saying that the Constitution prevents Parliament from legislating to solve that problem because it was a problem that benefited an existing registered party. The fact of that existing registration is somehow said to create an immunity from a legislative response designed to address and reverse the problem of votes that were intended to go to one party mistakenly going to another. That, in our submission, just cannot be right, and it is not surprising, with respect to my friend, that he really did not take your Honours to a single authority that would suggest any constitutional foundation for a limit of that kind because, for the reasons I am about to come to, there is none.

Parliament’s power to respond in the – to fashion and shake the electoral system is a very wide one and, in our submission, it clearly extends to taking measures necessary to prevent distortion of electoral choices by reason of people who, for whatever reason, whether it be English language difficulties – and obviously there are a number of people who vote in federal elections for whom English is not a first language – or whether it be for other reasons – large ballot papers and people in a rush mistaking one party for another, whatever the explanation might be, if voters are having their vote go to the wrong party in error, then that is something we submit that Parliament is entitled to address.

GAGELER J: Mr Solicitor, can I just ask this about the 2013 federal election. Did the JSCEM make any recommendation about the problem that it had identified in the passage extracted at paragraph 75?

MR DONAGHUE: Your Honour, that paragraph 75 passage appeared in the interim report of the JSCEM and we had in fact mistakenly attached the final report to the special case and that problem was fixed by the supplementary special case book that your Honours have had, so you have the proper report. But I think, your Honour, the answer is no, they did not specifically recommend anything in response to the problem then.

But, in our submission, when one looks at the 2020 report that Mr Walker took your Honours to and it says there has been commentary over previous elections about this problem, the only reasonable way to read that is as including the 2013 election as perhaps the best illustration of the magnitude of the problem that occurred.

GAGELER J: The way I read it – and perhaps it is overly simplistic – that the real problem was with the printing of the ballot paper rather than the use of the name.

MR DONAGHUE: Well, your Honour, in my submission there, your Honour should not read it in that way. There were – it is obviously not at all a straightforward exercise to disaggregate possible factors that might have contributed in some way to the 9.5 per cent vote that the Liberal Democrats achieved at that election. It might in part have been, it probably was in part, perhaps to the tune of one per cent, being in the first column. It may in part have been the breaking of the name, one above the other, but when someone scans that ballot paper from left to right, they see immediately “Liberal”. Liberal Democrats appeared in the first position, and, in some respects, your Honour, I do not really need to persuade you of this, because our friends admitted it, admitted on the pleadings that there was a mistake by reason of – I will make sure I get the language right:

unintentionally voted for the Liberal Democratic Party because they were confused as to the party affiliation of Liberal Democratic Party candidates.

Voters:

who intended to vote for the Liberal Party . . . unintentionally voted for the Liberal Democratic Party -

Your Honour, in support of that, I would make the further submission that, as the special case shows, the same phenomenon that one saw, and I touched upon it briefly in the context of just the 2013 election, but your Honours I noted in 66.3 of the special case, that:

In the four States or Territories where the Liberal Democratic Party –

This is other than New South Wales, in the four States other than New South Wales where the Liberal Democrats appeared to the left of the Liberal Party, 4.7 per cent, and the one time to the right just one‑sixth of that vote at 0.69 per cent. That pattern holds consistently for the four elections since the Liberal Democrats were registered as a party.

So that the admission in respect of 2013, and the facts you see at paragraph 66 in relation to the 2013 election are replicated in respect of other elections, and that is the weight of paragraph 57 of the special case, and paragraph 59, which I would invite your Honours to go to, so that, on page 54 of the book, paragraph 57:

At the 2010, 2013, 2016 and 2019 –

Our friends refer a few times to that as a sample – as if we are distorting the sample in some way. That is the four elections that the LDP have contested as the Liberal Democratic Party. So, it is not a sample in any reasonable use of that word.

Where they have appeared above the line, to the left of the Liberal Party, they received a higher share of the vote than when they drew a position to the right of the Liberal Party. That is not the case for any other party in any of those elections. You then get some details of that in paragraphs 58 and 59. The details in paragraph 58 are a little impenetrable. But, without needing to – given constraints of time – take your Honours through the detail of all of that, the upshot of it is summarised in paragraph 59.

The LDP receives an average of just under 4 per cent – 3.95 per cent when it appears above the line to the left – which has happened seven times. Then, over the page, 1.13 per cent of the vote where it appears to the right, 16 times. So, a multiple of more than three in its average vote across those federal elections – depending on whether to the right or the left. On every occasion, when the Liberal Democrats appears to the left, its worst result – when it appears to the left – is better than its best result when it appears to the right.

So, while that does not exclude the possibility that there might be other factors, that strong correlation over four federal elections, taken together with the 2013 election itself – Senator Leyonhjelm’s admissions and the admissions on the pleadings – in our submission very amply established the factual proposition – a factual foundation for the proposition that when Parliament comes to legislate in enacting the impugned provisions there was a problem that had not been addressed – a voter confusion problem that had not been addressed by the pre‑existing regime.

The predictive forward‑looking assessment by the AEC was not able accurately to stop this problem occurring and Parliament responded to that by making a judgment that it would just create an objective rule that would eliminate the confusion problem arising from the overlapping names.

I should say, your Honours, that the pattern of doing consistently better to the left of the Liberals than the right, is also a pattern that one sees in respect of other parties, and, your Honours, there is a fact about the DLP in paragraph 81.1, which again indicates that the DLP consistently does better when it appears to the left than in any election where it appears to the right.

Now, on the DLP, I should perhaps return to the question your Honour Justice Gageler asked me at the start of the day to make two short points. In answering your Honour’s question it was implicit in my answer, I hope, that I was assuming that the status of the DLP under these amended provisions is not a constitutional fact – obviously if it was a constitutional fact your Honours would be entitled to have regard to such material as you thought would inform you in making that assessment. But, in my submission, it cannot be a fact that – well, it does not have that status.

But, it may well be that your Honours are in the territory of judicial notice with respect to material that has been published by the Australian Electoral Commission on its website, and as against the possibility that your Honours think it appropriate to have regard to that, I should just note that your Honours may have seen, if you have looked at the website, that there are two relevant pieces of information, or potentially relevant pieces of information.

One is that the AEC has published a notice of an intention to deregister the DLP under section 137(1)(a) of the Act, and it did so on 27 January of this year. That notice was based on non‑satisfaction of the 1500‑member requirement, not on the name issue, and so it raises a different question than the question with which your Honours are now concerned, and the one‑month period for that runs out a month from 27 January, so it may be that, unless the DLP can persuade the Commission that it satisfies that requirement, it will be deregistered for that reason.

There is also to be found on the website, I am told, an indication that an objection to the name of the DLP was upheld by the Commission on 19 November 2021, but unlike the position confronting the Liberal Democrats, the Electoral Commission has not yet published notice of that. It has published the fact of the decision, but it has not published the notice that starts the time running of the kind that was published here yesterday, so that the DLP cannot be deregistered pursuant to that provision, assuming it survives under the 1500‑member requirement until some time later than would be the case with the Liberal Democrats. So, in other words, there is no timing imperative that would affect them separately or faster than is relevant for the Liberal Democrats.

The final matter I should note factually by way of the special case is that the risk of voter confusion with respect to the Liberal Democrats is – or your Honours might take the view – particularly acute in circumstances where the leading parties nominated by that – sorry, the leading candidates nominated by that party have, on a number of occasions – including their current lead candidates in New South Wales and Queensland, had prominent connections with the Liberal Party.

So, with respect to the plaintiff himself, you will see in paragraph 8 of the special case that he is the lead candidate for the Liberal Democrats in New South Wales. The special case also records, at paragraph 6, that:

Prior to joining the Liberal Democratic Party –

which happened in June last year, he had:

for over three decades –

been a member and supporter of the Liberal Party. He had run for the presidency of the Liberal Party in New South Wales and nationally and he:

appeared in major media outlets . . . including The Australian, They Sydney Morning Herald and The Guardian –

as recently as 2018 publishing a “manifesto – Make the Liberal Party Great Again – pressing for reforms of the Liberal Party. Similarly, in Queensland, the lead candidate at the moment is Mr Campbell Newman, the former Liberal/National Party Premier of Queensland.

So if one is dealing with the phenomenon or a risk of voter confusion, not only is there the risk of similar names, but that provides some factual context, at least in the context of the election coming up, that shows the reality of the risk of voters mistakenly thinking that there is a connection at least between one party and the other.

GAGELER J: Mr Solicitor, I might not put this particularly well, but the same facts you have just referred to perhaps can be taken to demonstrate that the name, whether it is Liberal or Labor, serves a purpose in expressing a political philosophy or a version of a political philosophy, and if you are going to take away the ability of someone who was previously in the Liberal Party who has a particular version of liberalism that may be overlapping with or may be quite different from a major party, what you are doing is preventing that person from to a large degree communicating that political philosophy.

MR DONAGHUE: You are preventing them from communicating it in a particular way by registering a party under the Act that then will derive all of the benefits that accrue to a registered party under that regime. I accept, your Honour, that that is true. But, in my submission, the design of an electoral system, indeed the design of the system of representative democracy that we have, is a complicated one that involves many different competing interests and tensions and a restriction upon someone who has been a prominent Liberal Party member, who leaves, but who still espouses Liberal philosophy to name their party as they choose, has to be balanced against the ramifications that that might have for other participants in the electoral process, including for distorting or causing the votes of 1 or 2 per cent – a couple of per cent of people – not to go where those voters intended them to go.

In the end, those questions, in our submission – and this is a matter I am about to come to – are questions of balance that are entrusted, subject only to the broadest of limits, to the Parliament. So that your Honours have heard almost nothing from our friends as to where one finds the constitutional standard against which the Court is to judge these provisions. What test is to be applied in judging these provisions, and how is that grounded textually in the constitutional provisions, such that your Honours can say that the judgment that Parliament reached here, responding to a problem that is both admitted and evident on the facts, is not one that was open to it, simply because it imposes some burden upon pre‑existing registered parties.

I do not shrink from the fact that in its operation with respect to these parties, it stops them from doing something they want to do. That is clearly true. But that is not a case for constitutional invalidity because the judgment about how to accommodate interests of that kind – repeatedly in this Court – has been said to be a very wide judgment, not only as to matters at the margins of the systems, but as to major and key ingredients of the electoral system.

If Parliament can decide whether or not voting is compulsory or not, then, with the huge potential ramifications that that might have for the way that the electoral system works in practice, to say that parties that have overlapping names that might, in circumstances where there is a history of voters being misled by overlapping names is, in our submission, well within the realm of available judgments.

EDELMAN J: Mr Solicitor, just before you move on, in relation to Justice Gageler’s question and your answer to that, if the Liberal Democratic Party, if its name were “The Party of Liberalism”, would that be caught by section 134A in any way, or would that be a matter which would fall within 134A(2), and then, if one went to re‑registration of a name such as that, would there be a stricter requirement?

MR DONAGHUE: Your Honour, I note the time. Can I take that on notice and come back to your Honour after lunch, and I will give that a little bit of thought?

EDELMAN J: My concern is just about the extent to which the embodiment of a political philosophy in a name is prevented by the Act, as opposed to the use of a single identical word.

MR DONAGHUE: Yes, I take your Honour’s point. I would just be grateful for the opportunity to reflect on exactly how that example sits within the scheme of those provisions. I will get back to your Honour straight after lunch. If I could use the remaining moments to make one final point which will take me conveniently to the next part of my submissions after lunch.

Part of our friend’s case seems to be that when you look at the JSCEM report from 2020, it is not lengthy or detailed. It does refer to what is said to have been a concern recognised in commentary over a number of elections, but it is said, well, in effect it seems to be said there is not enough of an evidentiary record before the Parliament. I think our friend was inviting your Honours to say, do not worry about all of the facts we have in the special case, you have to just focus on the parliamentary record, rather than the world within which Parliament was legislating when it enacted these provisions.

In our submission, there is no principle that, in defending the constitutional validity of a law, one can look only to – in effect – the body of evidence that can be expressly linked by extrinsic material to the problems to which Parliament is responding and, indeed, there is no principle that says there must be evidence that proves – in the way that one would seek to prove in a court – perhaps in discharging a justification burden – that there needs to be evidence before the Parliament that proves the existence of the problem.

Your Honours have said on multiple occasions, and I will not take your Honours to them, but if I can just.....we did not give you the references in the oral outline, so I might give them to you briefly. In Spence v Queensland, in the joint judgment – adopting words from Justice Nettle in McCloy – this is in Spence [2019] HCA 15; 268 CLR 355, volume 7, tab 28, it was said Parliament may:

enact legislation in response to inferred legislative imperatives. More often than not, that is the only way in which the Parliament can deal prophylactically with matters of public concern.”

In Unions NSW, in a long passage at 117, Justice Nettle explained that same point. In McCloy, your Honour Justice Gageler at paragraph 197 said:

The Parliament is not relegated by the implied freedom to resolving all problems . . . if it resolves any. The Parliament can respond to felt necessities.

So, even if there are other issues that might be – and, sorry, your Honour Justice Edelman picked up those comments from Justice Gageler in Brown at 422, all of that being to say that it does not help our friends to say that the Commonwealth has not excluded the possibility that some matters other than confusion as to party names might have contributed to some of the voting effects that are revealed by the special case.

It is enough that the misleading of voters, voter confusion by reference to party names, is one of the sources of the problem, and that Parliament has chosen to respond to that source of the problem, and the suggestion there needs to be a stricter evidentiary record in order to support validity is, in our submission, one that your Honours should not accept. I note the time, your Honour.

KIEFEL CJ: Yes, thank you Mr Solicitor. The Court will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Thank you, your Honours. Can I return immediately to the question that Justice Edelman asked before the adjournment concerning how the provisions in question would deal with an application to register a party under the name, “The Party of Liberalism”. In our submission, the appropriate analysis is as follows. First, plainly enough, the word “liberal” is not the same as the word “liberalism”. So, reading 129(3) by itself, it would not apply. But one then needs, of course, to come to the possible effect of section 129(6) providing that in applying subsection (3) – and also in applying 134(1)(a)(iii) – which your Honour also asked me about – in relation to other grammatical forms and commonly accepted variants including abbreviations, contractions and alternative forms are to be treated as the same as the word.

So, the question would become, is “liberalism” another grammatical form of “liberal”. In the first instance under the Act, the answer to that question would be for the delegate of the AEC. The answer given by the delegate would then be subject to internal review and, potentially, AAT review under section 141(4) or (5) and then, potentially, by way of an appeal on the question of law in to the federal courts.

So, it is not – I preface - I say that because the answer I am about to give your Honour is ultimately an answer I am giving on behalf of my client here but it would ultimately be for the AEC to make a decision on that question.

In my submission, the word “liberalism” should not be treated as another grammatical form of the word “liberal”. Insofar as the extrinsic materials give some insight into the width that was intended to be accorded to those – for that term, it suggests it was intended to be narrow, to capture things like plurals or tense changes, matters of that kind. You see that in paragraph 17 of the EM, but also, in the short time that we have had available to us over lunch to turn our minds to this question, there does seem to be a distinction drawn in the relevant grammatical texts between grammatical forms of a word and derivations or derivatives of the word, which commonly will have a different meaning and be treated differently in dictionaries, et cetera.

“Liberalism” is, as we understand it, a derivative of the word “liberal” rather than a grammatical form of that word, and in my submission, it would follow, therefore, that one could register “The Party of Liberalism” and in that way capture the same kinds of political traditions as were inherent in Justice Gageler’s question, and my answer to it that I think prompted your Honour Justice Edelman to posit that example.

EDELMAN J: Well, there is also a purposive dimension, Mr Solicitor, that if the purpose underlying all of section 129(1) is avoidance of confusion, the avoidance of confusion is unlikely to be affected by substantially different words, even though the words might be derived from each other.

MR DONAGHUE: Your Honour, I accept that that is so, and the final point I was going to make was that adopting that kind of construction, if your Honours thought that it mattered, particularly if your Honours thought it mattered in terms of validity, you would construe purposively and therefore narrowly in that phrase so as to reduce the burden imposed by the provision, and we would certainly accept what your Honour just put.

Your Honours, I have now arrived at paragraph 7 of our outline dealing with question 2 and the direct choice limit said to arise from sections 7 and 24 of the Constitution, and I am going to ask your Honours to turn in a moment to Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 in volume 5 at tab 22.

Before coming to the detail of that case the starting point, in our submission, is that as this Court has recognised for a long time, the Parliament’s power to make laws with respect to the electoral system to create and sustain that system derives from section 51(xxxvi) of the Constitution, being the power to make law with respect to matters where the Constitution states a position “until the Parliament otherwise provides”.

That power read in conjunction in particular with sections 10 and 31 of the Constitution has long been understood as an extremely wide power leaving the design of the electoral system and the electoral processes largely to the Parliament to be adapted in line with community standards, the Court having recognised that, while sections 7 and 24 are of course powerful constitutional planks that underpin the concept of representative democracy that is to be found in the Constitution, that concept is itself descriptive of a whole spectrum of possible political institutions, to borrow from Justice Stephen in McKinlay, and within that broad spectrum of possible institutions the choice as to the form of representative democracy in Australia is left to the Parliament. That is so, notwithstanding the fact, that that head of power that I have just identified is recognised to be subject to the operations of sections 7 and 24, and thus to the direct choice principle.

What the plaintiff is asking your Honours to do here, it being a request or an attempt that has been made on multiple previous occasions, is to use the direct choice principle in sections 7 and 24 to create a quite specific fetter upon what Parliament might properly do in its design of the institution of representative democracy.

The Court has, we submit, for reasons including in Mulholland, in passages I will take you to now, resisted – specifically resisted – the idea that the direct choice principle should be elevated too far as a constraint upon Commonwealth legislative power, specifically because that would constrain the capacity of Parliament to make the really fundamental design choices that the Constitution deliberately leaves to the Parliament.

So, Mulholland, which is volume 5, tab 22, as your Honours know concerned a challenge to two registration provisions that had been introduced for political parties into the Electoral Act. If I could ask your Honours just to note on page 227 at paragraphs 122 and 123 the factual point that is recorded by Justices Gummow and Hayne there, that the DLP, had first been registered in July 1984 very shortly after the registration provisions commenced, and had been continuously registered since that date – Mulholland of course being decided in 2004. So, they have been continuously registered for 20 years. And then:

in the present litigation, the appellant seeks to obtain a determination of the invalidity of certain of the amendments made to the registration system . . . moved to take this action by apprehended removal of the DLP from the Register –

So, the context was a long‑registered party, registered for nearly twice as long as the Liberal Democrats, on the register and with the benefits of registration, stood to be deprived of those benefits by reason of new provisions that altered the registration framework and that the DLP apprehended it did not meet. So that is the context for the discussion that follows. If your Honours could then turn to the judgment of Chief Justice Gleeson at paragraph 6 ‑ ‑ ‑

KIEFEL CJ: Before you turn to it, Mr Solicitor, do I take it that you do not ‑ that the Commonwealth does not deny that there is a political communication involved in the expression of the name of a political party on the ballot paper?

MR DONAGHUE: We do not, your Honour. We do deny that there is a burden on political communications, for reasons that I will come to, but ‑ ‑ ‑

KIEFEL CJ: Yes, I understand that, thank you.

MR DONAGHUE: In the Chief Justice’s judgment at paragraph 6 on page 188, under the heading “Legislative power” his Honour makes the point, by reference to authorities, that:

A notable feature of our system of representative and responsible government is how little of the detail of that system is to be found in the Constitution, and how much is left to be filled in by Parliament.

Mentioning Lange, McKinlay, McGinty:

it was pointed out that representative democracy takes many forms, and that the terms of the Constitution are silent on many matters that are important to the form taken by representative democracy in Australia –

His Honour then gives a whole series of examples in paragraph 7 that I will not detain your Honours with. In paragraph 9, over the page, his Honour emphasises that it is useful to pay attention not only to:

what the Constitution says, but also what it does not say. The silence of the Constitution on many matters affecting our system of representative democracy and responsible government has some positive consequences.

Skipping a sentence:

Leaving it to Parliament, subject to certain fundamental requirements, to alter the electoral system in response to changing community standards of democracy is a democratic solution to the problem of reconciling the need for basic values with the requirement of flexibility.

That is the silence is – as I think your Honour Justice Gordon put it in Murphy – is a deliberate design feature intended to allow Parliament to make choices not just at the margins but as to fundamental elements of the system.

There is much in all of these judgments that I could usefully take your Honours to, but in light of the time I will not. Could you go in Justice McHugh’s judgment to paragraph 63, where his Honour makes a similar point, having referred to sections 7 and 24 in the choice requirements. His Honour said:

However, the Constitution prescribes only the irreducible minimum requirements for representative government –

including direct choice:

does not prescribe equality of individual voting power. Nor does it protect the secret ballot. In Attorney‑General (Cth); Ex rel McKinlay v The Commonwealth, the Court recognised that the concept of representative government is inherent in the structure of the Constitution, but noted that “the particular quality and character of the content” of representative government was “not fixed and precise”. Stephen J observed that the concept of representative government is “descriptive of a whole spectrum of political institutions”.

Then at paragraph 64:

the Constitution does not mandate any particular electoral system, and, beyond the limited constitutional requirements outlined above, the form of representative government . . . is left to the Parliament –

including as to matters, his Honour gives examples - the franchise, compulsory voting, particular voting methods, the election of unopposed candidates, formal and informal votes, et cetera. That paragraph – paragraph 64 – was endorsed by all seven members of the Court in Day v Electoral Officer for South Australia at paragraph 19, obviously quite some years after Roach and Rowe were decided.

So, insofar as our friends suggest, as their reply perhaps hints at, there was a fundamental turn in the understanding of the width of the Parliament’s power to regulate elections in Roach and Rowe that does not sit well with Day, for example.

In paragraph 65, there is another long list of examples that Parliament can regulate in the exercise of its power with respect to elections. Near the end of that quote, which is a quote from Justice Gummow, in turn quoting a text – you see about four or five lines up from the bottom, that one of the matters is the role of political parties at elections that is listed as included within the matters that Parliament may choose to regulate. His Honour Justice McHugh, a few pages on at paragraph 69, deals with that in a little more detail, noting that:

The Full Court in the present case correctly identified the system of registration of political parties under the Act as having the legitimate end of the regulation of elections . . . legitimate objective of minimising voter confusion.

Applying what his Honour clearly understood as the test, at paragraph 86 at the end of his analysis of this question and having noted many previous authorities in the Court, Justice McHugh says:

Langer, Muldowney v South Australia, McGinty, McKenzie and the cases which follow it show that the Court will not — indeed cannot — substitute its determination for that of Parliament as to the form of electoral system, as long as that system complies with the requirements of representative government as provided for in the Constitution. No doubt a point could be reached where the electoral system is so discriminatory that the requirements of ss 7 and 24 are contravened. The challenged provisions cannot be so characterised.

His Honour says that notwithstanding the point he explains at paragraph 87 that:

On one view, the Act creates two classes of candidates . . . one class (registered political parties, groups of candidates –

et cetera, who can appear above the line:

offering a voting method . . . that is approximately twenty times more popular than that offered to the other –

group, that is, candidates who were not registered and could not appear above the line. So his Honour says, notwithstanding the fact that the Act allows registered political parties that option, and it is a much, much more popular option than for unregistered parties, that was constitutional.

The question that his Honour poses is, we submit, the correct question when an attempt is made to rely upon sections 7 and 24 in all cases save cases dealing with the specific situation of the exclusion of voters from the franchise – the Rowe, Roach situation.

Leaving that category to one side, the ultimate question is can it be said that the system no longer provides for a system that is properly described as representative government? That is obviously a very loose fetter on legislative power, but intentionally and deliberately so, so as to allow Parliament the latitude referred to in those cases. Next, at 155 in the joint judgment of Justices Gummow and Hayne, you see a similar idea:

The recurrent phrase in the Constitution “until the Parliament otherwise provides” accommodates the notion that representative government is not a static institution and allows for its development by changes such as those with respect to the involvement of political parties, electoral funding and “voting above the line”. Some of these changes would not have been foreseen at the time of federation –

and their Honours then make this point, which is another point endorsed by all seven members of the Court in Day and that we rely upon:

care is called for in elevating a ‘“direct choice” principle to a broad restraint upon legislative development of the federal system of representative government.

Yet that, as we understand it, is what is attempted again in this case. Without getting much detail as to the form of the limit that should be implied, the plaintiff’s case in essence involves elevating the direct choice principle in a way that means that a choice that, while I do not deny is important, is nevertheless not at the margins of the regulation of an electoral system, a choice by the Parliament as to how political parties may appear on the ballot paper, responsive to an identified issue of voter confusion, that that choice is not a choice that is available to the Parliament. That would involve, in our submission, a very significant elevation of the direct choice requirement upon the broadly framed power that I have just sought to describe.

Justice Kirby, at paragraph 229, reasons to similar effect, and his Honour’s judgment is interesting in that, next to the heading at 229, “Large ambit of the lawmaking power”, his Honour points out, three lines down, that:

the decisions of this Court give little support to attempts to translate the phrase “directly chosen by the people” into a large guarantee of substantial equality in the achievement of the democratic ideal reflected in Ch I –

and he notes, in the balance of that paragraph, that attempts to do so have:

not proved fruitful.

At 230 he asks, rhetorically:

Why has this been so?

He explains the answer consistently, in my submission, with what I have just been putting to your Honours, that it is founded on the textual provisions contemplating the power of the Federal Parliament to provide for the fleshing out or filling in design, including in its fundamental aspects, of the system of representative democracy that Australia is to have, and that, his Honour says, at 231, is what has:

led this Court to acknowledge the ample scope of the Parliament’s power to enact electoral laws.

Justice Heydon at 344 reasons to similar effect, and I will not ask your Honours to go to that now. Similarly, and more recently, and again I will not take your Honours to the passages, but in Murphy, observations to very similar effect to those I have just taken your Honours to in Mulholland were made by your Honour. Murphy v Electoral Commissioner (2016) 261 CLR 28 is at volume 6, tab 23 and without going to it, I would give your Honours the references to Justice Gageler at paragraph 89, to your Honour Justice Keane at 178, where your Honour made the point particularly upon which we rely, that:

Parliament’s broad powers to make laws to establish and regulate the process by which the choice by the people is to be made are not constrained by some judicially enforceable standard of representative democracy.

Justice Nettle at 243, Justice Gordon at 263 and 264. So our starting point, your Honours, is that here we have provisions, the impugned provisions, that address matters of detail concerning the requirements for the registration of political parties where there are overlapping words in the name, that that is a matter of detail as to the operation, important, but still a matter of detail as to the operation of the system enacted in a context where Parliament has wide power not just to regulate the matters of detail, but to change the fundamentals, as it has done multiple times since Federation, particularly, for example, if one looks at the changes in Senate voting over the years, and that as such, that kind of change, whether thought by our learned friends to be desirable or not, is not a kind of change that is properly to be assessed against any constitutional limit other than consistency with the existence of representative democracy.

Here we are nowhere near the boundary of that – whether or not the law be thought desirable as a matter of policy or not is really neither here nor there. It is within the scope of Parliament’s judgment to recognise the competing considerations that might lead to the enactment of a law of this kind, and there is not a constitutional standard against which a law of this kind is properly to be assessed.

So, the plaintiff just fails at the threshold level that they have not identified a constitutional provision against which Parliament’s law need be justified – other, of course, than the implied freedom of political communication that I will come to.

As against that proposition, the plaintiff has put a wide array of arguments – some in their original submissions – some different ones in reply – slightly different again as developed orally – making it a little bit difficult to identify squarely the argument that we need to meet. So, I will focus only some points orally and we rely on everything that we have said in writing in relation to responding to the other issues.

One particular theme that emerged from our friend’s submissions this morning – and to an extent, in reply – was connected to the idea of there being impermissible discrimination against the Liberal Democratic Party. In that respect, Mulholland is, again, instructive because one of the arguments advanced in Mulholland was an argument that the changes to the registration provisions unreasonably discriminated between candidates in a way that threatened their constitutional validity. That was an argument that the Court rejected.

One might not be surprised by that when you consider the result in Mulholland because, obviously, the result was a result that said that parties that satisfy the registration requirements have a whole suite of advantages over parties that do not. So, there was no equal treatment of political parties, notwithstanding their desire to participate in the political process. Both registered and unregistered parties were able to participate in the political process but there was no constitutional requirement of - freestanding constitutional requirement of non‑discrimination that needed to be satisfied. Justice McHugh made ‑ ‑ ‑

GLEESON J: Mr Donaghue, I thought the point that was being made was that the rules in Mulholland did not operate differentially, it was just a question of whether or not different parties complied with them whereas, here, one party gets to include “Liberal” in their name and one party does not.

MR DONAGHUE: Your Honour, the practical operations of the regime – and the extent to which they burden some parties rather than others – will vary depending on the factual characteristics of the parties. So, a requirement to have 500 members is not a problem for a major political party and imposes no burden on it whatsoever because it is easily met. Equally, many political parties will not have overlapping names and they will not be burdened by these particular provisions.

So, the fact that, on some particular facts, you can show a burden upon one party rather than another, is just a feature of the fact that some registration requirements will be easy for some and some will be difficult for others.

Insofar as the point was being developed in the way your Honour puts to me, our submission is that here one has a law that, obviously, facially, does not discriminate, for example, in favour of major parties rather than minor parties, which was part of the way it was developed. It just discriminates based upon who is the first in time to have the name. Once Parliament comes to the view that there is a problem of voters being misled by similar names, names including identical words, rather, that it needs to solve, then there has to be some metric adapted to identify which parties do not get to keep the name and which parties do.

First in time, we submit, was an open metric to use, and facially does not have any discriminatory effect of the kind put against us. If one says, well, what about in its practical operation, it ignores the facial neutrality of the law, then again we submit that it is difficult for our friends to show something in the nature of discrimination, because discrimination is different treatment not explicable by reference to a permissible objective, and here, for the factual reasons I have already taken your Honours to, the factual record indicates that the parties that are getting the mistaken votes, that are benefitting from the confusion, are the same parties upon whom the main burden of this law falls in its practical operation.

The law may deprive the Liberal Democratic Party and the Democratic Labour Party of the votes that they pick up, a couple of percentage points’ votes that they pick up, usually, by mistake, whenever they appear to the left of one of the more major political parties. Now, that is not the discrimen that the law selects, but if one is to focus on practical operation, the practical operation aligns perfectly with the mischief, in our submission, so there is a question as to whether that differentiation is properly characterised as discrimination at all.

But our more fundamental point is that the Constitution just does not contain a non‑discrimination requirement in relation to political parties, that is, Parliament can choose, in its design of the electoral system, to discriminate between one party rather than another and so that, even if there is discrimination, that does not equal constitutional invalidity, and that very point was made ‑ ‑ ‑

GAGELER J: Mr Solicitor, could I just ask in relation to that, would a purpose of discrimination be a purpose compatible with the implied freedom of political communication, discrimination against political opponents?

MR DONAGHUE: Your Honour, I think not, must be the answer to that question. But of course, in the context of the implied freedom, we would need first to have a law that burdens political communication. If you had a law that burdens political communication and does so with a discriminatory purpose that your Honour identifies, then I think it is hard to see how one could defend the validity of that law. But on this part of the case, your Honour, we are not in that realm, we are in the realm of whether there is a freestanding constitutional requirement of non‑discrimination derived from 7 and 24 of the Constitution.

GAGELER J: Let me blur the distinction a little. The implied freedom of political communication is derived from the penumbral operation of sections 7 and 24 of the Constitution. Now, if that purpose is an impermissible purpose in the context of considering the penumbral operation of those provisions, why is it not similarly an impermissible purpose in considering the more direct operation of those provisions in their application to section 51(xxxvi) read with sections 10 and 31?

MR DONAGHUE: Because, your Honour, in my submission it would be inherent in – or it is implicit within that question that there is a justification question that needs to be answered in relation to all Commonwealth electoral laws that does not exist, in my submission, because once you get into the territory of saying, well, even with a law that does not burden political communication, it is necessary to identify a permissible purpose for that law, then that is to assert a judicial supervision or supervisory role over the design choices that are made by the Parliament in working out what form of representative democracy we are to have.

It might well be that Parliament – well, in my submission, Parliament is within its rights to say, as may well have underlined, or was underpinned, the regime in Mulholland, we do not want a representative democracy in Australia that has hundreds of parties contesting elections. You get tablecloth ballot papers, they confuse people, they are hard for the system to operate. We are going to prevent that by discriminating against very small political parties, because of the detrimental impact those very small political parties have on the operation of our system. In and of itself, that, in my submission, is an option that is available to the Parliament.

I am not going so far as to say you cannot run at all, although obviously there are eligibility requirements already in the Act that people have to satisfy in order to be allowed to nominate, so again, Parliament can make rules about when you get to stand. Those rules are not rules, in my submission, that need to survive judicial scrutiny. They are within - as long as the resultant system forms part of an institution that can properly be described as representative democracy, the constitutional choice is for the Parliament alone, not for the Parliament supervised by the Court. That is not true in the context of laws that burden political communication.

EDELMAN J: Mr Solicitor, I wonder if I could ask a similar question, but maybe from a different direction and that is whether one might say that a symmetry between a purpose that is prohibited in the working out of the implied freedom of political communication, being a purpose which is designed to undermine the implied freedom of political communication, such as by discrimination, finds a parallel with a purpose for the explicature in sections 7 and 24 which is designed to undermine direct choice by the people. In other words, would it not be impermissible for any purpose that could be properly characterised as a purpose that is antithetical to direct choice by the people?

MR DONAGHUE: In my submission, what your Honours should do is – it is the resultant system, the resultant system created by that law, and if the resultant system is not a representative democracy then by all means invalidate the law. But if the resultant system is a representative democracy the fact that it might be, in your Honours’ view, less representative than it was before, or there might have been some disadvantage for some participants in the system vis-à-vis others is a choice that is open to the Parliament to make.

That is why the width of the power has been emphasised so often, because otherwise your Honours are assessing laws against a yardstick that does not exist in the Constitution because there is no paradigm model of representative democracy, there are just a range of models of representative democracy. So the fact that Parliament might adopt one that seems less ideal according to some paradigm standard is neither here nor there in terms of validity, in my submission.

This is why we emphasise the caution that is required in elevating that direct choice language, because it can quite easily result in a situation where there is a very significant fetter on the design choices available to the Parliament of a kind that really over some decades now the Court has cautioned should not be recognised.

All of that said, your Honours, I should challenge the premise insofar as these laws, in my submission, cannot fairly be characterised as having a purpose even remotely approaching the purpose inherent in the questions your Honour Justice Gageler and your Honour Justice Edelman put to me.

We do not accept that it is reasonably available to the plaintiff to say this is a law that has the purpose of discriminating against the Liberal Democratic Party or the Democratic Labour Party and, unless your Honours are going to say or would be minded to hold that it is to discriminate against those parties to remove from them the benefit of votes cast for them by mistake by voters who intended to pass for a different party, then the laws cannot be characterised as having a nefarious purpose of the kind that would take us into the kinds of hypotheticals that your Honours are putting to me as possible limits.

EDELMAN J: Mr Solicitor, can I just test your approach which subjects the requirement of “directly chosen by the people” to a prism of analysis based on representative democracy. So would a law that provided for election to the Senate or the House of Representatives by means of an electoral college be valid because of course that is the very example that Justice McHugh gives in ACTV of a law which, although it might still provide for representative democracy, would be invalid.

MR DONAGHUE: No, your Honour, I accept, as the Court has accepted on multiple occasions, that an electoral college would not be consistent with the meaning of “direct” in that particular context. So perhaps it might be said that that is a qualifier on the answers that I have given, and my submissions are not that there are no limits upon Parliament’s powers derived from sections 7 and 24, but the approach that I am putting to your Honours is derived directly from what Justice Stephen said in McKinlay’s Case, which has been adopted in Mulholland and on multiple occasions since about the range of choices that are available and that finishes with an analysis that says:

‘it is not for this Court to intervene so long as what is enacted is consistent with the existence of representative democracy as the chosen mode of government –

So, in what I am putting to you, I am not inventing, it is there from this Court’s jurisprudence in 1975 and repeated since, that that is the way the limits should be confined. Not non-existent, but extremely broad.

STEWARD J: Mr Solicitor, perhaps then could I burden you with the ultimate question. Why do you say that the resultant system here, which is that some political parties will have an enduring monopoly over English words which convey, in some cases, political philosophies, for the purposes of naming their party, why is that consistent with representative democracy?

MR DONAGHUE: Your Honour, because, in my submission it is well within the boundaries of representative democracy, because it would not be necessary for Parliament to allow for political parties at all, in my submission. It would be completely consistent with representative democracy to prohibit parties. So to allow them to play a role and then to regulate the extent of that role within the system, including the circumstances when they get to go, be named on the ballot paper or not, is one of the choices entirely consistent with voters being able to choose their representatives, and, indeed, for a long time, political parties’ names did not appear on the ballot paper in Australia.

Here, as I think one of your Honour’s questions to my learned friend pointed out, if the Liberal Democrats choose to register an abbreviation, “the LDP”, and to campaign as “the LDP”, and to have, in all of their normal campaigning activities, and to hand out how‑to‑vote cards saying the LDP and the Liberal Democratic Party, and then in the ballot box, the LDP can appear, that could be a registered abbreviation, still consistently with all of these provisions, that is, in my submission, a very modest burden on their capacity to participate in the system, and well within the limits of a representative democracy.

Your Honours, I will not, I think, given time limits, take your Honours through the passages in Mulholland dealing with discrimination, but can I just invite your Honours to note that, in paragraph 8(a) of our outline, there is a list of pinpoints in Mulholland to the various parts in the judgments that deal with that question.

There is also a reference that I might take your Honours briefly to, to McKenzie’s Case, which is the decision of Chief Justice Gibbs, that is in volume 5 tab 20 of the joint book of authorities[1984] HCA 75; , [1984] 59 ALJR 190. This was a law about group voting above the line, and a challenge to that system, which the Chief Justice rejected in fairly short order in McKenzie, and one of the arguments that your Honours will see, on the second page of the report at 191 near paragraph B in the left‑hand column, is the plaintiff pointed out that:

a candidate who is not a member of “a registered political party” may be disadvantaged because the name of the party, if any, to which he belongs will not appear on the ballot paper.

So, that was part of the complaint, so it could not be voted for above the line and his Honour deals with that just under E in the left‑hand paragraph:

The second principal ground taken by the plaintiff is that it offends general principles of justice to discriminate against candidates who are not members of established parties or groups –

reference to section 7:

I am prepared to assume that s. 7 requires that the Senate be elected by democratic methods but if that is the case it remains true to say that “it is not for this Court to intervene so long as what is enacted is consistent with the existence of representative democracy as the chosen mode of government –

So, picking up the same passage from McKinlay and applying the same kind of test that I referred to before – directly in response to a non‑discrimination argument of a kind quite similar to that that your Honours now face.

In terms of the next argument that seemed – at least in writing – to be being put against us, it was said there is a need to justify the impugned provisions against the substantial reasons test identified in Roach and Rowe – and that there is no substantial reason for this law. I am content, your Honours, to rely on what we have said in paragraphs 18 to 21 of our written submissions on that point and also on the pinpoints that we have identified in paragraph 8(b) of our written submissions, to Murphy.

In short, what your Honours will find at those pinpoints in Murphy is a recognition by all members of the Court that the substantial reasons inquiry is an inquiry that is asked at the second stage of a two‑part inquiry. In your Honour the Chief Justice’s judgment in – it is particularly clear, in this respect, if I might respectfully say so – at paragraphs 52 and 54. Your Honour identified two questions – question one, does the provision exclude the entitlement to vote? If so, is there a substantial reason.

So, the Roach/Rowe principle is concerned with laws that exclude – either directly or indirectly – people from the franchise. With respect to laws of that kind, there needs to be a substantial justification. But, Murphy – in all of the judgments, as we read them – is authority for the proposition that that requirement does not apply at large. So, it applies in relation to laws excluding people from the franchise. This law, of course, does not exclude anyone from the franchise and I do not understand our friends to say differently. So, in our submission, Murphy stands in the way of the idea that there is a need to justify this law against a substantial reasons threshold. If there is such a need, we submit that there is a substantial reason for it for the reasons that we have given in writing.

Next, your Honour, there is an argument, developed in some detail in the reply and hinted at by Mr Walker this morning by reason of his focus on the fact that what is challenged are the amendments. Your Honours will recall Mr Walker said a few times what we challenge is the amending Act.

The proposition, as we understand it, taken together with the reply is that where an Act seeks to amend an existing Act, one must test the amending Act alone against the constitutional requirement rather than the resulting Act – the substantive Act as amended against the constitutional standard.

We apprehend that that is an attempt to take advantage of the fact that there are entitlements under the existing statutory framework that will be lost by reason of the amendments. So, the attempt is to ask your Honours to focus on the change, rather than to evaluate whether the new law, in the form that it takes post‑amendment, survives scrutiny against any constitutional standard.

That kind of argument was supported, perhaps to some extent – or indeed is supported by Chief Justice French’s reasoning in Rowe – but your Honour Justice Gordon made the point in Murphy at paragraph 310, that Chief Justice French was alone in reasoning in that way in Rowe. Justices Hayne and Heydon dealt specifically with the argument in terms that we submit are analytically persuasive. Their Honours were of course in dissent in that case, but there was no majority ruling on the point against them, and we respectfully commend their Honour’s reasoning to the Court.

Rowe (2010) 243 CLR 1 is in volume 6, tab 27. There are just a couple of passages I would invite your Honours to consider. Justice Hayne at 190 to 191, where his Honour makes the point that assessing the validity of the Act there:

is not to be assumed that the law, as it stood before the 2006 Act –

which was the amending Act:

was constitutionally required.

It was not disputed that it was valid, but the fact that it was valid does not demonstrate that the previous law was constitutionally required. His Honour then goes on in reasons that I will not read out, but in 191, to explain why that is not the correct analysis. Similarly, and perhaps even more clearly at paragraph 311, Justice Heydon addressed the same point and said the proposition leads to the result that:

even where an election is conducted under legislative provisions which result in members of Parliament being “directly chosen by the people” –

the constitutional criterion:

those provisions may nonetheless be constitutionally invalid because they retreated from the position achieved by earlier legislation (or executive practice) . . . The constitutional validity of legislation depends on compliance with the Constitution, not on compliance with “higher” standards established by the course of legislation . . . The question is not whether an impugned legislative provision “regresses” from some “higher” standard established by the status quo. It is only whether it fails to meet a constitutional criterion. Legislative development, durable or otherwise, does not create constitutional validity or invalidity -

We submit that analytically that reasoning is correct. Justice Nettle reasoned, again, we respectfully submit very persuasively, to the same effect in Unions NSW (No 2). I will not take your Honours to it, but it was – the relevant passage is 113, and it is set out in paragraph 8(c) of our oral outline. Otherwise, one gets a kind of constitutional ratchet mechanism where, once Parliament has enacted a system of one kind, that forever after, in effect, binds the choices of future Parliaments no matter future developments that might warrant some re‑evaluation or reassessment of the previous legislative model.

Can I turn next, your Honours, and as quickly as I can, to the implied freedom, where I will be content, for the most part, for most of the steps in the staged analysis, to rely upon our written submissions, but I do want to say something about the effective burden question, because this case is unusual in that it is a case that, we submit, should be decided at the point of no burden, because we submit that Mulholland requires that result, and our friends have not invited your Honours to depart from Mulholland and your Honours certainly have not given leave to reopen it.

KIEFEL CJ: Is there a ratio on this point in Mulholland, though?

MR DONAGHUE: Yes, there is, in my submission, and I am about to take your Honours to the passages that, in my submission, will establish that that is so. In my submission, there is no material difference between the reasoning of five members of the Court. Chief Justice Gleeson and Justice Kirby reasoned differently, but the other members of the Court, in my submission, all support the proposition that there was no burden.

Your Honours will of course recall that the effect of the challenged measures was that the DLP, which had been registered and was entitled to have its name on the ballot, would potentially be deregistered and would no longer be able to have its name on the ballot. That, it was said, burdened political communication. Your Honours will see the argument summarised at page 183 of the CLR, summarising the argument advanced by Mr Beach, as his Honour then was. From about four lines down, on page 183, you see the submission:

The inclusion on a ballot paper of a candidate’s party affiliation is a communication between the people concerning political matters protected by the implied constitutional freedom –

We have not challenged that here, it was an issue there. Then a few lines down, it said:

By authorising only a candidate endorsed by a registered political party to include his or her party affiliation on a ballot paper the Commonwealth Electoral Act 1918 burdens the freedom of communication between a candidate not endorsed by a registered political party and voters.

So, the loss of the capacity to have the party name on the ballot was said to be the burden. In my respectful submission, the plaintiff’s argument here is, on the implied freedom limb of the case, to the same effect. The burden that is identified is the fact that the DLP’s - or the Democratic Labour Party name would not appear on the ballot.

Five justices reject that argument on a “no burden” conclusion, and I will take your Honours to those passages, starting with Justice McHugh at 105. His Honour summarises the argument that I have just noted at paragraph 104, finishing with the sentence:

Mr Mulholland claims that, if the DLP is deregistered, its ability to communicate with electors through the ballot‑paper is impaired.

Of course it is inherent in the answers I gave to Justice Steward earlier these laws in their terms do not say anything about how you can communicate with voters anywhere other than on the ballot paper, and that the same was true of the regime in Mulholland. Justice McHugh says at 105:

The short answer to the claim that the challenged provisions burden political communications by the DLP to electors is that the restrictions are the conditions of the entitlement to have a party’s name placed on the ballot‑paper. The restrictions do not burden rights of communication on political and government matters that exist independently of the entitlement . . . the right of a registered political party to make, or have the Commission make on its behalf, a political communication on the ballot‑paper is subject to the conditions imposed by the Act.

The Act, as his Honour explains in the next few lines, gives that right only to registered parties. Five lines down:

Unregistered political parties do not have a statutory entitlement under the Act to request the Commission to include the party’s name or abbreviation next to the names of the candidates . . . the content of the freedom in respect of any political communication by means of a ballot‑paper is commensurate with the scope of the entitlements granted by the provisions of the Act which regulate the making of the communication.

Leading to the conclusion:

Because the DLP has no right to make communications on political matters by means of the ballot‑paper other than what the Act gives, Mr Mulholland’s claim that the Act burdens the DLP’s freedom of political communication fails.

That is the essence of the reasoning that your Honours will see – I will take your Honours through it, but that is the essence of the reasoning that your Honours will see in the other five Justices who I have mentioned, and the same is exactly the case here. The DLP’s right to its name on the ballot paper just derives from the statute and it extends only to parties that can meet the registration requirements from time to time. So the fact that the DLP had met them before, but stood not to meet them post the challenged amendments, did not mean that the loss of that right to appear on the ballot paper burdened the freedom ‑ ‑ ‑

GLEESON J: But, Mr Donaghue, is there not a difference in that the DLP would still conduct its political affairs using that name, albeit it would not be able to meet the 500‑member criteria, but here as a result of the rule, for the DLP to operate in any sensible way, it will have to change its name.

MR DONAGHUE: Respectfully not, your Honour. The DLP – sorry, the Liberal Democratic Party could do exactly what the DLP could do if it wanted. It could say, well, I will not be registered, and, if it said I will not be registered, it would be in exactly the same position as the DLP would have been, that is, it could conduct its activities as an unregistered party, just like the DLP could, and it could do everything it wanted, except it could not have its name on the ballot paper. So, the positions are the same, except that the Liberal Democrats have an option the DLP did not have. They have a choice. They can say, well, either I will be in the same position as the DLP, or I will change my name and then I can appear on the ballot paper again.

But that is entirely its choice – it is no worse than the DLP was. It is just that the registration requirement it does not meet is one it could choose to meet if it wanted to, whereas the DLP might not have had that choice if it could not get the extra members that it needed.

But, critically to the reasoning, because the implied freedom is a freedom from restrictions, a limit on legislative power in circumstances where there was no right to have the party’s name appear on the ballot paper, there was nothing relevantly to be limited. It was just what was limited was the extent of the conferral of the right, and their Honours held that that could not be a burden on the freedom because there was no pre‑existing right to the burden.

KIEFEL CJ: Mr Solicitor, does your submission capture what Justices Gummow and Hayne say at paragraph 187, namely that the statute gives the right and what, in effect, the plaintiff was there doing was to challenge the conditions to those rights – the nature of the rights themselves is conditioned as unsatisfactory?

MR DONAGHUE: Yes, your Honour. But 187 is the end of their Honour’s analysis ‑ ‑ ‑

KIEFEL CJ: Yes.

MR DONAGHUE: I was not about to take your Honours to that, but could I ask your Honours – to capture the full force of what their Honours are saying - to go back to 182 ‑ ‑‑

KIEFEL CJ: Just before you do, is not the difference here, though – it is a point not considered or raised in Mulholland – namely, the effect pointed to here is that a candidate cannot identify with a political party. Was that squarely considered as a matter of burden in Mulholland?

MR DONAGHUE: Yes, your Honour, in my submission it was, because the problem - the burden was identified as being that the candidate would lose the right to have the political party’s name appear next to it on the ballot paper.

KIEFEL CJ: The submission in this case goes further, does it not? It identifies the content of that burden, rather than just being the fact that there could not be an affiliation with a political party. Here, what is pointed to is what that means, and to what is communicated by the party and by the candidate, that is, their philosophy, their connection and that is the information conveyed to the elector.

MR DONAGHUE: Yes, your Honour, but, in our submission, the fundamental point remains that from the premise that the implied freedom is a restriction on the power, not a right to communicate but a restriction on legislative power to burden communication, if one has no right to communicate via a particular mechanism, then there can be no burden.

The point of the analysis in Mulholland was the absence of that right, that the right only derived from the statute, and because it only derived from the statute and was only conferred by the statute upon people who met the registration conditions, a change in the registration conditions did not burden anything, it just changed the scope of the positive right conferred. But, as a restriction on power, the implied freedom was only engaged when something was taken away.

That, your Honours, is exactly what Justices Gummow and Hayne are saying at paragraph 182 and 183. So starting by a reference to Justice Hayne in McClure:

“The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication.

Then in 183:

To begin consideration . . . by asking ‑ ‑ ‑

GORDON J: It is a bit more than that - sorry, Mr Solicitor. As I understand it, there were three points being made - am I wrong about this - there is no right to require others to provide the means, it does not require others to disseminate your views, and the third is there is no right to require others to do so in a particular way?

MR DONAGHUE: I think those are all strands of the reasoning, yes, your Honour. Their Honours effectively say at 183 that it starts at the wrong point to begin the analysis by asking whether the law in issue burdens communication about government or political matters, because their Honours say:

Failing to ask and answer the questions “whose freedom?” and “freedom from what?” –

entails the errors exposed in McClure. So it is to start the analysis at the wrong stage, and what their Honours then do, including by reference to Levy and the passages your Honours are familiar with about needing to find a law that incrementally burdens some right or freedom, their Honours then come to the conclusion, at 186 and 187 that, particularly in 186:

Whence derives the right of the DLP or its endorsed candidates to have the name of the DLP placed on the “above the line” ballot paper, being the right with which the Act then interferes in away offending the constitutionally mandated freedom of communication?

No such common law right was identified.

They explain ACTV as turning on a common law right, and then, at 191 and 192, conclude that the matter should have been decided at the threshold by saying “no burden”. The reasoning is, in my submission, not materially distinguishable from Justice McHugh’s reasoning. The same is true of the rather more shortly expressed reasoning of Justice Callinan and Justice Heydon. Justice Callinan’s reasoning appears at paragraph 336.

GAGELER J: Mr Solicitor, did any of their Honours consider an argument along the lines that have been presented by Mr Walker, that the real burden is on political communication that occurs in the exercise of common law freedom in the period leading up to the election?

MR DONAGHUE: Your Honour, it is not evident from the report whether or not that was said or not but it seems, in my submission, inevitable that that is part of the case because the point of complaining about the absence of the name on the ballot is presumably because it creates a disconnect between what could occur outside of the ballot – polling booth – and inside of it.

In our submission, if our friends wanted your Honours to find – and, particularly, given that the kind of possibility that I mentioned in an answer to Justice Steward earlier – in light of the possibility that under these provisions the LDP could campaign as the LDP, could continue to use the name the “LDP” if it wanted to do so outside of the ballot context – which might seem unrealistic if they could not have an appropriate identifier on the ballot paper, but if they can.....logo that says LDP and a registered abbreviation that says LDP, and LDP can appear on the ballot paper, it is just not at all factually clear that there is a problem of a kind that would generate an answer different from Mulholland.

There are no facts at all before the Court that would make good the proposition that there is a burden here of a kind different to the burden in Mulholland in circumstances where – and I do not want to just repeat myself, your Honour – but you are dealing with exactly the same scenario – you are just dealing with different components of the registration regime. But the component of the registration regime did not matter to the “no burden” analysis. What mattered to the “no burden” analysis was that the capacity to communicate in the way that, by having the name on the ballot paper, depended entirely on the statute.

In my submission, there is not a – short of saying that Mulholland is wrong – there just is not a way around the analysis in that case. In my submission, we have put in writing that our friends needed to challenge it. They declined to ask your Honours for leave to reopen it and your Honours should not depart from a longstanding decision of the Court that our friends have not even challenged.

So, unless your Honours are persuaded it is distinguishable – which, for the reasons I have given, it is not – it is determinative of this aspect of the case. Whether your Honours would have given leave to reopen it if
leave had been sought is an entirely hypothetical question because our friends chose not to take that path.

I will not read your Honours to it, but 333, and 336 and 337, are to the same effect as Justice McHugh and Justices Gummow and Hayne, and Justice Heydon at 354 to 356 likewise. Justice Heydon would also have found that there was no burden on political communication because that name of the party on the ballot paper was not political communication, that is, his Honour would have given a different answer the question the Chief Justice asked me earlier. But it was Justice Heydon alone who gave that as an additional reason. The existence of an additional reason by one of the five Justices upon whose reasons we rely does not provide any reason to deny that on the common reasoning of five of their Honours that there was no burden. The case has a ratio that governs this matter.

Your Honours, consistently with the approach that Mr Walker took, and noting the time, on all other aspects of the implied freedom analysis, if your Honours get there, and you will understand that we submit that your Honours should stop at the point of the threshold, no burden and there therefore being no reason to get to justification, but, if your Honours are against us on that point, we rely upon what we have said in writing in respect of the other stages of the analysis.

Unless your Honours have any further questions, those are my submissions.

KIEFEL CJ: Thank you, Mr Solicitor. Solicitor‑General for New South Wales.

MR SEXTON: If the Court pleases. Your Honours have our outline of argument, but I really only want to make one general point about the implied freedom and that is to say that in relation to justification in this context, that that is of course an exercise in persuasion, and we would say that what was persuasive in the circumstances of a particular case will turn on the facts and also on the Court’s understanding of the broader significance of those facts.

It is necessary, of course, for legislation that imposes a burden on the implied freedom to be justified, but that does not necessarily, we would say, require direct evidence to be adduced in relation to the legitimate purpose and the suitability of the legislation in question because the facts of a particular case can speak to those matters.

There are some matters that obviously need to be addressed by legislation, and we would say the confusion caused by similarity in party names is one of those. Another example which is being dealt with in earlier decisions of the Court is the, for example, size of medical donations.

Sometimes there are reports of parliamentary committees on these questions. There is a report in this case. But in many cases, this should not be a precondition to the enactment of legislation. The system of parliamentary committees really only commenced in the Federal Parliament towards the end of the 1960s.

As Justice Nettle noted in Brown v Tasmania – it is not in the joint book, your Honours, but your Honours do not need to go to it - at 288 the Parliament may act in response to inferred legislative imperatives and in those circumstances, to quote his Honour:

it would be unrealistic and inappropriate to view a lack of direct evidence as to the legislative imperative as decisive.

To somewhat similar effect in Unions v NSW – the second case, volume 7 at tab 30 – I do not need to take your Honours to it – Justice Nettle at 113, in referring to legislation amending an existing system of regulation said – and I quote his Honour again:

It is open to the Parliament to take different views from time to time according to the circumstances as they evolve or are reasonably anticipated as likely to develop in future.

It is true that in the same case, the Court expressed the view that the defendant bears the onus of demonstrating that legislation that bears upon the implied freedom is justified but we would say that, in some circumstances at least, the onus may be discharged by the very nature of the problem that is being addressed by the legislation in question. This is perhaps only another way of saying, to quote Justice Nettle again, in the second Unions Case, at 117, where his Honour said:

And what is required to justify an effective burden on the implied freedom depends on the circumstances of the case. Sometimes, perhaps often, the need for a limit on electoral expenditure or other legislative measure which burdens the implied freedom may be self‑evident or appear with relative clarity without the need for extensive if indeed any evidence on the point.

An example given by his Honour of this proposition was the Victorian legislation in Levy, volume 4, tab 16, which effectively prohibited protesters from entering hunting areas at particular times, where the purpose of the legislation was obviously to protect the safety of individuals and the public generally.

Justice Nettle’s observations reflect, we would say, in the reasoning by members of this Court that the facts of a particular case demonstrate as obvious be asserted justification for the law. One example of this was Banerji, volume 4, tab 12, in the judgment of the Chief Justice, Justices Bell, Keane and Nettle – where they said concerning the hotline posts:

as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed. The risk of identification which justifies that rule of thumb is obvious, and it is borne out by the facts of this case.

Equally, in Clubb, volume 3, tab 11, the Chief Justice, Justices Bell and Keane pointed out that the creation of safe access zones, outside of abortion clinics, in protection of the privacy and dignity of the women seeking health care services was found to be justified by reference to the plaintiff’s activity and that, to quote again, her:

own argument demonstrates that the legitimate purpose which justifies the burden is at its strongest within the perimeter of the safe access zones.

Finally, if I could mention to your Honours Palmer v Western Australia at volume 6, tab 25, where your Honour the Chief Justice and Justice Keane gave significance at [79] to the finding by the judge of the Federal Court that a precautionary model should be adopted due, to quoting from your Honours:

uncertainties about the level of risk and the severe, or even catastrophic, outcomes which might result from community transmission –

of COVID‑19. Your Honours noted at paragraph [80]:

These findings leave little room for debate about effective alternatives.

That, we would say, is to recognise that uncertainty and possibility are themselves factors in justification although of necessity those uncertainties and possibilities must be weighed against the nature of the problem being addressed and the burden imposed by the adopted solution. Those are our submissions, your Honours.

KIEFEL CJ: Yes, thank you. The Solicitor‑General for Western Australia.

MR THOMSON: May it please the Court. Can I commence with the submissions that the plaintiff made this morning about the purposes of the amendments. In effect, the submission has been made that the amendments do not have the purpose of avoiding voter confusion essentially for two reasons. The first reason is that voter confusion is adequately addressed by the existing provisions in section 134A(1)(a)(i) and (ii) and, that being so, it is submitted that it may be inferred that subparagraph (iii) cannot be about voter confusion.

The second reason, as we understood it, was that there is a right of veto given to another self‑interested party using the same word in its name to veto the use of the name by a second party, and that is by reason of section 134A(1)(b), and the submission is that, if this was a true question of confusion, the question of the similarity of the names would be evaluated by the AEC and not by a self‑interested party.

In our submission, the two propositions that uphold the argument that has been advanced do not withstand scrutiny. In the first place, the introduction of subparagraph (iii) was to address a situation where there was no possible confusion. It may be - sorry, I will start again. The introduction of subparagraph (iii) was equally – sorry, it was equally available to infer that the introduction of subparagraph (iii) was to deal with an obvious situation where confusion might be present. The fact that it was not included previously does not mean that it was added to address something other than voter confusion.

Having regard to the history of the provision and the purpose of it that was summarised in paragraphs 7.41 to 7.45 of the JSCEM, it should be inferred that it was added to address a particular case, an obvious case of voter confusion.

In relation to the second proposition, the right of veto, can we make the point that it was a right of veto that already existed in relation to the provisions that were contained in section 134A already, and the obvious purpose for it is that there may be two parties that are related, State and federal branches, and that it permits one of those parties to assent to the other party using words from the same name to deal with the same situation. It is not about transferring an evaluative description away from the AEC.

Those two propositions and the idea that the amendments are not about voter confusion were fundamental to the submissions that were made this morning and, in our submission, they do not give a proper scope of operation to the amendments, and if that is right then these submissions fail at that fundamental level.

Can I then make a submission about constitutional facts? The question of whether there is voter confusion which needs to be rectified beyond the confusion which is already addressed by the existing provisions is a question of constitutional fact. That fact only needs to be established for the purposes of the question about the burden on political communication. It does not need to be established in respect of the question concerning the operation of sections 7 and 24 unless the Court concludes that unreasonable discrimination limits the Commonwealth’s legislative power for electoral purposes.

A constitutional fact which depends upon establishing the prospect of a future matter such as likely voter confusion in elections which are yet to come may require a different degree of proof compared to proof of a past matter. Where there is a real prospect of the future matter occurring, in our submission that is a sufficient constitutional basis for enacting legislation to prevent that future matter.

It is unnecessary to establish the probability of the future matter occurring on the balance of probabilities. Of course, there is no formal onus of proof for a constitutional fact but the way we have just put it is effectively another way of expressing the point that the Commonwealth made in its submissions and the references that he gave to various judgments to establish that Parliament may act prophylactically.

In the present circumstances, it is admitted that there was in fact voter confusion in the 2013 Senate election and the use of duplicative names is inherently something that can carry with it the possibility of voter confusion, and so in those circumstances to the extent that it is necessary for the Court to be satisfied of any constitutional fact about voter confusion or likely voter confusion, it is our submission that there would be proper justification for the amendments as reasonably adapted, appropriate and proportional to the prospect of dealing with the voter confusion at future elections. I will return to that when I deal with IFPC and the implied freedom of political communication specifically.

Can I, before I do that, just mention in relation to the limitation that is submitted to be derived from sections 7 and 24 in relation to question 2, that the only criterion is the criterion that there be direct choice by the people. Sections 7 and 24 do not operate upon the basis of impliedly restricting the legislative power of the Commonwealth Parliament by prohibiting laws that impose a discriminatory burden on a political party or class of parties with anti‑competitive effect, and nothing in Mulholland suggests that free and informed choice is to be regarded as a synonym for a choice made without a discriminatory burden as between political parties, or choice made without anti‑competitive effect between political parties.

Can I mention, in response to a question that the Court raised, the judgment of Justices Gummow and Hayne in Mulholland at paragraph 147. I will not take you there, but they specifically said, in relation to the question about whether there was a discriminatory limit imposed by sections 7 and 24:

differential treatment and unequal outcomes may be the product of a legislative distinction which is appropriate and adapted to the attainment of a proper objective –

I think that responds in part, at least, to the questions your Honour Justice Gageler asked about the penumbral operation of those provisions. Also, as we have said in our submissions, the constitutional imperative that arises from sections 7 and 24 is not one that requires equal treatment of political parties. Rather, it is an imperative which is related to direct choice by the people.

The Court has already accepted that there is a requirement of representative government that is implied from those provisions and that this requires an informed choice based on freedom of political communication. What is effectively suggested here is that there is a further and larger implication to be drawn, which is not something that the Court has previously acknowledged.

Can I make a number of small points about the implied freedom of political communication? In relation to the question of reopening, we gratefully adopt what has been said by the Commonwealth and support that. Can I point out that, in a sense, this is about a statutory privilege that has been given to have the ballot record the party name and, in that sense, the freedom or ability stems from the statute and can be taken away equally without infringing any common law ability or freedom to communicate.

Perhaps it is a long bow, but it is somewhat similar to the idea that the just compensation provision does not apply in respect of removal of a statutory privilege in, of course, cases like Georgiadis and so forth. But, as Dr Donaghue has said, there has been no leave sought to reopen what appears to have been the precise point decided by the five Judges in Mulholland.

In relation to whether the burden on the implied freedom is appropriate or adapted or proportional, the only thing that this legislation does is to prevent the use of identical words in party names or associated party logos. It does not prevent campaigning in relation to the party name,
and it does not prevent people claiming an affiliation with a party, or anything else other than communication upon the ballot. So that is its only effect, and the only effect in relation to that communication is to prevent the use of identical words. So, in those circumstances, it is our submission that it would be regarded as reasonably appropriate and adapted to advance the legitimate purpose of the provision to prevent voter confusion. Those are our submissions.

KIEFEL CJ: Thank you, Mr Solicitor. Mr Walker, I take it in your reply you will deal with the submissions of the Commonwealth about the facts, as they are called, or the concessions as to confusion, and Mulholland in particular, that there is no challenge to the majority view?

MR WALKER: Yes, very much so. Can I start with Mulholland, and as we have written in our reply, this is not an occasion calling for leave to reopen. Mulholland should not be, as it were, followed or applied to decide this case because, quite simply, it does not contain any ratio that deals with the propositions that we have advanced. That is a completely familiar, mundane way of saying that an authority does not carry the day in a later argument, and no leave is required to reopen accordingly.

In particular, the concern that we have advanced has to do with the state of affairs, carefully cultivated for our own self‑perceived political advantage in the name and reputation, which are inseparable. Those are matters which have a benefit and a political advantage by reason of their availability in whatever form, if any, Parliament may provide for names and associated reputations to form part of the informal – that is, social – and formal – that is, legislated – formation and expression of an electoral choice.

We are not, as in Mulholland, insisting by dint of a form of invalidity argument, that we are entitled to particular statutory outcomes which we hurry to agree depend upon judgments from time to time by the legislature and are not committed to some inexorable improvement in one direction.

So, we agree with everything that is said. We said it in‑chief concerning the ample scope for the formation of legislative judgments to and fro, with respect, for example, to take one controversial matter – the provision of public funds for political parties. In our submission, it is therefore a furphy to suggest that we are in the same position as probably a majority of the majority in Mulholland can be seen to have regarded as preventing the argument advanced in that case from succeeding – preventing it because it was not, in particular, an expression of political opinion to attract freedom of political communication to be free of excessive legislative regulation to have the Electoral Commission print your name on a ballot paper.

That is not the way we have advanced the case. I hope your Honours can contemplate the possibility that the arguments in this case have been considered and advanced with a view to what was and was not argued and, therefore, what was and was not decided and finally, therefore, what was and was not authoritative in Mulholland. That is the first point.

In relation to the facts, the so‑called admission, these are not matters which, in our submission, can be seen to justify either in terms of directly chosen, or in terms of implied freedom of political communication, the form in which the amendment that we impugn has taken.

Now, in particular, it can be seen that the concession of some confusion is a concession that is almost certainly – I will start again – is a concession which your Honours would understand responds to posited possibilities both of name confusion and also of ballot position.

It is for those reasons that picking out as highlights, to which my friend the Solicitor‑General for the Commonwealth paid particular regard, paragraphs 57 and 75 of the special case, but, of course, addressing my argument to the other matters associated with that to which my friend went, we say this about those descriptions, generalisations, or conclusions.

The first concerns the evident importance of ballot position, at least so far as the joint agreement of the special case is concerned, and our answer to the way in which the Commonwealth continues to call that in aid with respect to a common word found in the names of two parties as follows. The ballot position phenomenon, an advantage of being to the left horizontally or at the top vertically is, as all the material shows, a phenomenon that occurs regardless whether any of the candidates and, if there are parties, any of the parties have names which have a similar same word in them. That is the first point. It is a phenomenon which has to do with position.

That effect existing, as the material in the special case makes clear, is a reasonable state of mind for a legislator to entertain. The question arises as to whether there is any observed increase in that effect, tested by appropriately controlled comparisons of left to right or top to bottom relativity between parties with or without verbal similarities in their names, and you will not see that in the material.

It is for those reasons that the absurdity presents itself that the ballot position phenomenon operates when there is no verbal similarity of name. But, where there is verbal similarity of name, it is not the ballot position that explains a vote but, rather, a confusion from verbal similarity of name. That is sufficiently illogical to require more demonstration for the purposes of substantial reason for the directly chosen point, or the proportionality analysis for the implied freedom argument that is available in any of these materials.

EDELMAN J: Mr Walker, what do you say about paragraph 25(a) of the pleadings and the reply which admits that paragraph – which, as I recall, was inserted to avoid any necessity of a hearing – a pre‑Christmas hearing – between the parties about this disputed fact?

MR WALKER: The first thing is that one knows from the special case that Senator Leyonhjelm has also expressed some opinions. Those are not matters which, by pleaded admission, concede anything with respect to the substantial reason for – on one of the arguments – the proportionality with respect to a burden – for the other argument of the terms of 134A(1)(a)(iii).

So, to complete my answer to Justice Edelman, we say that those are matters which are unremarkable, bearing in mind the ineradicable scope for confusion, not just as to name, but also as to political program, or as to the correlation between being handsome and being intelligent, for example, at play in election campaigns - so, an ineradicable possibility of confusion, and an admission that there was confusion including by reference to the content of the name. The pleading goes no further than that and says nothing in particular about 134A(1)(a)(iii).

To put it another way, and in reply to all our friends, it cannot be said that once the inevitable concession is made as to the possibility of confusion by a voter on any number of grounds – that is, for any number of reasons – irrational as they probably all would be – between one, two or more parties on a ballot paper, then the level of scrutiny in this Court, according to established doctrine, of a law purportedly addressing that mischief is either removed, which would be absurd – self‑defeating – or somehow muted, for which there is no authority and principle could not support.

That is why, in our submission, turning to the well‑trodden paths of a proportionality analysis, there is not only what might be called an adequacy but there is also an appropriateness, by which I mean suited or calculated to address, and then, of course, for both of those the accompanying question whether something has gone too far, all, of course, no doubt to be adjudicated by reference to differences that can be perceived otherwise than by excessively subtle or personal predilection. We accept all of that judicial review entirely. We agree with those matters that have been urged by our friend for the Commonwealth in that regard. But there is judicial review.

Now, in our submission, there is a danger in some of the arguments for the Commonwealth of taking them to urge for too wide a scope for legislation to be free of judicial review in the areas of which this case is an example. There is the twin approach we take, they are not alternative, they can march together. There is the directly chosen argument and there is the implied freedom argument.

As to either or both of those, some of the examples given by our learned friend for the Commonwealth are, in our submission, redolent of an immunity from appropriate judicial review of both legislative and, authorised by legislation, executive conduct. My learned friend raises the notion, a flawed experiment admittedly, of banning parties, that is, of the electoral legislation making no provision for parties. Making no provision for parties could of course include seeking to ban them or at least talk about them.

In our submission, politics being a form of discourse, interaction and relation between people, and people comprising a society or community, it is impossible to understand how politics can be conducted so as to produce a representative democracy – and I lean on the word “democracy” - where people are not entitled to say, “And I am accompanied in my views for which I seek your support at the ballot by the following 100, 1 million, 10 million people, who have supported our cause by contributing their time, travel and money to a group called” – then a name that in a system permitting it would be the name of a party.

There is a notion that one can with a wave of the hand say the breadth of legislative choice given so as to comply with sections 7 and 24 consistently with a representative democracy should be understood to do - to include doing away with parties is a large step which cannot and should not be entertained by this Court as a by‑blow of hypothetical argument in this case which has nothing to do with it, but it is an example of surely the crying need to appreciate that that is where judicial review would appropriately second‑guess, to use the jargon, the decision of the legislature.

One can come to another topical example, namely the notion that a statute would authorise the Executive – or some other person associated with the Executive – to vet candidates, by which I mean to say those who are permitted to stand and be voted for, and those wishing to do so who will be denied that capacity otherwise than for reasons such as criminality, foreign residence and the like – in other words for reasons that may include political disapproval.

That, in our submission, probably entails matters judicially reviewable with respect to the implied freedom, but obviously, in our submission, would also require revisiting on those extreme facts – which have never appeared in this country, thank goodness – a directly chosen argument as to whether there is a representative democracy directly chosen when an incumbent, namely an executive, has prevented opposing candidates from standing.

It is for those reasons, in our submission, that great care should be taken in sparing 134A(1)(a)(iii) with strictures that we have expressed and seek to persuade the Court ought to be made concrete in your Honours’ adverse conclusions concerning its constitutionality.

Can I return, so as to wrap up by way of reply, responses to our friends concerning the nature of that provision. It is not true to suggest that the concern of (iii), expressed as an avoidance of confusion, a mitigation of confusion, was not already covered by (i) and (ii). I do not want to repeat what we have written and I have said in‑chief, but it is critically clear that (a)(i) and (a)(ii) have, as their first item of attention, the name of the party and the operative link is:

the same as, or relevantly similar to –

and in (ii):

a reasonable person would think suggests that a connection or relationship –

and in both cases, this is a next point, the satisfaction of the impartial arbiter concludes with finding that that relevant similarity or that reasonable suggestion stands in contrast to the true state of affairs, namely, in the first case, that the parties are not related, and the second case, the connection or relationship does not exist, in other words, an objectively misleading similarity or reasonable suggestion of connection.

That puts paid to the notion which I think, with respect, was the nub of the answer by the Commonwealth Solicitor‑General to the question as to why the veto was given to the parent party in 134A. It puts paid to that notion because it cannot be the case that (iii) operates together with paragraph (b) in the subsection so as to confine an objection by a parent party only to cases where there is no such relation or is no such connection and, obviously enough, where political calculation suggests that a connection that does not exist, that might be politically advantageous, so a veto would or would not be exercised, and vice versa. The permutations are obvious and need not be spelled out and that is because, unlike (a)(i) and (ii), (a)(iii) says nothing about confusion.

That does not mean that the name of a party containing a word that is in the name of another party may not be the reason, for example, that (a)(i) and (a)(ii) would either or both operate according to the satisfaction of the Electoral Commission. But the AAT decision by a Tribunal composed of judges in Woollard, to which all parties have drawn attention, makes it clear that it would be most rash for anyone, let alone a legislature, to take it that a name appearing in both parties produces that kind of confusion of electoral integrity regulation concern. The findings and reasoning of that Tribunal in Woollard, as it happens, conveniently concern the word “Liberal”.

Now, so far these arguments in reply are, apart from my last comment, arguments that are correct, we submit, regardless of the semantic content of the name which is common to both parties. But in particular for purposes of the political communication argument, but not irrelevant to the directly chosen argument, there is the fact that in this case, and as it happens in Woollard, there is a word loaded and variable, contestable and contested, ideological, persuasive and partisan which has been chosen by people wishing to communicate on political matters at the pinnacle of their identification in the forum of ideas which constitute political discourse socially. I am not talking about ballot papers at this point.

It is for those reasons that there is an edge to the notion that first come a seniority notion should provide thereafter a dead patch in linguistic use of words of such contestable content, perhaps with very considerable semantic oscillation, as one knows with the word “Liberal”, as are in question in this case.

That goes to the heart, with respect, of the means by which both the persuasive cogency and the touching of social triggers, the invocation of history or myth, et cetera, et cetera, that is involved in that particular form of political communication which is participation in political discourse by persons who associate with a brand conveyed by, among other things, a name containing words, including those of those particularly numinous quality as ideological expressions or expressions engaging in what I will call political sentiment - I mean, for example, expressions mercifully not much present in this country such as “patriotic”.

Now, it is for those reasons, that – using that last example – one would surely pause at the notion that the word “patriotic” can be at the uncontrolled self‑interested discretion of the first party registered to use it, monopolised by that party even in days where patriotism becomes not the last refuge of scoundrels but the talking point of ordinary would‑be voters.

It is for those reasons, in our submission, that self‑evidently from the extension beyond the area of ascertained or feared confusion to the mere presence of an unprotected commonality of name – word, that is, in a name – it is for those reasons that 134A(1)(a)(iii) plainly goes beyond the rationale of mitigating confusion to which, for example, the pleading admissions give colour to the evident and proper occasion for legislative consideration of ways in which to address it.

It goes beyond that confusion, as I say, in two ways. First, it does not require that the confusion be quelled or prevented. That is up to the decision of an outsider – a self‑interested party. Second, that self‑interested party can, by veto, prevent the use of the same word in a competing party’s name, notwithstanding no confusion. No one is volunteering in the arguments against us, nor could they properly, that read in context – particularly in the surrounding text – the words of subparagraph (iii) are words which require that case to be confined to cases of apprehended confusion. Nothing says that at all.

It is to be recalled that there is nothing in the accepted recommendation that disentangles the undesired ballot position effect from the effect considered, for example, in Woollard of the same word appearing in names without conducing to confusion. With respect to the directly chosen argument, consistency with representative democracy is, we entirely accept, indeed, we should be understood as urging, something that can be achieved by innumerable different legislative prescripts. We accept that entirely, hence the broad scope that we want no part in cutting back.

But it is not the case that it is only if representative democracy in any recognisable form.....that there is inconsistency. Infringements or impingements are the proper test of relevant inconsistency, otherwise death by a thousand cuts will not be arrested until after 999, which would be absurd. The material impairment which is to describe an inconsistent effect on representative democracy is what the Court will be, with respect, astute to prevent.

Classically – and this is where the two arguments merge – another reason why the particular facts and framing of argument in Mulholland means it does not bind here is that where one is talking about the use of a name with its semantic content then, with respect, any burden on that use which we characterise as properly understood as being its use before and outside a ballot paper, is a burden on a particularly loaded, significant and valued freedom of communication about political ideas and seeking to persuade to the exercise of votes in particular ways.

That is why a lack of “even‑handedness”, which is a phrase that one could use as well as or in place of the notion of nefarious discrimination, is demonstrated by provisions such as this which give to one party, which is not by reason of being the first to be registered with the word, of course, any only true begetter of that word or its proper meaning. The word remains a word in language. But differentially all that that one person is denied the capacity, at their whim, to use that word in one of the means of political discourse and persuasion, ultimately of course for the making of electoral choices, but not confined to that, naturally.

Now, that can be distinguished from what was true with membership numbers, because – leaving aside the querulous objection of narcissists who think their opinion is politically as valuable notwithstanding they have no prospect of having anybody else agree with them – it is true in a real sense that everyone has an equal opportunity – not a guarantee of equal outcome – but an equal opportunity to attract 500 supporters – or 1500 supporters. There is no lack of even‑handedness in imposing such a requirement, but there is, with the veto engineered monopoly right on the use of an English word.

May it please the Court.

KIEFEL CJ: Yes, thank you, Mr Walker. The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 4.12 PM THE MATTER WAS ADJOURNED