Mulholland v Australian Electoral Commission

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh J,Gummow,Hayne JJ.,Kirby J,Callinan J,Heydon J
• Judgment Date: 08 September 2004
• Neutral Citation: 2004-0520 HCA B,[2004] HCA 41
• Court: High Court
• Docket Number: M272/2003
• Date: 08 September 2004

John Vincent Mulholland

Appellant

and

Australian Electoral Commission

Respondent

[2004] HCA 41

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

M272/2003

HIGH COURT OF AUSTRALIA

Mulholland v Australian Electoral Commission

Constitutional law (Cth) — Parliament — Elections — Registration of political parties — Requirement that political parties have 500 members in order to become registered or remain registered (‘the 500 rule’) — Prohibition on one person being counted as a member of two or more parties (‘the no-overlap rule’) — Constitutional validity of electoral scheme.

Constitutional law (Cth) — Parliament — Elections — House of Representatives and Senate — Members and senators to be ‘directly chosen by the people’ — Meaning of ‘directly chosen’ — Whether the 500 rule and the no-overlap rule impair ‘direct choice’ or the making of an informed choice by electors — Whether the 500 rule and the no-overlap rule unreasonably discriminate between candidates — Whether inconsistent with constitutional provision for filling of casual vacancies by persons ‘publicly recognized by a particular political party’.

Constitutional law (Cth) — Implied freedom of political communication — Whether the 500 rule and the no-overlap rule effectively burden freedom of communication about government or political matters — Whether laws reasonably appropriate and adapted to a legitimate purpose — Whether laws proportionate to constitutional provisions.

Constitutional law (Cth) — Implied freedoms — Whether the Constitution contains an implied freedom of political association — Whether the Constitution contains an implied freedom of participation in federal elections — Whether the Constitution contains an implied freedom of political privacy — Whether the 500 rule and the no-overlap rule infringe any such implied freedoms.

Words and phrases — ‘directly chosen by the people’.

Constitution, ss 7, 15, 24, 64 and 128.

Commonwealth Electoral Act 1918 (Cth), Pt XI.

Representation:

J B R Beach QC with B F Quinn and R J Harris for the appellant (instructed by Ebsworth & Ebsworth)

P J Hanks QC with P R D Gray for the respondent (instructed by Australian Government Solicitor)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with B D O'Donnell intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)

C J Kourakis QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia and on behalf of the Attorney-General for the State of Victoria (instructed by Crown Solicitor for the State of South Australia)

ORDER

Appeal dismissed with costs.

1 Gleeson CJ. The appellant commenced proceedings in the Federal Court of Australia, challenging the validity of two particular aspects of the provisions of the Commonwealth Electoral Act 1918 (Cth) (‘the Act’) dealing with the registration of political parties. The scheme for registration was first introduced in 1983, and later amended in 2000 and 2001. It was introduced in the context of legislative provision for direct funding of political parties, ‘list’ voting for the Senate, and references to party affiliations on the ballot paper. The first aspect under challenge is a limitation of entitlement to registration, or continuing registration, to political parties with at least 500 members, unless they have at least one Parliamentary representative (‘the 500 rule’). The second is a refinement of the 500 rule, introduced by s 126(2A) in 2000, which prohibits two or more parties from relying on the same person as a member in calculating the number of members (‘the no overlap rule’).

2 The 500 rule was adopted by Parliament following a recommendation of a Joint Select Committee on Electoral Reform, which presented its first report in September 1983. The report said 1:

‘3.43 The Committee also received many submissions … calling for the printing of party affiliations on ballot papers. The Committee believes that the introduction of this procedure will assist voters in casting their vote in accordance with their intentions. The recommendation concerning the “list” system for Senate ballot papers presupposes the inclusion of political party on the Senate ballot paper at least. This recommendation (amongst others) if adopted will require the adoption of a system for the registration of political parties. …

12.1 The Committee believes that in light of its recommendations with respect to the public funding of political parties for election campaigns, the printing of the political affiliation of candidates on ballot papers and the adoption of the list system for Senate elections, provision for the registration of political parties will be necessary.

…

12.4 It would be provided that:

…

(c) in respect of a party which is not represented in a Commonwealth, State or Territory legislature but which has a membership of 500 persons or more, 10 members

could apply for registration of the party. (The Committee discussed at length the basic level of total membership. As some indication of membership support was required — and the party's constitution should provide a basis — the figure of 500 was agreed upon. …)’

3 The no overlap rule was the result, not of any recommendation of a Select Committee, or of a proposal by the Government of the day, but of an Opposition amendment moved in the Senate during debate on proposed changes to the Act. A senator who supported the amendment said that ‘[o]therwise you could have a situation where, once you had 500 people, you could register an unlimited number of [party] names, all with the same membership and all with the same person as the registered officer, who could then control an unlimited number of preference distributions for an unlimited number of parties at a Senate election.’ 2

4 The background to the appellant's dissatisfaction with the 500 rule and the no overlap rule appears from the reasons for judgment of Gummow and Hayne JJ, as do the details of the relevant legislative provisions, including those which embody the two rules. It is important to note the wider legislative context which gives content to the concept of ‘eligibility’ of a political party.

5 The challenge to validity failed in the Federal Court, both before Marshall J at first instance 3, and before the Full Court (Black CJ, Weinberg and Selway JJ) 4. The arguments relied upon by the appellant require consideration of the power of the Parliament to legislate with respect to the method of election of senators and members of the House of Representatives, and of the requirement of freedom of communication on matters of government and politics implied in consequence of the system of representative and responsible government to be found in the terms and structure of the Constitution 5.

Legislative power

6 A notable feature of our system of representative and responsible government is how little of the detail of that system is to be found in the Constitution, and how much is left to be filled in by Parliament. In Lange v Australian Broadcasting Corporation6, this Court said that, in ss 1, 7, 8, 13, 25,

28 and 30, the Constitution provides for ‘the fundamental features of representative government’. In other cases, such as Attorney-General (Cth); Ex rel McKinlay v The Commonwealth7, and McGinty v Western Australia8, it was pointed out that representative democracy takes many forms, and that the terms of the Constitution are silent on many matters that are important to the form taken by representative democracy in Australia, at a federal or State level, from time to time.

7 For example, while, in common with most democracies, Australia now has universal adult suffrage, this was not always so. At the time of the Constitution, most women in Australia did not have the right to vote. Aboriginal Australians have only comprehensively had the vote since 1962. Unlike most democracies, Australia now has a system of compulsory voting, but this did not exist at Federation. Members of the House of Representatives are now elected by a system of preferential voting. In the United Kingdom, as in the House of Representatives in the United States, and the House of Commons in Canada, members of the House of Commons are elected on a first-past-the-post system. One of the most striking examples of the power given to Parliament to alter, by legislation, the form of our democracy concerns the composition of the Senate. There was a major change in the method of electing senators in 1948. For many years before then, the political party that dominated the House of Representatives usually controlled the Senate. With the introduction of proportional representation in 1948, there came to be a much larger non-government representation in the Senate. Furthermore, a legislative change in 1984, increasing the number of senators from 10 per State to 12 per State, when combined with the system of proportional representation, produced the result that it is now unusual for a major party to control the Senate. This is of large political and practical significance. It was the result of legislative, not constitutional, change.

8 In McKinlay9, Barwick CJ, contrasting the Constitutions of Australia and the United States, said that the Australian colonies, at Federation, ‘committed themselves to what the...