1. At the hearing, it was unclear whether the plaintiffs' allegation of discrimination asked the Court to recognise a new constitutional implication or was merely an aspect of the plaintiffs' arguments regarding the purported constraints on informed choice and the implied freedom of political communication.

New implication not logically or practically necessary

1. If the plaintiffs were asking the Court to recognise a new constitutional implication, the plaintiffs were unable to and did not point to any authority or any basis in the text and structure of the Constitution that suggested that the existing implications of direct choice and freedom of political communication were inadequate.
2. Where a new implication is sought to be recognised from the structure of the Constitution, it is necessary to establish that the implication is "logically or practically necessary" for the constitutional structure.[193] That requirement ensures that any implication is "securely based" in the text or structure of the Constitution.[194]
3. The plaintiffs could not and did not establish that it is "logically or practically necessary" to recognise a new implication prohibiting the Parliament from "discriminat[ing] against, or privileg[ing], particular categories of candidates for election as representatives of the people". The existing implications of direct choice and freedom of political communication adequately protect the interests of electors and candidates in the preservation of a free and informed system of elections and political communication, while ensuring the Parliament's capacity to legislate to regulate that system in pursuit of purposes compatible with the constitutionally prescribed system of representative and responsible government.
4. Examination of the authorities on which the plaintiffs sought to rely reveals that they provide no support for such an implication. In ACTV, Mason CJ's observation that the challenged provisions did not introduce a "level playing field"[195] between candidates was a response to a submission regarding whether the restrictions on political advertising were justified in the context of the implied freedom of political communication.[196] As McHugh J explained in the later decision in Mulholland, Mason CJ's judgment in ACTV "did not recognise or give effect to a free-standing constitutional principle of non-discrimination".[197] Similarly, McHugh J observed in ACTV that the Parliament could not "legislate so as to prevent members of lawful political parties from being elected to Parliament" as an example of a contravention of the direct choice constraint, not as evidence of a free-standing implication prohibiting discrimination.[198]
5. It is necessary to say something more about Mulholland, the second of the authorities relied upon by the plaintiffs. Mr Mulholland sought to contend that the impugned provisions in that case**[199]** amounted to "unreasonable discrimination between candidates contrary to the requirements of ss 7 and 24 of the Constitution".[200] None of the judgments identified a free-standing constitutional principle of non‑discrimination. It is true that McHugh J observed that "[n]o doubt a point could be reached where the electoral system is so discriminatory that the requirements of ss 7 and 24 are contravened".[201] But reading that passage in context, it does not support the plaintiffs' argument. It immediately followed his Honour's observation that the Court 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".[202]
6. In Mulholland, Gummow and Hayne JJ considered that the invocation of unreasonable discrimination did "not advance the argument" because "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".[203] Callinan J did not accept the premise that there was an implied constraint on discrimination. His Honour observed that "[e]ven if [he] were to accept that a political surface as true and level as a well-calibrated bowling green was required by the Constitution", his Honour would have held that the form of the Electoral Act in issue in that case "substantially provide[d] for it".[204] His Honour otherwise expressed doubt as to whether there was such a requirement.[205]
7. Similarly, in McCloy v New South Wales, French CJ, Kiefel, Bell and Keane JJ referred to the protection of "[e]quality of opportunity to participate in the exercise of political sovereignty"[206] as a legitimate purpose of a law burdening freedom of political communication, not as a free-standing implication.

1. In any event, consistent with the prudential approach to constitutional validity,[207] this is not the occasion to consider whether there is a new constitutional implication proscribing impermissible discrimination because, even if one were established, it would not assist the plaintiffs in this case. Section 135(3) is not discriminatory. It simply attaches consequences to the voluntary decision by a political party to deregister. No political party is treated differently in this respect; s 135(3) applies equally to all registered political parties and provides for the same consequences in the event that a registered political party voluntarily deregisters.

Introduction: two established constitutional implications and a third asserted constitutional implication

1. Two people are speaking about their mutual friend, C. One asks the other how C is performing in his new job. The other replies: "Oh quite well, I think; he likes his colleagues, and he hasn't been to prison yet."[208] Grice uses this example to describe an implicature, an implication with content that depends more heavily on contextual matters than upon the conventional meaning of the sentence.[209] Depending upon the assumptions made by the speaker, the implication might be that C has previously served time in prison, or that C's predecessor went to prison or even, as Grice suggests, that "C's colleagues are really very unpleasant and treacherous people".[210] The precise content of an implicature can be heavily contested due to different possible understandings of the speaker's assumptions.
2. Other implications might be less contested because assumptions upon which the implications are based are more explicitly communicated in the words used. An example is the statement, "C likes his colleagues at his new job, which contrasts with his previous job". The implication, that C did not like his colleagues at his previous job, can be described as an explicature, because the greatest contribution to the meaning of the sentence is explicated from the conventional meaning of the words rather than from context. "The smaller the relative contribution of the contextual features, the more explicit the explicature will be".[211]
3. The interpretation of legal instruments, especially those directed to the public, follows the same basic principles and techniques of ordinary communication, including the identification and application of implications, whether implicatures or explicatures. These two special cases concern the identification, content, and application of two established implications in the Constitution and the question whether this Court should recognise a third.
4. The first implication is an explicature from the requirement in ss 7 and 24 of the Constitution that members of the Senate and House of Representatives shall be "directly chosen by the people". That explicature constrains the power of the Commonwealth Parliament to enact a law which unjustifiably burdens the franchise or impairs the quality of information that is intended or likely to affect voting choice in Commonwealth elections. The second implication is an implicature, drawn partly from those sections but more heavily from the context, including the "structure" of the Constitution generally, which constrains the legislative power in Australia to enact laws which unjustifiably burden the freedom of political communication. The third, a proposed new implication, is said to arise "in the same way" as the explicature from ss 7 and 24. On the plaintiffs' case, the proposed new implication constrains the power of the Commonwealth Parliament to enact a law which unjustifiably "discriminate[s] against, or privilege[s], particular categories of candidates for election as representatives of the people".
5. These three implications in the two special cases are relied upon as part of the plaintiffs' challenge to s 135(3) of the Commonwealth Electoral Act 1918 (Cth). The plaintiffs' challenge to s 135(3) in each special case arises in circumstances where the United Australia Party was registered as a political party until 8 September 2022. Registration brought a range of benefits but also obligations of financial disclosure. On 8 September 2022, the United Australia Party voluntarily deregistered with the effect that no financial disclosure by way of the party's annual returns was required for the financial year ended 30 June 2024. The last date for lodgement with the Australian Electoral Commission of that disclosure by way of annual returns, required to be provided by all registered political parties, was 21 October 2024.[212] The last date for disclosure by donors of gifts to registered political parties was 18 November 2024.[213] After those dates had passed, on 29 November 2024 the United Australia Party lodged an application for registration as a political party. The effect of s 135(3) of the Commonwealth Electoral Act was that, due to its voluntary deregistration, the United Australia Party was ineligible for registration until after the 2025 general election.
6. On 12 February 2025, five days after hearing the plaintiffs' challenge to the validity of s 135(3), this Court unanimously answered the questions in each special case to the effect that none of the implications relied upon by the plaintiffs invalidated s 135(3). Section 135(3) is consistent with the first implication (a constitutional explicature relevantly constraining legislative power from unjustifiably impairing the quality of information that is intended or likely to affect voting choice) because the impairment of the quality of information effected by that provision is justified. Section 135(3) is consistent with the second implication (the constitutional implicature constraining legislative power from unjustifiably burdening the freedom of political communication) because s 135(3) is part of a legislative scheme that enhances political communication and therefore does not burden the freedom of political communication. The proposed third implication does not exist.

1. The United Australia Party is an unincorporated voluntary association of persons and a political party within the meaning of s 4(1) of the Commonwealth Electoral Act. At the federal election in 2022, in voting for the House of Representatives and the Senate, respectively, 604,536 and 520,520 voters cast a first preference vote for United Australia Party candidates or the United Australia Party group (in the Senate).
2. The plaintiffs in the first special case are Senator Babet and Mr Favager. Senator Babet is a member of the United Australia Party who was elected to the Senate for the State of Victoria on 21 June 2022 and has been the Parliamentary Leader of the United Australia Party since 1 July 2022. Mr Favager is the National Director of the United Australia Party. The plaintiff in the second special case is Mr Palmer. Mr Palmer is the Chairman and a member of the United Australia Party.
3. From 12 December 2018 until 8 September 2022 (with two name changes), the United Australia Party appeared on the Register of Political Parties established pursuant to s 125 of the Commonwealth Electoral Act. As a registered political party, within 16 weeks of the end of a financial year the United Australia Party was required to provide an annual return disclosing, for the financial year, income and expenditure totals (with additional details where amounts received exceeded a disclosure threshold) and debts incurred (with additional details for debts of a value greater than the disclosure threshold).[214]
4. The United Australia Party provided annual returns with these details for the financial years ended 30 June 2019, 2020, 2021, 2022, and 2023. Mineralogy Pty Ltd, the most significant donor to the United Australia Party, also provided donor returns for the same financial years, including the details of many donations to the United Australia Party. Just to list the amounts of those donations in excess of a million dollars: $1,034,594 (21 December 2018), $2,343,494 (21 December 2018), $23,351,134 (29 December 2018), $3,169,966 (30 December 2018), $5,476,852 (30 December 2018), $1,215,068 (8 February 2019), $2,191,998 (19 February 2019), $6.3 million (20 March 2019), $3,101,939 (27 March 2019), $10 million (28 March 2019), $7 million (10 May 2019), $5 million (19 June 2019), $4.2 million (28 June 2019), $5,883,927 (22 July 2019), $2 million (17 September 2020), $1,740,000 (16 October 2020), $50 million (2 August 2021), $1,346,156 (31 December 2021), $30.2 million (3 February 2022), $10 million (6 April 2022), $5 million (12 April 2022), $4 million (28 April 2022), $6.5 million (6 May 2022), $1,750,000 (20 May 2022), $4.5 million (3 June 2022), $2,032,474 (30 June 2022), and $5 million (5 August 2022).
5. On 8 September 2022, the United Australia Party was voluntarily deregistered as a political party.[215] No annual return was provided to the Electoral Commission by the United Australia Party for the financial year ended 30 June 2024. No annual return was provided to the Electoral Commission by Mineralogy Pty Ltd for the financial year ended 30 June 2024. The last date for the lodgement of annual returns by a registered political party for the 2023-24 financial year was 21 October 2024.[216] The last date for the lodgement of annual returns covering gifts by a donor to a registered political party for the 2023-24 financial year was 18 November 2024.[217]
6. On 29 November 2024, the United Australia Party applied to register as a political party.[218] On 20 December 2024, the Electoral Commission advised Senator Babet that it had determined that the effect of s 135(3) of the Commonwealth Electoral Act was that the United Australia Party was ineligible for registration as a political party until after the 2025 federal election. The plaintiffs subsequently challenged the validity of s 135(3) of the Commonwealth Electoral Act.

The purpose and role of s 135 within Pt XI of the Commonwealth Electoral Act

The Pt XI registration scheme for political parties

1. Part XI of the Commonwealth Electoral Act is concerned with registration of political parties. The Electoral Commissioner is required to maintain a Register of Political Parties containing a list of political parties that are registered under Pt XI.[219] A political party "at least one member of which is a member of the Parliament of the Commonwealth", such as the United Australia Party, is a "Parliamentary party".[220] A Parliamentary party, established on the basis of a written constitution which sets out the party's aims, is an "eligible political party" within s 123(1) of the Commonwealth Electoral Act. Section 124 provides that an eligible political party may be registered under Pt XI for the purposes of the Commonwealth Electoral Act.
2. Registration by a political party carries various benefits. One group of benefits is administrative benefits.[221] Another type of benefit is the possibility of public funding if the political party seeks that funding and various conditions are met.[222] A further benefit is that upon request by a registered political party, or its registered officer, the Electoral Commission must ensure that:[223] (i) the name or abbreviation of the registered political party, and the logo of the party, are printed on the ballot papers for use in the election adjacent to the name of a candidate who has been endorsed by that party; and (ii) where the registered political party has endorsed two or more candidates for election to the Senate, the name or abbreviation of the registered political party, and the logo of the party, are printed adjacent to a square printed "above the line" on the Senate ballot paper.
3. A registered political party remains registered unless it is mandatorily deregistered, under s 136 or s 137 of the Commonwealth Electoral Act, or unless it voluntarily deregisters under s 135.

The deregistration provisions and their original purposes

1. Section 135 of the Commonwealth Electoral Act provides for voluntary deregistration of a registered political party as follows:

"Voluntary deregistration

(1) A political party that is registered under this Part shall be deregistered by the Electoral Commission if an application to do so is made to the Commission by a person or persons who are entitled to make an application for a change to the Register under section 134 in relation to the party.

(2) An application under subsection (1) shall:

(a) be in writing, signed by the applicant or applicants; and

(b) set out the name and address of the applicant or the names and addresses of the applicants and particulars of the capacity in which the applicant or each applicant makes the application.

(3) Where a political party is deregistered under subsection (1), that party, or a party that has a name that so nearly resembles the name of the deregistered party that it is likely to be confused with or mistaken for that name, is ineligible for registration under this Part until after the general election next following the deregistration."

1. Sections 136 and 137 of the Commonwealth Electoral Act then provide for circumstances of involuntary deregistration. Involuntary deregistration under s 136(1) must occur following: (i) failure to endorse a candidate for election during more than four years of registration;[224] or (ii) the expiry of four years since the polling day in the last election for which the party endorsed a candidate.[225] Section 136(2) provides that when a political party is deregistered under s 136, that party (or a party with a name that is likely to be confused with or mistaken for that of the deregistered party) is "ineligible for registration ... until after the general election next following the deregistration". Section 136(3) provides that a Parliamentary party shall not be deregistered under s 136.
2. Section 137 provides for involuntary deregistration of a political party on other grounds. Examples are where the Electoral Commission is satisfied on reasonable grounds that a registered political party has ceased to exist**[226]** or, not being a Parliamentary party, does not have at least 1,500 members.[227] In such circumstances, before involuntary deregistration occurs the Electoral Commission must give a notice to the registered officer of the party.[228] The involuntary deregistration will proceed if within one month the party does not lodge a statement setting out reasons why involuntary deregistration should not occur, or if the Electoral Commission determines that deregistration should occur after considering a lodged statement.[229]
3. The immediate and obvious purpose of ss 135(3) and 136(2) of the Commonwealth Electoral Act is an anti-confusion purpose. That is a purpose to reduce the confusion (including mistakes) that would arise if a different political party with a name that is the same as or similar to that of the deregistered party was registered before the general election following the deregistration. By itself, s 135(3) does not attempt to eliminate all possibility of confusion because it remains possible for a different political party with the same or a similar name to register after the election, when voter memory might still involve some association with the deregistered political party. But s 135(3) significantly reduces the possibility of confusion.
4. Section 135(3) also serves another obvious purpose. That purpose is to avoid the stultification of s 136.[230] An involuntary deregistration under s 136 could be stultified if a political party could voluntarily deregister under s 135 to avoid involuntary deregistration under s 136, but then immediately apply to be re-registered.
5. A further, and separate, purpose is served by the exemption of Parliamentary parties from involuntary deregistration in s 136(3). That purpose responds to a matter raised during Parliamentary debates, which is a desire to avoid a Parliamentary party with a sitting Senator becoming liable to involuntary deregistration during the course of a six-year term because no candidate had been fielded for that party in an election during that term.[231]

A new purpose for s 135(3) after 1991

1. When s 135(3) came into force in 1984, it did not have a purpose of ensuring public disclosure of financial information.[232] The Commonwealth Electoral Legislation Amendment Act 1983 (Cth) introduced both a regime for the registration**[233]** (including the voluntary deregistration**[234]) of political parties, and a scheme for the disclosure of donations to political parties.[235]** The disclosure regime could not be avoided by voluntary deregistration of a political party because disclosure was not tied to registration. Subject to certain exceptions,[236] the relevant disclosure obligation required disclosure to the Electoral Commission of gifts received by a political party or State branch of a political party,[237] with "political party" defined to include both registered and unregistered political parties.[238] Hence, in 1984, although a disclosure regime existed, the disclosure requirements of political parties were unaffected by deregistration.
2. In 1991, a new disclosure regime was enacted, repealing the existing disclosure obligation for political parties**[239]** and creating a new disclosure obligation requiring registered political parties to furnish annual returns setting out, among other things, particulars of "all amounts received by, or on behalf of, the party during the financial year and the persons or organisations from whom those amounts were received".[240] This new disclosure obligation, applying only to registered political parties, was enacted in the existing statutory context of s 135(3) of the Commonwealth Electoral Act. The disclosure regime is presently contained in Pt XX of the Commonwealth Electoral Act, entitled "Election funding and financial disclosure".
3. The existing s 135(3) continues to provide a protective mechanism for the new disclosure regime. That mechanism is to ensure that registered political parties cannot take the benefits of registration but also avoid their annual disclosure obligations through voluntary deregistration and subsequent re-registration. Hence, upon the passage of the Political Broadcasts and Political Disclosures Act 1991 (Cth), s 135(3) came to serve the additional protective purpose of ensuring that political parties that wish to maintain receipt of the benefits of registration, up to and including at the time of an election, comply with the transparency obligations of disclosure.
4. From the commencement of the legislation introducing s 135(3) in 1984, there were also obligations of disclosure on third parties, including third-party donors.[241] From 1995, "associated entities" of registered political parties were required to submit annual returns to the Electoral Commission detailing relevant amounts received and paid and debts incurred.[242] From 2006, the annual disclosure requirement was extended to certain third parties incurring political expenditure above a specified threshold.[243] At present, the Commonwealth Electoral Act requires annual returns to be submitted by associated entities and "third parties" (as defined)[244] as well as "significant third parties".[245] Section 287F(1) outlines the criteria that enliven the requirement to register as a significant third party. Similarly, an entity is required to register as an associated entity if it meets certain criteria set out in s 287H(1). Subject to one exception,[246] all of the criteria in s 287H(1) are linked to a "registered political party". The consequence is that, other than in very limited circumstances,[247] an associated entity, required to register as an associated entity because of its connection with a registered political party, can avoid the obligations mandated by required registration where the registered political party has voluntarily deregistered. Section 135(3) of the Commonwealth Electoral Act again ensures that the benefits of registration, in the period up to and including the time of the next general election, cannot be maintained by a political party without these related obligations continuing.
5. The present disclosure regime requires the financial information disclosed by registered political parties, and others, to the Electoral Commission in required annual returns to be published by the Electoral Commission on a Transparency Register that the Electoral Commission must maintain and make available to the public (which it does through its website).[248] The additional purpose of s 135(3), existing since 1991, is to maintain that transparency for political parties that wish to continue to receive the benefits of registration up to and including the period of a general election. The additional purpose of s 135(3) was therefore described by the Solicitor-General of the Commonwealth as a "transparency purpose".

The two established constitutional implications

The explicature derived from direct choice by the people

1. Section 7 of the Constitution requires that Senators for each State shall be "directly chosen by the people of the State". Section 24 requires that members of the House of Representatives shall be "directly chosen by the people of the Commonwealth". The purely literal meaning of those words concerns only a "choosing by all people capable of choosing".[249] But the words mean more than their literal meaning. For instance, those sections further constrain the power of the Commonwealth Parliament to make laws in relation to elections, including under s 51(xxxvi) read with ss 10 and 31, that "affect the continued existence of a system of representative democracy".[250]
2. Since ss 7 and 24 are not confined to their purely literal meaning, Keane J was wrong in Murphy v Electoral Commissioner[251] when his Honour referred to the restriction upon legislative power arising from ss 7 and 24 and said that "[n]o question of the scope of an implication from the Constitution arises: we are concerned with the effect of express provisions of the Constitution". That reasoning misunderstands the nature of an implication. The explication of the content of the express words of ss 7 and 24 involves drawing inferences from the requirement of direct choice by the people. Those inferences are based upon assumptions about the franchise and conceptions of representative and responsible government.[252]
3. In the course of considering ss 7 and 24 and what he expressly and properly described as "[c]onstitutional implications" in McGinty v Western Australia,[253] Brennan CJ quoted from the indisputably correct remarks of Windeyer J**[254]** that the role of a judge is not to "make" implications but "the revealing or uncovering of implications that are already there". After describing the principle of representative democracy, Brennan CJ laid the foundation for the implications that came to be recognised in ss 7 and 24 by saying that one meaning of the phrase "chosen by the people" is a franchise "that is held generally by all adults or all adult citizens unless there be substantial reasons for excluding them".[255]
4. In Roach v Electoral Commissioner,[256] a majority of this Court adopted the above meaning of the phrase "chosen by the people" and treated it as having a protective effect, constraining the Commonwealth Parliament from imposing burdens upon the franchise without substantial reasons.[257] That approach, which applies the protective effect of the phrase, was applied in subsequent cases.[258] The approach focuses upon the requirements of choice, and the people who are to be capable of choosing. But the phrase also requires consideration of how those people can make their choice. A meaningful conception of choice by the people requires more than merely ensuring that the franchise is not burdened without substantial reasons. It also requires that electors are able to exercise their choice in a meaningful way. In Australian Capital Television Pty Ltd v The Commonwealth,[259] McHugh J said:

"It is not to be supposed ... that, in conferring the right to choose their representatives by voting at periodic elections, the Constitution intended to confer on the people of Australia no more than the right to mark a ballot paper with a number, a cross or a tick, as the case may be ...

Before they can cast an effective vote at election time, they must have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they have been governed and as to what policies are in the interests of themselves, their communities and the nation."

1. For similar reasons, the approach recognised in Roach v Electoral Commissioner was extended by a majority of this Court in Ruddick v The Commonwealth,[260] where Gordon, Edelman and Gleeson JJ (with whom Steward J agreed) held that the requirement of direct choice by the people in ss 7 and 24 of the Constitution also constrains the ability of the Commonwealth Parliament to impose burdens upon, or impair, the quality of information that is intended or likely to affect voting choice in Commonwealth elections without substantial reasons.
2. In Roach v Electoral Commissioner,[261] and Ruddick v The Commonwealth,[262] the judgments referred to above (together with numerous other judgments in this Court**[263]) further explicated the content of "substantial reasons" by reference to the underlying concept of representative democracy. In both instances - a law that either burdens the franchise or impairs the quality of information provided for electoral choice - the means must be "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government".[264]** In other words, no substantial reason will exist if legislation of the Commonwealth Parliament has as one of its very purposes to burden the adult franchise (rather than, for example, "to protect the integrity of the electoral process"[265]). Nor will a substantial reason exist if the means of achieving a legitimate end are disproportionate (not reasonably appropriate and adapted) to the legitimate purpose of the law.

The implicature concerning burdens on free political communication

1. In Lange v Australian Broadcasting Corporation,[266] all members of this Court joined in a judgment which recognised the existence of a separate and broader constitutional implication of freedom of political communication. The implication was not an explication of the content of "chosen by the people" in ss 7 and 24 of the Constitution. Instead, the implication was an implicature to which the meaning of ss 7 and 24 contributed but which was more heavily derived from assumptions based upon the general principles of representative and responsible government:[267]

"What is involved in the people directly choosing their representatives at periodic elections, however, can be understood only by reference to the system of representative and responsible government to which ss 7 and 24 and other sections of the Constitution give effect".

1. The implication recognised in Lange was thus said to arise from the "text and structure" or "terms and structure" of the Constitution. Indeed, in the space of two pages of the Commonwealth Law Reports, the focus upon both text (or terms) and structure was iterated,[268] reiterated,[269] re-reiterated,[270] and re-re-reiterated.[271] Curiously, however, the implied freedom of political communication was later relied upon by a majority of this Court as supporting a distinction between a "wholly structural" constitutional implication (requiring logical or practical necessity before it is recognised) and a "textual" constitutional implication.[272] Such statements, if taken literally (which they cannot be), would contradict the insistence in Lange that the implicature concerning freedom of political communication, although based upon logical or practical necessity, is both textual and structural.[273] More fundamentally, however, such statements, if taken literally, would be nonsense. The structural concerns of the Constitution are all derived, at least in part, from the meaning of the text and the manner in which that textual meaning is arranged. They do not arise entirely independently of the semantic meaning of any constitutional text, such as by the size or shape of the document in which the text appears or by any pretty pattern made by the text.
2. A so-called "structural implication" is nothing more than an implicature which relies more heavily upon matters extrinsic to the text, such as presuppositions that are thought to underlie the meaning of the text, than the semantic meaning of the text. In other words, so-called "structural implications" draw more from inferences based on context, such as assumptions, than from inferences that are closely related to semantic textual meaning. No different test should exist for the existence or application of implicatures as opposed to explicatures. Indeed, there is no sharp dividing line that can be drawn between these two forms of implication; the one shades into the other. Nevertheless, the more heavily the implication draws from context, and the less reliant that it is upon text (or terms), the more contestable the implication will be and the greater the need must be for the implication.[274]
3. The content of the implicature recognised in Lange has been accepted for nearly thirty years, although it remains contested. The implicature goes well beyond the explicature from ss 7 and 24 in several respects. First, the implicature is a constraint upon the legislative power of all Parliaments in Australia, not merely that of the Commonwealth Parliament. Secondly, the implicature constrains legislation with the purpose or effect of burdening any free political communication at all, not merely the quality of information that is intended or likely to affect voting choice in Commonwealth elections. Nevertheless, the implicature shares central features in common with the explicature, as might be expected given the emphasis in both upon ss 7 and 24 of the Constitution. The implicature is a limitation on legislative power which is not absolute. Provided that the "object of the law" is legitimate, and does not involve a goal to impair free political communication, the issue is whether "the law is reasonably appropriate and adapted to achieving that legitimate object or end".[275]

The presence of a burden or impairment as part of both implications

1. In Lange, this Court emphasised that the implied freedom of political communication does not "confer personal rights on individuals".[276] This point, which is equally applicable to the explicature from free electoral choice, has been repeatedly made and emphasised in this Court over three decades.[277] The implications are a constraint upon legislative power to burden or impair: (i) the franchise or the quality of information that is intended or likely to affect voting choice in Commonwealth elections; or (ii) the freedom of political communication. In both instances, the identification of the burden or impairment imposed by an impugned law requires a baseline; that is, a burden or impairment when compared with what? At the least, the identification of the burden or impairment must compare the effect of the impugned law with the baseline of circumstances where that impugned law did not exist.

1. There will always be narrower or broader approaches that can be taken to the identification of the baseline in relation to burdens upon the franchise or impairment of the quality of information that is intended or likely to affect voting choice in Commonwealth elections. The narrowest approach in any case would be to isolate the impugned law and to ask whether that law, by itself, imposes a relevant burden when compared with the existing state of the law. But no conceivable electoral system permits any candidate for election to do anything they want, wherever and whenever they want, so long as it involves the imparting of information that could affect an election. Nor would any electoral system permit a person to vote at any time and in any way that they choose. Hence, if the narrow approach were applied strictly and consistently it could require almost every aspect of the entire federal electoral system to be justified. That narrow approach would have the curious consequence of requiring judicial approval for much of the electoral law, despite the architects of the Constitution having deliberately left Parliament with a wide leeway of choice for electoral laws.[278]
2. By contrast, a broader approach considers an impugned law in the context of all the provisions of the scheme to which the impugned law can be said to be closely connected and asks whether that scheme imposes a relevant burden when compared with the existing state of the law without the scheme. An example of the broad approach is the decision of this Court in Murphy v Electoral Commissioner.[279] In that case, the question concerned the validity of provisions of the Commonwealth Electoral Act which suspended various changes to the electoral rolls for a period from 8pm on the seventh day after the issue of writs for a federal election until the close of the poll. Four members of this Court (French CJ and Bell J,[280] Keane J,[281] and Gordon J**[282]) held that those provisions imposed no burden on the franchise. In effect, their Honours treated the provisions as part of a broader scheme, a "design feature",[283]** to give effect to the franchise, not to restrict it. By contrast, three members of the Court (Kiefel J,[284] Gageler J,[285] and Nettle J**[286]**) took a narrower approach and considered that the particular suspension provisions, considered in isolation, impaired the ability to vote and were a law which must be justified.
3. Another example is Ruddick v The Commonwealth.[287] In that case, four members of this Court (Gordon, Edelman and Gleeson JJ,[288] and Steward J**[289]) held that a law that prevented the registration of certain names of political parties, with the effect that those party names could not appear on the ballot paper, did not burden or impair the quality of electoral choice because the law was part of a broader scheme which had permitted party names to appear on a ballot paper in a way that was designed to reduce confusion.[290]** By contrast, three members of this Court (Kiefel CJ and Keane J,[291] and Gageler J**[292]**) focused narrowly upon only the law that prevented registration and, perhaps unsurprisingly, found that law to be invalid.

1. A burden upon a freedom (or liberty) is a restriction upon the ability for that liberty to be enjoyed. Hence, a freedom must exist before it can be burdened. The baseline, or counterfactual, for the implied freedom of political communication therefore requires that the common law (as adapted to conform to the Constitution[293]), and any other law separate from the scheme of which the impugned law forms part, respect the exercise of the liberty said to be burdened. For instance, a law that imposed a penalty of imprisonment for physical assault of a politician might restrain the extent to which assault can be used as a form of political communication but it would not burden any freedom of political communication because the common law of torts excludes any freedom to assault a politician.[294] So too, a law that prohibited protest in an area where protesters would be trespassers at common law or under some independent and valid law would not burden any freedom of political communication because the protesters had no such freedom in the first place.[295]
2. This reasoning applies with even greater force where an asserted and so-called "freedom" is really a legal power (such as for a political party to register with the effect of being included on a ballot paper) that exists only by virtue of a scheme of which the impugned law itself forms an essential part.[296] The provisions of the entire scheme of which the challenged law forms a part are not independent of the challenged law. Although such a scheme might be defined at different levels of generality,[297] the need for an independent freedom, not contrary to common law or statute, before a burden on that freedom can be found has been expressly affirmed numerous times.[298] A burden will therefore be denied not merely where no common law liberty exists but also where a valid or unchallenged law, independent of any scheme of which the challenged law forms an essential part, has removed the liberty upon which the asserted freedom of political communication depends.[299]
3. Those who would reject the authority of this Court on this point by denying a requirement for a burden on an independent freedom seek, in effect, for the constitutional implicature to be vastly expanded. The implicature would no longer be a constraint upon legislative power to burden or impair an existing freedom of political communication. Instead, as is frankly accepted by some of those who advocate the rejection of authority in this respect, the implicature would be a constraint upon legislative power to impair political communication generally. If the constitutional implicature were thus expanded, many, many laws and many, many Parliamentary policies would require justification. Such an approach would, in effect, transform the systemic implied freedom of political communication into a constraint of a similar nature to the First Amendment to the Constitution of the United States. On one view, it would be a judicial step towards kritocracy.
4. A fidelity by the judiciary to existing precedent in this area is not a licence for some form of creeping unconstitutionality by the cumulative effect of legislative norms.[300] If two laws impose cumulative burdens as part of a single scheme, whether formally contained within the same statute or not, then the appropriate course for a court to take is the same as that taken to the constitutional explicature: the burden of the scheme is assessed as a whole. But if two laws would independently have imposed a burden upon free political communication, and the first in time had removed the freedom altogether, then the appropriate course is for the law that removed the freedom to be challenged, with the cumulative effect of the later law and the earlier law arguably providing an example of what might reasonably have been foreseen as the effect of the earlier law in removing the freedom. If the earlier law did not remove the freedom entirely, but validly burdened the freedom in some respect, then the justification of the later law should be based on the extent to which it burdened the operation of the remaining freedom. This is not some 19th century pleading formalism. It is a denial of a roving power for courts to invalidate independent laws that do not burden or impair existing freedoms.

The different approach to "reasonably appropriate and adapted" in each implication

1. Where an impugned law imposes a relevant burden or impairment for a legitimate purpose, the present established approach of this Court in relation to both the explicature and the implicature is to ask whether the law is "reasonably appropriate and adapted" to that legitimate purpose. In Roach v Electoral Commissioner,[301] Gummow, Kirby and Crennan JJ referred to the "affinity" between this "reasonably appropriate and adapted" test in relation to the explicature from ss 7 and 24 and the test as applied in relation to the implicature set out in Lange. These observations have been repeated.[302] It is, therefore, a present curiosity that the precedent of this Court requires a different approach to be taken to the implicature from that in relation to the explicature.
2. Unlike in relation to the explicature, in the application of the implicature the phrase "reasonably appropriate and adapted" has been repeatedly recognised by majorities in this Court as requiring a deconstructed "structured proportionality" analysis. It is necessary to explain why it is that, although such an approach need not be adopted when applying the explicature, as a matter of fidelity and respect for precedent it should not be open to this Court, without submissions to the contrary, to depart from structured proportionality in the application of the implicature.
3. In a decision in 2010,[303] an extra-judicial argument in 2012,[304] and further decisions in 2012,[305] 2013 (with Crennan and Bell JJ),[306] and 2014 (with Crennan and Bell JJ),[307] Kiefel J advocated for the introduction into Australian law of part of a German test of proportionality in an attempt to make transparent the enquiry into whether a law is "reasonably appropriate and adapted" to a legitimate purpose. Those early forays were centrally concerned only with asking whether the law was reasonably necessary, a test which had been the explanation given in Lange[308] for the result in Australian Capital Television Pty Ltd v The Commonwealth.[309] Later this Court became more bold. In McCloy v New South Wales,[310] French CJ, Kiefel, Bell and Keane JJ imported the entirety of the German approach to structured proportionality as the method of testing whether legislative means are reasonably appropriate and adapted to the achievement of a legitimate end compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. In the decade since McCloy, various majorities in this Court have consistently attempted to apply and refine this structured proportionality analysis.
4. The structured proportionality approach to determining whether the law is "reasonably appropriate and adapted", described by the joint judgment in McCloy as "proportionality testing", requires a structure of analysis with three aspects. The three aspects require a court to ask whether a law is: (i) suitable; (ii) necessary (or, perhaps more appropriately, reasonably capable of being seen as necessary), "in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect"; and (iii) adequate in its balance.[311] This structured proportionality analysis in McCloy has been applied, as an essential part of the reasoning of this Court in relation to the implied freedom implicature, again,[312] and again,[313] and again,[314] and again,[315] and again,[316] and again,[317] and again, [318] and again**[319]** over the last decade. In the earliest expressions by members of this Court, structured proportionality was described as an "analytical tool"[320] and said not to be "the only criterion by which legislation that restricts a freedom can be tested".[321] But, as the line of precedent developed, structured proportionality became the "test for invalidity" developed from Lange[322] and it was re-emphasised that aspects of structured proportionality were based upon that "which logic demands".[323] As Stellios observes, the majority view in this Court shifted from "seeing structured proportionality as a tool of analysis to applying it as the doctrinal test for justification".[324]
5. Even as a "tool of analysis", structured proportionality has precedential value. All legal concepts are tools of analysis that can be expressed at higher or lower levels of generality. Fidelity to precedent usually requires that the legal concepts used in the reasoning of judicial decisions be recognised at the intended level of generality, rather than at a level that is too particular or too general. Just as the legal concepts with which the majority of the House of Lords were concerned in Donoghue v Stevenson[325] were not intended to be recognised at the lower level of generality merely concerning dead snails in ginger-beer bottles,[326] or the higher level of generality concerning the parable of the Good Samaritan, so too the legal concepts with which the joint judgment in McCloy was concerned were not intended to be recognised only at the higher level of generality of "reasonably appropriate and adapted". It is incumbent upon those who would deny the status of precedent to the structured proportionality reasoning in McCloy, and the many cases that have followed it, to explain why the ratio decidendi of those decisions, contrary to the expressed views in those cases, does not include the structured proportionality reasoning that was adopted as the express justification for the result.
6. The attempt by various majorities of this Court over the last decade to use structured proportionality to provide transparency in the application of the expression "reasonably appropriate and adapted" has, as its ultimate goal, reducing the prospect of idiosyncratic judicial policy preferences supplanting the policy of a democratically elected Parliament. Transparent reasoning mitigates some of the criticism, repeated by a number of members of this Court, including (at various times) Dawson J,[327] McHugh J,[328] Gummow J,[329] Callinan J,[330] Heydon J,[331] and Steward J,[332] that the implied freedom of political communication may be an illegitimate implication, including for the reason that it is too unmoored from the constitutional text to be an implication recognised by conventional means of constitutional interpretation. That criticism has its greatest force when the implied freedom is applied in a way that leaves great scope for the disguised policy preference of the judiciary to trump Parliament, which is the institution in which policy decisions have been democratically vested.
7. It can, however, be accepted that structured proportionality is not a doctrine that has been embedded as the foundation for principled development of this area of the law, including the approach to be taken to the explicature. Nor could it be said that the abolition of structured proportionality would necessarily have any consequences for previously decided cases.[333] Much would depend upon what replaces structured proportionality. Just as this Court, in Esso Australia Resources Ltd v Federal Commissioner of Taxation,[334] departed from the "previously accepted test" for legal professional privilege in Grant v Downs[335] after considering submissions to that effect, without departing from the result, the same approach might be taken to the accepted test of structured proportionality. Usual convention, however, would require that approach to be taken after argument to that effect by counsel.
8. Structured proportionality has also been the subject of constant dissent in this Court. One reason for the dissent has been said to be the foreign nature of the doctrine. I do not share that concern. Common lawyers, whose law is both foreign and common, ought to embrace properly adapted comparative jurisprudence, not shun it.[336] But a more cogent concern is that one aspect of structured proportionality may be, or verge upon being, redundant, and another should apply only in the most extreme circumstances. The non-existent, or limited, roles for these aspects of the analysis give the application of structured proportionality an appearance of ritual formulism. This is particularly so where the test is applied by reference to an assumed purpose.[337] If a redundant aspect of the test is jettisoned, and a very limited aspect is marginalised, then the test, and the structure, might ultimately collapse.
9. The aspects of structured proportionality that may add nothing, or very little, to the determination of whether a law is reasonably appropriate and adapted to advance its legitimate purpose are the questions of whether the law is "suitable" and whether it is "adequate in the balance". It would be, and is, a remarkable thing for a law to be held to be "unsuitable" within the meaning of the test. A conclusion that a law is not suitable, in the sense that the law (or, more accurately, the meaning or intended effect of the law) has no rational connection with its purpose**[338]** (which need not be the same purpose as that of the statute as a whole**[339]), will almost inevitably mean that the purpose of the law has been misidentified or expressed at the wrong level of generality. On reflection, this criticism can be made of even my attempt to identify an example of an unsuitable law in Clubb v Edwards:[340]** the objective purpose of a law that required persons applying for a falconry licence to undertake a shooting examination could not be described as a purpose related to falconry, even if that law happened to be in the same legislation as other matters concerning falconry.
10. So too, it would be, and is, a remarkable thing if a law which employed means that were reasonably necessary to achieve its legitimate purpose was nevertheless inadequate in the balance. In almost all cases, there may be little difference between saying that a law is not "reasonably appropriate" and saying that a law is "inadequate in the balance", aside from the latter being a euphemism. As I explained in Clubb v Edwards,[341] such a conclusion would have the effect that Parliament must use a less effective means, or cannot use any means at all, to achieve its legitimate policy purposes. A court might be thought to have ventured from expounding legal principle into extolling public policy were it to attempt to decide the relative importance of "the ability to preach politics" compared with "a fighting chance to live past heart disease or breast cancer".[342] But extreme cases might exist. Whether this backstop criterion of "adequacy in the balance" should continue to exist, permitting such contestable policy decisions to be made by courts in the most extreme cases, is a matter to be determined if, or when, a case challenges the recognition of this aspect of structured proportionality.[343]
11. Ultimately, however, whether or not structured proportionality has been applied in the past by members of this Court in a ritualistic manner and whether or not aspects of the test are potentially redundant, or generally inutile, structured proportionality is not such a fundamentally misguided decade-long folly that it should be brushed aside, in relation to the implied freedom implicature, without submissions to the contrary. In particular, there remains, at the heart of the structured proportionality analysis for testing whether the law is reasonably appropriate and adapted, a more transparent form of the reasoning recognised in Lange:[344] whether the burden on the freedom of political communication is reasonably necessary, namely whether there are obvious and compelling "alternative, reasonably practicable, means of achieving the same object but which have a less restrictive effect on the freedom".[345]
12. For these reasons, it is my present duty of fidelity to precedent to express structured proportionality, and to apply it in relation to the implicature, in the most coherent form in which it can be stated until a majority of this Court accepts a submission that the test should be abolished. In that form, and with, at best, the very limited application of suitability and adequacy in the balance, the heartland of structured proportionality, in all instances where it is applied,[346] is the element of reasonable necessity.[347] In relation to the explicature, however, where a majority of this Court has never accepted all three aspects of structured proportionality, the question of whether an impugned law that imposes a relevant burden or impairment is proportionate to a legitimate purpose remains expressed as a less transparent enquiry into whether the law is "reasonably appropriate and adapted". Nevertheless, that enquiry can also be made more transparent by a focus upon reasonable necessity.
13. Although the initial conception of "reasonably appropriate and adapted", as adopted by the Supreme Court of the United States, might have signified two separate conditions, appropriateness and adaptedness,[348] in the absence of clear authority in this Court the phrase should be treated as a hendiadys.[349] That leaves very little room, if any, within a constitutional implication said to be explicated from notions of representative and responsible government for courts to invalidate legislation on the basis that a judge considers the law not to be reasonably appropriate. Understood in this way, the phrase is usually equivalent to the equally common expression "reasonably capable of being seen as necessary",[350] where "necessary" does not mean "essential" or "unavoidable"[351] but usually means reasonably "adapted".[352] In shorthand, the phrase is usually concerned only with "reasonable necessity".
14. In whatever terms the "reasonable necessity" enquiry is expressed, the enquiry affords a wide latitude of choice to Parliament to implement its policy preferences consistently with a system of representative democracy.[353] Hence, it has been said many times that it must be "obvious" and "compelling" that an alternative means would be expected to achieve Parliament's legitimate purposes, at least to the same or a similar extent, but with a significantly lesser burden on the freedom of political communication.[354] The assessment of an obvious and compelling alternative is not quantitative or scalar. It is a qualitative assessment where the greater the disparity (in both absolute and relative terms) between the width and depth of the burden or impairment when the law is compared with its alternative, the more obvious and compelling that alternative will be.
15. Importantly, however, "reasonable necessity" is not merely a factor to be considered in some exercise of an idiosyncratic judicial discretion to choose whether a law is sufficiently judicially unpalatable. Unless the application of the explicature or the implicature is reduced to an application of preferred judicial policy, it is impossible to see how a law could be considered "reasonably appropriate and adapted" if there is an obvious and compelling alternative that would have achieved Parliament's purpose to a similar or a greater extent but with a significantly lesser impact on the freedom of political communication. Hence, in Lange,[355] this Court described the result in Australian Capital Television Pty Ltd v The Commonwealth[356] by reference only to the fact that "there were other less drastic means by which the objectives of the law could be achieved". The lack of reasonable necessity is itself sufficient to invalidate a law.

The proposed new implication of non-discrimination

1. The plaintiffs asserted that there is an implied constitutional constraint upon legislation that discriminates between different groups of candidates for election without justification. This implication was said to arise "in the same way" as the explicature from ss 7 and 24 of the Constitution recognises a system of government in which there are participants who "directly choose" and participants who are "directly chosen". In effect, the plaintiffs' submission was that the phrase "chosen by the people" is not merely concerned with the people who can make the choice, or the quality of information from which those people can exercise choice, at federal elections; the phrase is also concerned with the people about whom the choice is made at federal elections.
2. It may be that explicatures from "chosen by the people" in ss 7 and 24 also include a constraint on the ability of Parliament to legislate so as to impose an unjustifiable burden on the ability of people to be chosen as elected representatives in Commonwealth elections. Hence, as McHugh J observed, the Commonwealth Parliament could not legislate to "prevent members of lawful political parties from being elected to Parliament".[357] So too, the same explicature might prevent Parliament from imposing extreme constraints upon qualifications for election to Parliament. In each case, such burdens upon the ability of people to be elected to Parliament, unsupported by any express provision of the Constitution,[358] would require justification and would not be justified.
3. Although a relevant explicature from ss 7 and 24 might concern constraints upon the ability to be chosen, there is no basis in the text for a further specific implication of a freedom from discriminatory conditions in that choice. Of course, it may be that "a point could be reached where the electoral system is so discriminatory that the requirements of ss 7 and 24 are contravened".[359] But the requirements of ss 7 and 24 would be contravened because, in such circumstances, the impugned law would impose an unjustifiable burden on the ability of people to be chosen as elected representatives in Commonwealth elections. The extreme discrimination would merely be part of the factual basis for assessing that burden.
4. The plaintiffs rightly made no submission that any discrimination in s 135(3) of the Commonwealth Electoral Act imposes an unjustified constraint upon the ability of persons to be chosen for the House of Representatives or for the Senate. There would have been great obstacles to accepting such a submission given the voluntary nature of party deregistration under s 135(1) and the period of ineligibility in s 135(3) being limited to "after the general election next following the deregistration".

Section 135(3) is consistent with the two established implications

The explicature derived from direct choice by the people

1. As explained, both principle and authority require an assessment of the entirety of an integrated scheme when considering any burden imposed upon, or impairment of, the quality of information that is intended or likely to affect voting choice in Commonwealth elections. Section 135(3) of the Commonwealth Electoral Act is not a provision that stands in isolation. The content of s 135(3) is inextricably linked to s 136 by its anti-stultification purpose and to Pt XX by its transparency purpose. The burden or impairment that s 135(3) imposes upon the quality of information that is intended or likely to affect voting choice in Commonwealth elections must be assessed by reference to the entire scheme.
2. In the operation of the anti-confusion purpose of s 135(3), there is no burden on, or impairment of, the quality of information that is intended or likely to affect voting choice in Commonwealth elections. The effect of the anti-confusion purpose is the same as that in Ruddick v The Commonwealth, where there was no burden imposed by the impugned provisions. Although the effect of the provisions was to provide less information, in the context of the scheme as a whole the provisions had the effect, "overall, to improve the clarity, and hence the quality, of electoral choice and communication on government or political matters".[360] So too, the quality of information for electoral choice on the ballot is improved by preventing the registration of a different political party that has a name that is the same or "so nearly resembles the name of the deregistered party" before the next general election after deregistration.
3. But s 135(3) also operates to prevent re-registration, prior to the next general election, of the deregistered political party itself. The effect that s 135(3) has on electoral choice in this respect must be assessed by reference to s 136 and the provisions of Pt XX, which are part of the scheme of which s 135(3) also forms a part, in particular by its purpose of avoiding the stultification of s 136 and by its transparency purpose.
4. One manner in which s 135(3) operates to prevent re-registration of the deregistered political party itself is to give effect to the anti-stultification purpose of s 135(3) by ensuring that a political party cannot, prior to a general election, evade the consequence of mandatory deregistration under s 136. In this respect, there is a burden upon, or impairment of, the quality of information provided to electors. That burden is that in a single election electors will not be informed on a ballot paper of the party association of a candidate for a non-Parliamentary party that has: (i) been registered for more than four years and has failed to endorse a candidate for election during that time; or (ii) failed to endorse a candidate for more than four years since the polling day in the last election for which the party endorsed a candidate. The burden on the quality of information in this respect is narrow.
5. The other manner in which s 135(3) operates to prevent re-registration of the deregistered political party itself is to give effect to the transparency purpose of s 135(3). In this respect, a potential burden on, or impairment of, the quality of information provided to electors is that, for a single election, electors will not be informed on a ballot paper of the party association of a candidate whose party had voluntarily deregistered in the period prior to the election. But that burden must also be assessed in light of the potential benefit of the information in annual returns which, in many cases, is made available to electors only by registration of political parties**[361]** and, consequentially, some associated entities. Any overall burden in this context is very narrow.
6. The burden imposed by s 135(3) on the quality of information provided to electors is not merely narrow; it is also shallow. Where the burden applies, it does not discriminate between different parties or between candidates holding different political views. It is based on the choices made by a party either not to endorse a candidate for election (s 136) or to deregister (s 135(1)). It does not prevent re-registration of a political party with a different name, provided that the name does not so nearly resemble that of the deregistered party that s 135(3) is engaged.
7. The narrow and shallow burden on the quality of information provided to electors is easily justified by the anti-stultification and transparency purposes of s 135(3). That justification is comfortably met whether the "substantial reason" test for justification is described as asking whether the means applied by the law are "reasonably capable of being seen as necessary" or whether those means are "reasonably adapted" to the legitimate purposes of s 135(3).
8. The plaintiffs relied upon other means by which s 135(3), considered as part of a scheme requiring transparency, could have achieved its transparency purpose. The first of those means was said to be requiring retrospective disclosure, including annual returns, as a condition of re-registration of a political party that had voluntarily deregistered. Another suggested means was to require all political parties to make the required disclosures, not merely registered political parties. It might be doubted whether these proposed alternatives would be likely to be equally effective. For instance, in the first proposed alternative means, the provision of information in annual returns is unlikely to be as valuable to electors if provided very shortly before an election than if provided on a continuous basis for several years.
9. In any event, the alternative means proposed by the plaintiffs are neither obvious nor compelling. Rather, they fall comfortably within the wide leeway of choice that is open to the Parliament in devising a scheme for the regulation of elections.[362] Indeed, the proposed scheme requiring disclosure from all political parties, without a requirement of registration, would be a different scheme from that which has been adopted by Parliament since 1991.

The implicature concerning burdens on free political communication

1. Section 135(3) of the Commonwealth Electoral Act does not contravene the requirements of the implicature concerning burdens on free political communication for the simple reason that there is no freedom for a deregistered political party to re-register independently of the scheme of which s 135(3) is an essential part. Section 135(3) does not burden any independently existing freedom of political communication.
2. This point arises from the application of the ratio decidendi of this Court in Mulholland v Australian Electoral Commission, where five members of the Court held that there was no contravention of the implied freedom of political communication by provisions of the Commonwealth Electoral Act that were an essential part of a scheme that included restrictions on the circumstances in which a political party could have its name included on the ballot paper.[363] The same point arises from the application of the ratio decidendi of this Court in Ruddick v The Commonwealth, where three members of this Court (Gordon, Edelman and Gleeson JJ) relied upon and approved the reasoning in Mulholland to find that there was no burden imposed upon the freedom of political communication by provisions that were an essential part of a scheme of registration. Those provisions included, upon objection by a prior registered political party, a prohibition upon registration of the name of a political party which contained a word or abbreviation that was part of the name of the prior registered political party.[364] The fourth member of the majority (Steward J) concurred with, and therefore adopted, those reasons.[365] Neither Steward J's summary of the reasons of Gordon, Edelman and Gleeson JJ, with which his Honour expressed agreement, nor his Honour's concerns, obiter dicta, about the implied freedom of political communication, were expressed as qualifications or limits to his Honour's agreement with those reasons in their entirety.
3. In any event, and even apart from the recent application of the decision in Mulholland, the plaintiffs' submissions did not meet the principled reasons, as explained above, that support the ratio decidendi in Mulholland. The plaintiffs' application to re-open Mulholland must be rejected.

1. On 12 February 2025, I joined in orders answering the questions in these special cases to the effect that s 135(3) of the Commonwealth Electoral Act is not invalid on the basis of the implications on which the plaintiffs relied. For the reasons above, the answers in each special case were as follows:

Question 1: Is s 135(3) of the Commonwealth Electoral Act 1918 (Cth) ("the Act") invalid, in whole or in part, on the ground that it impairs the direct choice by the people of Senators and Members of the House of Representatives, contrary to ss 7 and 24 of the Constitution?

Answer: No.

Question 2: Is s 135(3) of the Act invalid, in whole or in part, on the ground that it impermissibly discriminates against candidates of:

(i) a political party that has deregistered voluntarily; or

(ii) a Parliamentary party that has deregistered voluntarily?

Answer: No.

Question 3: Is s 135(3) of the Act invalid, in whole or in part, on the ground that it infringes the implied freedom of political communication?

Answer: No.

Question 4: In light of the answers to questions 1 to 3, what relief, if any, should issue?

Answer: None.

Question 5: Who should pay the costs of and incidental to these special cases?

Answer: The plaintiffs and the plaintiff respectively.

1. STEWARD J. Subject to what I said in LibertyWorks Inc v The Commonwealth,[366] and subject also to certain additional matters set out below, I respectfully agree with the reasons of Gordon J and in particular with her conclusion that the decision of this Court in Mulholland v Australian Electoral Commission[367] here necessarily forecloses any application of the so-called implied freedom of political communication.
2. I also confirm, lest it not otherwise be obvious, that the dispositive part of my reasons in Ruddick v The Commonwealth[368] was my concurrence with the reasons of Gordon, Edelman and Gleeson JJ in that case. What I said in Ruddick about the so-called implied freedom of political communication was necessarily obiter dicta. I do not presently resile from any of that dicta. Indeed, I now adhere to it all the more strongly. But this is not a suitable time to explain why in greater detail.
3. The additional matters to which my agreement with Gordon J's reasons is subject are these. First, I cannot agree that s 135(3) of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") imposes any burden, or even a slight burden, on the informed choice required by ss 7 and 24 of the Constitution. I agree, however, with Gordon J that s 135(3) must be considered within the wider scheme of the Electoral Act. Here, the voluntary actions of the plaintiffs loom large. They chose to register and then to deregister the United Australia Party. As such, its candidates will be treated, for the purpose of ballot papers, like any other unregistered candidate. It was never suggested that the implication of a need for an informed choice required all candidates, whether as members of registered parties or not, to be treated in exactly the same way for the purpose of their identification on a ballot paper.
4. In that respect, it goes too far to say that a burden on informed choice or the freedom of political communication will exist whenever a law diminishes to any extent the information a voter may discern from a ballot paper, given that no pre-existing and independent right to such information exists. Nor is it correct to argue that the existence of a burden must be measured only from the perspective of the voter. No authority supports that proposition.
5. Like Gordon J, I otherwise agree that the decision in Mulholland compels the conclusion that no burden existed here on the freedom of political communication. I again adopt, in that respect, the reasons of Gordon J and endorse the following description, extracted from the reasons of Gordon, Edelman and Gleeson JJ in Ruddick, of what Mulholland really established:[369]

"Each of McHugh J, Gummow and Hayne JJ, Callinan J and Heydon J [in Mulholland] expressly approved the reasoning of McHugh J in Levy v Victoria and held that proof of a burden on the freedom of political communication requires 'proof that the challenged law burdens a freedom that exists independently of that law'. Mr Mulholland's challenge failed because the Democratic Labor Party had no right to be included on the ballot paper, independently of the provisions of the Commonwealth Electoral Act."

1. Secondly, as no burden exists, it is unnecessary to go on to consider whether s 135(3) is justified. However, something should be said about the doctrine of structured proportionality, as it has come to be known. The doctrine of structured proportionality has been accepted by a clear majority of this Court for many years. No party here suggested that it should not be applied, and no party invoked the principles articulated in John v Federal Commissioner of Taxation[370] to suggest that it should now be abandoned. It is a necessary and authoritative element of the doctrine of the implied freedom of political communication. As, for example, Kiefel CJ, Keane and Gleeson JJ said in LibertyWorks:[371]

"In Lange v Australian Broadcasting Corporation, the final question as to the validity of a law effecting a burden on the freedom was stated to be whether the burden is 'undue' having regard to its purpose. Whether that question should be determined by reference to a test of whether the law is 'reasonably appropriate and adapted' or of whether it is 'proportionate' was left open by the Court, as were the means by which those conclusions might be reached. But in McCloy v New South Wales a majority of this Court provided the answer, holding that the final question to be addressed is whether a law is a proportionate response to its purpose and that that is to be ascertained by a structured method of proportionality analysis. That approach has consistently been maintained by a majority of this Court in each of the cases concerning the implied freedom since McCloy".

1. It may be correct to describe structured proportionality as a tool of analysis; but to adopt that characterisation as a means to deny it precedential force risks accusations of mere sophistry. Moreover, it dramatically underplays its centrality to the task mandated by the doctrine. Structured proportionality is a form of analysis that this Court has stated must be deployed as a means of achieving transparency of reasoning. Without it, any such reasoning will be opaque. The doctrine of structured proportionality corrects that outcome; that is its value. I thus respectfully agree with the reasons of Edelman J that the doctrine is binding on this Court unless and until it is overruled.
2. Having said that, and notwithstanding its merit, structured proportionality's elaborate and complex nature alone strongly suggests that it cannot be supported as a true implication from the text and structure of the Constitution. So does its entirely foreign origin.[372] Nonetheless, if it had been necessary to consider here the issue of justification I would have - unwillingly - applied it.[373] That would have been my duty.[374]

1. Subject to what follows, I agree with the reasons of Gageler CJ and Jagot J for the answers to the special case questions pronounced by the Court on 12 February 2025 in the form set out at [8] of their Honours' reasons.
2. Section 135(3) of the Commonwealth Electoral Act 1918 (Cth) provides that where a political party has been deregistered under s 135(1), that party is ineligible for reregistration "until after the general election next following the deregistration". As the terms of s 135(1) make clear, deregistration under that provision is a voluntary act. By deregistering, a political party can avoid the expense and inconvenience of complying with the disclosure obligations imposed by Div 5A of Pt XX of the Commonwealth Electoral Act.
3. An important benefit of registration concerns the content of ballot papers printed by the Australian Electoral Commission for a general election. Registration entitles a political party to have its registered name and registered logo printed adjacent to the name of its endorsed candidate on the ballot paper.[375] Further, if a registered political party has endorsed a group of two or more candidates for election to the Senate, the party's registered name (or registered abbreviation of that name) and registered logo may be printed on the ballot papers adjacent to the square printed "above the line" in relation to the group.[376] Section 135(3) deters deregistration by a political party that wishes to have the benefits of registration at the next general election.
4. The plaintiffs challenged the constitutional validity of s 135(3), contending that the sub-section impermissibly burdens three constitutional limits on legislative power: (1) the implied right to make a "free, fair and informed" choice in exercising the constitutionally protected right to vote, arising from the requirement of "direct choice by the people" in ss 7 and 24 of the Constitution ("informed choice");[377] (2) the implied freedom of political communication; and (3) a novel legislative constraint preventing impermissible discrimination against candidates for election.
5. Once the third contention is rejected (for the reasons given by Gageler CJ and Jagot J), the plaintiffs' case raised for consideration whether s 135(3) exceeds the limits of legislative power imposed by two closely related constitutional implications. As explained by Kiefel CJ and Keane J in Ruddick v The Commonwealth:[378]

"The words of ss 7 and 24 have come to be accepted as a constitutional protection of the right to vote. Their express requirement of a 'direct choice by the people' and the notion of choice itself necessarily implies that the choice be free, fair and informed. In [Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520], the Court explained that the choice spoken of is a true choice, one which gives an opportunity to electors to gain an appreciation of the available alternatives, and that the freedom of political communication enables the people to exercise a free and informed choice as electors. So understood, the constitutionally guaranteed implied freedom of political communication gives effect to the requirement of choice by the people, which is fundamental to our system of representative government."

1. The "affinity"[379] between the two implications appears from, firstly, their common constitutional source, being the system of representative and responsible government established by the Constitution, particularly by ss 7 and 24;[380] and secondly, as explained below, the common application of a proportionality standard to assess the justification of a law that burdens the constitutional limit.

1. No question of constitutional validity arose in this case unless the plaintiffs demonstrated that s 135(3) imposes an "effective burden" on one of the identified constitutional limits upon legislative power.
2. In relation to informed choice, s 135(3) can readily be seen to impose such a burden because it has the potential to prevent the inclusion of information about party affiliation on a ballot paper at a general election following a political party's voluntary deregistration. Without such information, voters would lack information relevant to making an informed choice in circumstances where a ballot paper can be expected to be an important source of information about party affiliation.[381]
3. In considering the extent of the burden, it is necessary to consider both the scope of application of s 135(3) and the potential impact of the provision in the event of its application.[382] The scope of s 135(3) is particularly narrow: it applies only in the unusual event that a registered political party chooses to deregister voluntarily and subsequently wishes to be identified on a ballot paper in the general election following deregistration. There was no material before this Court to explain the circumstances of the voluntary deregistration of the United Australia Party that gave rise to this case. However, where it applies, the potential consequences of s 135(3) are significant for informed choice because of the real prospect that voters may fail to identify or mistake a candidate's party affiliation without that information on the ballot paper. The extent of the burden imposed by s 135(3) is increased by the importance of party affiliation information in a system of compulsory voting.[383]
4. In relation to the implied freedom of political communication, this Court's decision in Mulholland v Australian Electoral Commission,[384] relevantly approved in Ruddick,[385] stood in the way of a finding that s 135(3) imposes an effective burden on that freedom, in the absence of a pre-existing freedom of any person to engage in political communication by requiring the inclusion of party affiliation information on a ballot paper. However, since the plaintiffs sought leave to reopen Mulholland, it was relevant (on the question of whether a grant of that leave would have utility) to consider whether s 135(3) would impose an effective burden on the freedom and, if so, the justification for any such burden in the event that Mulholland was reopened and overruled.
5. If Mulholland was overruled, it is arguable that s 135(3) would impose a burden on the implied freedom, for reasons closely related to the burden upon informed choice. The relevant burden may arise from the inhibition of communication by a voluntarily deregistered political party that would otherwise seek to communicate to voters its affiliation with a candidate on a ballot paper; and in the potential impairment of voters' ability to cast a fully informed vote.[386] The legal operation of s 135(3) is therefore capable of preventing political communication by a voter, through their vote, that reflects a misunderstanding of the affiliation of a candidate to a voluntarily deregistered political party. As with the burden on informed choice, the burden on the implied freedom is likely to manifest only rarely but is significant in the event that it does arise because s 135(3) has the capacity to affect political communications, through ballot papers and votes, that are central to the maintenance of the constitutionally prescribed system of government.

Justification of effective burdens on informed choice and the implied freedom of political communication

1. Once an effective burden is identified, it is necessary to consider whether that burden is justified.[387] For both constitutional limitations, that determination is made by deciding whether the law is "reasonably appropriate and adapted" to a legitimate end, being a legislative purpose compatible with the maintenance of the system of representative and responsible government for which the Constitution provides.[388] That formulation has long been recognised to import concepts of proportionality.[389]
2. As explained by Gageler CJ and Jagot J, s 135(3) has a purpose of enhancing transparency about the activities and relationships of political parties by, in effect, requiring compliance with disclosure obligations as the price for identification of party affiliations on a ballot paper. That purpose is indisputably compatible with the maintenance of the constitutionally prescribed system of government because it seeks to improve access to information relevant both to informed choice and to the implied freedom of political communication. Accordingly, what remains to be decided is whether s 135(3) is "reasonably appropriate and adapted" to its transparency purpose. That standard affords the Court a discretion, to be exercised in accordance with the judicial method.[390]
3. Since McCloy v New South Wales,[391] in cases concerning the implied freedom, most members of this Court have addressed the "reasonably appropriate and adapted" standard by reference to the structured proportionality framework stated by a majority in that case. That framework directs judicial consideration to three subsidiary questions: whether a law is (a) "suitable", (b) "necessary" and (c) "adequate in its balance".[392] Constitutional validity based on informed choice was first considered after McCloy in Murphy v Electoral Commissioner.[393] In that case_,_ Kiefel J applied the structured proportionality framework stated in McCloy,[394] while French CJ and Bell J acknowledged that "suitability" is a requirement of "universal application", and considered that "necessity" and "adequacy in its balance" were of possible relevance "depending upon the character of the law said to diminish the extent of the realisation of [the constitutional mandate of choice by the people]".[395]
4. French CJ and Bell J considered that the use of structured proportionality analysis was inapposite in Murphy, where the complaint was that the legislation did not go far enough in the provision of opportunities for enrolment.[396] Thus, and in contrast to this case, it was not about "a law reducing the extent of the realisation of the constitutional mandate".[397]
5. No case in this Court concerning the constitutional validity of legislation has depended for its outcome on the application of the structured proportionality framework, as opposed to simply asking whether the law is "reasonably appropriate and adapted". Three examples illustrate the point.
6. In McCloy, a majority applied structured proportionality in holding that the impugned legislation did not impermissibly burden the implied freedom,[398] while Gageler J**[399]** and Gordon J**[400]** each did not but reached the same conclusion. In Brown v Tasmania,[401] Kiefel CJ, Bell and Keane JJ,[402] and Nettle J writing separately,[403] applied structured proportionality to find that provisions in the impugned legislation were invalid, while Gageler J applied a different approach to reach that conclusion.[404] In Unions NSW v New South Wales,[405] all Justices (save for Edelman J**[406]) found that the burden imposed by the relevant provision was not necessary to achieve the purposes of the law.[407]**
7. The test of "suitability", which asks whether there is a "rational connection" between the impugned law and its purpose, is the test applied by Gageler CJ and Jagot J to conclude that s 135(3) does not offend the constitutional protection of informed choice.[408] The test has been described as "highly deferent"[409] but that is not a criticism. The test conforms with the limits of the judicial function, as is illustrated by its application in other areas of legal reasoning.[410] The test was applied by members of this Court in Roach v Electoral Commissioner[411] and Brown.[412] In both cases, the lack of rational connection was found in the disconformity between the purpose of the laws and the over-inclusive nature of the relevant provisions.
8. The extent of the burden imposed on informed choice by the operation of s 135(3) warrants the application of the remaining steps in the proportionality analysis to assess the constitutional validity of s 135(3).
9. The concept of "necessity" addresses whether there is an "obvious and compelling alternative, reasonably practicable means of achieving the same purpose" as the impugned law, which has a less restrictive effect.[413] This concept is concerned with the connection between the end pursued by the impugned law and the means used to pursue it by considering the availability of alternative means of pursuing that end.[414] In addition to the extent of the burden as a reason for assessing s 135(3) by reference to this concept, it is relevant to the consideration of both constitutional limitations because, in each case, essentially the same underlying question arises, being whether the preclusion of information about party affiliation of the voluntarily deregistered party's endorsed candidates from a ballot paper is an excessive response to the absence of disclosure obligations upon a party that is deregistered.
10. The plaintiffs' argument that s 135(3) is not necessary in the relevant sense failed because the plaintiffs did not succeed in positing an alternative, less restrictive means of achieving the transparency purpose of the provision. The suggested requirement of financial disclosure of donations to and expenditure by the political party prior to, and as a condition of, reregistration necessarily entails a delay in the disclosure of relevant information. The Parliament's "wide leeway of choice"[415] to legislate with respect to federal elections empowers it to decide that such a delay is inconsistent with informed choice.
11. The question of "adequacy in the balance" asks whether the transparency benefit sought to be achieved by s 135(3) is disproportionate to the restriction imposed on either the implied freedom or informed choice.[416] For the same reasons that "necessity" is an appropriate lens through which to examine s 135(3) in relation to both constitutional limitations, I have also addressed this criterion. Section 135(3) is adequate in its balance because it supports voters' informed choice by promoting electoral transparency at the small cost of restricting a registered political party from deregistering and reregistering at will. That conclusion supports the validity of s 135(3) in relation to both constitutional limitations.

1. Section 135(3) is justified in its burden upon informed choice. There would have been no utility in granting leave to reopen Mulholland because there was no prospect that s 135(3) would be found to be unjustified in its burden upon the implied freedom of political communication.
2. BEECH-JONES J. The background to each special case, including the relevant legislative regime, is set out in the judgment of Gageler CJ and Jagot J, as well as the judgment of Gordon J. On 12 February 2025, I joined in the orders and answers described by Gageler CJ and Jagot J.[417] These are my reasons for joining in those orders and answers.

Restraints on legislative power over federal elections, electors and candidates

1. Section 51(xxxvi) of the Constitution confers on the Parliament of the Commonwealth power to make laws for the peace, order, and good government of the Commonwealth with respect to "matters in respect of which [the] Constitution makes provision until the Parliament otherwise provides". As ss 10 and 31 of the Constitution make provision until Parliament "otherwise provides" in relation to elections for the Senate and the House of Representatives respectively, it follows that s 51(xxxvi) confers power to make laws for the conduct of such elections, including power to make laws for the regulation of political parties whose candidates seek to participate in those elections. Other provisions of the Constitution also either directly or indirectly combine to confer legislative power on the Parliament to make laws concerning federal elections, electors and candidates.[418] Textual,[419] structural**[420]** and historical**[421]** considerations all point to these legislative powers as being of wide import affording Parliament considerable flexibility in legislating for federal elections, electors and candidates,[422] with a concomitant obligation on this Court to afford substantial deference to the choices of Parliament. Subject to what follows, the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"), including the provision the subject of challenge in each special case, namely s 135(3), is supported by these legislative powers.
2. Wide as they are, the Parliament's legislative powers concerning federal elections, electors and candidates are still subject to the limits imposed by the text and structure of the Constitution.[423] Two of those limits were said to warrant the conclusion that s 135(3) of the Electoral Act is invalid.
3. The first limit is what follows from that part of ss 7 and 24 of the Constitution that provides that the Senate and the House of Representatives shall be "directly chosen by the people". It has been said that caution should be exercised before construing that phrase as a "broad restraint upon legislative development of the federal system of representative government".[424] The phrase should be understood as specifying a boundary condition and not a prescription of a particular electoral system.[425] Nevertheless, it is difficult to conceive of a more important phrase in the Constitution.
4. While the meaning of "directly chosen by the people" does not change, the content of the limit the phrase imposes evolves over time.[426] It is a composite phrase; however, each of its components has significance so far as restricting legislative power is concerned. Without being exhaustive, "directly" includes a requirement for popular election and precludes the use of an electoral college**[427]** or State Parliaments to choose representatives,[428] save for certain special circumstances such as casual Senate vacancies or unopposed candidates;[429] "chosen" requires a free, fair and informed choice,[430] including a choice exercised in confidence,[431] and limits the power of the Parliament to exclude candidates;[432] and "by the people" precludes the unjustifiable exclusion from the franchise of particular electors or a class of electors.[433]
5. The second relevant limit on legislative (and executive) power is the implied freedom of political communication, which relevantly restricts the power to make laws that burden freedom of communication between the people of Australia concerning political or government matters and thus protects the exercise of a free and informed choice by the electors.[434] The implied freedom derives from those provisions of the Constitution (including but not restricted to ss 7 and 24) that ensure that the Parliament will be representative of the people of Australia.[435] Those provisions of the Constitution that prescribe a system of representative government**[436]** ensure that the operation of the implied freedom is not confined to the election period but extends through the life of the Parliament.[437] In this respect, the implied freedom complements the limits that flow from the phrase "directly chosen by the people" in ss 7 and 24 of the Constitution. Affording protection to the making of a free, fair and informed choice by the electors at an election would be pointless without affording a measure of protection to political communication between elections.
6. I agree with Gageler CJ and Jagot J in relation to "structured proportionality" and the implied freedom of political communication.[438]

1. The first question stated in each special case is whether s 135(3) of the Electoral Act is rendered invalid by so much of ss 7 and 24 of the Constitution that requires the electors to have a free, fair and informed choice at an election. The question is answered by first asking whether s 135(3) imposes an effective burden on the exercise of a free and informed choice by the electors between candidates and then asking whether that burden is imposed for a substantial reason; ie, is the burden "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government"?[439]
2. The assessment of whether s 135(3) imposes an effective burden is to be undertaken from the perspective of the electors, not from the perspective of the candidate or political party. For that reason, the fact that the electors' choice is affected by a provision of the Electoral Act that is engaged as a consequence of the decisions of the candidate or political party is not determinative of whether there is or is not an effective burden. As explained by Gageler CJ and Jagot J,[440] by preventing the United Australia Party ("the UAP") from obtaining registration and thereby having its candidates listed as being affiliated with the UAP on ballot papers, s 135(3) imposes an effective burden on the making of an informed choice by the electors.
3. Is the burden imposed for a substantial reason? Given the numerous amendments to the Electoral Act since s 135(3) was introduced in 1983,[441] ascertaining the purpose of the provision is not assisted by a consideration of the extrinsic materials that accompanied the introduction of the provision. Instead, the "reason" or "purpose" for the provision is to be ascertained from the structure and text of the Electoral Act in its current form. As the reasons of Gageler CJ and Jagot J demonstrate,[442] that purpose is to encourage continued compliance by registered political parties (and associated entities) with the regime for filing annual returns contained within Div 5A of Pt XX of the Electoral Act.[443] Absent s 135(3), a registered political party with representatives in Parliament could avoid compliance with the disclosure regime between elections by deregistering and then reregistering just prior to the election to obtain the benefits of registration, including having its candidates' party affiliation listed on the ballot paper. Avoiding that form of "gaming" of the system of disclosure is a substantial reason. The burden imposed by s 135(3) is reasonably appropriate and adapted to serve an end which is compatible with the maintenance of the constitutionally prescribed system of representative government.
4. Accordingly, I joined in answering the first question stated in each special case "no".

1. The second question stated in each special case is whether s 135(3) of the Electoral Act is invalid, in whole or in part, on the ground that it impermissibly discriminates against candidates of a political party that has deregistered voluntarily or a Parliamentary party that has deregistered voluntarily.
2. The major premise of the plaintiffs' case is that "impermissible discrimination" is, of itself, a basis for invalidating a law relating to federal elections, electors and candidates. The minor premise of the plaintiffs' case is that s 135(3) provides for such impermissible discrimination. Neither premise should be accepted.
3. In relation to the major premise, provisions of the Constitution limit legislative power to enact relevantly discriminatory laws,[444] invalidate statutes that relevantly discriminate,[445] protect citizens from being relevantly discriminated against**[446]** and expressly empower the Parliament to enact laws to forbid forms of discrimination.[447] "Discrimination" has a developed meaning**[448]** and application in most of those contexts, including what constitutes a proscribed discriminatory criterion.[449]
4. However, as explained by Gageler CJ and Jagot J, the validity of a law that relates to federal elections, electors and candidates is not necessarily dependent on the absence of any discrimination between candidates or between electors. Instead, the differential treatment of candidates and electors or potential candidates and potential electors may inform, in some cases decisively, the application of the two limitations described above. For example, a law relating to federal elections, electors and candidates that excludes or burdens electors or candidates by reference to class, race, gender, sexual orientation or other arbitrary criteria would violate the first and, where applicable, the second of the above limitations.[450] A law relating to federal elections, electors and candidates that discriminates, or differentiates, between "political viewpoints" would require an especially compelling justification before it could avoid being invalidated by reason of the above limitations, especially if the law advantaged incumbents.[451]
5. The plaintiffs contended that s 135(3) impermissibly discriminates against candidates for election who are affiliated with and endorsed by a Parliamentary party that voluntarily deregisters when compared to new parties seeking to register for the first time or a party that is mandatorily deregistered by the Electoral Commission under s 137. However, s 135(3) only operates with respect to parties that choose to deregister and then seek to reregister within the same electoral cycle. As noted, it operates to prevent such parties from circumventing the disclosure requirements between one election and another. That is of particular significance to Parliamentary parties in that, absent s 135(3), the party, having secured Parliamentary representation via one of its candidates at the last election, could again seek Parliamentary representation at the next election without having made annual disclosures in the meantime. It is true, as the plaintiffs contended, that new political parties seeking registration need not make disclosure of financial information from prior years. Nonetheless, that was a legitimate choice open to Parliament to avoid imposing burdens on new parties. Those new parties will not be standing candidates with the benefit of incumbency and affiliation to an existing Parliamentary party.
6. Otherwise, s 137 provides for the mandatory deregistration by the Electoral Commission of political parties, for example, that have ceased to exist,[452] that are not Parliamentary parties and no longer have 1500 members,[453] or whose registration was obtained by fraud or misrepresentation.[454] Deregistration under s 137 does not occur through a decision made by the political party, although the party could create the circumstances that might warrant its own deregistration under that section. Even so, the timing of the deregistration would not be within the political party's control and its path to reregistration is by no means clear.[455] Thus, s 137 does not provide the mechanism for "gaming" the system of disclosure for registered political parties that would otherwise exist absent s 135(3).
7. Accordingly, I joined in answering the second question stated in each special case "no".

Question 3: the implied freedom of political communication

1. The third question stated in each special case is whether s 135(3) is invalid, in whole or in part, on the ground that it infringes the implied freedom of political communication.
2. The plaintiffs contended that s 135(3) effectively burdens the implied freedom because the inability of candidates endorsed by the UAP "to identify themselves on the ballot paper as UAP candidates imposes a practical burden upon their ability to communicate" that affiliation. This framing of the burden on the implied freedom as a basis to invalidate s 135(3) is precluded by the holding in Mulholland v Australian Electoral Commission to the effect that, whether or not a ballot paper is,[456] may be**[457]** or is not**[458]** a form of political communication, any restriction on its content does not burden the implied freedom because it does not burden any right or liberty of communication on political or government matters that exists independently of any entitlement to be included on the ballot paper.[459] Accordingly, the plaintiffs sought leave to reopen and overrule Mulholland and, to the extent necessary, so much of the holding in Ruddick v The Commonwealth[460] that applies this aspect of Mulholland. Three matters should be noted about the plaintiffs' application.
3. First, in Ruddick, Gordon, Edelman and Gleeson JJ applied this aspect of Mulholland.[461] Kiefel CJ and Keane J, and Gageler J doubted so much of Mulholland that restricts the scope of the implied freedom of political communication to burdens on rights or liberties of political communication that exist independently of the legislative regime imposing the burden.[462] The other member of the Court in Ruddick, Steward J, agreed with Gordon, Edelman and Gleeson JJ that the impugned provision enhanced "the quality of a free and informed election" and "for that reason" agreed with Gordon, Edelman and Gleeson JJ's reasons and answers to the questions stated.[463] That conclusion pertains to so much of the reasoning of Gordon, Edelman and Gleeson JJ that rejected the challenge in Ruddick that was based on ss 7 and 24 of the Constitution (Question 2) and, at its highest, so much of their Honours' rejection of the challenge based on the implied freedom that did not involve reliance on the principle derived from Mulholland[464] (Question 1). Steward J otherwise referred to his Honour's reasons in LibertyWorks Inc v The Commonwealth,[465] in which his Honour stated that he was "concerned about the [existence of the] implied freedom".[466] An expression of concern about the existence of the implied freedom is not an endorsement of the above principle derived from Mulholland.
4. In the discharge of their function, it is for the individual judge to ascertain the effect of this Court's earlier authorities. A statement by an individual judge about the effect of one of their earlier judgments has no greater weight than the statement of another judge as to its effect. It follows that it is not necessary to reopen and overrule Ruddick in order to reopen and overrule the above aspect of Mulholland.
5. Second, the fact that restrictions on the inclusion of a candidate's party affiliation on a ballot paper do not directly burden the implied freedom does not preclude a finding that such restrictions indirectly burden forms of political communication which exist independently of the legislation imposing the burden.[467] For example, while a donation to a political party is not a form of political communication, restrictions on such donations can burden political communication because they potentially restrict the funds available to parties and candidates to meet the cost of those communications.[468] In this context, prior to or during the period of an election, a candidate endorsed and supported by a political party may be practically impaired in promoting an important aspect of their candidacy, namely their party affiliation, if that affiliation will not appear on the ballot paper. Neither Mulholland nor Ruddick precludes the implied freedom from being engaged where such burdens are established. However, for the following reason it is not necessary to consider that further.
6. Third, I agree with Gageler CJ and Jagot J that the application for leave to reopen the relevant part of Mulholland should not be entertained in circumstances where reopening and overruling Mulholland would not be dispositive. This is so because, even if the restriction on the inclusion of party affiliation on a ballot paper occasioned by s 135(3) burdens the implied freedom of political communication, the analysis in relation to the first question stated in each special case would nevertheless yield the answer that the restriction is justified.
7. Accordingly, I joined in answering the third question stated in each special case "no".

1. As the plaintiffs failed in obtaining the answers they sought to the substantive questions in each special case, I considered that they should pay the defendant's costs.

[1] Section 4(1) (definition of "political party") of the Act.

[2] Commonwealth Electoral Legislation Amendment Act 1983 (Cth).

[3] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181; Day v Australian Electoral Officer (SA) (2016) 261 CLR 1; Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28; Ruddick v The Commonwealth (2022) 275 CLR 333.

[4] Section 125 of the Act.

[5] Section 133 of the Act.

[6] Section 126 of the Act.

[7] Section 124 of the Act.

[8] Section 123 (definition of "eligible political party") of the Act.

[9] Section 123 (definition of "Parliamentary party") of the Act.

[10] Section 133(1)(a) of the Act.

[11] Sections 166(1)(b)(ii) and 167(3) of the Act.

[12] Sections 168, 169, 210A, 214 and 214A of the Act.

[13] Section 287(1) (definition of "financial controller") of the Act.

[14] Section 314AB(2) of the Act.

[15] Sections 314AB(2)(a)(i) and 314AC of the Act, read with ss 287(1) (definition of "disclosure threshold") and 321A of the Act.

[16] Section 314AB(2)(a)(ii) of the Act.

[17] Sections 314AB(2)(a)(iii) and 314AE of the Act, read with ss 287(1) (definition of "disclosure threshold") and 321A of the Act.

[18] Section 4(1) (definition of "political entity") of the Act.

[19] Section 320 of the Act.

[20] Section 287N of the Act.

[21] Section 287Q of the Act.

[22] Section 287(1) (definition of "electoral expenditure") of the Act, read with s 287AB of the Act.

[23] Section 287(1) (definition of "significant third party") of the Act, read with ss 287F and 287L of the Act.

[24] Section 134(1A) of the Act.

[25] Section 134(1)(a) of the Act.

[26] Section 134(1)(b) of the Act.

[27] Section 42 of the Commonwealth Electoral Legislation Amendment Act 1983 (Cth).

[28] Australia, Senate, Parliamentary Debates (Hansard), 1 December 1983 at 3146-3148.

[29] Australia, Senate, Parliamentary Debates (Hansard), 2 December 1983 at 3224-3225.

[30] Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 300, quoted in Alexander v Minister for Home Affairs [2022] HCA 19; (2022) 276 CLR 336 at 378 [102] and Jones v The Commonwealth [2023] HCA 34; (2023) 97 ALJR 936 at 943 [19]; [2023] HCA 34; 415 ALR 46 at 51.

[31] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 232 [132].

[32] Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 463, 479. See also Comptroller-General of Customs v Zappia [2018] HCA 54; (2018) 265 CLR 416 at 422 [6]; Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39; (2021) 274 CLR 565 at 594 [86].

[33] cf Brown v Tasmania (2017) 261 CLR 328 at 393 [214].

[34] (2022) 275 CLR 333 at 347-348 [18]-[19], 350 [26], 388 [148], 398 [174].

[35] Roach v Electoral Commissioner (2007) 233 CLR 162 at 199 [85].

[36] [1997] HCA 25; (1997) 189 CLR 520.

[37] [2015] HCA 34; (2015) 257 CLR 178.

[38] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 193-194 [2], quoting Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 560.

[39] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 194 [2].

[40] [2015] HCA 34; (2015) 257 CLR 178 at 207 [45].

[41] Moore, The Constitution of the Commonwealth of Australia (1902) at 329.

[42] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 139-140; McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 202 [27]- [28], 226 [110], 258 [219], 283-284 [318]; Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 68 [87]; LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1 at 22 [44].

[43] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 68 [87].

[44] eg, Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 145; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 192 [19], 200 [40], 215-216 [82]-[83], 234 [147].

[45] (2022) 275 CLR 333 at 394 [161]-[162].

[46] (2022) 275 CLR 333 at 386 [140].

[47] [2016] FCA 1081; (2010) 243 CLR 1.

[48] [2016] HCA 36; (2016) 261 CLR 28 at 47-53 [26]- [39].

[49] [1997] HCA 25; (1997) 189 CLR 520.

[50] [1997] HCA 25; (1997) 189 CLR 520 at 562.

[51] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 213 [68], 215-216 [72]-[74], 216-217 [77]-[78], 235 [144], 282 [311]; Brown v Tasmania (2017) 261 CLR 328 at 369 [125], 370 [131], 376 [158]-[159], 417 [279]-[280], 464 [427], 476-477 [473]; Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 224 [158], 305 [390], 306 [392]; LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1 at 95 [247]; see also 46-47 [119]; Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 593 [172].

[52] [2004] HCA 41; (2004) 220 CLR 181 at 224 [110], 247 [186], 298 [337], 303-304 [354].

[53] (2022) 275 CLR 333 at 367 [77], 396-397 [172], 398 [174].

[54] Electoral Act, s 314AB.

[55] Electoral Act, s 287(1) definition of "Transparency Register" read with s 287N.

[56] Electoral Act, ss 287F(1) and 287N(2)(a)(i).

[57] Electoral Act, s 320(1), item 5.

[58] Electoral Act, s 320(1), item 4.

[59] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 112‑114 [260]-[264] and the authorities cited.

[60] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 557, quoting Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 at 178.

[61] See Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 70‑71; Australian Capital Television Pty Ltd v The Commonwealth ("ACTV") (1992) 177 CLR 106 at 137-138, 149, 168, 228-230; Lange [1997] HCA 25; (1997) 189 CLR 520 at 557-558; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 188 [6], 205-207 [61]-[65], 236‑237 [154]; Roach v Electoral Commissioner (2007) 233 CLR 162 at 174 [7], 186‑187 [44]-[45].

[62] See ACTV (1992) 177 CLR 106 at 184.

[63] ACTV (1992) 177 CLR 106 at 135, quoting The Commonwealth v Kreglinger & Fernau Ltd (1926) 37 CLR 393 at 413 (in relation to responsible government); Murphy [2016] HCA 36; (2016) 261 CLR 28 at 112 [260]. See also Lange [1997] HCA 25; (1997) 189 CLR 520 at 557-558.

[64] Lange [1997] HCA 25; (1997) 189 CLR 520 at 566-567, citing McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 168, 182-183, 231, 284-285; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 112 [260].

[65] Lange [1997] HCA 25; (1997) 189 CLR 520 at 567. See also Murphy [2016] HCA 36; (2016) 261 CLR 28 at 112 [260].

[66] Lange [1997] HCA 25; (1997) 189 CLR 520 at 557; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 112 [261].

[67] Constitution, ss 9, 10, 31, 51(xxxvi). See Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113 [261].

[68] cf Smith v Oldham [1912] HCA 61; (1912) 15 CLR 355 at 363.

[69] Rowe v Electoral Commissioner [2016] FCA 1081; (2010) 243 CLR 1 at 14 [8]; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113 [262].

[70] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 205-206 [61]- [62].

[71] Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113 [262].

[72] See, eg, Roach (2007) 233 CLR 162; Rowe [2016] FCA 1081; (2010) 243 CLR 1.

[73] McGinty [1996] HCA 48; (1996) 186 CLR 140 at 279; see also 285.

[74] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 237 [156]; Roach (2007) 233 CLR 162 at 197 [77]; Day v Australian Electoral Officer (SA) (2016) 261 CLR 1 at 12 [19]; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113 [262].

[75] Ruddick v The Commonwealth (2022) 275 CLR 333 at 390 [151], quoting ACTV (1992) 177 CLR 106 at 232; see also 228.

[76] Ruddick (2022) 275 CLR 333 at 390 [152].

[77] Ruddick (2022) 275 CLR 333 at 388-389 [148], quoting Roach (2007) 233 CLR 162 at 199 [85].

[78] See, eg, ss 8, 9, 29 and 30 of the Constitution. See also the discussion of s 9 in Day (2016) 261 CLR 1 at 20-22 [39]-[44]; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113 [263].

[79] Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113 [263].

[80] See, eg, Official Report of the National Australasian Convention Debates (Adelaide), 15 April 1897 at 672-675; Official Record of the Debates of the Australasian Federal Convention (Melbourne), 16 March 1898 at 2445-2446. See also McGinty [1996] HCA 48; (1996) 186 CLR 140 at 279-280; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113 [263].

[81] McGinty [1996] HCA 48; (1996) 186 CLR 140 at 184; Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302 at 343; Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 207 [64], 236-237 [154]; Rowe [2016] FCA 1081; (2010) 243 CLR 1 at 22 [29], 49-50 [125], 106 [325], 121 [386].

[82] Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113-114 [263]- [264].

[83] [1997] HCA 25; (1997) 189 CLR 520. See Ruddick (2022) 275 CLR 333 at 391 [154].

[84] See Lange [1997] HCA 25; (1997) 189 CLR 520 at 557-562, 567.

[85] Unions NSW v New South Wales (2013) 252 CLR 530 at 551 [27], 571 [104].

[86] Lange [1997] HCA 25; (1997) 189 CLR 520 at 567.

[87] See the test identified in Lange [1997] HCA 25; (1997) 189 CLR 520 at 561-562, 567-568, as modified and refined in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 50 [93], 51 [95]‑[96], McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 193-195 [2] and Brown v Tasmania (2017) 261 CLR 328 at 359 [88], 363-364 [104], 375-376 [156], 398 [236], 413 [271], 416-417 [277]-[278], 431-433 [316]-[325].

[88] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 622.

[89] Lange [1997] HCA 25; (1997) 189 CLR 520 at 561.

[90] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 223 [107]; see also 224 [108], 246 [184], 247 [186]-[187], 298 [337], 303-304 [354]. See also Levy [1997] HCA 31; (1997) 189 CLR 579 at 622; Ruddick (2022) 275 CLR 333 at 397 [172], 398 [174].

[91] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 224 [110], 247 [186]-[187], 298 [337], 303‑304 [354].

[92] Ruddick (2022) 275 CLR 333 at 394-395 [161]-[166]; see also 398 [174].

[93] Ruddick (2022) 275 CLR 333 at 396-397 [171]-[172]; see also 398 [174].

[94] Ruddick (2022) 275 CLR 333 at 398 [174].

[95] Electoral Act, s 124 read with s 123(1) definition of "eligible political party".

[96] Electoral Act, s 4(1) definition of "registered political party".

[97] Electoral Act, s 123(1) definitions of "eligible political party" and "Parliamentary party".

[98] Electoral Act, s 125(1).

[99] Electoral Act, s 138.

[100] Electoral Act, ss 125(1) and 133.

[101] Electoral Act, s 125(2).

[102] Electoral Act, s 126(2)(d).

[103] Electoral Act, s 133(2).

[104] Electoral Act, s 166(1)(b)(ii), cf s 166(1)(b)(i).

[105] Electoral Act, s 167(3).

[106] Electoral Act, ss 169(1), 210A, 214, 214A.

[107] Electoral Act, s 293.

[108] cf Electoral Act, s 293.

[109] See Electoral Act, s 287(1) definition of "disclosure threshold", which is defined to mean $13,800. The amount is indexed in accordance with s 321A.

[110] Electoral Act, ss 314AB and 314AC.

[111] Electoral Act, ss 287Q and 320(1), item 5.

[112] Electoral Act, s 320(1), item 5.

[113] Electoral Act, s 302D(1).

[114] Electoral Act, s 305B(1).

[115] Electoral Act, ss 287(1) definition of "significant third party", 287F, 314AB, 314AC.

[116] Electoral Act, ss 287(1) definition of "associated entity", 287H, 314AEA.

[117] Electoral Act, ss 287(1) definition of "third party", 287AB, 314AEB, 314AEC.

[118] Electoral Act, ss 314AB and 314AC.

[119] Electoral Act, s 287F(1) and (2).

[120] Electoral Act, s 287F(1)(a).

[121] Electoral Act, s 287F(1)(b).

[122] Electoral Act, s 287F(1)(c). See also s 287F(3) in relation to electoral expenditure by persons or entities that are required to be registered under s 287F(1) but are not so registered.

[123] Electoral Act, ss 287H and 314AEA.

[124] Defined to include, relevantly, a registered political party: Electoral Act, s 4(1) definition of "political entity".

[125] Electoral Act, s 287H(1)(a).

[126] Electoral Act, s 287H(1)(b).

[127] Electoral Act, s 287H(1)(c).

[128] Electoral Act, s 287H(1)(d).

[129] Electoral Act, s 287H(1)(e).

[130] Electoral Act, s 287H(1)(f).

[131] Electoral Act, s 287H(1)(g). See also s 287H(3) in relation to electoral expenditure by entities that are required to be registered under s 287H(1) but are not so registered.

[132] Electoral Act, s 287H(4) read with s 321B para (aa) of the definition of "disclosure entity".

[133] Electoral Act, s 287(1) definition of "third party".

[134] Electoral Act, s 314AEB.

[135] Electoral Act, s 314AEC.

[136] Electoral Act, s 135(1).

[137] cf Electoral Act, s 302E.

[138] Electoral Act, ss 136 and 137.

[139] Electoral Act, s 136(1).

[140] Electoral Act, s 136(3).

[141] Electoral Act, ss 135(3) and 136(2).

[142] By the Commonwealth Electoral Legislation Amendment Act 1983 (Cth).

[143] Now s 214 of the Electoral Act (then s 106C).

[144] Australia, Parliament, Joint Select Committee on Electoral Reform, First Report (September 1983) at 182 [12.1]; see also 159 [9.39].

[145] Australia, Parliament, Joint Select Committee on Electoral Reform, First Report (September 1983) at 182 [12.2].

[146] Australia, Parliament, Joint Select Committee on Electoral Reform, First Report (September 1983), Ch 12, especially at 182-183 [12.4], 189 [12.14].

[147] Australia, House of Representatives, Parliamentary Debates (Hansard), 2 November 1983 at 2215.

[148] Australia, House of Representatives, Parliamentary Debates (Hansard), 2 November 1983 at 2215.

[149] Political Broadcasts and Political Disclosures Act 1991 (Cth), s 22; Commonwealth Electoral Amendment Act 1992 (Cth), s 8; Commonwealth Electoral Amendment Act 1995 (Cth), s 3, Schedule, item 34; Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Cth), s 3, Sch 1, item 33.

[150] Ruddick (2022) 275 CLR 333 at 389 [149], 390 [152]. See also McGinty [1996] HCA 48; (1996) 186 CLR 140 at 283-284; Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 194-195 [26], 207 [65], 237-238 [156]-[157], 300 [344]; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 88 [182], 113-114 [263]-[264].

[151] Murphy [2016] HCA 36; (2016) 261 CLR 28 at 129 [328]; see also 54 [41]-[42], 87-88 [181]; Ruddick (2022) 275 CLR 333 at 378-379 [112]-[115], 382-383 [126]-[129], 394 [162].

[152] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 194-195 [26], 214 [80], 239-240 [162]-[163], 300 [344]; Ruddick (2022) 275 CLR 333 at 394-395 [161]-[166], 398 [174].

[153] See Ruddick (2022) 275 CLR 333 at 395 [165].

[154] Cameron and McAllister, Trends in Australian Political Opinion: Results from the Australian Election Study 1987-2022 (2022) at 20.

[155] See Ruddick (2022) 275 CLR 333 at 377 [109].

[156] See Ruddick (2022) 275 CLR 333 at 395 [166]. As to the purposes of s 135(3), see [109] below.

[157] [2004] HCA 41; (2004) 220 CLR 181 at 223 [105].

[158] [2004] HCA 41; (2004) 220 CLR 181 at 246 [184], 247 [186]-[187], 298 [337], 303-305 [354]-[356].

[159] O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 267; Vanderstock v Victoria [2023] HCA 30; (2023) 98 ALJR 208 at 316 [430]; 414 ALR 161 at 286-287.

[160] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 223 [105]- [107], 247 [186]-[187], 298 [337], 303 [354]; Ruddick (2022) 275 CLR 333 at 396-397 [171]-[172].

[161] Vanderstock [2023] HCA 30; (2023) 98 ALJR 208 at 315 [426]; 414 ALR 161 at 285, quoting Wurridjal v The Commonwealth (2009) 237 CLR 309 at 352 [70]. See also NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005 at 1011 [17]; 415 ALR 254 at 259.

[162] Attorney-General (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 at 243‑244, quoted in John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438.

[163] John (1989) 166 CLR 417 at 438-439.

[164] (1992) 177 CLR 106. See Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 224-225 [111], 247‑248 [188]-[190], 306 [361].

[165] [2004] HCA 41; (2004) 220 CLR 181 at 223 [105]; see also 247 [186]-[187], 298 [337], 303 [354].

[166] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 219-221 [94]- [98], cf 304-305 [355].

[167] (2022) 275 CLR 333 at 397 [172], 398 [174].

[168] [1999] HCA 31; (1999) 73 ALJR 1086 at 1090 [28]; [1999] HCA 31; 163 ALR 734 at 740-741, citing Lange [1997] HCA 25; (1997) 189 CLR 520.

[170] ACTV (1992) 177 CLR 106 at 150; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 149; see also 162, 168; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 326-327; Lange [1997] HCA 25; (1997) 189 CLR 520 at 560; Levy [1997] HCA 31; (1997) 189 CLR 579 at 625-626; Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at 73-74 [166]; McCloy [2015] HCA 34; (2015) 257 CLR 178 at 202-203 [30]; Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 at 395 [20].

[171] Levy [1997] HCA 31; (1997) 189 CLR 579 at 622.

[172] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 246 [183].

[173] Brown (2017) 261 CLR 328 at 367 [118], 369 [128], 378-379 [164]-[165], 389‑390 [200]-[201], 460 [411], 477-478 [478]; Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 299-300 [369].

[174] Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 549-550 [20], 576 [114], 602-603 [208] and the authorities cited. See also Attorney‑General for NSW v Brewery Employés Union of NSW [1908] HCA 94; (1908) 6 CLR 469 at 590, cited in Clubb [2019] HCA 11; (2019) 267 CLR 171 at 192 [35].

[175] See Clubb [2019] HCA 11; (2019) 267 CLR 171 at 289 [336].

[176] See Clubb [2019] HCA 11; (2019) 267 CLR 171 at 192 [35]; see also 216 [135], citing Liverpool, New York & Philadelphia Steamship Co v Commissioners of Emigration [1885] USSC 11; (1885) 113 US 33 at 39, quoted in United States v Raines [1936] USSC 36; (1960) 362 US 17 at 21 and Washington State Grange v Washington State Republican Party (2008) 552 US 442 at 450.

[177] Comptroller-General of Customs v Zappia [2018] HCA 54; (2018) 265 CLR 416 at 422 [6].

[178] The UAP is a "Parliamentary party" by reason of Senator Babet's membership: Electoral Act, s 123(1) definition of "Parliamentary party".

[179] Electoral Act, s 136(3).

[180] Electoral Act, ss 287AB and 314AEB. "Electoral expenditure" is defined to mean expenditure incurred for the dominant purpose of creating or communicating electoral matter, subject to certain exceptions: Electoral Act, s 287(1) read with s 287AB. See also Electoral Act, s 4AA(1).

[181] cf Electoral Act, s 314AB(1).

[182] Electoral Act, s 314AEC.

[183] Electoral Act, s 314AB.

[184] Electoral Act, ss 287(1) definition of "significant third party" and 287F(1).

[185] Electoral Act, s 287F(1).

[186] Electoral Act, s 287H(4) read with s 321B para (aa) of the definition of "disclosure entity".

[187] Electoral Act, s 287H(1)(g).

[188] Electoral Act, s 305B.

[189] Lange [1997] HCA 25; (1997) 189 CLR 520 at 561-562, 567; McCloy [2015] HCA 34; (2015) 257 CLR 178 at 203 [31].

[190] See Clubb [2019] HCA 11; (2019) 267 CLR 171 at 197 [55], 213-214 [123], 301 [375].

[191] See [94]-[95], [109]-[110] above.

[192] Farm Transparency (2022) 277 CLR 537 at 595-596 [182].

[193] ACTV (1992) 177 CLR 106 at 135, quoted in McGinty [1996] HCA 48; (1996) 186 CLR 140 at 169.

[194] ACTV (1992) 177 CLR 106 at 134; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 at 453 [389]; McCloy [2015] HCA 34; (2015) 257 CLR 178 at 283 [318].

[197] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 215 [82].

[200] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 214 [81].

[201] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 217 [86].

[202] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 217 [86].

[203] [2004] HCA 41; (2004) 220 CLR 181 at 234 [147].

[204] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 297 [333].

[205] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 296 [329]- [330], 297 [333].

[206] [2015] HCA 34; (2015) 257 CLR 178 at 207 [45].

[208] Grice, Studies in the Way of Words (1991) at 24.

[209] Grice, Studies in the Way of Words (1991) at 24-25.

[210] Grice, Studies in the Way of Words (1991) at 24.

[211] Sperber and Wilson, Relevance: Communication and Cognition, 2nd ed (1995) at 182. See also Carston, Thoughts and Utterances: The Pragmatics of Explicit Communication (2002) at 116-118.

[212] See Commonwealth Electoral Act 1918 (Cth), s 314AB(1) and Acts Interpretation Act 1901 (Cth), s 36(2).

[213] See Commonwealth Electoral Act 1918 (Cth), s 305B(1) and Acts Interpretation Act 1901 (Cth), s 36(2).

[214] Commonwealth Electoral Act 1918 (Cth), ss 314AB, 314AC, 314AE.

[215] See Commonwealth Electoral Act 1918 (Cth), s 135(1).

[216] Commonwealth Electoral Act 1918 (Cth), s 314AB(1).

[217] Commonwealth Electoral Act 1918 (Cth), s 305B(1).

[218] See Commonwealth Electoral Act 1918 (Cth), s 126.

[219] Commonwealth Electoral Act 1918 (Cth), s 125.

[220] Commonwealth Electoral Act 1918 (Cth), s 123(1) (definition of "Parliamentary party").

[221] See Commonwealth Electoral Act 1918 (Cth), ss 166(1)(b)(ii), 167(3).

[222] Commonwealth Electoral Act 1918 (Cth), ss 133(1)(a)(iv), 293.

[223] Commonwealth Electoral Act 1918 (Cth), ss 168, 169, 214, 214A.

[224] Commonwealth Electoral Act 1918 (Cth), s 136(1)(aa).

[225] Commonwealth Electoral Act 1918 (Cth), s 136(1)(a).

[226] Commonwealth Electoral Act 1918 (Cth), s 137(1)(a).

[227] Commonwealth Electoral Act 1918 (Cth), s 137(1)(b).

[228] Commonwealth Electoral Act 1918 (Cth), s 137(1).

[229] Commonwealth Electoral Act 1918 (Cth), s 137(4)-(6).

[230] Australia, Senate, Parliamentary Debates (Hansard), 1 December 1983 at 3146.

[231] Australia, Senate, Parliamentary Debates (Hansard), 2 December 1983 at 3224-3225. See also Australia, Senate, Parliamentary Debates (Hansard), 1 December 1983 at 3146-3147.

[232] Commonwealth Electoral Legislation Amendment Act 1983 (Cth), ss 42, 113.

[233] Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s 42, inserting Pt IXA into the Commonwealth Electoral Act 1918 (Cth). Part IXA was renumbered Pt XI by the Commonwealth Electoral Legislation Amendment Act 1984 (Cth).

[234] Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s 42, inserting s 58N into the Commonwealth Electoral Act 1918 (Cth). Section 58N was renumbered s 135 by the Commonwealth Electoral Legislation Amendment Act 1984 (Cth).

[235] Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s 113, inserting Pt XVI into the Commonwealth Electoral Act 1918 (Cth). Part XVI was renumbered Pt XX by the Commonwealth Electoral Legislation Amendment Act 1984 (Cth).

[236] Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s 113, inserting s 153J(5)-(7) into the Commonwealth Electoral Act 1918 (Cth). Section 153J was renumbered s 304 by the Commonwealth Electoral Legislation Amendment Act 1984 (Cth).

[237] Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s 113, inserting s 153J(1) into the Commonwealth Electoral Act 1918 (Cth).

[238] See Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s 3(c), amending s 5 of the Commonwealth Electoral Act 1918 (Cth) (definitions of "political party" and "registered political party"). Section 5 was renumbered s 4 by the Commonwealth Electoral Legislation Amendment Act 1984 (Cth).

[239] Political Broadcasts and Political Disclosures Act 1991 (Cth), s 14.

[240] Political Broadcasts and Political Disclosures Act 1991 (Cth), s 22, inserting s 314AA into the Commonwealth Electoral Act 1918 (Cth).

[241] Commonwealth Electoral Legislation Amendment Act 1983 (Cth), s 113, inserting s 153K into the Commonwealth Electoral Act 1918 (Cth). Section 153K was renumbered s 305 by the Commonwealth Electoral Legislation Amendment Act 1984 (Cth).

[242] Commonwealth Electoral Amendment Act 1995 (Cth), s 3, Schedule, item 34, inserting s 314AEA into the Commonwealth Electoral Act 1918 (Cth). See also Commonwealth Electoral Amendment Act 1995 (Cth), s 3, Schedule, item 1, inserting the definition of "associated entity" into s 287(1) of the Commonwealth Electoral Act 1918 (Cth).

[243] Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), s 3, Sch 1, item 84, inserting ss 314AEB and 314AEC into the Commonwealth Electoral Act 1918 (Cth).

[244] Commonwealth Electoral Act 1918 (Cth), ss 287(1) (definitions of "associated entity" and "third party"), 314AEA, 314AEB, 314AEC.

[245] Commonwealth Electoral Act 1918 (Cth), ss 287(1) (definition of "significant third party"), 314AB.

[246] Commonwealth Electoral Act 1918 (Cth), s 287H(1)(g).

[247] Commonwealth Electoral Act 1918 (Cth), s 287H(1)(g).

[248] Commonwealth Electoral Act 1918 (Cth), ss 287N, 287Q, 320.

[249] Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 68-69. See also Ruddick v The Commonwealth (2022) 275 CLR 333 at 390-391 [152], citing Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380 at 383.

[250] Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 59.

[251] [2016] HCA 36; (2016) 261 CLR 28 at 94 [205].

[252] See Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 58 [54], 71 [96], 112-113 [260]-[262]; Ruddick v The Commonwealth (2022) 275 CLR 333 at 388-389 [147]-[149].

[253] [1996] HCA 48; (1996) 186 CLR 140 at 168-170.

[254] Victoria v The Commonwealth [1971] HCA 16; (1971) 122 CLR 353 at 401-402.

[255] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 170.

[257] (2007) 233 CLR 162 at 174 [7], 198-199 [83].

[258] Rowe v Electoral Commissioner [2016] FCA 1081; (2010) 243 CLR 1 at 21 [25], 61 [167], 120-121 [384]; Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 106-107 [244], 121 [291], 124 [306], 128 [324].

[259] (1992) 177 CLR 106 at 230-231.

[260] (2022) 275 CLR 333 at 390 [151], 398 [174]. See also Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 211 [73], 237 [156].

[263] See Rowe v Electoral Commissioner [2016] FCA 1081; (2010) 243 CLR 1 at 20 [24], 58-59 [157]-[161], 118 [372]-[374]; Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 51 [34], 60-61 [61]-[63], 67-68 [85]-[87], 107 [244], 121-122 [293]; Ruddick v The Commonwealth (2022) 275 CLR 333 at 348 [18]-[19].

[264] Roach v Electoral Commissioner (2007) 233 CLR 162 at 199 [85]. See also Ruddick v The Commonwealth (2022) 275 CLR 333 at 388-389 [148], 398 [174].

[265] Roach v Electoral Commissioner (2007) 233 CLR 162 at 200 [88].

[266] [1997] HCA 25; (1997) 189 CLR 520.

[267] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 557.

[268] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 566.

[269] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567.

[270] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567.

[271] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567.

[272] Zurich Insurance Co Ltd v Koper [2023] HCA 25; (2023) 277 CLR 164 at 175 [26]- [28], referring to McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 168-169 (quoting Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 135), Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 566-567, and Gerner v Victoria [2020] HCA 48; (2020) 270 CLR 412 at 422 [14].

[273] See also Gerner v Victoria [2020] HCA 48; (2020) 270 CLR 412 at 422 [14].

[274] See Zurich Insurance Co Ltd v Koper [2023] HCA 25; (2023) 277 CLR 164 at 180-181 [45].

[275] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 562.

[276] [1997] HCA 25; (1997) 189 CLR 520 at 560.

[277] APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 at 451 [381]; Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at 73 [166], 89 [220]; Unions NSW v New South Wales ("Unions No 1") (2013) 252 CLR 530 at 551 [30], 554 [36], 574 [119]; Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508 at 569 [104], 593-594 [198]; McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 202-203 [30]; Brown v Tasmania (2017) 261 CLR 328 at 360 [90], 374 [150], 398 [237], 407 [258], 410 [262], 430 [313], 466 [433], 475 [465], 476 [469], 503 [559]; Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 at 395 [20]; Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 587 [152], 607 [223].

[278] Ruddick v The Commonwealth (2022) 275 CLR 333 at 389 [149], referring to Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 113-114 [263]- [264] (citing Official Report of the National Australasian Convention Debates (Adelaide), 15 April 1897 at 672-675 and Official Record of the Debates of the Australasian Federal Convention (Melbourne), 16 March 1898 at 2445-2446), McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 183-184, 279-280, Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 188 [6], 207 [64], 236-237 [154], and Rowe v Electoral Commissioner [2016] FCA 1081; (2010) 243 CLR 1 at 22 [29], 49-50 [125], 121 [386].

[279] [2016] HCA 36; (2016) 261 CLR 28.

[280] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 54-55 [41]- [42].

[281] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 88 [181].

[282] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 125 [308].

[283] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 54 [41].

[284] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 60 [60].

[285] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 67 [84].

[286] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 107 [244].

[288] Ruddick v The Commonwealth (2022) 275 CLR 333 at 394 [162].

[289] Ruddick v The Commonwealth (2022) 275 CLR 333 at 398 [174].

[290] Ruddick v The Commonwealth (2022) 275 CLR 333 at 378-379 [112]-[115], 382-383 [126]-[129], 394 [162].

[291] Ruddick v The Commonwealth (2022) 275 CLR 333 at 349 [21].

[292] Ruddick v The Commonwealth (2022) 275 CLR 333 at 370 [85].

[293] Brown v Tasmania (2017) 261 CLR 328 at 506 [563], referring to Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 565.

[294] Brown v Tasmania (2017) 261 CLR 328 at 506 [563].

[295] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 625-626.

[296] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181.

[297] Compare the potentially different characterisations in Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 223-224 [105]- [110], 247 [186]-[187], 298 [337], 303-304 [354].

[298] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 625-626; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 223-224 [105]- [108], 246 [184], 298 [337], 303-304 [354]; Brown v Tasmania (2017) 261 CLR 328 at 401 [243], 408-409 [259], 409 [261], 456 [397], 502-506 [557]-[563]; Unions NSW v New South Wales ("Unions No 2") [2019] HCA 1; (2019) 264 CLR 595 at 654-655 [163]; Ruddick v The Commonwealth (2022) 275 CLR 333 at 391-392 [155]-[156], 398 [174].

[299] Brown v Tasmania (2017) 261 CLR 328 at 505 [561].

[300] See Brown v Tasmania (2017) 261 CLR 328 at 504-506 [561]-[563].

[301] (2007) 233 CLR 162 at 199-200 [85]-[86].

[302] Ruddick v The Commonwealth (2022) 275 CLR 333 at 348 [19]; CZA19 v The Commonwealth [2025] HCA 8 at [106].

[303] Rowe v Electoral Commissioner [2016] FCA 1081; (2010) 243 CLR 1 at 140 [458]- [460].

[304] Kiefel, "Proportionality: A rule of reason" (2012) 23 Public Law Review 85 at 93.

[305] Wotton v Queensland (2012) 246 CLR 1 at 32 [83].

[306] Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92 at 213-214 [344]- [347].

[307] Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508 at 571 [113].

[308] [1997] HCA 25; (1997) 189 CLR 520 at 568.

[310] [2015] HCA 34; (2015) 257 CLR 178.

[311] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 194-195 [2].

[312] Brown v Tasmania (2017) 261 CLR 328 at 363-364 [104], 398 [236], 413 [271], 416-417 [277]-[278], 432-433 [319]-[325], 478 [481].

[313] Unions No 2 [2019] HCA 1; (2019) 264 CLR 595 at 615 [42], 638 [110], 653-656 [161]-[167].

[314] Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 186 [5]- [6], 264-265 [266], 330-331 [462]-[463].

[315] Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 at 398-399 [29], 400 [32], 451 [188].

[316] Spence v Queensland [2019] HCA 15; (2019) 268 CLR 355 at 416-417 [92]- [97], 498-500 [321]-[326].

[317] LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1 at 22-23 [45]- [46], 53 [134], 77-79 [199]-[202].

[318] Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 552 [29], 616 [250], 623 [269], 624 [271].

[319] Unions NSW v New South Wales ("Unions No 3") [2023] HCA 4; (2023) 277 CLR 627 at 644 [30], 655-656 [71]-[72], 662-663 [94].

[320] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 215 [72].

[321] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 215-216 [74].

[322] Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 186 [4], citing Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[323] LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1 at 31-32 [76], citing McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 217 [80] and Brown v Tasmania (2017) 261 CLR 328 at 370 [133].

[324] Stellios, Zines and Stellios's The High Court and the Constitution, 7th ed (2022) at 647 (emphasis in original). See also Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 72 [101].

[326] See Garlett v Western Australia (2022) 277 CLR 1 at 87 [240], citing Blackshield, "Ratio decidendi", in Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia (2001) 579 at 579, Montrose, "The Ratio Decidendi of a Case" (1957) 20 Modern Law Review 587 at 591, and Lücke, "Ratio Decidendi: Adjudicative Rationale and Source of Law" [1989] BondLawRw 2; (1989) 1 Bond Law Review 36 at 44.

[327] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 180-186; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 193-194. See also Langer v The Commonwealth [1996] HCA 43; (1996) 186 CLR 302 at 324.

[328] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 234-235.

[329] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 291.

[330] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 330-339 [337]-[348].

[331] Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92 at 181-184 [243]- [251].

[332] LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1 at 95 [249], 111-114 [298]-[304]. See also Ruddick v The Commonwealth (2022) 275 CLR 333 at 398 [174]; Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 623 [270].

[333] Compare Vunilagi v The Queen (2023) 279 CLR 259 at 311 [162]-[164].

[334] [1999] HCA 67; (1999) 201 CLR 49 at 70 [54]. See also at 71 [55].

[335] [1976] HCA 63; (1976) 135 CLR 674 at 689.

[336] Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 52 [37]; Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 331-332 [464]- [466]. See also Carter, "Moving Beyond the Common Law Objection to Structured Proportionality" (2021) 49 Federal Law Review 73 at 94.

[337] Unions No 2 [2019] HCA 1; (2019) 264 CLR 595 at 608 [19], 613 [35]-[38]. Compare Unions No 3 [2023] HCA 4; (2023) 277 CLR 627 at 655-656 [71].

[338] See McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 195 [2].

[339] Compare Unions No 1 (2013) 252 CLR 530 at 560 [60].

[340] [2019] HCA 11; (2019) 267 CLR 171 at 335 [472], citing Alexy, "Constitutional Rights and Proportionality" (2014) 22 Revus 51 at 53.

[341] [2019] HCA 11; (2019) 267 CLR 171 at 341-344 [491]- [498].

[342] Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 341 [491], quoting King, Judging Social Rights (2012) at 1.

[343] Compare Brown v Tasmania (2017) 261 CLR 328 at 398 [236], 417 [280], 422-425 [290]-[295]. See also Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 143.

[344] [1997] HCA 25; (1997) 189 CLR 520 at 568.

[345] Brown v Tasmania (2017) 261 CLR 328 at 371-372 [139]. See also Unions No 1 (2013) 252 CLR 530 at 556 [44]; McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 195 [2].

[346] Palmer v Western Australia [2021] HCA 5; (2021) 272 CLR 505 at 598 [267].

[347] LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1 at 78 [202].

[348] McCulloch v Maryland [1819] USSC 5; (1819) 17 US 316 at 421 ("all means which are appropriate, which are plainly adapted to that end").

[349] See Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 329-330 [461].

[350] Compare Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 48 [87], 78 [196], 82 [212].

[351] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 199-200 [39]- [40]; Roach v Electoral Commissioner (2007) 233 CLR 162 at 199 [85].

[352] See The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Co Pty Ltd [1910] HCA 28; (1910) 10 CLR 457 at 469; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 199-200 [39].

[353] Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 617 [253].

[354] See, eg, Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92 at 214 [347]; Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508 at 550 [36]; McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 211 [58], 217 [81], 270 [258], 285-286 [328]; Brown v Tasmania (2017) 261 CLR 328 at 371-372 [139], 418-419 [282]; Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 at 186 [6], 262 [263], 269-270 [277], 337-338 [478]-[480]; Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 at 401 [35], 452-453 [194]; Palmer v Western Australia [2021] HCA 5; (2021) 272 CLR 505 at 600 [271]; LibertyWorks Inc v The Commonwealth [2021] HCA 18; (2021) 274 CLR 1 at 32 [78], 78-79 [202]; Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 617 [253].

[355] [1997] HCA 25; (1997) 189 CLR 520 at 568.

[356] (1992) 177 CLR 106. See also Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 30-31, 34, 77, 95.

[357] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 227.

[358] Compare Constitution, s 44.

[359] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 217 [86].

[360] Ruddick v The Commonwealth (2022) 275 CLR 333 at 394 [162].

[361] Compare Commonwealth Electoral Act, s 287H(1)(g).

[362] Ruddick v The Commonwealth (2022) 275 CLR 333 at 389 [149].

[363] [2004] HCA 41; (2004) 220 CLR 181 at 224 [110], 247 [186], 249 [192], 298 [337], 303-304 [354].

[364] Ruddick v The Commonwealth (2022) 275 CLR 333 at 396-397 [171]-[172].

[365] Ruddick v The Commonwealth (2022) 275 CLR 333 at 398 [174].

[366] [2021] HCA 18; (2021) 274 CLR 1. In the present matter, like in LibertyWorks, no party sought to challenge the existence of the implied freedom of political communication: at 95 [249], 113-114 [304].

[367] [2004] HCA 41; (2004) 220 CLR 181.

[368] (2022) 275 CLR 333 at 398 [174].

[369] (2022) 275 CLR 333 at 397 [172] (footnotes omitted).

[371] [2021] HCA 18; (2021) 274 CLR 1 at 23 [48] (footnotes omitted).

[372] See the reasons of Edelman J at [175].

[373] Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 493-494 per Dawson J.

[374] Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585 at 599-600 per Gibbs J.

[375] Commonwealth Electoral Act 1918 (Cth), ss 168, 169, 210A.

[376] Commonwealth Electoral Act 1918 (Cth), ss 214 and 214A.

[377] Roach v Electoral Commissioner (2007) 233 CLR 162 ("Roach") at 174 [7]; Ruddick v The Commonwealth (2022) 275 CLR 333 ("Ruddick") at 347-348 [18], 390 [151].

[378] (2022) 275 CLR 333 at 347-348 [18] (footnotes omitted).

[379] Roach (2007) 233 CLR 162 at 199 [86].

[380] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 ("Lange") at 559; Roach (2007) 233 CLR 162 at 198 [81]; Ruddick (2022) 275 CLR 333 at 388-389 [148].

[381] cf Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 ("Mulholland") at 196 [29]; see also Lubin v Panish [1974] USSC 61; (1974) 415 US 709 at 716.

[382] Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508 at 578 [145].

[383] cf Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 196 [29].

[384] [2004] HCA 41; (2004) 220 CLR 181 at 224 [110], 247 [186], 298 [337], 303-304 [354].

[385] (2022) 275 CLR 333 at 397 [172].

[386] cf Williams v Rhodes [1968] USSC 196; (1968) 393 US 23 at 31.

[387] Ruddick (2022) 275 CLR 333 at 388-389 [148].

[388] Lange [1997] HCA 25; (1997) 189 CLR 520 at 562; Roach (2007) 233 CLR 162 at 199 [85].

[389] Lange [1997] HCA 25; (1997) 189 CLR 520 at 567; Roach (2007) 233 CLR 162 at 199 [85]. See also Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 ("Murphy") at 52-53 [36]-[38].

[390] Stone, "The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication" [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668 at 686, 702.

[391] [2015] HCA 34; (2015) 257 CLR 178.

[392] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 ("McCloy") at 194-195 [2].

[393] [2016] HCA 36; (2016) 261 CLR 28.

[394] Murphy [2016] HCA 36; (2016) 261 CLR 28 at 61-62 [64]- [65].

[395] Murphy [2016] HCA 36; (2016) 261 CLR 28 at 53 [38].

[396] Murphy [2016] HCA 36; (2016) 261 CLR 28 at 53 [39].

[397] Murphy [2016] HCA 36; (2016) 261 CLR 28 at 53 [39].

[398] McCloy [2015] HCA 34; (2015) 257 CLR 178 at 209-221 [54]- [93].

[399] McCloy [2015] HCA 34; (2015) 257 CLR 178 at 239 [155], 248 [184], 249 [189], 250 [191].

[400] McCloy [2015] HCA 34; (2015) 257 CLR 178 at 282 [311], 285 [325], 286-290 [330]-[345].

[401] (2017) 261 CLR 328 ("Brown").

[402] Brown (2017) 261 CLR 328 at 371 [134]-[136], 373 [145].

[403] Brown (2017) 261 CLR 328 at 418-425 [281]-[295].

[404] See, eg, Brown (2017) 261 CLR 328 at 394 [218].

[405] [2019] HCA 1; (2019) 264 CLR 595 ("Unions No 2").

[406] Unions No 2 [2019] HCA 1; (2019) 264 CLR 595 at 653 [160], 674 [222].

[407] Unions No 2 [2019] HCA 1; (2019) 264 CLR 595 at 618 [53], 633-634 [101]-[102], 641 [118], 650-651 [152]-[153].

[408] See [50] and [53] of their Honours' reasons.

[409] Wesson, "The Reception of Structured Proportionality in Australian Constitutional Law" (2021) 49 Federal Law Review 352 at 370, 376.

[410] Combet v The Commonwealth (2005) 224 CLR 494 at 525-526 [12], 532 [36], 554 [92], 556 [95], 609 [271]; FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 at 761 [18]; [2014] HCA 26; 310 ALR 1 at 9; R v Beckett [2015] HCA 38; (2015) 256 CLR 305 at 320 [45].

[411] (2007) 233 CLR 162 at 182 [24], 200-201 [90].

[412] (2017) 261 CLR 328 at 371 [135]-[136], 468 [440].

[413] McCloy [2015] HCA 34; (2015) 257 CLR 178 at 195 [2].

[414] Lange [1997] HCA 25; (1997) 189 CLR 520 at 568. See also Stone, "Proportionality and Its Alternatives" (2020) 48 Federal Law Review 123 at 135.

[415] Ruddick (2022) 275 CLR 333 at 389 [149]. See also Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 237 [156], approved in Roach (2007) 233 CLR 162 at 197 [77].

[416] McCloy [2015] HCA 34; (2015) 257 CLR 178 at 195 [2].

[417] See reasons of Gageler CJ and Jagot J at [8].

[418] See Constitution, ss 7, 8, 9, 16, 24, 30, 34, 51(xxxix), 122.

[419] See Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 237 [155]; Roach v Electoral Commissioner (2007) 233 CLR 162 at 197-198 [77]-[78]; Rowe v Electoral Commissioner [2016] FCA 1081; (2010) 243 CLR 1 at 106 [325], 130 [420]; Murphy v Electoral Commissioner [2016] HCA 36; (2016) 261 CLR 28 at 113-114 [263].

[420] See Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 254 [212]; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113-114 [263]- [264].

[421] See Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 23-24; Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 188-189 [6]- [9]; Rowe [2016] FCA 1081; (2010) 243 CLR 1 at 117 [366].

[422] See McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 283-284; Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 190-191 [14], 194-195 [26], 207 [65], 237-238 [156]-[157], 300 [344]; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 88 [182], 113-114 [263]-[264]; Ruddick v The Commonwealth (2022) 275 CLR 333 at 389 [149], 390 [152].

[423] McGinty [1996] HCA 48; (1996) 186 CLR 140 at 170; Rowe [2016] FCA 1081; (2010) 243 CLR 1 at 14 [8]; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113 [262].

[424] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 237 [156].

[425] See, eg, Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380 at 385; McGinty [1996] HCA 48; (1996) 186 CLR 140 at 184, 220; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 113-114 [263].

[426] McGinty [1996] HCA 48; (1996) 186 CLR 140 at 286-287; Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 261 [232]; Roach (2007) 233 CLR 162 at 173-174 [6]-[7]; Ruddick (2022) 275 CLR 333 at 389 [148].

[427] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 194 [26], 256 [218].

[428] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 236 [153].

[429] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 239 [160].

[430] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 230-232; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 560; Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 211 [73]; Ruddick (2022) 275 CLR 333 at 348 [18], 390 [151].

[431] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 261 [232]; cf McGinty [1996] HCA 48; (1996) 186 CLR 140 at 244, 283.

[432] McGinty [1996] HCA 48; (1996) 186 CLR 140 at 220; Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 237 [156].

[433] McGinty [1996] HCA 48; (1996) 186 CLR 140 at 170; Roach (2007) 233 CLR 162 at 173 [5]-[6]; Rowe [2016] FCA 1081; (2010) 243 CLR 1 at 116-117 [366]; Murphy [2016] HCA 36; (2016) 261 CLR 28 at 48-52 [28]- [35].

[434] Lange [1997] HCA 25; (1997) 189 CLR 520 at 560.

[435] Lange [1997] HCA 25; (1997) 189 CLR 520 at 558.

[436] See Constitution, ss 6, 49, 62, 64, 83.

[437] Lange [1997] HCA 25; (1997) 189 CLR 520 at 561.

[438] See reasons of Gageler CJ and Jagot J at [49].

[439] Roach (2007) 233 CLR 162 at 199 [85]; Ruddick (2022) 275 CLR 333 at 388-389 [148].

[440] See reasons of Gageler CJ and Jagot J at [44].

[441] See Political Broadcasts and Political Disclosures Act 1991 (Cth), s 22; Commonwealth Electoral Amendment Act 1992 (Cth), s 8; Commonwealth Electoral Amendment Act 1995 (Cth), s 3, Schedule, item 34; Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Cth), s 3, Sch 1, item 33.

[442] See also reasons of Gordon J at [109].

[443] See reasons of Gageler CJ and Jagot J at [33].

[444] Constitution, s 51(ii).

[445] Constitution, s 92. See also the use of the term "preference" in s 99 of the Constitution.

[446] Constitution, s 117; Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 485, 489, 508, 523, 544, 551, 566-567, 582.

[447] Constitution, s 102.

[448] Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 480.

[449] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 392-400; Street [1989] HCA 53; (1989) 168 CLR 461 at 487-489, 505-512, 528-529, 554-555, 572, 581-583.

[450] Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 261 [232]; Rowe [2016] FCA 1081; (2010) 243 CLR 1 at 116-117 [366]; Ruddick (2022) 275 CLR 333 at 388-389 [148].

[451] Ruddick (2022) 275 CLR 333 at 369-370 [83].

[452] Commonwealth Electoral Act 1918 (Cth) ("Electoral Act"), s 137(1)(a).

[453] Electoral Act, s 137(1)(b).

[454] Electoral Act, s 137(1)(c).

[455] Electoral Act, ss 123, 124, 126, 129, 132, 133.

[456] [2004] HCA 41; (2004) 220 CLR 181 at 219 [94].

[457] [2004] HCA 41; (2004) 220 CLR 181 at 247 [186].

[458] [2004] HCA 41; (2004) 220 CLR 181 at 304 [355].

[459] [2004] HCA 41; (2004) 220 CLR 181 at 224 [110], 247 [186]-[187], 298 [337], 303-304 [354].

[461] Ruddick (2022) 275 CLR 333 at 397-398 [171]-[172].

[462] Ruddick (2022) 275 CLR 333 at 349 [22], 367 [76].

[463] Ruddick (2022) 275 CLR 333 at 398 [174].

[464] See Ruddick (2022) 275 CLR 333 at 394-396 [161]-[170], cf 396-397 [171]-[172].

[465] [2021] HCA 18; (2021) 274 CLR 1 at 111-114 [298]- [304].

[466] [2021] HCA 18; (2021) 274 CLR 1 at 113 [303].

[467] Ruddick (2022) 275 CLR 333 at 367-368 [78].

[468] Unions NSW v New South Wales [2019] HCA 1; (2019) 264 CLR 595 at 607-608 [15]; Unions NSW v New South Wales [2023] HCA 4; (2023) 277 CLR 627 at 635 [7], 644-645 [30]-[34].