Mulholland v Australian Electoral Commission

Mulholland v Australian Electoral Commission - [2002] FCA 1255 - FCA 2002 case summary — Zoe

[90]

41 At 559 in Lange, the High Court (in a unanimous judgment of all seven justices) dealt with the ambit of the freedom of communication on matters of government and politics implied in the text of the Constitution. Their Honours described the freedom in the following way: "Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be "directly chosen by the people" of the Commonwealth and the States, respectively.…" 42 At 560 the Court said that: "…legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election. That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power." 43 At 561-562 their Honours said that: "However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government… . The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end." (emphasis added) 44 At 566-567, the Court noted, "since McGinty it has been clear, if it was not clear before, that the Constitution gives effect to the institution of 'representative government' only to the extent that the text and structure of the Constitution establish it". By way of footnote, the Court referred to McGinty v Western Australia (1996) 186 CLR 140 at 168, 182-183, 231, 284-285. 45 At 567 the Court outlined the test for determining whether a law infringes the relevant constitutional implication. Their Honours observed that two antecedent questions required an answer before an assessment could be made to the validity of the impugned law. Those questions were posed in the following way at 567: "First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government…."

[95]

52 In support of his contention that the inclusion of endorsement details on the ballot paper is not a communication between the people, the Solicitor-General referred to a passage in Lange at 560 which referred to the communications subject to constitutional protection as those "between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves". He emphasised that the communication in question in this proceeding is one between the Commission and the electors. The Solicitor-General contended that a protected communication "between the people" does not include a dissemination of information by the Executive, given that the Commission is the arm of the Executive that prints and disseminates the ballot paper. The character of that communication does not alter depending on whether party affiliation is printed adjacent to the name of a candidate. 53 In response, counsel for Mr Mulholland submitted that the only relevant question was whether the people are effectively being denied access to the political information necessary to enable them to exercise an informed direct choice of candidate and party at the ballot box. 54 In support of his submission that the ballot paper is the medium of election, and not a protected "mode of communication", the Solicitor-General, inter alia, raised the following matters: · the implied freedom of communication applies to ordinarily available methods of communication but not to the ballot paper itself; · the ballot paper is the medium by which a vote is made; · the capacity to have a party's name printed on the ballot paper adjacent to an endorsed candidate is not aptly described as a mode of communication in the sense used by the authorities; · the printing of markings on a ballot paper is not a mode of communication protected by the freedom of communication about government or political matters; · the High Court has described the modes of communication which are protected by the implied freedom as being within the sphere of private interest, whereas markings to be printed on a ballot paper are within the sphere of regulation in the public interest. 55 In response, counsel for Mr Mulholland submitted, inter alia, that it was critical that there be a free flow of political information to and from citizens and to and from organs of government or other participants in the electoral process. 56 In support of his contentions that the absence of endorsement details is not a burden on any mode of communication, the Solicitor-General submitted that: · no "effective burden" on communication is imposed by restricting a political party's capacity to request the printing of endorsement details on ballot papers; · a limitation on eligibility for registration, and hence on the incidence of inclusion of endorsement details, is not a restraint on communication; · endorsement details given to the Commission would usually follow communications by the party to the electorate of the fact that the party has endorsed particular candidates, for example, by way of media appearances and advertising and the provision of "how to vote" cards; · endorsement details on the ballot paper might enhance the effectiveness of earlier communications by registered parties about the candidates whom they endorse, but it does not affect the capacity of all political parties, whether registered or not, to nevertheless make such communications. Similarly, the ability of unregistered political parties to communicate with electors by the full range of available modes of communication is not affected by any restriction on the inclusion of endorsement details on ballot papers; · the fact that communications by unregistered political parties are not enhanced by the inclusion of endorsement details on the ballot paper in the way that communications by registered parties may be, does not mean that the freedom of unregistered political parties to communicate with electors is denied or restricted; · the provision of potential benefits as part of a statutory registration scheme in a manner that may enhance the effectiveness of communications by entities registered under the scheme, does not restrict the communication by entities not registered under the scheme; · Part XI imposes no restraint on any otherwise lawful activity. The relevant provisions of the Act do not operate as any form of restriction on existing opportunities for any political party, organisation or individual to convey to electors that it supports or endorses a particular candidate; and · under s 340 of the Act, how to vote cards may be disseminated up to 6 metres from the door of the polling booth. No content-based prohibition applies to those cards. Although communication of the fact of endorsement is more difficult for unregistered parties, the absence of an entitlement under the Act or a disparity in entitlement cannot be characterised as a "burden" on a "communication". 57 In response, counsel for Mr Mulholland submitted that unregistered political parties are denied the only mode of political communication in the ballot box. It was further contended that without knowledge of the party affiliation of all candidates, which is critical information, the members of Parliament cannot be directly chosen by the people as required by ss 7 and 24 of the Constitution. It was contended that under the Australian electoral system, the party name itself effectively communicates a manifesto or a list of policies and thereby facilitates the direct choice, as a real or informed choice, which ss 7 and 24 of the Constitution require.

[110]

· "the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government"; and · "the law is reasonably appropriate and adapted to achieving that legitimate object or end". 69 It has not been contended by counsel for Mr Mulholland that the impugned sections of the Act are not compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. It could not be seriously advanced that the 500 rule or the no overlap rule meets that description. What was contended on behalf of Mr Mulholland was that the impugned sections of the Act are not reasonably appropriate or adapted to achieving a legitimate object or end. 70 Counsel for Mr Mulholland stressed that they do not challenge those parts of the Act that relate to the form of the ballot paper or the manner in which votes must be marked. It was acknowledged that such provisions are reasonably appropriate and adapted to the object of facilitating the direct choice by the people of members of Parliament as required by ss 7 and 24 of the Constitution. Rather Counsel stated that the 500 rule and the no overlap rule, or more correctly, the provisions of the Act that establish those rules, are challenged on the basis that their effect is to deny the DLP access to the only mode of communication available to communicate political information to every voter in the ballot box, when that mode is available to registered parties. Thus, it was contended, the impugned provisions arbitrarily discriminate against unregistered political parties. It was further submitted that the 500 rule and the no overlap rule do not facilitate the direct choice by the people of their elected representatives. 71 In short, counsel for Mr Mulholland contended that the 500 rule and the no overlap rule are not appropriate and adapted to some otherwise legitimate object or purpose. 72 The Solicitor-General and counsel for the Commission submitted that, consistently with Lange, it is important to consider the purpose of the legislation that is subject to challenge. It must (in order to be valid) be enacted "to satisfy some legitimate end" and be "reasonably appropriate and adapted to achieving that legitimate object or end": see Lange at 561-562. That contention is not disputed. 73 Parliament has chosen, in effecting its preferred system of regulation of registered political parties, to enact the 500 rule and the no overlap rule. It is not for the Court to gainsay Parliament's choice of regulation and to conclude, notwithstanding that choice, that the 500 rule and the no overlap rule have not been enacted to satisfy a legitimate end. 74 The critical issue, as stated in Lange at 567, is whether the means to achieve the legitimate end are "reasonably appropriate and adapted". In so stating the issue, the Court made reference, by way of footnote, to various parts of the judgments in Cunliffe v The Commonwealth of Australia (1994) 182 CLR 272. 75 In Cunliffe at 324, Brennan J said that: "…in determining whether the law is reasonably appropriate and adapted to the achieving of a legitimate purpose or object and any infringement is merely incidental, the court may inquire into the proportionality of the means adopted by the law to achieve the postulated purpose or object."

[117]

82 In my opinion, applying the test set out in Lange, the 500 rule is reasonably appropriate and adapted to the fulfilment of a legitimate legislative purpose, such purpose being compatible with the constitutionally prescribed system of representative government, namely the maintenance of the integrity of the system of registration of political parties and the setting of qualifications for political parties to achieve before taking the benefit of other provisions of the Act. To also adopt the words of the European Court of Human Rights (see the judgment of Brennan J in Cunliffe at 325 cited in [76] above), a "margin of appreciation" must be reserved to the legislature in deciding upon the formulation of qualifications for registration as a political party. The choice of a figure of 500 is the legislature's selection of a number based on a JSCEC report. That figure is presumably indicative of a party that has some reasonable measure of public support. It is not to the point to say that a Parliamentary party may only have one member. That member sits in Parliament as a result of her or his attainment of a sufficient measure of public support to secure election. 83 The 500 rule, insofar as it may be said to infringe the relevant impliedconstitutional freedom of communication by reference to the inability of non-registered parties to have their endorsed candidates identified as such on the ballot paper, it does so in a merely incidental way which is reasonably appropriate and adapted to achieve the legislative aim of regulating registered political parties. That legislative objective is legitimate, being compatible with the constitutionally prescribed system of representative government. The aim of that regulation is to ensure that not every political party with miniscule levels of public support would be entitled to the benefits of registration. Any incidental effect upon the freedom of a political party to communicate with the electorate at the ballot box is, in the words of Dawson J in Levy at 608, an inhibition "which is commensurate with reasonable regulation in the interests of an ordered society". It may be sharply contrasted with a law that seeks to "seriously" impede political discussions between the people as occurred in ACTV. 84 The 500 rule does not effect a significant curtailment of the constitutional freedom of political communication and discussion. Its direct purpose is to secure the integrity of the system of registration of political parties. 85 As was submitted by the Solicitor-General and counsel for the Commission, the 500 rule formed part of the new system for party registration that was introduced in 1984. It was assessed by Parliament to be necessary because of the introduction of benefits stemming from registration, including the group voting ticket system in the Senate and the inclusion of endorsement details on the ballot paper. 86 Counsel for each party made submissions about the presence or absence of precedents in comparable democracies for provisions akin to the 500 rule. I do not find that debate to be of assistance in considering the validity of the impugned laws by reference to the Constitution. In particular, I consider that there is a danger in drawing analogies with other comparable democracies, given that the issue in this case concerns the ambit of the implied freedom of communication about government and political matters in the Constitution, for which there is no direct comparison in comparable democracies. Indeed, the Court in Lange at 567 noted the relevant differences in the United States Constitution and that of Australia, stating that: "Unlike the First Amendment of the United States Constitution, which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution"

[122]

Do the 500 rule and the no overlap rule infringe any implied freedoms of association, participation and privacy? 90 At paragraphs 23 and 24 of Mr Mulholland's Statement of Facts and Contentions, filed 18 July 2002, it is submitted that implied in the Constitution are freedoms of association and participation, "including the steps of nominating, campaigning, advertising, debating, criticizing and voting". Reference is made to parts of ACTV and parts of the High Court judgment in Kruger v The Commonwealth (1997) 190 CLR 1 in support of this submission. It is further submitted that the freedom of association is derived from what the freedom of political communication requires. Additionally, at paragraph 25, it is submitted that there is an implied "right of privacy in relation to electors' participation in the electoral process including electors voting at elections and their underlying participation in political parties to the extent that such parties participate in the electoral process". 91 Counsel for Mr Mulholland submitted that the provisions the constitutional validity of which are challenged in the instant case, impinge upon the freedoms of association, participation and privacy in that they allow for the association of the members of the DLP to be made known or put in the public arena. Counsel contended that they infringe the privacy of political association or affiliation of persons who are or propose to become members of political parties, in that the personal details of a member of a political party may be made public pursuant to a request made under freedom of information legislation. 92 In particular, it is contended at paragraphs 40 to 46 of Mr Mulholland's Statement of Facts and Contentions that s 138A(3) is invalid to the extent that it is a source of power used to require personal information about 500 members of the DLP. It was submitted that electors are entitled to keep their political affiliations private and that an infringement of that privacy amounts to an infringement of "the implied freedom of association, that is, the freedom of members espousing DLP political philosophy to associate for the purpose of political expression in the form inter-alia of putting forward candidates who appear on the ballot paper as espousing similar philosophy to the expressed endorsement without publicly revealing their individual members' personal information". 93 In response, the Attorney-General submitted (as adopted by the Commission) that there are no free-standing freedoms of association and participation implied in the Constitution, any such freedoms being respectively "a corollary to" or "an aspect of" the implied freedom of communication. For this reason, it was submitted that the same test of infringement and validity relevant to the freedom of communication applies. Reference was made to Kruger at 45 (Brennan CJ), 68-69 (Dawson J), 92 (Toohey J, dissenting), 126-128 (Gaudron J, dissenting), 142 (McHugh J) and 157 (Gummow J). 94 In response to the submission about an implied right of privacy, the Attorney-General and the Commission submitted that there is no such implied freedom in the Constitution; reference was made to comments of McHugh J and Gummow J by way of obiter in McGinty at 244 and 283 respectively where their Honours said that the secrecy of the ballot is not constitutionally entrenched. 95 It is clear that the question of the existence of an implied freedom association (and of movement) in the Constitution is left open by the High Court in ACTV and Kruger. In relation to the contention in Kruger that there is implied in the Constitution an implied right to freedom of movement and association, Brennan CJ stated at 45 that: "No such right has hitherto been held to be implied in the Constitution and no textual or structural foundation for the implication has been demonstrated in this case. The freedom contended for is advanced as a corollary of that freedom of communication about government and political matters which is implied in the Constitution, especially by reason of ss 7 and 24…. … It follows that whether or not some such implication … is to be found in the Constitution, its existence would not have invalidated any of the provisions impugned by the plaintiffs."

[124]

97 Additionally, I do not accept the submissions of Mr Mulholland in relation to s 138A(3) outlined at [92] above for the following reasons. The provisions which enable the Commission to request information for the purposes of a review of the register allow compliance with the no overlap rule to be monitored. As observed by the Solicitor-General and counsel for the Commission, s 126(2)(ca) requires a party seekingregistration to provide a list of names of 500 members. That provision has not been challenged in this proceeding. It would be incongruous for s 126(2)(ca) to be permitted to stand and for s 138A(3) to be struck down. Each of ss 126(2)(ca) and 138A(3) is a provision which is reasonably appropriate and adapted to achieve a legitimate legislative purpose consistent with the maintenance of the constitutionally prescribed system of government. Each is concerned with enhancing the integrity of the registration process. 98 No authorities were cited in support of Mr Mulholland's submissions about an implied right or freedom of privacy in the Constitution, as distinct from other implied freedoms. No textual or structural foundation in the Constitution has been relied upon for its existence. In my view, it is unlikely that a general freedom of privacy of political affiliation could be said to be an "indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be "directly chosen by the people" of the Commonwealth and the States, respectively": see Lange at 559 where the High Court said that the freedom of communication on matters of government and politics was such an "indispensable incident". Indeed, in coming to this view I have had regard to the observations in McGinty of McHugh J at 244 that "(t)he Constitution makes the federal Parliament the final arbiter on … whether there should be universal suffrage, secret ballot …" and Gummow J at 283 that "the Constitution did not entrench the secret ballot".

[132]

The administrative law issues 105 Upon the assumption that the impugned provisions of the Act are valid, Mr Mulholland submitted that certain decisions of the Commission taken with respect to the DLP are unlawful on a number of administrative law grounds. 106 First, it was contended that the decision of the Commission, contained in its letter to Mr Mulholland of 1 August 2001, to review the registration of the DLP (as part of its decision to review the Register) was invalid. Counsel submitted that the making of the decision was an improper exercise of the power conferred by the Act, having been made in accordance with a rule or policy without regard to the merits of the particular case. Counsel relied upon ss 5(1)(e) and 5(2)(f) of the AD(JR) Act. Section 5(1)(h) of the AD(JR) Act was also relied upon in that it was contended there was no evidence or other material to justify the making of the decision. 107 The basis of Mr Mulholland's contentions is that the Commission had reviewed the registration of all political parties and had no ground for believing there was any doubt about the DLP's eligibility for continuing registration. 108 In response, counsel for the Commission submitted that it did not make a decision to review the Register within the meaning of s 5 of the AD(JR) Act as no final or operative decision was made when the Commission undertook to review the Register. 109 It was contended that s 138A(1) of the Act enables the Commission to review the Register and, in so doing, it is entitled to request information from political parties pursuant to s 138A(3). The power to review, it was submitted, is one that may be exercised from time to time at the discretion of the Commission. 110 Ms Kathryn Mitchell, the Director of Funding and Disclosure for the Commission, gave evidence about the circumstances of the review of the Register that was commenced on 7 December 2000. Ms Mitchell's evidence was to the following effect: · following the amendments made to Part XI of the Act by the 2000 Amendment Act, the Commission wrote a standard letter to all registered political parties on or about 7 December 2000, inter alia, advising of the changes to the Act and requesting the parties to provide the Commission with details of the basis of their eligibility by 25 January 2001; · the DLP replied to the Commission's letter but did not produce all of the information requested; · by a letter which was received by the DLP on 3 August 2001, the Commission wrote to Mr Mulholland requesting outstanding information that it required; · a purpose of seeking that information was to "determine whether any of the current registered non-Parliamentary parties should be deregistered…" · the information would ensure that the Commission could determine whether any party relied on the same member or members as the DLP for the purpose of qualifying or continuing to qualify as an eligible political party, contrary to s 126(2A) of the Act, and whether the DLP relied on the same member or members as another party for the purpose of continuing to qualify as an eligible political party, again contrary to s 126(2A). 111 It is not correct to assert that the DLP was in some way singled out for special treatment or that the decision to review the Register was made for an improper purpose. The Commission was entitled to review the Register following the 2000 legislative changes. Indeed it was desirable that it did so in the course of performing its review process as intended by the Act. The contention that it did so for an improper purpose by reference to a policy without regard to the merits is baseless. Furthermore, as was pointed out at paragraph 10.6 of the Commissions contentions in reply, "(t)he exercise of the power to review the Register did not depend on the Commission having any ground for believing that there was a doubt as to the DLP's eligibility". 112 The second administrative law ground submitted by Mr Mulholland was that the decision under s 138A(3) to issue the August 2001 request only justified the issue of a notice concerning "specified information" and not concerning "documents". In this regard, s 138A(3) allows the Commission, in a written notice, to request of the registered officer of a registered political party "specified information on the party's eligibility to be registered" under Part XI. 113 I see no basis for the submission that the term "information" in s 138A(3) excludes documents. Indeed such documents may contain information relevant to a party's eligibility to be registered. 114 Section 138A was enacted by the Electoral and Referendum Act (No 1) 2001 (Cth) No. 34, 2001as a consequence of Recommendation 54 in the JSCEC report on the federal election of 1998 titled, "Inquiry into the 1988 Federal Election and Matters Related Thereto". Paragraph 23 of the Revised Explanatory Memorandum to the Electoral and Referendum Bill (No. 1) 2001 states that the provision of power to the Commission to review the Register was to give effect to Recommendation 54. Relevantly, Recommendation 54 provides as follows: "That the AEC be authorised to conduct reviews of continuing eligibility of registered political parties after every federal election. The AEC should be able to require parties to produce documentation in support of their application for registration and their continued right to remain registered. The standard of documentation and the verification undertaken by the AEC can be the same as if the party were first applying to register. The AEC should also have the power to deregister a political party if it fails to produce the documentation requested by the AEC in support of its right to remain registered." 115 I accept the submission of counsel for the Commission that a request for information that would allow the Commission to confirm that a particular political party has at least 500 members (and to confirm that those members are not relied upon by another party) is a request for information on a party's eligibility to continue to be registered. Accordingly I accept that such a request is within the limits of s 138A(3). 116 Counsel for Mr Mulholland referred to the fact that s 126(2A)(c) does not mention s 137(1)(cb) must be viewed as an indication that the power in s 138A(3) was not intended to be used to request information relevant to the no overlap rule. That submission is rejected. The power to request specified information under s 138A(3) is not restrained by s 126(2A)(c). Section 126(2A)(c) provides that the Commission will only be able to cancel the registration of a political party, relevantly, on the basis that has ceased to have 500 members. That fact does not mean that the Commission is prohibited from requesting information that is relevant to the no overlap rule. Further, s 126(2A)(c) does not restrict the Commission from proceeding to deregister a party where the registered officer of a party fails to provide information required in a s 138A(3) notice, in circumstances where the Commission is unable to determine whether the party has 500 members. A notice under s 138A(3) will be effective, provided that it is given for the purpose of reviewing the Register and also provided that the information requested in the notice bears upon the party's eligibility to be registered. The notice can therefore specify information, which is required by the Commission, being information that relates both to the 500 rule and the no overlap rule. 117 It was contended by counsel for Mr Mulholland that the Commission should have been alive to the privacy concerns of members of the DLP when requesting personal details of members of the parties. I reject that submission. I accept the submission of counsel for the Commission that the privacy issue is not a consideration which the Commission is bound to take into account for the purposes of exercising its power under s 138A(3) of the Act; see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39 per Mason J who said "(t)he ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision…". It is not necessary to determine, in this proceeding, whether a list of members of a registered political party may be accessed by a member of the public under freedom of information laws. 118 An additional administrative law ground relied upon by Mr Mulholland was that the 13 November 2001 notice to him from the Commission was invalid because of the provisions of s 126(2A)(c) and the inability of a party to be deregistered for failure to comply with the no overlap rule. It was contended that s 137(1)(cb) had not been enlivened and that notice was invalid. 119 Counsel for the Commission contended that as Mr Mulholland did not comply with the notice under s 138A(3), then having regard to the provisions of s 137(1)(cb), there was a sufficient basis for the giving of a notice under s 137(1)(d). I accept that submission. It is plain that s 137(1)(cb) is not limited by s 137(1)(a) to (c). Further, as counsel for the Commission contended in relation to s 137 at paragraph 12.4 of their written submission: "Each of paragraphs (a), (b), (c), (ca) and (cb) is a separate and free-standing basis for the giving of a notice under s 137(1)(d) of the Act."

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