Mulholland v Australian Electoral Commission [2004] HCA 41 | Case summary

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

JOHN VINCENT MULHOLLAND APPELLANT

AND

AUSTRALIAN ELECTORAL COMMISSION RESPONDENT

Mulholland v Australian Electoral Commission [2004] HCA 41

Date of Order: 20 May 2004

Date of Publication of Reasons: 8 September 2004

M272/2003

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

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

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

Interveners:

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

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

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

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

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Mulholland v Australian Electoral Commission

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

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

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

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

Words and phrases – "directly chosen by the people".

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

Commonwealth Electoral Act 1918 (Cth), Pt XI.

GLEESON CJ. The appellant commenced proceedings in the Federal Court of Australia, challenging the validity of two particular aspects of the provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Act") dealing with the registration of political parties. The scheme for registration was first introduced in 1983, and later amended in 2000 and 2001. It was introduced in the context of legislative provision for direct funding of political parties, "list" voting for the Senate, and references to party affiliations on the ballot paper. The first aspect under challenge is a limitation of entitlement to registration, or continuing registration, to political parties with at least 500 members, unless they have at least one Parliamentary representative ("the 500 rule"). The second is a refinement of the 500 rule, introduced by s 126(2A) in 2000, which prohibits two or more parties from relying on the same person as a member in calculating the number of members ("the no overlap rule").
The 500 rule was adopted by Parliament following a recommendation of a Joint Select Committee on Electoral Reform, which presented its first report in September 1983. The report said¹:

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

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

...

12.4 It would be provided that:

...

(c) in respect of a party which is not represented in a Commonwealth, State or Territory legislature but which has a membership of 500 persons or more, 10 members could apply for registration of the party. (The Committee discussed at length the basic level of total membership. As some indication of membership support was required – and the party's constitution should provide a basis – the figure of 500 was agreed upon. ...)"

The no overlap rule was the result, not of any recommendation of a Select Committee, or of a proposal by the Government of the day, but of an Opposition amendment moved in the Senate during debate on proposed changes to the Act. A senator who supported the amendment said that "[o]therwise you could have a situation where, once you had 500 people, you could register an unlimited number of [party] names, all with the same membership and all with the same person as the registered officer, who could then control an unlimited number of preference distributions for an unlimited number of parties at a Senate election."²
The background to the appellant's dissatisfaction with the 500 rule and the no overlap rule appears from the reasons for judgment of Gummow and Hayne JJ, as do the details of the relevant legislative provisions, including those which embody the two rules. It is important to note the wider legislative context which gives content to the concept of "eligibility" of a political party.
The challenge to validity failed in the Federal Court, both before Marshall J at first instance³, and before the Full Court (Black CJ, Weinberg and Selway JJ)⁴. The arguments relied upon by the appellant require consideration of the power of the Parliament to legislate with respect to the method of election of senators and members of the House of Representatives, and of the requirement of freedom of communication on matters of government and politics implied in consequence of the system of representative and responsible government to be found in the terms and structure of the Constitution⁵.

Legislative power

A notable feature of our system of representative and responsible government is how little of the detail of that system is to be found in the Constitution, and how much is left to be filled in by Parliament. In Lange v Australian Broadcasting Corporation⁶, this Court said that, in ss 1, 7, 8, 13, 25, 28 and 30, the Constitution provides for "the fundamental features of representative government". In other cases, such as Attorney-General (Cth); Ex rel McKinlay v The Commonwealth⁷, and McGinty v Western Australia⁸, it was pointed out that representative democracy takes many forms, and that the terms of the Constitution are silent on many matters that are important to the form taken by representative democracy in Australia, at a federal or State level, from time to time.
For example, while, in common with most democracies, Australia now has universal adult suffrage, this was not always so. At the time of the Constitution, most women in Australia did not have the right to vote. Aboriginal Australians have only comprehensively had the vote since 1962. Unlike most democracies, Australia now has a system of compulsory voting, but this did not exist at Federation. Members of the House of Representatives are now elected by a system of preferential voting. In the United Kingdom, as in the House of Representatives in the United States, and the House of Commons in Canada, members of the House of Commons are elected on a first-past-the-post system. One of the most striking examples of the power given to Parliament to alter, by legislation, the form of our democracy concerns the composition of the Senate. There was a major change in the method of electing senators in 1948. For many years before then, the political party that dominated the House of Representatives usually controlled the Senate. With the introduction of proportional representation in 1948, there came to be a much larger non-government representation in the Senate. Furthermore, a legislative change in 1984, increasing the number of senators from 10 per State to 12 per State, when combined with the system of proportional representation, produced the result that it is now unusual for a major party to control the Senate. This is of large political and practical significance. It was the result of legislative, not constitutional, change.
In McKinlay⁹, Barwick CJ, contrasting the Constitutions of Australia and the United States, said that the Australian colonies, at Federation, "committed themselves to what the Parliament ... might do in relation to the franchise and the electoral distribution of the States, building in the safeguard of the equality of legislative power with one exception, in the two Houses." He explained the reason for this:

"Further, it must always be borne in mind that the American colonies had not only made unilateral declarations of independence but had done so in revolt against British institutions and methods of government. The concepts of the sovereignty of Parliament and of ministerial responsibility were rejected in the formation of the American Constitution. Thus, not only does the American Constitution provide for a presidential system, but it provides for checks and balances based on the denial of complete confidence in any single arm of government.

In high contradistinction, the Australian Constitution was developed not in antagonism to British methods of government but in co-operation with and, to a great extent, with the encouragement of the British Government. The Constitution itself is an Act of the Imperial Parliament which, except for a significant modification of the terms of s 74, is in the terms proposed by the Australian colonists and accepted by the British Government. Because that Constitution was federal in nature, there was necessarily a distribution of governmental powers as between the Commonwealth and the constituent States with consequential limitation on the sovereignty of the Parliament and of that of the legislatures of the States. All were subject to the Constitution. But otherwise there was no antipathy amongst the colonists to the notion of the sovereignty of Parliament in the scheme of government."

That is a useful reminder of historical facts that explain not only what the Constitution says, but also what it does not say. The silence of the Constitution on many matters affecting our system of representative democracy and responsible government has some positive consequences. For example, if then current ideas as to the electoral franchise had been written into the Constitution in 1901, our system might now be at odds with our notions of democracy. The Constitution is, and was meant to be, difficult to amend. Leaving it to Parliament, subject to certain fundamental requirements, to alter the electoral system in response to changing community standards of democracy is a democratic solution to the problem of reconciling the need for basic values with the requirement of flexibility. As to responsible government, the deliberate lack of specificity on the part of the framers of the Constitution concerning the functioning of the Executive was seen, in Re Patterson; Ex parte Taylor¹⁰, as an advantage. Constitutional arrangements on such matters need to be capable of development and adaptability.
Concepts such as representative democracy and responsible government no doubt have an irreducible minimum content, but community standards as to their most appropriate forms of expression change over time, and vary from place to place. It is only necessary to consider the differences in the present electoral systems of New South Wales, Tasmania and New Zealand, all of which would be regarded as democratic, to see the point. The system in New South Wales is preferential voting of a kind that is orthodox in Australia. Tasmania has the Hare-Clark electoral system, which is unlike any other State system. New Zealand has changed from a first-past-the-post system to a system under which the Parliament has a number of members elected in single-seat constituencies, and a number elected by proportional representation from the lists of those parties obtaining a sufficient percentage of the national vote.
Federalism itself influenced the form of our government in ways that might be thought by some to depart from "pure democracy", if there is such a thing¹¹. Equal State representation in the Senate may be thought, and at the time of Federation was thought by some, to be inconsistent with a concept of voting equality throughout the Commonwealth. Voters in the smallest State (in terms of population) elect the same number of senators as voters in the largest State. In this respect, the "value" of votes is unequal. That inequality is one aspect of Australian democracy which, exceptionally, is enshrined in the Constitution. Where the Constitution contains an express provision for one form of inequality in the value of votes, it dictates at least some caution in formulating a general implication of equality on that subject.

"It should be noted ... that it is no part of the appellant's case to challenge the registration [of eligible political parties] scheme itself. ... [T]hat registration scheme affords various 'privileges' to registered political parties. The extent of some of those 'privileges' may not be great. For example, one of the privileges that has existed since 1983 is the payment of public funding to the political party. However, even if the political party is not registered public funding is still available although it is paid direct to the candidate or group or his or her or its agent (s 299 of the Act). Similarly, the use of list voting in Senate elections is not limited to registered parties, but can extend to 'groups' or individual candidates (see ss 168, 211, 211A, 219, 272 of the Act). Consequently, the main advantages of registration are the privilege of having party affiliation recorded on the ballot paper and the privilege of having access to the electoral roll in digital form."

The appellant submits that the 500 rule and the no overlap rule contravene the constitutional requirement of direct choice by the people for two reasons: first, they impede or impair the making of an informed choice by electors; secondly, they unreasonably discriminate between candidates.
As to the first reason, the respondent, and the Attorney-General of the Commonwealth intervening, accept that the choice required by the Constitution is a true choice with "an opportunity to gain an appreciation of the available alternatives"¹³. In the course of argument, examples were given of forms of ballot paper prescribed for use at elections which might not conform to that fundamental requirement. A ballot paper, for example, that had printed on it only one name, being that of the government candidate, requiring the name of any alternative candidate to be written in (a form not unknown in the past in some places), might so distort the process of choice as to fail to satisfy the test. Here, the rules in question preserve a full and free choice between the competing candidates for election. The electors are presented with a true choice. The available alternatives between candidates are set out on the ballot paper. The process of choice by electors is not impeded or impaired.
As to the second reason, the argument that what is involved constitutes unreasonable discrimination, like the argument that there is an unacceptable burden on freedom of communication, to be examined below, requires consideration of the reasons for the rules.
Plainly, the reason for the 500 rule, in the wider context of a system of registered political parties for various purposes relating to the Act (a system which itself is not challenged by the appellant), is the view, taken by the Joint Select Committee, and then by Parliament, that to qualify as a registered political party a group must have a certain minimum level of public support, and that an appropriate minimum level is established by a membership of 500. As to the first part of that, it is reasonably open to Parliament to consider that, bearing in mind the practical significance of political parties in the operation of the democratic process, it would deprive the concept of "party" of any real meaning if any two or more people, who happened to agree on even one issue, could demand recognition as a "party". It may be added, as was pointed out in argument, that in Australia there is a long history of electoral systems which discourage multiplicity of candidates by requiring candidates to deposit a sum of money which will be forfeited if they do not achieve a minimum number of votes. Similarly, there are long-standing requirements for nominations of candidates to be supported by a minimum number of people. Those are well-known forms of regulating candidature at elections which have never been regarded as infringing the electors' right of choice, or as involving unreasonable discrimination. A requirement that, to be eligible to be treated as a political party for the purposes of the Act, a group must have some minimum level of public support, is not materially different. As to the figure of 500, it is, no doubt, to an extent arbitrary, and there is no logical process by which it can be demonstrated that it should be more than, say 100, or less than (as is the case in New South Wales) 750. Even so, the number 500 is not so large as to be outside the range of choice reasonably available to Parliament if a number is to be chosen at all.

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

He referred to Jenness v Fortson¹⁷, in which the Supreme Court said:

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

A purpose of avoiding confusion, deception, and frustration of the democratic process also underlies the no overlap rule. Marshall J accepted that the policy behind the rule was "the avoidance of 'enterpreneurial' or cynical use of the same 'block' of members to register multiple parties with no true and discrete membership, the minimising of confusion to voters, the 'tablecloth' ballot paper and the use of 'decoy' or front parties to mislead the voter into indicating a preference for a group ticket which is merely calculated to channel preferences to another party."
Reference was made to the recent decision of the Supreme Court of Canada in Figueroa v Canada (Attorney General)¹⁸, which considered an electoral law providing for the conferring of certain benefits (including a right to list party affiliation on ballot papers) on registered political parties, and imposing a requirement that a political party nominate at least 50 candidates in a federal election in order to be registered. That, it might be noted, is a very substantial requirement by Australian standards. The constitutional context was as follows. The Canadian Charter of Rights and Freedoms, in s 3, confers on each citizen a right to vote and to be qualified for membership of Parliament, a right that has been interpreted to involve "the right of each citizen to play a meaningful role in the electoral process", rather than the election of a particular form of government¹⁹. Further, the Charter, in s 1, requires that if there is an infringement of that right, it can only be justified if it can be shown that it is reasonable and demonstrably justifiable in a free and democratic society. That involves demonstrating that the objective of the legislation is sufficiently pressing and substantial to warrant a violation of a Charter right and that the infringement is proportionate, in the sense that "the legislation is rationally connected to the objective, that it minimally impairs the Charter right in question, and that the salutary benefits of the legislation outweigh the deleterious effects."²⁰
The requirement as to nomination of 50 members was held to interfere with the right of each citizen to play a meaningful role in the electoral process in a number of ways, including "derogating from the capacity of marginal or regional parties to present their ideas and opinions to the general public"²¹. The majority judgment stressed "the likelihood that the already marginalized voices of political parties with a limited geographical base of support will be drowned out by mainstream parties".

Freedom of communication

In Lange v Australian Broadcasting Corporation²³, in a joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, this Court said:

"When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. 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 and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people ... If the first question is answered 'yes' and the second is answered 'no', the law is invalid."

As to the first question, there was a dispute in argument as to whether the laws presently in question effectively burden freedom of communication about government or political matters in their terms, operation or effect. The respondent pointed out that the only restriction on communication that results from the 500 rule and the no overlap rule relates to what the Australian Electoral Commission puts on the form of ballot paper it issues. The ballot paper, it is said, is not a communication between candidates for election and electors, and candidates are free, in their own communications with electors (such as "how-to-vote" cards), to declare their party affiliations. Reference was made in argument to the very high proportion of electors who vote "above the line" at Senate elections. We were given no corresponding information as to the proportion of electors who receive, and use, "how-to-vote" cards, but it is probably high. Even so, the argument for the respondent depends upon too narrow a view of what is involved in communication about government and political matters. Communication about elections takes place in a context which includes private or personal initiative, organised party activity, and public regulation. Candidates supply, and voters receive, information in a variety of ways right up to the time the ballot paper is marked. Candidates nominated by registered political parties know that information as to their party affiliation will appear on the ballot paper. At least by implication, they approve that communication of information and, in a substantial, practical sense, it is a communication for their benefit.
In a system of compulsory voting, party affiliation is of particular importance. Relatively few voters may know much about the individual candidates between whom they are invited to choose, and most voters are unlikely to be widely informed about all, or even most, of the issues that divide the candidates. When people are compelled to vote, many of them depend heavily on the guidance of others; and the party political system is the main practical source of such guidance. The so-called conservatism of the Australian people when voting in the referendum process for proposed constitutional change sometimes may be related to the system of compulsory voting, and to an absence of what voters may regard as satisfactory explanation of the proposed change. The party system provides much less guidance on such occasions. If people are compelled to vote, are not convinced of the necessity of change, and are perhaps not clear as to the reasons for, or the consequences of, change, then it is hardly surprising that they vote for the status quo. At general elections, the influence of party leaders is important. The Prime Minister is not directly chosen by the people of Australia; he or she is not "popularly elected". The Prime Minister, in a formal sense, is chosen by the Governor-General, and, in a practical sense, is chosen by the parliamentarians whose party, or coalition of parties, controls the House of Representatives. The Prime Minister, at any given time, may or may not have been a party leader at the last election. Nevertheless, many people, at a federal election, regard themselves as voting "for" or "against" a party leader, or for or against the policies of a party, rather than as choosing between the particular candidates named on the ballot paper they receive.

"Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted."

Whichever expression is used, what is important is the substance of the idea it is intended to convey. Judicial review of legislative action, for the purpose of deciding whether it conforms to the limitations on power imposed by the Constitution, does not involve the substitution of the opinions of judges for those of legislators upon contestable issues of policy. When this Court declares legislation to be beyond power, or to infringe some freedom required by the Constitution to be respected, it applies an external standard. Individual judgments as to the application of that standard may differ, but differences of judicial opinion about the application of a constitutional standard do not imply that the Constitution means what judges want it to mean, or that the Constitution says what judges would prefer it to say.
There are criticisms that can be made of both expressions, "reasonably appropriate and adapted", and "proportionality". It is to be noted, however, that, in the passage from Lange first quoted above, the test stated included the question whether the impugned law served "a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government". Identification of the end served by a law, and deciding its compatibility with a system of representative government, is a familiar kind of judicial function. To the extent to which the word "legitimate" means more than "lawful" or "within the scope of the powers of the Parliament" it may not add anything to the requirement of compatibility. For a court to describe a law as reasonably appropriate and adapted to a legitimate end is to use a formula which is intended, among other things, to express the limits between legitimate judicial scrutiny, and illegitimate judicial encroachment upon an area of legislative power.
The concept of proportionality has both the advantage that it is commonly used in other jurisdictions in similar fields of discourse, and the disadvantage that, in the course of such use, it has taken on elaborations that vary in content, and that may be imported sub silentio into a different context without explanation. Reference was made above to ss 1 and 3 of the Canadian Charter. In R v Oakes²⁷ Dickson CJ explained s 1:

"The rights and freedoms guaranteed by the Charter are not ... absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s 1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter. These criteria impose a stringent standard of justification, especially when understood in terms of ... the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society."

The Chief Justice went on to say that, to establish that a limit is reasonable and demonstrably justified in a free and democratic society, an important legislative objective must be identified, and the means used to achieve that objective must satisfy "a form of proportionality test". The elements of the "proportionality test" were as follows²⁸:

"First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair 'as little as possible' the right or freedom in question ... Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of 'sufficient importance'." (emphasis in original)

Human rights legislation, which declares fundamental rights or freedoms but, recognising that they are rarely absolute, permits limits or restrictions provided they can be "demonstrably justified in a free and democratic society", is the context in which current jurisprudence on proportionality is most likely to be seen at work. In R (Daly) v Secretary of State for the Home Department²⁹, Lord Steyn said that "[t]he contours of the principle of proportionality are familiar", and, quoting from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing³⁰, applied a three-stage test, by which the court should ask itself:

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

In the recent case of Campbell v MGN Ltd³¹, which involved a conflict between privacy and free speech, Baroness Hale of Richmond said "the interference or restriction must be 'necessary in a democratic society'; it must meet a 'pressing social need' and be no greater than is proportionate to the legitimate aim pursued; the reasons given for it must be both 'relevant' and 'sufficient' for this purpose."
If the use, in the present context, of a test of "proportionality" were intended to pick up all that content, then it would be important to remember, and allow for the fact, that it has been developed and applied in a significantly different constitutional context.
It should also be said that the word "necessary" has different shades of meaning. It does not always mean "essential" or "unavoidable", especially in a context where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy. In Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation³², a case concerning s 51 of the Income Tax Assessment Act 1936 (Cth), Latham CJ, Rich, Dixon, McTiernan and Webb JJ said that the word "necessarily", in the context of the allowability of deductions for expenditure necessarily incurred in carrying on a business, meant "clearly appropriate or adapted for", not "unavoidably". Under the Income Tax Assessment Act, it was not for the Commissioner to tell a taxpayer how to run its business. The primary judgment was left to the taxpayer, and the concept of "necessarily incurred" was intended to impose a limit, enforced by the courts, but allowing due regard for the consideration that it was for the taxpayer to make the business judgment in deciding what to spend. The Commissioner could not disallow a deduction on the ground that the expenditure was not unavoidable. The reference given in Ronpibon Tin in support of the Court's view of the meaning of "necessarily" was to a judgment of Higgins J in 1910, in a case concerning the validity of delegated legislation, The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Co Pty Ltd³³. The primary Act conferred power to make regulations for matters "necessary" for carrying out the Act. Higgins J said that, in such a context, the word "necessary" may be construed, not as meaning absolutely or essentially necessary, but as meaning "appropriate, plainly adapted to the needs of the Department". He cited McCulloch v Maryland. This seems almost to bring us round in a full circle. There is, in Australia, a long history of judicial and legislative use of the term "necessary", not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted. The High Court originally took that from . There is, therefore, also a long history of judicial application of the phrase "reasonably appropriate and adapted". It follows that, when the concept of necessity is invoked in this area of discourse, it may be important to make clear the sense in which it is used, especially if that sense is thought to differ from reasonably appropriate and adapted. Different degrees of scrutiny may be implied by the term "necessary". I have no objection to the use of the term proportionality, provided its meaning is sufficiently explained, and provided such use does not bring with it considerations relevant only to a different constitutional context. Equally, I have no objection to the expression "reasonably appropriate and adapted", which has a long history of application in many aspects of Australian jurisprudence.

Conclusion

The appeal should be dismissed with costs.
McHUGH J. This is an appeal from an order of the Full Court of the Federal Court of Australia³⁸ upholding the constitutionality of certain provisions of the Commonwealth Electoral Act 1918 (Cth) whose operation may result in the Democratic Labor Party being deregistered as a political party under that Act. The order of the Full Court dismissed an appeal against a decision of Marshall J sitting in the Federal Court³⁹. Marshall J found that the provisions were within the heads of power conferred on the Federal Parliament by the Constitution and did not infringe any express or implied limitations on those powers. The Full Court found that the challenged provisions burdened the implied constitutional freedom of political communication, but were "reasonably appropriate and adapted" to achieving the legitimate object of regulating federal elections⁴⁰.
The issues in the appeal are whether:

(1) the provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Act") which prescribe or rely for their operation on the so-called "500 rule" and the "no-overlap rule" ("the challenged provisions") are within the scope of the legislative power of the Federal Parliament;

(2) the challenged provisions contravene the requirements of ss 7 and 24 of the Constitution that senators for each State be "directly chosen by the people of the State" and that members of the House of Representatives be "directly chosen by the people of the Commonwealth";

(3) the challenged provisions burden the implied constitutional freedom of political communication between the people by restricting the circumstances in which a candidate's party affiliation may be included on ballot-papers used in elections for the Federal Parliament; and

(4) the Constitution recognises an implied freedom to associate for political purposes and to maintain privacy in such an association; and, if so, whether the challenged provisions infringe those freedoms.

In my opinion, the challenged provisions were validly made under s 51(xxxvi) of the Constitution. They are laws "with respect to ... matters in respect of which this Constitution makes provision until the Parliament otherwise provides". Matters that fall within this power include "the method of choosing senators" (s 9), the "elections of senators for the State" (s 10), "elections in the State of members of the House of Representatives" (s 31) and "the qualifications of a member of the House of Representatives" (s 34). Further, the challenged provisions do not contravene the requirements of ss 7 and 24 of the Constitution that senators for each State be "directly chosen by the people of the State" and that members of the House of Representatives be "directly chosen by the people of the Commonwealth". Nor do the challenged provisions infringe the implied constitutional freedom of political communication of registered political parties who do not comply with the "500 rule" and the "no-overlap rule". Nor do they infringe the implied freedom to associate for political purposes or any associated freedom of political privacy.

The material facts

Mr John Mulholland, the appellant, is the registered officer of the Democratic Labor Party ("the DLP") under s 133 of the Act. The DLP is a political party, registered under Pt XI of the Act. The Australian Electoral Commission ("the Commission"), the respondent, administers the registration of political parties under the Act. Part XI of the Act empowers the Commission to review the eligibility of political parties to remain on the Register of Political Parties ("the Register") and to request specified information concerning the continuing eligibility of a party to be registered. If the registered officer of a registered political party does not comply with a request for information from the Commission, the Commission may deregister that political party. The Commission's powers include the power to require the registered officer to provide a list of party members.
In August 2001, the Commission requested Mr Mulholland to provide it with certain information, including the names and addresses of the DLP's members. Mr Mulholland did not make that information available to the Commission. In November 2001, the Commission informed Mr Mulholland that it was considering deregistering the DLP because of Mr Mulholland's failure to provide the information.
In January 2002, Mr Mulholland commenced proceedings in the Federal Court of Australia, seeking judicial review of the decisions and conduct of the Commission under the Administrative Decisions (Judicial Review) Act 1977 (Cth). He also challenged, under s 39B of the Judiciary Act 1903 (Cth), the constitutionality of certain provisions of the Act which might operate to deny the DLP an entitlement to remain on the Register. Specifically, Mr Mulholland challenged the following provisions of Pt XI of the Act which establish, rely for their operation on or give effect to the so-called "500 rule" and the "no-overlap rule": ss 123(1)(a)(ii), 126(2A), 136(1)(b)(ii), 137(1)(b), 137(1)(cb), 137(5) and 138A.
If a registered political party has no federal Parliamentary member, the "500 rule" requires it, in order to qualify or continue to qualify for registration, to provide to the Commission a list of the names of the 500 members of the party relied on for the purposes of registration. The "no-overlap rule" precludes two or more political parties from relying on the same member for the purpose of qualifying or continuing to qualify as an eligible political party.
As I have indicated, Marshall J dismissed the applications, and the Full Court of the Federal Court (Black CJ, Weinberg and Selway JJ) dismissed an appeal against the orders of his Honour.
Subsequently, this Court granted Mr Mulholland special leave to appeal on the constitutional issues involved in the case.

Part XI of the Act

Background

Part XI of the Act is entitled "Registration of political parties". The Part was inserted into the Act (originally as Pt IXA) by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) ("the 1983 Act"). The 1983 Act introduced a system for the registration of political parties. This occurred in the context of the implementation of a scheme for election funding for registered political parties, the inclusion of party endorsement details on ballot‑papers and the introduction of group voting tickets for Senate elections (also known as the "list" system). The 1983 Act also established the Commission and the Register and empowered the Commission to register and deregister political parties in certain circumstances. Amendments to the Act enacted in 2000 and 2001 by the Commonwealth Electoral Amendment Act (No 1) 2000 (Cth) ("the 2000 Act") and the Electoral and Referendum Amendment Act (No 1) 2001 (Cth) ("the 2001 Act") expanded the circumstances in which the Commission's power of deregistration was enlivened. These provisions are the subject of the challenge in the present case.

Operation of Pt XI

Section 4(1) of the Act defines "political party" to mean:

"an organization the object or activity, or one of the objects or activities, of which is the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by it."

Section 123(1) of the Act defines "eligible political party" to mean inter alia a political party that has at least 500 members (s 123(1)(a)(ii)). For the purposes of Pt XI, a reference to a "member of a political party" is a reference to a "member of the political party or a related political party" who is also entitled to enrolment to vote under the Act (s 123(3)). Under s 124 and subject to Pt XI, an eligible political party may be registered under that Part for the purposes of the Act.
"Registered political party" is defined in s 4(1) to mean "a political party that is registered under Part XI." The DLP has been registered under Pt XI of the Act since 20 July 1984. Part XI sets out the requirements which must be satisfied for a political party to qualify or continue to qualify as an eligible political party and, as an eligible political party, to be registered and to remain on the Register (ss 124, 126). Since the introduction of Pt XI, one of the requirements for a party to qualify or continue to qualify as an eligible political party has been that the party must have at least 500 members (the "500 rule").
Part XI also sets out the grounds on which a political party registered under Pt XI may be deregistered (ss 135, 136 and 137). Those grounds include:

. in the case of a political party that was a Parliamentary party⁴¹ when it was registered, that the party has ceased to be a Parliamentary party and the party has fewer than 500 members (s 136(1)(b));

. the political party has ceased to exist (s 137(1)(a));

. the political party, not being a Parliamentary party, has ceased to have at least 500 members (s 137(1)(b));

. the registration of the political party was obtained by fraud or misrepresentation (s 137(1)(c)); and

. the registered officer of the political party has failed to comply with a notice from the Commission under s 138A (s 137(1)(cb)).

Section 126(2A) precludes two or more parties from relying on the same member for the purpose of qualifying or continuing to qualify as an eligible political party. Where two or more parties rely on the membership of a person, that person may nominate the party entitled to rely on the member. If the member does not nominate a party after the Commission has given the member at least 30 days to do so, none of the parties may rely on the member (s 126(2A)(a)). The members on whom a registered party relies may be changed at any time by an amendment of the Register (s 126(2A)(b)). Unless the Commission has taken action to determine whether the party should be deregistered on certain grounds, failure to comply with s 126(2A) does not result in the cancellation of the party's registration. Those grounds are that the political party has ceased to exist or is a non-Parliamentary party with fewer than 500 members or its registration was obtained by fraud or misrepresentation (s 137(1)(a), (b) and (c)).
Section 137 provides that, in relation to a political party registered under Pt XI, if the Commission is satisfied on reasonable grounds of certain matters, the Commission may notify the registered officer of that party that it is considering deregistering the party. As indicated above, those matters include that the party has ceased to exist (s 137(1)(a)) or, not being a Parliamentary party, has ceased to have at least 500 members (s 137(1)(b)) or the registered officer has failed to comply with a notice from the Commission under s 138A (s 137(1)(cb)). On receipt of such a notice from the Commission, the registered officer may lodge a statement with the Commission that sets out reasons why the party should not be deregistered (s 137(2)). The Commission must then consider that statement and determine whether the political party should be deregistered for the reason set out in that notice (s 137(5)).
Section 138A(1) empowers the Commission to review the Register to determine whether one or more of the parties included in the Register is an eligible political party or should be deregistered under s 136 or s 137. For the purposes of reviewing the Register, the Commission may give a notice to the registered officer requesting specified information on the party's eligibility to be registered under Pt XI (s 138A(3)). The registered officer must comply with the notice within the specified period (s 138A(5)).

Representative government under the Constitution

The scope of Commonwealth legislative power with respect to elections

The first issue in the appeal is whether the challenged provisions are authorised by any head of power granted to the Parliament of the Commonwealth. Section 7 of the Constitution declares that "[t]he Senate shall be composed of senators for each State, directly chosen by the people of the State". Section 24 of the Constitution declares that "[t]he House of Representatives shall be composed of members directly chosen by the people of the Commonwealth". These two sections are fundamental in ensuring that the parliamentary system for the Parliament of the Commonwealth is a system of representative government. Sections 9, 10, 31, 34 and 51(xxxvi) of the Constitution facilitate the carrying out of these requirements of representative government by conferring legislative power on the Federal Parliament with respect to elections for the Senate and the House of Representatives. However, although these grants of legislative power with respect to elections have been described as plenary⁴² and as purposive⁴³ in nature, they are subject to certain express and implied constitutional limitations.
The express limitations include, for example, that the method of choosing senators must be uniform for all the States (s 9) and that the electoral system must be such that both senators and members of the House of Representatives are "directly chosen by the people" (ss 7 and 24). The implied limitation is that the electoral system must satisfy the requirements of the constitutionally prescribed system of representative government⁴⁴. A corollary of this requirement is that elections must result in a direct, free, informed and genuine choice by the people⁴⁵. Another corollary of the requirement is that legislation must not infringe the implied constitutional freedom of political communication between the people⁴⁶.
However, the Constitution prescribes only the irreducible minimum requirements for representative government, including the requirement that senators and members of the House of Representatives be "directly chosen by the people". The Constitution does not prescribe equality of individual voting power⁴⁷. Nor does it protect the secret ballot⁴⁸. In , the Court recognised that the concept of representative government is inherent in the structure of the Constitution, but noted that "the particular quality and character of the content" of representative government was "not fixed and precise". Stephen J observed that the concept of representative government is "descriptive of a whole spectrum of political institutions". His Honour said that the Constitution permits "scope for variety" in the details of the electoral system.

"As numerous and as positive in expression as many of these [constitutional] provisions are, they constituted only the bare foundations of the electoral law for the representative Parliament of a new nation. The Constitution, for example, left unspecified, or open to change, a whole range of matters including: the method of voting to elect the members of the respective houses; the question of whether members of the House of Representatives would be elected by single-member or multi-member divisions; the length of time each State would continue to vote as one electorate in electing the Senate; who would be authorised to vote; the question of voluntary or compulsory registration of voters and of voting itself; the control of electoral rolls; the conduct of the ballot; the style of ballot papers; the use of postal votes; limitations on the electoral expenses of candidates; the financial deposits to be made by candidates and the conditions of their forfeiture; the role of political parties at elections; the question of financial support for political parties from public funds; the location of responsibility for the administration of the electoral law; and the extent of the delegation of authority in electoral decision-making."

The provisions of the Act that prescribe the "500 rule" and the "no-overlap rule" and confer power on the Commission to administer those rules are laws "with respect to" elections. A law of the Parliament is made "with respect to" the subject matter of a power when it relates to or affects that subject matter and the connection is not "so insubstantial, tenuous or distant" that it cannot properly be described as a law with respect to that subject matter⁵⁹. A law that regulates the method of voting in a federal election is a law with respect to elections⁶⁰, as is a law which protects the electoral or voting system that the Parliament selects⁶¹. So too is a law that assists in the maintenance of the voting system and protects a particular method of voting⁶². Thus, a law which proscribes conduct that interferes with the electoral system that Parliament has chosen is a law with respect to elections⁶³. In Levy v Victoria⁶⁴, Dawson J said: "Free elections do not require the absence of regulation. Indeed, regulation of the electoral process is necessary in order that it may operate effectively or at all."
The provisions of the Act that prescribe the "500 rule" and the "no-overlap rule" and confer power on the Commission to administer those rules are machinery provisions the object of which is the protection of the electoral process. Neither the Explanatory Memorandum for the Commonwealth Electoral Legislation Amendment Bill 1983 (Cth), which introduced the "500 rule", nor the second reading speeches provide any reasons for the inclusion of the "500 rule". However, other extrinsic materials indicate the object of these provisions. They suggest that Parliament introduced the "500 rule" to support three amendments to the Act recommended by the Joint Select Committee on Electoral Reform in 1983. They were: the introduction of public funding of political parties for election campaigns, the printing of the party affiliation of candidates on ballot-papers and the adoption of the list system for Senate elections⁶⁵. The Committee said that a system of registration of political parties was "necessary" in order to implement the Committee's recommendations with respect to the list system. The Committee report stated:

"[I]n respect of a party which is not represented in a Commonwealth, State or Territory legislature but which has a membership of 500 persons or more, 10 members could apply for registration of the party. (The Committee discussed at length the basic level of total membership. As some indication of membership support was required – and the party's constitution should provide a basis – the figure of 500 was agreed upon. The Electoral Commission should accept a party's claim of membership. Only if an objection to the registration of such a party is lodged with the Chief Australian Electoral Officer on the grounds of membership claimed should the number of members of such a party be checked)."

The "no-overlap" provisions were inserted into the Act by the 2000 Act. The Senate Revised Explanatory Memorandum to the Commonwealth Electoral Amendment Bill (No 1) 2000 (Cth) stated that the amendments relating to political party registration⁶⁸:

"address Government, and broader public, concerns that the political party registration provisions of the [Act] could be open to exploitation where members of parliament use their parliamentary membership to register political parties for federal election purposes, even where these parties do not have a membership base."

The Full Court in the present case correctly identified the system of registration of political parties under the Act as having the legitimate end of the regulation of elections⁶⁹. The Full Court said that the requirement of registration in the Act ensures that party endorsement is limited to organisations with the features of a political party – that is, a minimum number of supporters, a leader, officers, an agent and an office⁷⁰. The Court found that the "500 rule" provisions address valid concerns such as the extent of public support enjoyed by a party and have the legitimate objective of minimising voter confusion⁷¹. The Court identified the "no-overlap" provisions as having the legitimate end of preventing groups of people registering as numerous political parties with "party names that might be attractive to the electorate" in order to channel preference votes to other parties⁷².
The Parliament could reasonably take the view that some – maybe many – voters expect that parties identified on the ballot‑paper are real political parties with some degree of public support, a genuine organisational structure and a leader. On that assumption, voters could be misled by a party that is a "front" party or a "decoy" party – that is, a party established only for the purpose of capturing preferences and channelling them to other candidates – or a party that has a very low level of public support. The "500 rule" therefore protects the electoral process by requiring that, before a party name can be placed on the ballot-paper, its sponsors demonstrate a minimum verifiable level of public support. As a result, the "500 rule" minimises voter confusion and prevents voters from being misled by parties with no Parliamentary representation and no substantial membership. Similarly, the object of the "no-overlap rule" is to prevent voters from being misled. It seeks to prevent Parliamentary parties or groups of 500 people from registering multiple parties, each with a "single issue" party name, calculated to catch the eye of voters and to channel preferences to another party (whose policies may be entirely unrelated to the name of the "single issue" party).
Without the challenged provisions, the electoral system is open to manipulation in the manner outlined above, particularly in the context of the Senate list system. The challenged provisions are therefore laws "with respect to" elections for the Senate and the House of Representatives because they have the legitimate objectives of preventing voter confusion or deception and assisting voters to make informed choices as to the person or party for whom they wish to vote. As Doherty JA, giving the judgment of the Ontario Court of Appeal, pointed out in , voter confusion can arise if:

"a ballot indicated a candidate was affiliated with a political party that was in fact not a political party in any real sense of the word. Political parties are understood to be organizations with members, a leader and a platform. Reference to a political affiliation on the ballot which is in reality no more than a name selected by an individual candidate is potentially misleading. The ballot is among the most cherished symbols of our democracy. It should not be a forum in which individual candidates, under the guise of listing party affiliation, are allowed to place information on the ballot that could hold the electoral process up to ridicule or advance some purely personal agenda. By limiting identification of party affiliation on the ballot to registered political parties, the [Canada Elections Act, RSC 1985, c E-2] ensures that party affiliations listed on the ballot will be limited to those organizations that have the indicia normally associated with a political party (eg, a minimum number of supporters, a leader, officers, an agent and an office), and are prepared to submit to the significant regulatory and reporting conditions established under the scheme."

Free choice

The Parliament's power with respect to elections is limited by the requirement implicit in ss 7 and 24 of the Constitution that:

"whatever system is employed it must result in a direct choice by the people. That must mean direct choice by the people through those eligible to vote at elections"⁷⁵.

Representatives must be elected in free elections⁷⁶. While Parliament has power to select particular methods of voting and to enact laws to protect those methods of voting, such methods are valid only if they allow a "free choice"⁷⁷ among the candidates for election and an "informed choice"⁷⁸. A choice is not an informed choice "if it is made in ignorance of a means of making the choice which is available and which a voter, if he or she knows of it, may wish to use in order to achieve a particular result."⁷⁹ The choice "must be a true choice … a choice made with access to the available alternatives."⁸⁰ Those alternatives include not only knowledge of a means of making a choice that is available and that the voter may wish to use in order to achieve a particular result but also information about the candidates among whom voters are required to choose. As Deane and Toohey JJ pointed out in Nationwide News Pty Ltd v Wills⁸¹:

"The ability to cast a fully informed vote in an election of members of the Parliament depends upon the ability to acquire information about the background, qualifications and policies of the candidates for election and about the countless number of other circumstances and considerations, both factual and theoretical, which are relevant to a consideration of what is in the interests of the nation as a whole or of particular localities, communities or individuals within it."

Party endorsement on a ballot-paper is an important piece of information that many voters use when making a choice between candidates on their ballots. It is one of the "countless number of other circumstances and considerations" upon which the ability to cast a fully informed vote depends. Because this is so, Mr Mulholland contends that the provisions that prescribe the "500 rule" and the "no-overlap rule" do not permit a "free and informed choice"⁸² or a "true choice"⁸³ or a "fully informed" choice⁸⁴ as required by ss 7 and 24. He contends that the restrictions deny voters important information by precluding the inclusion of the party name on the ballot-paper next to the name of a candidate endorsed by an unregistered party, that is, a political party which does not meet the "500 rule" and the "no-overlap rule" registration requirements. Consequently, the result of this denial of important information is that the choice made by voters ceases to be a "true choice", that is, a choice made with all the relevant information required for a meaningful exercise of the franchise in an informed manner. Moreover, because the Act provides for the ballot‑paper to show the party endorsement of registered parties and prevents candidates of parties that do not meet the "500 rule" and the "no‑overlap rule" from doing the same, Mr Mulholland contends that the Act permits voters to be misled.
The comment of Gummow J in Langer v The Commonwealth⁸⁵ that "the ballot, being a means of protecting the franchise, should not be made an instrument to defeat it" supports Mr Mulholland's contention. So too does the reasoning of the Canadian courts in Figueroa⁸⁶. When Figueroa was before the Ontario Court of Appeal, Doherty JA said that the identification of party affiliation on the ballot lies at the very core of the information needed to permit electors to vote rationally and in an informed manner⁸⁷. His Lordship noted the findings of the trial judge in that case that in practice political parties play an important role in the Canadian electoral system and that some voters base their choice chiefly on party affiliation. In emphasising the significance of the inclusion of party endorsement on the ballot-paper, the trial judge in Figueroa had said: "[The ballot-paper] is the last piece of information which a voter receives before casting his or her vote, and indeed may be the only information which the voter receives about a particular candidate." Doherty JA also held that voters may be uninformed or perhaps even misled into thinking that a candidate is not endorsed by any party if the candidate is endorsed by a party that does not meet the registration requirements.

"Owing to the prominence of political parties in our system of representative democracy, affiliation with an officially recognized party is highly advantageous to individual candidates. In the minds of some voters, the absence of a party identifier might make candidates ... a less attractive option. It might create the impression that the candidate is not, in fact, affiliated with a political party, or that the political party with which she or he is affiliated is not a legitimate political party. In each instance, the restriction on the right of candidates to list their party affiliation interferes with the capacity of non-registered parties to compete in the electoral process.

For similar reasons, the restriction on the right of candidates to include their party affiliation on the ballot paper also undermines the right of each citizen to make an informed choice from among the various candidates. In order to make such a choice, it is best that a voter have access to roughly the same quality and quantity of information in respect of each candidate. In our system of democracy, the political platform of an individual candidate is closely aligned with the political platform of the party with which she or he is affiliated, and thus the listing of party affiliation has a significant informational component. Thus, legislation that allows some candidates to list their party affiliation yet prevents others from doing the same is inconsistent with the right of each citizen to exercise his or her right to vote in a manner that accurately reflects his or her actual preferences."

While Figueroa was concerned with the Canadian electoral system in the context of an express "right to vote" in the Canadian Charter of Rights and Freedoms, the observations made in that case are broadly applicable in the Australian political context. But do the challenged provisions so operate that electors do not freely and truly choose their candidates in Senate and House of Representatives elections?
At Federation, the inclusion on ballot-papers of political party endorsement of candidates for the Senate and the House of Representatives was not a requirement of the constitutionally prescribed system of representative government. Although, as long ago as the 18th century, politicians and commentators often referred to "party" in describing factions and adherents of particular policies, the modern political party is very much a 20th century development. It was not until 1983 that party endorsement was included on ballot‑papers for federal elections⁸⁹. Nevertheless, the Constitution makes allowance for the "evolutionary nature of representative government"⁹⁰. It also recognises that "representative government is a dynamic rather than a static institution and one that has developed in the course of [the 20th] century."⁹¹ It may be that the role of organised political parties and their influence on voters' choices within the Australian system of representative government have both developed to such an extent that that system requires that a candidate have the right to have his or her party endorsement noted on the ballot-paper.
However, even if the present conception of representative government requires recognition of the right of the candidates of genuine parties to have the party's name included on the ballot‑paper alongside that of the candidate, it does not follow that every candidate of every "party" has that right.
Legislation enacted with the object of ensuring that voters are not misled by political parties is regulation of the electoral process that "is necessary in order that it may operate effectively"⁹². The free choice of electors is not assisted by persons registering a single group of members multiple times with eye-catching "single issue" party names for the purpose of channelling preferences to other candidates. The Constitution accommodates the dynamic nature of the institution of representative government "by authorising the legislature to make appropriate provision from time to time." This accords Parliament a broad scope to determine what is "appropriate" – within the boundaries of the constitutionally prescribed system of representative government. It is also open to the Parliament to hold the view that, important though party identification may be, the free choice of electors will be impaired and not improved by party identification of those parties which cannot or will not comply with the challenged provisions. Given previous decisions of the Court that the Constitution prescribes only the irreducible minimum requirements for representative government, the "500 rule" and the "no-overlap rule" fall within the scope of the legislative power of the Commonwealth with respect to elections. They do not infringe the true choice or fully informed choice requirements of the Constitution.

Discrimination

Mr Mulholland also contends that the "500 rule" and the "no‑overlap rule" amount to unreasonable discrimination between candidates contrary to the requirements of ss 7 and 24 of the Constitution. He submits that the "500 rule" discriminates in favour of parties with large membership bases to the disadvantage of small parties and discriminates in favour of Parliamentary parties to the disadvantage of non-Parliamentary parties. Mr Mulholland submits that ss 7 and 24 contain the implied requirement that legislation designed to facilitate the "direct choice" of the people not distort that choice by unreasonably discriminating in favour of certain candidates with respect to the manner of exercise of that choice. He relies on comments in the judgments of Mason CJ and myself in Australian Capital Television Pty Ltd v The Commonwealth⁹⁴ in support of his contention.
In ACTV, Mason CJ found that the impugned regime in that case was discriminatory and that, as a consequence, the "severe restriction of freedom of communication plainly fails to preserve or enhance fair access to the mode of communication which is the subject of the restriction."⁹⁵ On this basis, his Honour found that the inequalities inherent in the regime were not justified or legitimate. However, Mason CJ's finding was made in the context of the freedom of communication. His judgment did not recognise or give effect to a free-standing constitutional principle of non-discrimination or declare that such a requirement was inherent in the constitutionally prescribed system of representative government provided for in ss 7 and 24. While in ACTV I said that a law which prohibits lawful political parties from contesting federal elections may violate ss 7 and 24 of the Constitution, I did not address the issue of discrimination.
The Commission does not challenge the proposition that legislation is invalid if it permits discrimination of a kind that is inconsistent with the requirements of ss 7 and 24 of the Constitution. However, the Commission submits that any disadvantages that may flow to a candidate as a result of the electoral system established by the Act are not unconstitutional, provided that the requirements of ss 7 and 24 are not contravened. McKenzie v The Commonwealth⁹⁶ supports this proposition. There, a Senate candidate challenged the constitutionality of the Senate list system. Gibbs CJ held that any disadvantage caused by the list system to candidates who are not members of parties or groups does not so offend "democratic principles" as to render those provisions constitutionally invalid. Gibbs CJ accepted that "s 7 requires that the Senate be elected by democratic methods". However, his Honour reiterated the statement of Stephen J in that this Court would not interfere with Parliament's choice of voting method as long as the electoral system established by the Federal Parliament is "consistent with the existence of representative democracy as the chosen mode of government and is within the power conferred by s 51(xxxvi)" of the Constitution. By implication, Gibbs CJ was of the opinion that the list system as enacted was within the legislative powers of the Federal Parliament.

Implied constitutional freedom of political communication

Source of the implied freedom and test for infringement

Since Nationwide News and ACTV, this Court has recognised and given effect to an implied constitutional freedom of communication between the people in respect of political and government matters. In Lange v Australian Broadcasting Corporation, the Court affirmed the existence of this implied constitutional freedom but emphasised that its source is the "text and structure" of the Constitution¹⁰⁸. The Court also held that the system of representative government and the implied freedom of political communication are not "free-standing principles". Rather, each concept is confined by reference to what the specific provisions of the Constitution are necessarily thought to require.
In Lange, the Court adopted the following test for assessing the validity of a law alleged to infringe the implied constitutional freedom of political communication¹⁰⁹:

"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 and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively 'the system of government prescribed by the Constitution'). If the first question is answered 'yes' and the second is answered 'no', the law is invalid." (footnotes omitted)

Application of the Lange test

The first question of the Lange test raises two issues for determination:
whether a ballot-paper constitutes a "communication" on political or government matters; and
whether the challenged provisions burden the plaintiff's freedom of communication about government or political matters.

If either of these issues is answered in the negative, the second question of the Lange test does not arise. It is appropriate to consider each issue in turn.

Communication

Marshall J at first instance held that, although the ballot-paper constituted a communication about political matters, it was a communication between the executive government and the voter and was not a communication "between the people"¹¹⁰. The Full Federal Court, however, found not only that the ballot-paper was a communication on political and government matters, but that the implied freedom also extended to communication between the Executive and the people¹¹¹.
In this Court Mr Mulholland contends that a ballot-paper constitutes a communication to voters on political or government matters, because it communicates to electors at the very moment before a vote is cast the identities of the candidates and, in the case of candidates endorsed by registered political parties, the party affiliation and, by implication, the policy platforms of those candidates. On this view, a completed ballot-paper would also be a communication by an elector to the Commission and, indirectly, to the candidates and the political parties, if any, which have endorsed those candidates, of the elector's preferences in relation to those candidates. Mr Mulholland contends further that the Full Court correctly held that the implied freedom extends to communications between the Executive and the people.
The Commission on the other hand submits that the inclusion of endorsement details on the ballot-paper is a communication from the Executive, not a communication between the people, and is not within the scope of the constitutional freedom. The Commission argues that the ballot-paper is the "medium by which a vote is cast", that "[t]he inclusion of endorsement details on the ballot-paper is a statutory incident of the conduct of the election" and that the printing of markings on a ballot-paper is not a protected mode of communication. The Commission submits that protected modes of communication are those within the "sphere of private interest". It contends that, in contrast, "the matter printed on a ballot paper is within the sphere of regulation of the manner of elections in the public interest."
In my opinion, the Full Court correctly held that the ballot‑paper is a communication on political and government matters. For the purposes of the Constitution, communications on political and government matters include communications between the executive government and the people. Representative government and responsible government are the pillars upon which the constitutional implication of freedom of communication rests. Communications between the executive government and public servants and the people are as necessary to the effective working of those institutions as communications between the people and their elected representatives. As Deane J pointed out in , freedom of communication on political and government matters "extends to the broad national environment in which the individual citizen exists and in which representative government must operate."

Burden

Marshall J in the Federal Court, while not required to decide the issue, given his earlier findings outlined above, considered that the absence of endorsement details on a ballot-paper constituted a burden on the ability of unregistered political parties to communicate with the electorate for the purpose of the implied freedom, as it amounted to "a curtailment of the right to disseminate information of a political nature", in circumstances where the right is only available to registered political parties¹¹⁶.
The Full Federal Court held that the challenged provisions burdened the freedom of communication on political and government matters¹¹⁷. The Full Court said that the challenged provisions imposed a burden on the implied freedom because "a law which provides that only certain persons can have their party affiliations stated on the ballot paper must burden those who are excluded."¹¹⁸ The Full Court further observed that the "nature of democratic politics is competition – the discriminatory privilege of one is the burden of another."¹¹⁹ As a result, a law that in practice conferred a "legal preference" on one political party would burden the capacity of candidates from other parties to communicate, "simply because of the legal preference created by the relevant law"¹²⁰.
Mr Mulholland contends that in relation to their application to ballot‑papers, the challenged provisions impose a burden on communications about political or government matters between the DLP and electors. The argument is that the operation of the "500 rule" and the "no-overlap rule" restricts an existing opportunity for a lawful form of communication by a registered political party, namely, to "request" (and hence require) the Commission to include party endorsement details on ballot‑papers. Accordingly, in the absence of the "500 rule" and the "no-overlap rule" and subject to certain conditions, the assertion is that the DLP, a registered political party, has a statutory right to have that party's registered name (or registered abbreviation) included on ballot-papers in elections for the Senate and the House of Representatives.
The Commission's response is that there is no "burden" in the relevant sense. Such a burden must be a burden on the plaintiff's communication and the burden must be on a right or privilege to communicate under the common law or under a statute that the plaintiff already enjoys. The relevant "plaintiff" here is the DLP. The Commission submits that Pt XI of the Act imposes no "restriction" or restraint on any activity that might be engaged in apart from the registration regime. The Commission contends that, if Mr Mulholland's argument is correct, political party could compel the Commission to include endorsement details on ballot-papers. The Commission also contends that the freedom is a freedom from interference; it is not a right to compel.

"The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution. Unlike the Constitution of the United States, our Constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters. But, as Lange shows, that right or privilege must exist under the general law." (original emphasis)

I went on to say in that case¹²⁵:

"The constitutional implication does not create rights. It merely invalidates laws that improperly impair a person's freedom to communicate political and government matters relating to the Commonwealth to other members of the Australian community. It gave the protesters no right to enter the hunting area. That means that, unless the common law or Victorian statute law gave them a right to enter that area, it was the lack of that right, and not the Regulations, that destroyed their opportunity to make their political protest."

Hayne J made the same point in McClure¹²⁶ when his Honour said:

"The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication. The petitioner's case depends upon him having some right to require others to disseminate his views. But as was said by the Court in [Lange (1997) 189 CLR 520 at 560]:

'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.'" (original emphasis, footnote omitted)

No political party or its candidates have any right under the common law or the statute law of the Commonwealth or the States other than the Act to have the party's name printed above the line or on the ballot-paper. The only rights concerning ballot-papers which political parties and their candidates have are those rights that the Act confers on them.
The decision in ACTV, upon which Mr Mulholland relies, does not assist his case. Under the Broadcasting Act 1942 (Cth) and the Radiocommunications Act 1983 (Cth), the licensees of television stations had statutory rights to transmit broadcasting and television programs, including programs on political and government matters. The Political Broadcasts and Political Disclosures Act 1991 (Cth) restricted those rights by preventing the licensees and other persons at particular times and in particular circumstances from expressing views concerning political affairs through the medium of radio and television. The Political Broadcasts and Political Disclosures Act operated to burden long-existing rights that existed independently of that Act. The case is not a relevant analogue with the present case.
Accordingly, the challenged provisions do not burden freedom of communication on political and government matters. The second question under the Lange test, therefore, does not arise.

Freedom of association

Mr Mulholland contends that ss 7 and 24 of the Constitution contain an implied freedom of association or participation in relation to federal elections, which includes an associated freedom of political privacy. He contends that these freedoms are derived either directly from the text and structure of ss 7 and 24 or as a corollary of the implied freedom of political communication. Mr Mulholland contends that the challenged provisions concerned with the "500 rule" and the enforcement of that rule would breach the implied right of freedom of association and the related freedom of political privacy by identifying the members of the DLP.
In ACTV¹²⁷, I said that the Constitution contains "rights of participation, association and communication" in relation to federal elections but that these rights extend only in so far as they are "identifiable in ss 7 and 24" of the Constitution. In Kruger v The Commonwealth¹²⁸, Toohey and Gaudron JJ and I each recognised an implied constitutional freedom of association. Toohey J regarded¹²⁹ the freedom of association as "an essential ingredient of political communication". Gaudron J said¹³⁰ that freedom of association was an aspect of the freedom of political communication that is protected to the extent "necessary for the maintenance of the system of government for which the Constitution provides." I said¹³¹ that the Constitution recognises a freedom of association at least for the purposes of the constitutionally prescribed system of government and the referendum procedure.
However, disclosure to the Commission of the names of the members of political parties – either as part of the party's initial application for registration or in answer to a statutory request of the Commission – does not breach the implied freedom of association. Disclosure of the names of members is simply a condition of entitlement to registration and continued registration as a political party for the purposes of the Act. It is up to the political party which seeks to obtain or maintain registration to decide whether or not to disclose the names of its members. If, for privacy reasons, it does not wish to do so, the party is not entitled to the benefits of registration. A political party is not compelled to disclose to the Commission the names and addresses of its members. Accordingly, disclosure of the names of the members of a political party which seeks to obtain or maintain registration under the Act is not a breach of the constitutionally implied freedom of association.

Order

The appeal should be dismissed with costs.
GUMMOW AND HAYNE JJ. The appellant is the person nominated by the Democratic Labor Party of Australia ("the DLP") as the registered officer of the DLP for the purposes of the Commonwealth Electoral Act 1918 (Cth) ("the Act"). The respondent ("the Commission") is a body established by the Act to perform various functions permitted or required of it under the statute (ss 6, 7(1)).
The Act has been amended on a number of occasions. Amendments made by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) ("the 1983 Act") included the establishment of the Commission, the introduction of a scheme (now found in Pt XX) for election funding and the addition of a system whereby an "eligible political party" might become registered for the purposes of the Act. The term "eligible political party" was defined, with reference to the DLP, as meaning a political party that had at least 500 members. The term "political party" was (and still is) defined¹³⁴ as meaning:

The registration provisions introduced by the 1983 Act are now found in Pt XI (ss 123‑141) and in their present form include various amendments made since the 1983 Act.
Section 125 of the Act provides that the Commission shall establish and maintain a register to be known as the "Register of Political Parties" ("the Register"). This is to contain a list of the political parties that are registered under Pt XI. The DLP was first registered on 20 July 1984 and from that date its registration has been continuous.
However, in the present litigation, the appellant seeks to obtain a determination of the invalidity of certain of the amendments made to the registration system. The appellant apparently was moved to take this action by apprehended removal of the DLP from the Register by the Commission under the procedures of the revised legislation.
On 7 January 2002, the appellant instituted a proceeding in the Federal Court of Australia seeking, among other relief, an order for prohibition restraining the deregistration by the Commission of the DLP; of the grounds advanced, that which remains alive in this Court is that various of the provisions of the Act relied upon by the Commission are invalid. The application was dismissed by Marshall J on 11 October 2002¹³⁵. An appeal to the Full Court (Black CJ, Weinberg and Selway JJ) was dismissed¹³⁶.
Special leave to appeal was granted on 3 October 2003. Thereafter, by order of a Justice made on 27 November 2003, the Commission was restrained, pending the determination of this appeal or until further order, from, among other things, determining whether the DLP should be deregistered for the reasons set out in a notice given by the Commission on 13 November 2001. The appeal was heard on 11 and 12 February 2004. On 20 May 2004 the Court ordered that the appeal be dismissed with costs. What follows are our reasons for joining in that order.

The relevant provisions of the Act

The nature of the complaint made by the appellant will appear from a consideration of the provisions whose validity he impugns. Section 138A was inserted by the Electoral and Referendum Amendment Act (No 1) 2001 (Cth) ("the 2001 Act")¹³⁷. Section 138A(1) states:

"The [Commission] may review the Register to determine whether one or more of the parties included in the Register:

(a) is an eligible political party; or

(b) should be deregistered under section 136 or 137."

The expression "eligible political party" is defined in s 123(1) as meaning:

"a political party that:

(a) either:

(i) is a Parliamentary party; or

(ii) has at least 500 members; and

(b) is established on the basis of a written constitution (however described) that sets out the aims of the party".

The DLP is not a "Parliamentary party" because it does not meet the criterion of having at least one of its members as a member of the Parliament of the Commonwealth (s 123(1)). Nor was the DLP a "Parliamentary party" in the defined sense when first registered in 1984. One consequence of this is that the relevant deregistration provision identified by s 138(1) is s 137(1) rather than s 136(1)(b). Section 137 assumed its present form with the amendments made by the 2001 Act.

For the purposes of reviewing the Register under s 138A, the Commission may give a written notice to the registered officer of a registered political party requesting specified information on the eligibility of the party to be registered under Pt XI (s 138A(3)). By letter dated 1 August 2001, the Commission gave the appellant a notice expressed to be given under s 138A(3). The satisfaction of the Commission on reasonable grounds that the registered officer of a registered political party has failed to comply with a notice under s 138A enlivens, by force of s 137(1)(cb)¹³⁸, the obligation of the Commission to give to the registered officer notice in writing that the Commission is considering deregistering the party (s 137(1)(d)). Where notice is given under s 137(1)(d), the registered officer or 10 members of the relevant political party may provide the Commission with a written statement setting out reasons why the party should not be deregistered (s 137(2)). The Commission is required to consider that statement and to determine whether the political party should be deregistered for the reasons set out in that notice (s 137(5)).
The giving by the Commission on 13 November 2001 of the notice, to which reference has been made above at [125], was expressed as required by s 137(1), consequent upon the failure of the appellant to comply with the s 138A(3) notice. That obligation of the Commission is enlivened also upon the reasonable satisfaction of the Commission that a registered political party, not being a Parliamentary party, has ceased to have at least 500 members (s 137(1)(b)).
The appellant asserts the invalidity of pars (b) and (cb) of s 137(1), of s 137(5) and of the whole of s 138A. He also challenges the validity of so much of s 136(1) as provides that a registered party is liable to deregistration if, in the case of a party that was a Parliamentary party when it was registered, the party has fewer than 500 members (s 136(1)(b)(ii)). These provisions are challenged also on the footing that, in so far as they turn upon the definition of "eligible political party", that definition in s 123(1) is invalid in so far as it means a political party that has at least 500 members. Taken together, these provisions were identified in submissions as "the 500 rule". A significant element in the appellant's complaint is the engagement for the enforcement of the 500 rule of the increased investigative powers conferred by s 138A on the Commission.
The appellant also asserts the invalidity of the "no‑overlap rule" established by s 126(2A). This was inserted by the Commonwealth Electoral Amendment Act (No 1) 2000 (Cth) ("the 2000 Act")¹³⁹. Section 126(2A) prohibits two or more parties from relying on the same member for the purpose of qualifying or continuing to qualify as an eligible political party; the provision permits a member relied upon by two or more parties in this way to nominate that party which is entitled to rely on the member concerned. Registration of a party is not to be cancelled by reason of the application of s 126(2A) unless the Commission has taken action to determine whether the party should be deregistered on, among other grounds, the ground in par (b) of s 137(1) that a registered political party, not being a Parliamentary party, has ceased to have at least 500 members. In this way, the increased investigative powers conferred by s 138A with respect to the 500 rule are drawn in to the application to the DLP of the no‑overlap rule.

The advantages or privileges of registration

The registration system has remained permissive rather than mandatory. However, various advantages or privileges flow from the existence of registration of an eligible political party.
First, there is an entitlement of a registered political party to receive a free copy of the latest electoral rolls for each State and Territory in which a branch or division of the party is organised (ss 91(1), 91(7) and 91AA). There is also an entitlement to nominate candidates for election by lodging the prescribed form signed by the registered officer of the party rather than by not less than 50 persons entitled to vote at the election (s 166(1)(b)). These advantages were not stressed in submissions.
Secondly, registration confers an entitlement in respect of the receipt of election funding. That is a significant matter. Division 2 (ss 288‑292D) of Pt XX requires any political party (whether registered or not) to have an agent for the purposes of Pt XX. Division 3 (ss 294‑302) requires the Commission to make specified payments for candidates and, in the case of Senate elections, groups of candidates for each first preference vote given for that candidate or group, with a requirement that the total number of eligible votes polled in favour of the candidate or group reach a 4 per cent threshold (ss 294, 297). What is of immediate significance is that, by force of s 299, funding will be paid by the Commission to the agent of a registered political party which has endorsed the candidates or groups of candidates in question; an unregistered political party cannot obtain payment to its agent rather than to the candidate or group¹⁴¹.
The final and very significant advantages of registration concern the form of the ballot paper. Upon request, a registered political party is entitled to have its registered name (or abbreviation appearing in the Register) printed on ballot papers adjacent to the names of its endorsed candidates (s 169(1), s 214(1)). The provision of the Act respecting voting at elections for the Senate also establishes what in submissions was called the "above the line" voting system. This permits voters, by completing one box appearing above the line on the Senate ballot paper and next to the name of a registered political party, to vote in order for the list of the endorsed candidates of a registered political party and to follow the allocation of preferences by that party without going "below the line" to indicate a vote for each of the candidates in the election one by one.
Two or more candidates may jointly request that their names be grouped on the ballot paper or grouped in a specified order (s 168(1)). Then s 169(4) introduces a special further "above the line" provision in respect of endorsed candidates of registered political parties. The sub‑section states:

"Where:

(a) a request has been made under subsection (1) in respect of candidates in a Senate election; and

(b) the candidates propose to have a group voting ticket registered for the purposes of that election;

the request may include a further request that the name of the registered political party that endorsed the candidates, or a composite name formed from the registered names of the registered political parties that endorsed the candidates, be printed on the ballot-papers adjacent to the square printed in relation to the group in accordance with subsection 211(5)."

The request is to be observed in the printing of ballot papers (s 214(2)).

If the DLP ceased to be a registered political party, it could group its candidates and the first of them would be named above the list as the head of a group, but there would be no identification there of the DLP as the political party which had endorsed them. The distinction is of some practical importance, given, for example, that at the 1998 general election 94.9 per cent of Senate voters used the "above the line" system rather than choosing to vote "below the line".
The appellant does not seek the abolition of these advantages or privileges enjoyed by the DLP as a registered political party. Rather, he seeks to ensure their retention by removing any threat to the registration of the DLP presented by those provisions of the Act which condition the retention of registration by the 500 rule and the no‑overlap rule and which give the Commission added investigative powers. Were the appellant to succeed on the case put as to invalidity, a real question would arise as to whether that would be but a pyrrhic victory. It would be a substantial victory only if the application of the principles of severance left standing sufficient of Pt XI of the Act to preserve the registration of the DLP and the advantages it presently obtains by registration.
We would reject the case put by the appellant for invalidity, and so no question of severance arises. The appellant argues on several grounds for the invalidity of the provisions for the 500 rule and the no‑overlap rule. To these we now turn.

Legislative power

The starting point is the identification of the relevant head of legislative power. Section 51(xxxvi) of the Constitution confers on the Parliament power, subject to the Constitution, to make laws with respect to:

"matters in respect of which this Constitution makes provision until the Parliament otherwise provides".

One of these "matters" is found in s 10 of the Constitution. This provides:

"Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State."

However, the phrase in s 10 "subject to this Constitution" directs attention to s 9. This states:

"The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

The Parliament of a State may make laws for determining the times and places of elections of senators for the State."

Of s 9, it was said in Re Australian Electoral Commission; Ex parte Kelly¹⁴²:

"The second sentence in s 9 subjects State laws prescribing the method of choosing Senators to any federal law, such as the Act, prescribing a uniform method for all the States. The third sentence in s 9 preserves to the States an area of exclusive power that is not subject to Commonwealth legislative preemption. The area so preserved is for laws which make provision 'for determining' (i) the times and (ii) the places of, in each case, the election of State Senators¹⁴³. It may be added that the provisions of s 12 of the Constitution repose in State Governors the power to cause writs to be issued for elections of Senators for the States."

In the present case, no issue arises respecting the preservation by s 9 of an area of exclusive power to the States. However, it may be observed that the conferral upon the Parliament of extensive powers with respect to electoral laws and the reservation to the States in s 9 respecting "times and places" stands in marked contrast to the plan of the United States Constitution for federal elections. Clause 1 of Art 1, s 4 grants to the States "broad power" to prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives" (emphasis added)¹⁴⁴.
With respect to elections for the House of Representatives, the constitutional provision is more straightforward. Section 31 of the Constitution provides:

"Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives."

As already indicated, the Act uses the term "political party" to identify organisations with an object or activity of promoting the election of its endorsed candidates to the Senate or the House of Representatives (s 4(1)). The advantages or privileges which are to be derived from the registration under the Act of a political party and the retention of registration are connected with the electoral process for the two chambers. A law requiring registration of a political party before those advantages or privileges may be enjoyed is a law "relating to" those elections within the meaning of ss 10 and 31 of the Constitution. So also is a law providing in specified circumstances (involving, for example, the 500 rule and the no‑overlap rule) for deregistration of a political party. The result is that these were "matters" attracting the head of power in s 51(xxxvi) of the Constitution¹⁴⁵. The appellant did not seriously challenge that conclusion with respect to legislative power.

Limitations upon legislative power

However, the appellant fixes upon the limitation in s 51 "subject to this Constitution" and then refers to the statement in the opening words of s 7 that the Senate:

"shall be composed of senators for each State, directly chosen by the people of the State ...",

and to those in s 24 that the House of Representatives:

"shall be composed of members directly chosen by the people of the Commonwealth ...".

The appellant then submits that, even if the provisions of the Act applying the 500 rule and the no‑overlap rule in procedures for deregistration were otherwise supported by s 51(xxxvi), they will be invalid if they impair the exercise of that "direct choice" required by ss 7 and 24.

Then it is said that this "direct choice" requires an informed choice and one which is not made under a legislative regime which unreasonably discriminates between candidates. The last step in this argument is that the rules in question impair the making of that informed choice and unreasonably discriminate between candidates.
These consequences are said to follow from the application of the 500 rule and the no‑overlap rule, particularly because a deregistered or unregistered political party which has less than the requisite membership number and is not a Parliamentary party cannot request and procure the appearance of its name on ballot papers. This state of affairs is said to discriminate unreasonably between candidates endorsed by registered political parties and those endorsed by unregistered parties, to interfere with a right of association through membership of the DLP, and to be apt to mislead electors into believing that candidates in fact endorsed by a political party have no affiliation with any political party.
These submissions of the appellant should not be accepted. First, the invocation by the appellant of unreasonable discrimination between candidates does not advance the argument. Certainly one meaning of the legal notion of "discrimination" is the unequal treatment of equals, but differential treatment and unequal outcomes may be the product of a legislative distinction which is appropriate and adapted to the attainment of a proper objective¹⁴⁶. So it is that the Supreme Court of the United States has held¹⁴⁷ that federal laws providing for the public funding of those parties which attract more than a specified minimum percentage of the vote do not invidiously discriminate between candidates in violation of the Fifth Amendment jurisprudence¹⁴⁸; the laws further "sufficiently important governmental interests"¹⁴⁹. These considerations return one to the other issues on the appeal, beginning with the scope of the "direct choice" requirement seen in the Constitution.
Secondly, the same is to be said of the reliance upon a "right of association". There is no such "free‑standing" right to be implied from the Constitution. A freedom of association to some degree may be a corollary of the freedom of communication formulated in Lange v Australian Broadcasting Corporation¹⁵⁰ and considered in subsequent cases. But that gives the principle contended for by the appellant no additional life to that which it may have from a consideration later in these reasons of and its application to the present case.

"Directly chosen by the people"

The phrase "directly chosen by the people" as it appears in ss 7 and 24 of the Constitution is to be understood against the background of the differing arrangements made in the Australian colonies for what each would have regarded as their system of representative government. Some colonies imposed property qualifications upon electors for one or both chambers; the minimum ages for candidacy varied; women were enfranchised only in South Australia and Western Australia and were eligible as candidates in the former colony only¹⁵². Nevertheless, as Barwick CJ pointed out in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth¹⁵³, the members of the more numerous legislative chambers in the Australian colonies, even with these diverse franchise arrangements, could properly have been said to have been directly chosen by the people of the colony in question.
Section 41 of the Constitution restricted the scope of federal legislative power to prescribe the franchise¹⁵⁴. It fixed upon those adult persons who, before the establishment of the federal franchise system by the Commonwealth Franchise Act 1902 (Cth), enjoyed the right to vote at State elections for the lower houses of the Parliaments, and denied the competency of any law of the Commonwealth to prevent those in that closed class from voting at elections for either chamber of the federal Parliament¹⁵⁵. The upshot of the 1902 federal legislation was that, while the female franchise was made universal, the limited State franchise enjoyed by some indigenous Australians was not replicated, subject only to any existing entitlements under s 41 of the Constitution¹⁵⁶.
Nevertheless, it should be added that, at the time of federation, in various respects the popular element in representative government was more advanced in the Australian colonies than elsewhere. Before the introduction in many States of the United States in the last part of the nineteenth century of the "Australian ballot system", there was a widespread practice whereby the political parties printed and distributed their own ballot papers containing only the names of that party's candidates; the voter could remain ignorant of the existence of other candidates, having merely to deposit a party ticket in the ballot box without, in some States, even marking it¹⁵⁷, and the printing of ballot papers in distinctive party colours impaired the secrecy of the ballot. It was only after the 1888 presidential election, "which was widely regarded as having been plagued by fraud", that many States adopted the "Australian ballot system" whereby "an official ballot, containing the names of all the candidates legally nominated by all the parties, was printed at public expense and distributed by public officials at polling places".

"Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively. This requirement embraces all that is necessary to effectuate¹⁶⁴ the free election of representatives at periodic elections. 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 effect¹⁶⁵."

However, what also is apparent is that room was left by the Constitution for further development by legislation of the system of representative government, particularly with respect to the franchise and the conduct of elections. (The same is true of the treatment in the Constitution of the system of responsible government¹⁶⁶.) The limited and temporal operation of s 41 of the Constitution underlines the absence of provisions entrenching universal adult franchise, the secret ballot, compulsory voting, or the preferential or proportional or the Hare‑Clark or any other voting system.

The recurrent phrase in the Constitution "until the Parliament otherwise provides" accommodates the notion that representative government is not a static institution and allows for its development by changes such as those with respect to the involvement of political parties, electoral funding and "voting above the line". Some of these changes would not have been foreseen at the time of federation or, if foreseen by some, would not have been generally accepted for constitutional entrenchment.
Thus, care is called for in elevating a "direct choice" principle to a broad restraint upon legislative development of the federal system of representative government. Undoubtedly examples may be given of extreme situations. One is provided in the judgment of Gaudron J in McGinty v Western Australia¹⁶⁷. Section 34 of the Constitution sets out the qualifications of a member of the House of Representatives which are to apply "[u]ntil the Parliament otherwise provides". In McGinty, her Honour said that the requirement of ss 7 and 24 was not satisfied merely by the holding of elections and continued¹⁶⁸:

"For example, the Parliament could not legislate pursuant to s 34 of the Constitution to make membership of a particular political party the qualification for election to the House of Representatives. Such a law would so deprive the electorate of choice that persons elected pursuant to it could not be described as 'chosen by the people'."

Gaudron J added¹⁶⁹ that there may be some feature of the electoral system which means that it cannot be said that those elected by it are "chosen by the people", but that "[t]he problem is to identify the process by which it may be determined whether or not that is so".

An appreciation of the interests involved with the presence in the Constitution on the one hand of the broad specification of direct choice, and of the empowerment of successive parliaments to "otherwise provide" with respect to elections on the other, is assisted by reference to Professor Tribe's discussion of the United States experience. He writes¹⁷⁰:

"Few prospects are so antithetical to the notion of rule by the people as that of a temporary majority entrenching itself by cleverly manipulating the system through which the voters, in theory, can register their dissatisfaction by choosing new leadership."

It may be added that in Australia it was legislation enacted in pursuance of the constitutional mandate to "otherwise provide" which, at the federal level, has diminished the concern of which Professor Tribe writes, by requiring compulsory voting and diminishing the prospect of control of both the House and the Senate by the one party or coalition¹⁷¹. Professor Tribe adds that constitutional review of election regulation in the United States has tended to permit regulation of aspects of the electoral process where the regulation does not have the potential of immunising the current leadership from successful attack¹⁷².
The appellant developed his submissions upon the "direct choice" principle, particularly by reference to observations by Dawson J in his dissenting judgment in Langer v The Commonwealth¹⁷³. His Honour observed of the power conferred by s 51(xxxvi) to make laws with respect to the election of members of the House of Representatives¹⁷⁴:

"But it is clearly not a power which is at large. The Constitution having established in s 24 that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, the elections with respect to which parliament is given power to make laws by ss 31 and 51(xxxvi) must necessarily be elections fulfilling the requirements of s 24. That is to say, the legislative power conferred by those provisions is a purposive power: a power to make laws for the purpose of implementing s 24."

This was used as a starting point for the development by the appellant in his submissions of notions of proportionality leading to what was said to be requirements in electoral laws which were not observed by the provisions for the 500 rule and the no‑overlap rule. However, the view of Dawson J as to the "purposive" nature of the head of legislative power was not adopted by the other members of the Court in Langer¹⁷⁵ and should not now be accepted.

In Langer¹⁷⁶, Toohey and Gaudron JJ pointed out that, however broad a construction might be given to the phrase "chosen by the people" in s 7 and s 24 of the Constitution, it had to allow for various special cases. One was the possibility, since provision made in 1977 for the filling of casual Senate vacancies, that at any time the Senate as a whole might not be directly chosen by the people of the States. Secondly, to that may be added the presence of senators elected by the people of the Northern Territory and the Australian Capital Territory. Other special cases include that of the member of the House who is returned unopposed and that of the member or senator returned at an election but incapable of sitting by reason of disqualification under s 44 of the Constitution. In the first and third of these special cases, there has been no opportunity for election by an "informed choice" on the part of electors. In the fourth case, the choice is ineffective.
One holding in Langer was that the prescription by s 240 of the Act of a method of full preferential voting for elections for the House of Representatives and the creation of an offence of publishing material with the intention of encouraging the filling in of ballot papers in a fashion otherwise than in accordance with s 240 did not conflict with the requirement of "direct choice" in s 24 of the Constitution.
Nor is there any such conflict where the receipt by an officer of a political party of public moneys as electoral funding of endorsed candidates is conditioned upon continuing party registration and subjection to investigative powers of the Commission. One of the apparent benefits from public funding under Pt XX of the Act to representative government may be the minimisation of reliance by parties on campaign contributions. It may encourage candidates from new parties and groups. But, on the other hand, that benefit will not be secured by the funding of "front" or "shell" parties with no substantial membership to which officers of the party are accountable. It is entirely consistent with the objectives of a system of representative government that the Act requires a significant or substantial body of members, and without "overlapping" with the membership of other parties, before there is an entitlement to receive public funding by a non‑Parliamentary party.
There must be allowable a measure of legislative choice as to the minimum number of party members. The Federal Court was not placed in a position to adjudicate as a "constitutional fact" whether a requirement of 500 members was excessive¹⁷⁷. There is no occasion for this Court to "second guess" the legislative choice made 20 years ago with the 1983 Act. There can be even less ground for impugning as inconsistent with a system of representative government the added investigative powers given the Commission more recently by such provisions as s 138A, the exercise of which precipitated this litigation.

United States and Canadian authorities

The grant by the United States Constitution to the States of a broad power with respect to congressional and presidential elections is "matched by state control over the election process for state offices"¹⁷⁸. In American Party of Texas v White¹⁷⁹, the Supreme Court rejected submissions that various provisions of the Texas Election Code, by excluding the appellants from the ballot for a general election for Congress, State governor and other officials, infringed their right under the First and Fourteenth Amendments to associate for the advancement of political beliefs and invidiously discriminated against new and minority political parties as well as against independent candidates¹⁸⁰. Under the Texas system, major parties were permitted automatic placement on the ballot if they had received at least 200,000 votes in the last general election. However, there were detailed requirements for minor parties: those that received less than 2 per cent of the votes cast in the last election were required to hold nominating conventions and to obtain signatures of at least 1 per cent of the number of voters who participated in the last election for governor of the State.
In White, the Supreme Court upheld these requirements, emphasising that they allowed to minority parties a "real and essentially equal opportunity for ballot qualification" and that neither the First nor the Fourteenth Amendments required any more¹⁸¹. The Supreme Court acknowledged what was described as a vital State interest in the preservation of the regulation of the number of candidates on the ballot to avoid undue voter confusion and added¹⁸²:

"So long as the larger parties must demonstrate major support among the electorate at the last election, whereas the smaller parties need not, the latter, without being invidiously treated, may be required to establish their position in some other manner. Of course, what is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot. The Constitution requires that access to the electorate be real, not 'merely theoretical'¹⁸³."

More recently, the Supreme Court has been concerned with laws dealing with a situation having some affinity to the no‑overlap rule found in s 126(2A) of the Act. In Timmons v Twin Cities Area New Party¹⁸⁴, the Court upheld the validity of a Minnesota law prohibiting an individual from appearing on the ballot as the candidate of more than one party. The Supreme Court recognised the protection given by the First Amendment to the right of citizens "to associate and to form political parties for the advancement of common political goals and ideas"¹⁸⁵. However, the Court added that¹⁸⁶:

"On the other hand, it is also clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder."

The Court indicated that, when deciding whether a State election law violated constitutionally guaranteed rights of association, it weighed the character and magnitude of the burden imposed on those rights by the State law against the interests which the State contended justified that burden¹⁸⁷.

Of the Minnesota law in question in Timmons, the Court concluded¹⁸⁸:

"Minnesota's laws do not restrict the ability of the New Party and its members to endorse, support, or vote for anyone they like. The laws do not directly limit the party's access to the ballot. They are silent on parties' internal structure, governance, and policymaking. Instead, these provisions reduce the universe of potential candidates who may appear on the ballot as the party's nominee only by ruling out those few individuals who both have already agreed to be another party's candidate and also, if forced to choose, themselves prefer that other party."

These decisions have provoked some discussion in the United States as to whether their reasoning indicates some departure by the Supreme Court from a doctrine of "strict scrutiny" of the validity of laws placing restrictions on access to the ballot¹⁸⁹. However, their significance for immediate purposes lies in their indication that laws of the same genus as the 500 rule and the no‑overlap rule are upheld in the system of representative democracy prevailing in the United States where there are significant express constitutional guarantees to be considered.
The appellant referred to the decision of the Supreme Court of Canada in Figueroa v Canada (Attorney General)¹⁹⁰. The Supreme Court construed the provision in s 3 of the Canadian Charter of Rights and Freedoms:

"[e]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein",

as promoting and protecting a right of each citizen to play a meaningful role in the political life of Canada and considered the validity of the challenged legislation on that footing. That construction of the Charter may be contrasted with the more limited content given in Australia to the phrase "directly chosen by the people" in ss 7 and 24 of the Constitution. In Figueroa, the Supreme Court upheld the contention of the Communist Party of Canada that there was an infringement of s 3 of the Charter by a law requiring nomination by a party of at least 50 candidates in a federal election in order for it to obtain and retain registration under the Canada Elections Act¹⁹¹. Candidates nominated by political parties that did not satisfy the 50 candidate threshold were not entitled to issue tax receipts for donations received outside the election period, to transfer unspent election funds to the party or to list their party affiliation on ballot papers¹⁹². Other benefits flowing from registration were not at issue in the litigation. Nor was a provision in the legislation that a political party seeking registration have at least 100 members and appoint a leader, a chief agent and an auditor¹⁹³.

It also should be noted that, in concluding the judgment written for himself and five other members of the Supreme Court in Figueroa, Iacobucci J said¹⁹⁴:

"However, before I dispose of this appeal I think it important to stress that this decision does not stand for the proposition that the differential treatment of political parties will always constitute a violation of s 3. Nor does it stand for the proposition that an infringement of s 3 arising from the differential treatment of political parties could never be justified. Consequently, although the disposition of this case will have an impact on sections of the Elections Act that provide access to free broadcast time, the right to purchase reserved broadcast time, and the right to partial reimbursement of election expenses upon receiving a certain percentage of the vote, I express no opinion as to the constitutionality of legislation that restricts access to those benefits. It is possible that it would be necessary to consider factors that have not been addressed in this appeal in order to determine the constitutionality of restricting access to those benefits."

Figueroa thus is an illustration, in another system of representative government in a federation, of the difficulty indicated by Gaudron J in McGinty of the identification of some feature of the electoral system which means it cannot be said that those elected by it are "chosen by the people"¹⁹⁵. But it is not necessarily indicative of a favourable answer to the submissions of the appellant on that issue.

Privacy

In oral submissions, the appellant said that, while "freedom of privacy" was not put "generally", it was a very important consideration, presumably going to bolster the arguments for invalidity otherwise presented. Counsel developed the point by submitting that the provisions establishing the 500 rule and the enforcement of that rule would entail the disclosure of the personal identity of members.
However, counsel for the Commission emphasised that, whilst the Register is open for public inspection pursuant to s 139 of the Act, the Register does not contain the names of the members of registered political parties. The initial contents of the Register to be entered by the Commission as required by s 133(1) include the name and address of the person who has been nominated as the registered officer of the party for the purposes of the Act (par (a)(iii)), but not any particulars of the identity of members. Provision is made by s 134 for the entry of changes to the Register but, again, these do not include the names or other details of members.
The supply to the Commission of details of membership in compliance with the exercise by the Commission of its investigative powers springing from s 138A would not leave the Commission at liberty to disclose generally what it had learned. The Attorney-General for New South Wales, who intervened, pointed, in that regard, to the statement in s 41(1) of the Freedom of Information Act 1982 (Cth):

"A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person)."

Counsel for the Commission also referred to the constraints imposed on the Commission as an "agency" and "record-keeper" within the meaning respectively of s 6(1) and s 10 of the Privacy Act 1988 (Cth).

In these circumstances it is sufficient to say that the apprehensions of the appellant respecting the disclosure to the Commission of the membership of the DLP do not provide any additional support to the submissions asserting the invalidity of the provisions for the 500 rule and the no‑overlap rule.
There remains for consideration the submissions founding invalidity upon the application of the principles expounded in Lange.

Burden on freedom of communication about government

or political matters

The Court held in Lange that freedom of communication on matters of government and politics is an indispensable incident of the system of representative government created by the Constitution¹⁹⁶. The Court emphasised that¹⁹⁷:

"[c]ommunications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative government, as it was understood at federation".

By impugning the validity of some of the requirements for retention of party registration under the Act, the appellant wishes to achieve a situation whereby the Act obliges the Commission to identify on the ballot paper for "above the line" voting in Senate elections the DLP with its endorsed candidates. In aid of that result, the appellant submits that the impugned provisions of the Act conflict with what follows from the above passage in Lange.

However, the matter cannot be approached at that level of generality. Further attention first is required to the principles which Lange expounded and to the nature of the freedom that is protected. The phrase "absolutely free" in the text of s 92 of the Constitution, without more, gave rise to great difficulties in interpretation of the "guarantee" provided by that section. It would have been unfortunate if, by implication, another incompletely stated "freedom" were discerned in the Constitution. However, the case law respecting this freedom of communication has refined the notions involved here.
First, personal "rights" are not bestowed upon individuals by the Constitution in the manner of the Bivens¹⁹⁸ action for damages discussed in British American Tobacco Australia Ltd v Western Australia¹⁹⁹, and previously in Kruger v The Commonwealth²⁰⁰. Rather, the freedom creates an immunity or protection which has two aspects: (i) the exercise of legislative or executive power is precluded so that, for example, inconsistent statutory rules are invalid and (ii) the rules of the common law of Australia are required to conform with the Constitution²⁰¹.
Secondly, a body of common law, such as the tort of defamation, may be concerned with striking a compromise between a complex of relational interests on the part of the plaintiff and "the countervailing claim to freedom of speech and comment asserted by the defendant"²⁰². One of the common law defences so developed, such as the defence of qualified privilege, may effectively burden the constitutional freedom of communication and not be reasonably appropriate and adapted to serve a legitimate end compatible with the constitutionally prescribed system of government. That will necessitate the development of the common law to conform with the Constitution²⁰³. However, the present case concerns not the common law but statute, the allegation being that certain statutory provisions are inconsistent with the constitutional freedom.
Thirdly, when speaking of the constitutional freedom of communication, Hayne J emphasised in McClure v Australian Electoral Commission:

In McClure, one of the unsuccessful submissions was that Australian Capital Television Pty Ltd v The Commonwealth ("ACTV")²⁰⁵ required every political candidate to have his or her views known through access to radio and television stations²⁰⁶.

To begin consideration of the issue presented on this appeal first by asking whether the laws here in issue, by their terms or operation, effectively burden freedom of communication about government or political matters would be to select a false starting point for legal analysis. Failing to ask and answer the questions "whose freedom?" and "freedom from what?" would entail the error in the assumptions exposed in McClure. To dispose of the case in that way would be to throw the weight of analysis at the wrong stage, namely the destination of a journey undertaken unnecessarily.
When considering the validity of reg 5 of the Wildlife (Game) (Hunting Season) Regulations 1994 (Vic), which was upheld in Levy v Victoria²⁰⁷, McHugh J had developed in two passages in his judgment the point later emphasised by Hayne J in McClure. The first passage reads²⁰⁸:

In the second passage, after raising the question whether, in the absence of the Regulations, the protestors and the media had the right to be present in the permitted hunting area, his Honour continued²⁰⁹:

It may be added that, even in the United States, the decisions of the Supreme Court construing the First Amendment do not go so far as the appellant would have this Court travel. In Timmons, when upholding the validity of the Minnesota law which prevented the New Party from using the ballot to communicate to the public its support for a "fusion" candidate who already was the candidate of another party, the Supreme Court said²¹⁰:

"We are unpersuaded, however, by the party's contention that it has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate. Ballots serve primarily to elect candidates, not as forums for political expression."

Earlier, in Burdick v Takushi²¹¹, the Supreme Court rejected a submission that the First Amendment conferred upon voters a right to cast, and an obligation on the authorities to count and report, a "protest vote" for Donald Duck²¹². In his judgment, Kennedy J said²¹³:

"Petitioner's right to freedom of expression is not implicated. His argument that the First Amendment confers upon citizens the right to cast a protest vote and to have government officials count and report this vote is not persuasive. As the majority points out, the purpose of casting, counting, and recording votes is to elect public officials, not to serve as a general forum for political expression."

It is here that the case for the appellant faces a significant threshold obstacle. The ballot paper is the medium by which, in accordance with the Act, a vote is cast. The communication thereon is that required by the statute of the Commission in discharge of its functions to administer the Australian ballot system to which reference has been made. Whence derives the right of the DLP or its endorsed candidates to have the name of the DLP placed on the "above the line" ballot paper, being the right with which the Act then interferes in a way offending the constitutionally mandated freedom of communication?
No such common law right was identified. Provisions such as ss 168, 169 and 214 of the Act may create certain rights against the Commission respecting the contents of ballot papers. But these are of a nature which the appellant does not regard as satisfactory and it is their very validity which, in part, is attacked by reliance upon a freedom which descends deus ex machina.
Reference was made to ACTV. However, any reliance by the appellant upon ACTV in this regard is misplaced. The licensing system in force under what was then the Broadcasting Act 1942 (Cth) ("the Broadcasting Act") and the Radiocommunications Act 1983 (Cth) (which had replaced the Wireless Telegraphy Act 1905 (Cth)²¹⁴) restricted what otherwise was the freedom under the common law to transmit broadcasting and television programmes to the general public and to erect, maintain and use the necessary equipment and imposed a licensing regime²¹⁵. That regime was extended by the addition of Pt IIID to the Broadcasting Act by the Political Broadcasts and Political Disclosures Act 1991 (Cth), the validity of which was at stake in ACTV. Part IIID imposed various further obligations and restrictions upon the activities of licensees.
At the time ACTV was decided, the nature of the "freedom" involved in this area of discourse was yet to receive the analysis of the later cases discussed earlier in these reasons. The point is apparent from a passage in the judgment of Mason CJ in ACTV. Mason CJ was one of the majority which held Pt IIID wholly invalid. His Honour said²¹⁶:

"The consequence is that Pt IIID severely impairs the freedoms previously enjoyed by citizens to discuss public and political affairs and to criticize federal institutions. Part IIID impairs those freedoms by restricting the broadcasters' freedom to broadcast and by restricting the access of political parties, groups, candidates and persons generally to express views with respect to public and political affairs on radio and television."

Under subsequent analysis, the relevant restriction is upon what was identified by Mason CJ as the broadcasters' freedom to broadcast. There was no right given by the common law or by statute to citizens or to political groups and others to require broadcasters to provide them with a forum for expression of views with respect to public and political affairs. To appreciate these matters is not to deny the holding in ACTV of the invalidity of Pt IIID. However, what does not follow is that ACTV provides support for the submissions of the appellant in the present case.
In the Full Court, their Honours went straight to what they identified as the first Lange question²¹⁷, namely, whether the law in question effectively burdened freedom of communication about government or political matters, either in its terms, operation or effect. Having answered that question "Yes"²¹⁸, their Honours moved to the second question and answered in the affirmative that the relevant provisions of the Act were reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the system of government prescribed by the Constitution²¹⁹.
However, there was the threshold issue identified above respecting the existence and nature of the "freedom" asserted by the appellant. That issue should be resolved as indicated in these reasons, with the result that it is unnecessary to take any further the matters which arise under Lange.

Conclusion

The appellant did not succeed in establishing his case for invalidity of any of the provisions of the Act which he challenged. The result is that the provisions respecting the 500 rule and the no‑overlap rule and the enhanced investigative powers of the Commission apply to the continued registration under the Act of the DLP as a political party.
KIRBY J. This appeal from a judgment of the Full Court of the Federal Court of Australia²²⁰ challenges the validity of provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Act")²²¹. The Act regulates the conduct of elections to the Parliament provided for in the Constitution²²². The challenged provisions were introduced into the Act by amendments passed in 1983²²³, 2000 and 2001²²⁴. They relate to the enforcement of a system for the registration of eligible political parties. Significantly for these proceedings, the challenged amendments concern the so-called "500 rule"²²⁵ and the "no overlap rule"²²⁶.
The Democratic Labor Party ("the DLP") was represented in the Federal Parliament for two decades after the "split" of the Australian Labor Party that occurred in 1955²²⁷. It lost its last representation in the Parliament (the Senate) in 1974. However, since the federal system of registration of political parties was introduced in February 1984²²⁸, it has been continuously registered as a political party under the Act. It last fielded candidates for the Senate under its party name in the general election of 2001²²⁹.
Following the 2001 election, the Australian Electoral Commission ("the AEC") gave a notice to the appellant as the registered officer of the DLP. The purpose of the notice was to enforce the "500 rule" and the "no overlap rule". On behalf of the DLP, the appellant challenged the validity of the provisions of the Act supporting the two rules, and hence the entitlement of the AEC to make the demands contained in the notice.

The background facts and applicable legislation

The facts and legislation: The background facts are stated in the reasons of other members of this Court²³⁰. Some additional facts, relevant to the mischief to which the impugned provisions of the Act were allegedly addressed, will need to be mentioned.
Also contained in other reasons are the provisions of the Act which the appellant challenges²³¹. The precise way the dispute between the DLP and the AEC arose is described there. So is the refusal of the DLP to supply its membership records to the AEC or to facilitate questioning of its members. Such questioning would have concerned whether those members belonged to any other (overlapping) political party.
At first instance and on appeal: The somewhat different course which the case took respectively before the primary judge (Marshall J)²³² and on the appellant's appeal to the Full Court²³³ is explained in other reasons²³⁴.
Put shortly, the primary judge found that the impugned laws were clearly within federal constitutional power. He rejected the applicability of any implied prohibition on interference with political communication found in the Constitution. He also rejected the implications of free political association and the protection of electors' privacy raised by the appellant as going beyond any constitutional principle so far accepted by this Court²³⁵.
On the other hand, the Full Court concluded that a federal law that allowed only some candidates to have their party affiliation stated on the ballot paper (and to enjoy other benefits reserved to registered political parties) constituted a burden on those who were excluded from such entitlements. Nevertheless, the Full Court decided that such a burden on the constitutionally protected freedom, as proved in this case, was valid. The formulae used for expressing this conclusion used the language adopted by this Court in analogous matters²³⁶. That opaque phrase, "reasonably appropriate and adapted", was once again deployed.
The even more ungainly phrase, "reasonably capable of being regarded by the Parliament as appropriate and adapted", urged in common by constituent governments of the Commonwealth, was also pressed in these proceedings upon the Federal Court and, later, upon this Court. However, as McHugh J recently pointed out in , that criterion has never been adopted by a majority of this Court. We should not do so now. It involves an impermissible transference to legislatures of the power, in effect, to define the limits of legislative powers. This is contrary to the basic design of the Australian Constitution, which reserves such questions, ultimately, to this Court. It is also disharmonious with the rule of law implicit in the Constitution.

The Constitution's express source for electoral legislation

Two aspects of the source: To respond to the appellant's challenge, it is first necessary to examine the foundation in the Constitution from which the powers of the Federal Parliament to enact the contested provisions of the Act are said to arise. Two primary grants of power were nominated. They are the powers to make laws with respect to²⁴⁵:

"(xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides;"

and:

"(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof …".

When the Commonwealth was established, each of the federating colonies had enjoyed (most for many decades) an elected legislature, constituted by 1900 in accordance with colonial (later State) electoral laws²⁴⁶. In certain respects, particular powers were conferred by the Constitution on State Parliaments to enact laws affecting the conduct of federal elections²⁴⁷. Because, of necessity, the Constitution was adopted and brought into force before the conduct of the first election for the Parliament for which it provided, provision had to be made in several respects "until the Parliament of the Commonwealth otherwise provides". That formula, or some variant of it, appears in numerous provisions governing elections to the Federal Parliament²⁴⁸.
In addition, particular provisions were made in relation to the initial federal election and the ensuing first session of the first Parliament²⁴⁹. Other provisions were intended to be permanent requirements governing elections to the two Houses of Parliament at the first general election and thereafter until the Constitution was amended.
The express grant of lawmaking powers contained in s 51(xxxvi) indicates clearly that the Federal Parliament enjoyed a substantial power to make laws with respect to the election of senators and members of the House of Representatives. Similarly, the express incidental power (s 51(xxxix)) supplements, as necessary, the legislative power incidental to the execution of the constitutional powers vested in the Parliament and in each House thereof. Because ss 10 and 31 of the Constitution respectively enact that "[u]ntil the Parliament otherwise provides" the election of senators and members of the House of Representatives should follow the laws in force in each State "relating to elections for the more numerous House of the Parliament of the State", the substitute laws, when they "otherwise provide[d]", were, by inference, to be federal laws "relating to" such elections²⁵⁰. The respective constitutional criteria of "relating to" (in ss 10 and 31) and "with respect to" (in s 51(xxxvi) and (xxxix)) import no relevant differentiation in the ambit of the powers thereby granted.
An evolving representative democracy: No written constitution can provide for the detail essential to the conduct of a modern election that carries into effect all of the requirements of a representative democracy such as the Constitution establishes. The power to regulate elections by more detailed federal law is therefore essential. It exists in substantial measure. Inherent in the task of electing a Parliament, as the Constitution envisages, from electors resident in all parts of a continental country (and absentee electors all over the world), is the necessity to provide a comprehensive law governing the myriad circumstances that arise in translating the sparse constitutional text into detailed machinery. Given the several express heads of power (and the necessary implied powers) it would be inappropriate in the extreme to adopt a narrow view concerning the Federal Parliament's powers to enact laws considered necessary from time to time for the conduct of federal elections. In the history of this Court's decisions on the subject, no narrow view has been taken.

The requirement of "directly chosen by the people"

The context of the requirement: The appellant submitted that the "500 rule" and "no overlap rule" contradicted the express constitutional prescription that the Federal Parliament, in both Chambers, must be composed respectively of senators and members "directly chosen by the people". This was so because each rule constituted an impediment to the process of choice, reserved to the people. In this respect, the appellant placed emphasis upon two notions. First, that there must be a "choice", in the sense of a genuine selection, effective for the purpose of returning a senator or member to the Parliament. Secondly, that the choice must be one made by the "people", in the broad sense of that term. It must not be one unduly controlled by government officials (such as officers of the AEC), by competing political parties or by other outside influences or requirements.
In the course of this Court's consideration of the phrase "directly chosen by the people", the suggestion has been made that the purpose of the expression was merely to underline the requirement of direct election as contrasted to election by indirect means, as by an electoral college²⁵⁹. The United States model, with several provisions for the election of the President by an electoral college²⁶⁰ and the choice of Senators, originally²⁶¹ by the legislatures of the States²⁶², was regarded by the founders of the Australian Commonwealth as so unsatisfactory as to require explicit provision in the Constitution to ensure a different system. The provision for direct choice by the people was obviously addressed to this problem²⁶³. However, it is now generally accepted that the constitutional phrase goes beyond this negative stipulation. It has a high constitutional purpose²⁶⁴. This Court must give effect to that purpose.
But what is the purpose, relevant to a case such as the present? Upon this issue, narrow and broad views have been stated in this Court's decisions. None of the decisions has been concerned with a problem exactly like that raised in the present appeal. The Court's task, therefore, is one of reasoning by analogy to the lawful response to the appellant's complaints.

"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. The 'share in the government which the Constitution ensures' would be but a pious aspiration unless ss 7 and 24 carried with them more than the right to cast a vote. The guarantees embodied in ss 7 and 24 could not be satisfied by the Parliament requiring the people to select their representatives from a list of names drawn up by government officers.

If the institutions of representative and responsible government are to operate effectively and as the Constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box. The electors must be able to ascertain and examine the performances of their elected representatives and the capabilities and policies of all candidates for election. 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. ...

Few voters have the time or the capacity to make their own examination of the raw material concerning the business of government, the policies of candidates or the issues in elections even if they have access to that material."

Picking up these words, the appellant submitted that the impugned laws impeded the communication to electors concerning the party affiliations asserted by all candidates (facilitating the utility of voting for such candidates for election to the Senate, identified by the signification of their chosen political party "above the line"). According to the appellant, the laws impeded the necessary flow of essential information to electors in respect of such candidates. Candidates denied ballot paper identification with their chosen political party were thereby deprived of that means of communication with the "people", in their capacity as electors. By introducing a law that permitted officials (such as the AEC) to oblige party members to disclose other political affiliations (as under the "no overlap rule"), the Act impeded the direct participation of the people in elections. In effect, it confined the people's choices to political parties able and willing to assemble 500 citizens who would communicate that affiliation to the AEC. It obliged such citizens to choose, in advance of an election, amongst party affiliations all of which the citizen might support. And it ignored the unwillingness of some party members to disclose such information on the ground that it was private and personal (and in some circumstances, potentially damaging or even dangerous)²⁸⁰.
The appellant also relied on the dissenting opinion of Dawson J in Langer v The Commonwealth²⁸¹. He suggested that it was harmonious with the opinion of McHugh J in the ACTV case. The impugned provisions of the Act effectively imposed an artificial structure on the electoral activity of the people that contradicted direct popular choice of parliamentary representatives. It did so by forcing effective political expression into parties of a particular size, kind and organisation and by subjecting those unwilling or unable to comply to significant political and electoral disadvantage²⁸²:

"It is a law which is designed to keep from voters information which is required by them to enable them to exercise an informed choice. It can hardly be said that a choice is an informed choice if it is made in ignorance of a means of making the choice which is available and which a voter, if he or she knows of it, may wish to use in order to achieve a particular result."

The appellant submitted that, in the context of the Act, which afforded knowledge to the voter of the party political affiliation of some candidates, to deny the same privilege on the ballot paper to others was effectively to prevent the elector from making "an informed choice". Yet this was the postulate of the constitutional requirement that members and senators be "directly chosen by the people"²⁸³. Only such information would truly afford the people, participating in the election, a genuine appreciation of the alternatives available to them²⁸⁴.
Large ambit of the lawmaking power: As against these considerations, which explain the constitutional foundation for the appellant's arguments, the decisions of this Court give little support to attempts to translate the phrase "directly chosen by the people" into a large guarantee of substantial equality in the achievement of the democratic ideal reflected in Ch I of the Constitution. Thus, an appeal to implications said to be inherent in the phrase fell, for the most part, on deaf ears in a series of decisions where it was invoked before this Court²⁸⁵. Notwithstanding occasional references by the Court to the democratic character of the Parliament, and the representative democracy provided for in Ch I, attempts to turn the phrase "directly chosen by the people" into an effective instrument for the protection of concepts of democracy in the conduct of federal elections, when endangered by electoral law, have so far not proved fruitful.
Why has this been so? In part, the Court has founded its approach in textual provisions that clearly contemplate a substantial power in the Federal Parliament to provide, in considerable detail, for the conduct of elections, as indeed the Parliament has done from the earliest days of the Commonwealth²⁸⁶. In part, the Court's approach reflects a recognition of the variety of electoral systems that exist in the world today and the undesirability of restricting the power of the Australian Parliament to experiment amongst electoral systems in the detail of the enacted electoral law²⁸⁷. In part, the necessity to permit qualifications on "directly chosen by the people" to exclude babies and young children²⁸⁸, to allow for uncontested elections and to provide for casual vacancies in the Senate requires acceptance of some limitations upon the amplitude of the constitutional phrase.

The applicable standard of scrutiny

Standard of "scrupulous care": It follows that the Constitution affords the Federal Parliament an ample power to make laws "relating to elections" and "with respect to" electoral matters. The only express restrictions concern the requirement that both Houses be "directly chosen by the people" and that casual vacancies in the Senate ordinarily be filled by candidates of the same political party. How should this Court approach an electoral law said to offend these constitutional requirements, given that abuse of legislative power for partisan advantage is potentially a special risk in the case of electoral laws?
On this issue, differing views have been stated in this Court. In the ACTV case, Mason CJ suggested that restrictions on particular political activity in relation to elections must be "scrutinize[d] ... with scrupulous care"²⁹⁸ or, as he elsewhere put it, "very carefully"²⁹⁹. His Honour explained that this approach was necessary "in order to protect the integrity of the political process"³⁰⁰. Supporting the obligation of "scrupulous care" is the fundamental notion that protecting incumbents is not a constitutional imperative³⁰¹. Upon that footing, laws that have a tendency to protect incumbents – or those who may hope or expect to enjoy long‑term incumbency – need to be scrutinised very carefully. The appellant supported this approach. He argued that it left no scope for the operation, in the Australian constitutional context, of notions of weakened scrutiny such as were implied in concepts of "judicial deference" or tolerance of a "margin of appreciation", as mentioned in the Federal Court.
Margin of appreciation and deference: The AEC and the Attorney-General insisted that the proper approach was to accept a reasonable "margin of appreciation" in the Parliament to choose the means it considers appropriate to achieving the many conflicting but legitimate ends open to electoral law³⁰². It is to the Parliament, not the courts, that the Constitution affords the lawmaking power concerning the conduct of federal elections. The AEC therefore argued that courts should give primacy and deference to legislative judgment³⁰³. It submitted that this Court would respect the Parliament's choice of the means by which it sought to achieve an electoral end that was within power, unless it was plain that the means chosen was not "capable of being reasonably considered to be appropriate and adapted to achieve" the designated end.

Constitutional validity and proportionality

The link to power: "proportionality": The ungainly and unedifying phrase "appropriate and adapted", used to explain the essential link between an impugned law and its constitutional source of power, appears to have had its origin in the reasons of Marshall CJ in McCulloch v Maryland³¹⁹. It is a phrase inappropriate and ill-adapted to perform the constitutional function repeatedly assigned to it by members of this Court.
The word "appropriate" is inapt because, within a given constitutional remit, it is for the Parliament (and not a court) to say whether a law is "appropriate" or "inappropriate". Appropriateness, of its nature, imports notions of political degree and judgment which normally belong to legislators, not to judges. Similarly, "adapted" is a verb signifying modification and adjustment in detail: also usually the business of legislators. In so far as the composite phrase is made still further obscure by prefacing it with a description of the law as one "capable of being reasonably considered to be" appropriate and adapted, it is subject to added objections. That phrase risks diverting judgment from the particular law and surrendering the constitutional mandate with which the courts are charged to the assessment of the Parliament or the Executive. I will continue to protest against the continued use by this Court of such an unsatisfactory and ugly expression to explain what it is doing in the cases where the issue of constitutional power is invoked³²⁰.
A more accurate explanation of the constitutional connection in such cases is found in the word "proportionality". That word has long been used by individual judges. Some have used it as an explanation of the limits of the "appropriate and adapted" test. For example, in McKinlay³²¹ Mason J was prepared to accept that it was "perhaps conceivable that variations in the numbers of electors or people in single member electorates could become so grossly disproportionate as to raise a question whether an election held on boundaries so drawn would produce a House of Representatives composed of members directly chosen by the people of the Commonwealth" as the Constitution requires. The word was there used in a context that acknowledged the limits of the constitutional phrase in imposing a requirement of practical equality of electors in federal electorates. Mason J was addressing the extreme perimeter of constitutional power. "Disproportionate" was taken as a description of a law that exceeded the permissible boundary. By inference, "proportionate" is a description of a law which falls on the right side of the boundary and is thus within constitutional power.

The impugned provisions are proportionate to the express grant

The laws burden political activity: Approaching the Act from the standpoint of the preceding analysis, the provisions which the appellant impugns are within the powers accorded by the Constitution to the Federal Parliament to enact laws with respect to elections to the Parliament. Measured against the express provisions granting or affecting such powers, the "500 rule" and the "no overlap rule" are, it is true, a burden on the DLP and its candidates. However, in my view, the rules represent a proportionate exercise by the Parliament of its legitimate powers³³². To that extent they are valid.
How does the introduction into the Act of the "500 rule" and the "no overlap rule" burden the political activities of the DLP? It does so most obviously by imposing a price, that would not otherwise exist, for a benefit that is enjoyed by other (larger and better organised) political parties to have the party affiliation of their candidates signified above the line on the Senate ballot paper in accordance with the choice of those individual candidates. Given the very high proportion of Australian electors who vote for senators in this way, the practical burden that is introduced by the challenged laws cannot be treated as insignificant or trivial³³³. Communicating political allegiance in such a manner would sometimes, perhaps usually, represent a valuable political advantage³³⁴. This would be especially so in the case of a political party, such as the DLP, which continues to enjoy, to some extent, name recognition, as I would readily infer to be the case.
I also accept the appellant's argument that the machinery of investigation and scrutiny of DLP membership and the obligation cast upon those members to reveal their political allegiances to government officials and to choose amongst several allegiances might, in individual cases, also constitute a burden on the DLP and its members. There were times in the past, and they may return, when public signification to government officials of political allegiances could carry risks of present or future disadvantage³³⁵.
Even if such risks were put to one side, there are many in Australian society who cherish the privacy of their political opinions. For personal reasons, such citizens might not be willing to reveal their party affiliations to government officials. The mere fact that their names might not be available for later public or special interest disclosure³³⁶ would be no comfort to such people. The advantage of secret voting guaranteed by the Act is that it permits privacy in matters of political affiliation in federal elections. To impose on the DLP and its officers a requirement to disclose to the AEC the names of 500 members, and to alert those members to the necessity of such disclosure and about their inability to remain members of other political parties if they are to be counted in the 500, also constitutes a burden on the party and its members. It is particularly so in the case of a party of smaller membership.

"Action in common in our highly organised society means an organisation with adequate funds, staff, research officers and the rest. Otherwise action is blind."

Within the scheme, and for the limited purposes of the Act, the "500 rule" and the "no overlap rule", and laws for their enforcement, are proportionate to the power conferred on the Parliament by the Constitution to enact laws with respect to, or relating to, federal elections. Specifically, the provisions are not disproportionate to the express requirement that senators and members of the House of Representatives must be "directly chosen by the people".
The provisions of s 15 are confirmatory: There remains the question whether the amended language of s 15 of the Constitution, with its express reference to candidates "publicly recognized by a particular political party", necessarily denies the entitlement of the Parliament to impose burdens upon political parties of the kind introduced into the Act by the "500 rule" and the "no overlap rule" and the provisions allowing the AEC to enforce those "rules".
The provisions of s 15, as now amended, appear to preserve a constitutional entitlement of candidates in an election to the Senate, to organise themselves in "particular political part[ies]" without inhibitions that would frustrate the arrangements postulated by the section. None of the provisions of the Act which the appellant challenged calls into question the entitlement of the DLP to form itself as a "particular political party" for the purposes of s 15 of the Constitution. None prevents or limits the DLP offering candidates for election to the Senate as such. All that the impugned provisions do is to impose the identified restrictions upon any such "political party" if it wishes to be "registered" under the Act.
Nothing in s 15 of the Constitution, as amended, therefore casts doubt on my previous conclusion. The impugned provisions are within the relevant express lawmaking powers of the Parliament referred to in the Constitution. They are proportionate to the express terms of the relevant sections of Ch I by which the Parliament is accorded power to enact electoral laws governing the election of senators and members of the House of Representatives. The first part of the appellant's challenge therefore fails. It remains to consider whether this conclusion has to be qualified, or reversed, by reference to the implied "freedoms" contained within the Constitution to which the applicable laws must also conform.

The constitutional implications are burdened

The implications relied on: The appellant invoked three suggested implications of the Constitution to attack the validity of the "500 rule" and the "no overlap rule". These were (1) The implied freedom from federal legislative restrictions upon political communication essential for the operation of the system of representative democracy created by the Constitution; (2) The implied freedom of association essential to the effective conduct of federal elections and the formation of "particular political part[ies]" as contemplated by the Constitution; and (3) The implied freedom of individual privacy of the people in their communication and association as candidates, as members of political parties and as electors in the conduct of a federal election as envisaged by the Constitution.
I can deal with this part of the appellant's case more briefly. Many of the conclusions already stated concerning the invocation of the limits in the express provisions in Ch I of the Constitution apply equally to the complaints that the impugned provisions of the Act offend the stated constitutional implications.
Implied freedom of expression: The first question is whether the provisions of the Act introducing the "500 rule" and the "no overlap rule" and the sections providing for their enforcement burden the freedom of communication about government or political matters implied from ss 7, 24, 64 and 128 of the Constitution³⁵². If the provisions do effectively burden that freedom, a second question arises as to whether the burden in question is constitutionally permissible, in the sense of proportionate to the achievement of all of the purposes of the Constitution³⁵³.
The AEC and the Attorney-General of the Commonwealth, by a notice of contention, supported the approach of the primary judge³⁵⁴. Contrary to the Full Court³⁵⁵, he concluded that the first of these questions should be answered in the negative, so that issues of proportionality of any "burden" did not need to be considered. For reasons similar to those already indicated, the approach of the Full Court is to be preferred. There is a burden on the implied freedom of political communication, in consequence of the provisions of the Act challenged by the appellant. However, alike with the Full Court, I would conclude that the burden is constitutionally acceptable. It is proportionate to the achievement of legitimate ends the fulfilment of which is compatible with the maintenance of the system of representative government prescribed in the Constitution.

The burdens are proportionate to the Constitution's purposes

The considerations favouring proportionality: Accepting, as I would, that the provisions of the Act challenged by the appellant burden, to some degree, the implied freedom of political communication and the implied freedom of political association essential for the fulfilment of the constitutional system of representative government, I am unconvinced that such burdens are constitutionally impermissible. They are not disproportionate to the attainment of all of the constitutional objectives operating in this context.
Similarly, to the extent to which there is inherent in the necessity of political association within "particular political part[ies]", as envisaged by the Constitution, any implied constitutional guarantee of privacy (the existence of which I would not finally decide), I reach the same conclusion. The requirements, restrictions and disadvantages imposed on the DLP by the impugned provisions of the Act are real but proportionate to the attainment of legitimate ends chosen by the Parliament. Those ends are compatible with the Constitution.
In coming to these conclusions I take into account the considerations that I have mentioned earlier³⁶⁸. These involve the reasons of an electoral character that support and justify the impugned provisions. It was within the lawmaking powers of the Parliament to decide that regulation of "particular political part[ies]" was reasonably necessary to reduce confusion in the size and form of the ballot paper; to diminish the risk and actuality of deception of electors; to discourage the creation of phoney political parties; and to protect voters against disillusionment with the system of parliamentary democracy, reliant as it so heavily is in Australia on the organisation of political parties.
Conformability with international law: The foregoing interpretation of the operation of the Constitution upon the provisions of the Act that the appellant challenged appears consistent with the applicable rules of international law that bind Australia in this connection. Australia is a party to the International Covenant on Civil and Political Rights ("ICCPR")³⁶⁹. Article 25 of the ICCPR states, relevantly (with emphasis added):

"Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs … through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors".

The invalidation of laws that are "disproportionate" to the attainment of the legitimate ends of constitutionally prescribed representative government affords a control upon illegitimate restrictions on the conduct of federal elections in Australia. It sufficiently approximates the prohibition upon "unreasonable"³⁷⁰ restrictions to satisfy the principles of the ICCPR. It follows that there is no need, in this appeal, to subject the doctrine to closer re-examination³⁷¹.

Conclusion and orders

There is, therefore, a burden on the DLP and its electoral candidates in the impugned laws, most especially because of the electoral value of its name recognition when published on the ballot paper with the names of those candidates the DLP supports for election to the Federal Parliament. However, that burden is not disproportionate to the attainment of legitimate ends of electoral law which it was open to the Parliament of Australia to accept. In consequence, the impugned provisions of the Act are valid. The appellant's attack on the constitutional validity of those provisions fails.
It is for these reasons that I joined in the orders announced on 20 May 2004, dismissing the appeal with costs.
CALLINAN J. The appellant raises questions as to the constitutional validity of some provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Act"), namely ss 123(1)(a)(ii), 126(2A), 136(1)(b)(ii), 137(1)(b), 137(1)(cb), 137(5) and 138A ("the challenged provisions") on the basis of a suggested burden imposed by them upon freedom of political communication. Together, these provisions require satisfaction of two conditions by a party wishing to register under the Act: first, that it have at least 500 members; and, secondly, that there be no commonality of membership between parties. These two prerequisites may conveniently be referred to as the "500 rule" and the "overlap rule".

Facts

The appellant is the registered officer of the Democratic Labor Party ("the DLP"). He appeals to this Court against a decision of the Full Court of the Federal Court of Australia relating to the membership of the Party. The DLP was, and remains a registered political party under the Act. The respondent, the Australian Electoral Commission ("the AEC") is the statutory regulatory authority established under the Act.
Part XI of the Act states the procedures to be followed by political parties to obtain and maintain registration. Registration confers advantages unavailable to an unregistered party, as to which the Full Court of the Federal Court in the joint judgment said³⁷²:

"[The] registration scheme affords various 'privileges' to registered political parties. The extent of some of those 'privileges' may not be great. For example, one of the privileges that has existed since 1983 is the payment of public funding to the political party. However, even if the political party is not registered public funding is still available although it is paid direct to the candidate or group or his or her or its agent (s 299 of the Act). Similarly, the use of list voting in Senate elections is not limited to registered parties, but can extend to 'groups' or individual candidates (see ss 168, 211, 211A, 219 and 272 of the Act). Consequently, the main advantages of registration are the privilege of having party affiliation recorded on the ballot paper and the privilege of having access to the electoral roll in digital form."

It is necessary at this point to set out the challenged provisions and the relevant facts.

"123 Interpretation

(1) ...

eligible political party means a political party that:

(a) either:

(i) is a Parliamentary party; or

(ii) has at least 500 members; and

(b) is established on the basis of a written constitution (however described) that sets out the aims of the party.

…

126 Application for registration

...

(2A) Two or more parties cannot rely on the same member for the purpose of qualifying or continuing to qualify as an eligible political party. The following provisions apply accordingly:

(a) a member who is relied on by 2 or more parties may nominate the party entitled to rely on the member, but if a party is not nominated after the Commission has given the members at least 30 days to do so, the member is not entitled to be relied on by any of those parties;

(b) the members on whom a registered party relies may be changed at any time by an amendment of the Register of Political Parties;

(c) the registration of a party is not to be cancelled because of this subsection unless the Commission has taken action to determine whether the party should be deregistered because of paragraph 137(1)(a), (b) or (c).

…

136 Deregistration of party failing to endorse candidates or ceasing to be a Parliamentary party

(1) A registered political party is liable to deregistration if:

…

(b) in the case of a party that was a Parliamentary party when it was registered:

...

(ii) the party has fewer than 500 members.

...

137 Deregistration of political party on other grounds

(1) If the Commission is satisfied on reasonable grounds that:

...

(b) a political party so registered, not being a Parliamentary party, has ceased to have at least 500 members; or

…

(cb) the registered officer of a registered political party has failed to comply with a notice under section 138A (Review of eligibility of parties to remain in the Register);

the Commission shall:

(d) give the registered officer of the party notice, in writing, that it is considering deregistering the party under this section setting out its reasons for considering doing so and the terms of the provisions of subsections (2), (3), (4) and (5); and

(e) publish a notice in the Gazette that it is considering deregistering the party under this section, specifying the paragraph of this subsection by reason of which it is considering doing so.

...

(5) Where, in response to a notice given under paragraph (1)(d) in relation to a political party, a statement is lodged under subsection (2), the Commission shall consider that statement and determine whether the political party should be deregistered for the reason set out in that notice.

…

138A Review of eligibility of parties to remain in the Register

(1) The Electoral Commission may review the Register to determine whether one or more of the parties included in the Register:

(a) is an eligible political party; or

(b) should be deregistered under section 136 or 137.

(2) The Electoral Commission may do so at any time other than during the period that:

(a) starts on the day of the issue of a writ for a Senate election or House of Representatives election; and

(b) ends on the day on which the writ is returned.

(3) For the purposes of reviewing the Register, the Electoral Commission may give a written notice to the registered officer of a registered political party requesting specified information on the party's eligibility to be registered under this Part.

(4) The notice must specify a period within which the information must be provided. The period must be at least 2 months.

(5) The registered officer must comply with the notice within the specified period. However, the Electoral Commission may extend that period."

Should a party fail to comply with a request made under s 138A the AEC, if satisfied on reasonable grounds that the party has failed to comply with the notice, must give the registered officer notice that it is considering deregistering the party together with its reasons for doing so. Additionally, the AEC must publish a notice in the Gazette outlining that it is considering deregistering the non-compliant party and the statutory basis upon which it relies³⁷³.
By letter dated 1 August 2001 the respondent wrote to the appellant, in his capacity as registered officer of the DLP, requesting that the appellant provide the following details:

"(a) A list of the names of the persons upon whom the Democratic Labor Party relies for the purposes of registration – that is, for the purpose of establishing that the Party has at least 500 members – including each member's address, date of birth and contact telephone number (to the extent that this information is maintained in the Party's records) …

(b) Copies of the most recent application for membership or for renewal of membership completed by each person included in the list of names.

(c) A statement by you, as registered officer of the Party, confirming that each person on the list has been accepted as a member of the Party and that the information provided to the AEC accurately reflects the Party's records.

(d) A copy of the Party's current constitution."

The notice required the appellant to comply within two months of receipt of the notice. Paragraph 9 of it stated:

"[S]ubsection 126(2A) of the Act prevents two or more parties relying on the same member for the purpose of qualifying or continuing to qualify as an eligible political party

(a) The names, addresses, birth dates and contact telephone numbers of each member on whom the Democratic Labor Party relies are required by the AEC for two purposes: first, to enable the AEC to establish (through contact with a sample of members) that the nominated persons are in fact members of the Party; and, secondly, to enable the AEC to cross-check the nominated members against the members relied on by other registered political parties.

(b) It is possible that some members of the Democratic Labor Party are also members of other registered political parties. For that reason, it would be prudent to provide the names and other details of more than the minimum 500 members.

(c) If the AEC is satisfied, on the basis of the information supplied by you and its own inquiries, that the Democratic Labor Party has ceased to have at least 500 members (not being members relied on by another registered political party), the AEC will be authorised (and required) by paragraph 137(1)(b) of the Act to give notice of possible deregistration of the Party. That notice may lead to deregistration under either subsection 137(4) or subsection 137(6) of the Act."

In response, the appellant on 2 October 2001 wrote to the Acting Deputy Electoral Commissioner stating:

"With respect to the AEC's concern to cross-check nominated members of separate political parties to establish that no two or more parties rely on the same member for registration purposes, I say that the Democratic Labor Party disputes the authority of the AEC to engage in such conduct. To the extent that such conduct may be lawful, I say that any information required by the AEC for that purpose may be provided by Democratic Labor Party members themselves, if they so choose."

Upon receipt of the appellant's response the AEC immediately gave notice to the appellant, as required by s 137 of the Act, that it was considering deregistering the DLP in accordance with the Act. The appellant and the respondent then exchanged various letters which referred to the respondent's authority to make the initial request none of which are relevant to the present appeal.

Decision of the primary judge

On 7 January 2002 the appellant made application to the Federal Court of Australia seeking judicial review of the decisions made by the AEC and conveyed by the correspondence to which I have referred. The appellant also sought a writ of prohibition to prevent the AEC from deregistering the DLP on the ground that the challenged provisions of the Act were constitutionally invalid. The appellant's Notice of a Constitutional Matter identified the constitutional point in this way³⁷⁴:

"The issue which arises is whether ss 123(1)(a)(ii), 126(2A), 136(1)(b)(ii), 137(1)(b), 137(1)(cb) and 138A of the Commonwealth Electoral Act 1918 are constitutionally invalid in part in that they impede or are the antithesis of the freedom of communication between the people concerning political matters which enables the people to exercise a free and informed choice as electors necessarily protected by the Commonwealth Constitution."

Before the primary judge (Marshall J), the appellant argued that the 500 rule and the overlap rule threatened the continued registration of the DLP. Such a threat was said to arise because in the event that the AEC deregistered the DLP, as an unregistered party it would be incapable of communicating with voters information as to which candidates were affiliated with it. The communication to which the appellant was referring was the inclusion of a candidate's affiliation with the DLP on ballot papers used for elections to the Commonwealth Parliament.
The primary judge referred to the decision in Lange v Australian Broadcasting Corporation³⁷⁵, in particular the following passage³⁷⁶:

In his Honour's opinion the appellant's case failed at the outset for the following reason³⁷⁷:

"[T]he inclusion of party endorsement details on ballot papers is a communication between an arm of the executive government, that is, the commission, and the electors. It is not a communication between the people of a type envisaged by the High Court in Lange³⁷⁸ where reference was made to protection of 'the freedom of communication between the people'. It is not to the point to contend that the only relevant issue is whether there has been denial of access to political information by voters. That denial, if it exists, must be referable to a communication, which is between 'the people', and not between an arm of executive government and 'the people'."

This finding alone was sufficient to enable his Honour to dispose of the matter. He did, however, consider the other arguments advanced by the appellant.
His Honour stated his opinion that the inclusion of the name of a candidate's party on a ballot paper would be a communication "about political parties and candidates"³⁷⁹. He referred to s 169 of the Act which provides as follows:

"169 Notification of party endorsement

(1) The registered officer of a registered political party may request that the name, or the registered abbreviation of the name, of that party be printed on the ballot-papers for an election adjacent to the name of a candidate who has been endorsed by that party.

...

(4) Where:

(a) a request has been made under subsection (1) in respect of candidates in a Senate election; and

(b) the candidates propose to have a group voting ticket registered for the purposes of that election;

The denial of this entitlement, the primary judge was prepared to accept, for the purpose of the argument, could burden communications, as it "[could] be validly seen as a curtailment of the right to disseminate information of a political nature"³⁸⁰.
Having provisionally characterized the challenged provisions as relevantly burdensome, his Honour moved to the second stage of the test posited by Lange³⁸¹, as to "the appropriateness" of the challenged law:

"[T]he object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or ... that the law is reasonably appropriate and adapted to achieving that legitimate object or end."

Ultimately his Honour decided that the 500 rule³⁸²:

"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 Rights³⁸³, a 'margin of appreciation' must be reserved to the legislature in deciding upon the formulation of qualifications for registration as a political party …

The 500 rule, in so far as it may be said to infringe the relevant implied constitutional 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 minuscule levels of public support would be entitled to the benefits of registration …

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."

As to the overlap rule, his Honour said this³⁸⁴:

"[T]he no overlap rule does not infringe the implied freedom of communication about government and political matters. The no overlap rule was designed, like the 500 rule, to make the process of registration of political parties more effective by seeking to limit the capacity of individuals to foster a multiplicity of political parties based on an identical or substantially identical membership. The no overlap rule does not endanger the registration of a party who has, among its membership, a person who is also relied upon as a member by another party for registration purposes. The 'overlapping member' can choose her or his party for registration purposes. I agree with the contentions of the Attorney-General, as adopted by the commission … which read as follows:

'In the event that two or more parties rely on the same member or members for the purposes of eligibility to register or remain registered, there is no immediate sanction against a party. The overlap provisions are on their face reasonably appropriate and adapted to allow the party to remain registered if there is an overlapping member, provided the principle of not allowing multiple parties to rely on the same member for the purposes of eligibility in connexion with registration is itself reasonably appropriate and adapted.'

I accept the submission of the Attorney-General, as adopted by the commission … on the policy behind the no overlap rule, where the following was said:

'The policy behind both amendments was the avoidance of "entrepreneurial" or cynical use of the same "block" of members to register multiple parties with no true and discrete membership, the minimising of confusion to voters, the "tablecloth" ballot paper and the use of "decoy" or front parties to mislead the voter into indicating a preference for a group ticket which is merely calculated to channel preferences to another party.'"

It was further argued before the primary judge that the 500 rule and the overlap rule infringed freedoms of association and participation said to be implied in the Constitution. It appears from the reasons of the primary judge that such freedoms were argued to extend to "the steps of nominating, campaigning, advertising, debating, criticizing and voting"³⁸⁵. It was further submitted that a freedom of association "is derived from what the freedom of political communication requires"³⁸⁶. The appellant further contended that there was an implied right of privacy in relation to an elector's participation in the electoral process. The challenged provisions were claimed to impinge upon the freedom of association as they provided for the dissemination of the names of the members of the DLP. After citing passages from Australian Capital Television Pty Ltd v The Commonwealth³⁸⁷ ("ACTV") and Kruger v The Commonwealth³⁸⁸ the primary judge concluded³⁸⁹:

"In my view, taken at their highest, the parts of ACTV and Kruger referred to as support for Mr Mulholland's contention of an implied freedom of privacy of association and affiliation, are authority only for the proposition that there may exist a freedom to physically associate and move for the purpose of so associating as an incident of or corollary to the freedom to communicate. I can discern nothing in the judgments to support the contention that persons have a constitutionally entrenched freedom to keep their political associations private. Furthermore, no textual or structural foundation in the Constitution for the implication of a freedom of privacy of political association has been demonstrated in this case. Finally, even if a freedom of association of the nature described at the relevant parts of ACTV and Kruger exists, I consider that the provisions at issue in the instant case, which have the effect of setting qualifications for political parties as a prerequisite to achieving or maintaining registration under the Act, could not reasonably be viewed as hampering that freedom. The members of the DLP or people who propose to become members of the DLP are still free to associate for that purpose notwithstanding the provisions of Pt XI."

The appeal to the Full Court of the Federal Court

On appeal, the Full Court of the Federal Court of Australia (Black CJ, Weinberg and Selway JJ) took some different views from the primary judge. Their Honours said that freedom of communication³⁹⁰:

"is freedom of all political communication relevant to the system of representative and responsible government established by the Constitution. It clearly includes political communication between Commonwealth voters and between those represented and their representatives. It clearly includes communication between political parties and the people. It must include communication between the Executive and the people as well."

In relation to the existence or otherwise of any burden upon potential communication the Full Court observed³⁹¹:

"One of the conceptual problems in this case is in identifying the relevant burden. This is not helped by the manner in which the appellant puts his case. As noted above, he seeks to avail the DLP of the privileges afforded by registration. He does not attack those privileges. It is presumably for this reason that the Commonwealth Solicitor-General has referred the Court to McClure v Australian Electoral Commission³⁹². In that case the petitioner complained that there had been a breach of the constitutional implication because he had not been afforded the same amount of publicity as had other candidates for election. But as Hayne J pointed out³⁹³:

'The short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise. The freedom is a freedom from government action; it is not a right to require others to provide a means of communication.'

So, for example, the appellant could not complain if party affiliation was not included on the ballot for anyone.

... The nature of democratic politics is competition – the discriminatory privilege of one is the burden of another. If, for example, the Commonwealth Parliament passed a law providing that the members of party X should be placed first on the ballot paper and their names be printed in bold and with a bigger font than the names of other candidates then that law would most likely be invalid. Candidates other than those standing for party X would be burdened in their capacity to communicate simply because of the legal preference created by the relevant law … Similarly, in this case, a law which provides that only certain persons can have their party affiliations stated on the ballot paper must burden those who are excluded."

The Full Court then considered whether the "burden" was reasonably adapted to a legitimate end, observing that³⁹⁴:

"the legislative limitation or burden is the requirement that a party be registered before it receive the various privileges available to registered parties. On its face the requirement of registration seems to be part of the legitimate objective of the regulation of elections …

Consequently, in our view, the registration of political parties under the Act is a necessary aspect of a valid and legitimate legislative objective."

Counsel for the appellant argued that the emphasis the primary judge placed on an expression "margin of appreciation" that he used when considering whether the impugned provisions were reasonably capable of being seen as appropriate and adapted to achieve a legitimate legislative purpose, was misplaced. The Full Court discussed two of the phrases used in Lange: "reasonably adapted" and "reasonably capable of being regarded as appropriate and adapted" which have subsequently found favour with other judges of this Court³⁹⁵. After questioning whether there is in practice much difference between the two formulations, the Full Court cited a passage from the judgment of Kirby J in Levy v Victoria³⁹⁶:

"In Australia, without the express conferral of rights which individuals may enforce, it is necessary to come back to the rather more restricted question. This is: does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides? Such cases do exist. But in the nature of their source in Australian constitutional law they will be fewer than the multitude of First Amendment cases which have engaged the attention of the courts of the United States.

Whilst bearing in mind the foregoing discussion, the test to be applied is that recently stated in the unanimous opinion of the Court in Lange v Australian Broadcasting Corporation."

The Full Court then observed³⁹⁷:

"The appropriate task for this Court is to apply the test as stated in Lange, acknowledging that the form of words used in Lange was intended to reflect different formulae that had been used in previous cases; which different formulae may, or may not, have reflected minor differences in principle between the judges that used them."

The Full Court rejected the appellant's argument that the primary judge erred in applying the Lange test³⁹⁸:

"It is clear from his reasons that Marshall J did not superimpose a 'margin of appreciation' test on top of a 'reasonably appropriate and adapted test'. What he did was refer to a 'margin of appreciation' as an integral aspect of determining what was reasonably appropriate and adapted. His Honour was right to do so."

As to whether the 500 rule was reasonably appropriate and adapted the Full Court said this³⁹⁹:

"The appellant says that any requirement of more than two members (presumably being the minimum to have a 'party') is too many. But there is no reason why the minimum requirement should be the only available requirement. At the very least the Parliament must be able to take into account issues such as the extent of public support enjoyed by the party. Maybe it can also take account of the degree of recognition of the party by the voters. The Parliament could hardly be required to arrange the publication on the ballot of party affiliations if the only effect of doing so is to create confusion. It is also likely that Parliament may take into account the potential farce of the ballot paper being so large that the public lose confidence in the electoral system. Presumably it is for this reason that there are statutory requirements that a candidate must have at least 50 signatories to his or her nomination form: see s 166 of the Act. The number '500' may well, in one sense, be an arbitrary number, but nothing was put before us to suggest that it is inappropriate. It was not suggested that a political party having what might be seen as 'public support' would be unable to comply with the 500 member requirement. Indeed, the DLP, although it has not had a federal member for many years, still apparently has 500 or more members. As we understand it, it is the requirement to provide a list of 500 members none of whom are overlapping (or if they are, who will choose the DLP as their party of choice) which is causing it difficulty.

This is not to deny that if the required number of members were sufficiently large it might be in breach of the implied limitation. To take an extreme case, if it were apparent that only one political party could comply, it is hard to see how such a requirement could be reasonably adapted to a legitimate object."

In relation to the overlap rule the Full Court concluded⁴⁰⁰:

"The second objection of the appellant was that the no overlap rule in s 126(2A) of the Act, combined with the increased investigatory powers in s 138A of the Act are not 'reasonably appropriate and adapted' to a legitimate purpose. At one level it is probably sufficient merely to say that this requirement has the effect of changing the requirement from 500 members to '500 members who are prepared to acknowledge their membership and whose membership is not relied on by another political party for the purpose of being registered'. In practical terms, this may operate to increase the number of required members. Given that the number of 500 is itself arbitrary there is probably no reason to think that an increased number (whatever it is) changes the scheme into one that is not reasonably appropriate and adapted to the legitimate end we have previously identified. Certainly there was nothing before us to suggest what the number might be. The Court was, however, referred to material which suggested that these changes were directed to a particular problem, namely a party registering a number of other parties with the same 500 members, but with new party names that might be attractive to the electorate and then using these 'dummy' parties to direct preference votes. Apparently this problem has occurred in New South Wales. The appellant argued, in effect, that there were better or other ways to address such issues and that, in any event, it was not likely to be as significant a problem in relation to Commonwealth parliamentary elections as it had been in New South Wales. [Counsel for the appellant] argued that the relevant mischief would be better addressed, for example, by legislation directed to those responsible for the management of the party. Insofar as the mischief consisted of inappropriate party names, he argued that it would be better addressed by legislation directed to that topic. But these arguments do not answer the second limb of the Lange test. The question is whether the legislation is reasonably adapted and appropriate to a legitimate objective, not whether some different or other legislative approach might have been more effective."

Appellant's submissions in this Court

All of the appellant's arguments rely upon the implication of freedom of political communication found in Lange. But some of them seek to build upon, and extend that implication, indeed to draw a further implication from the implication itself. Moreover, the appellant seeks to argue that the implication of freedom found in Lange, is here, without more, infringed. That argument may be left until his others have been considered.
In this Court the appellant persists in the submission that the 500 rule and the overlap rule impair the making of, or are antithetical to, an informed choice by electors and unreasonably discriminate between candidates. The impairment is said to result from the inability of a candidate, or in some cases a party, "to communicate" a party affiliation to voters on ballot papers. The appellant relies in part on the decision of the Supreme Court of Canada in Figueroa v Canada (Attorney General)⁴⁰¹, a decision to which I will refer later in my reasons.
It is unnecessary for me to repeat what I have said in earlier cases⁴⁰² in relation to Lange to which I would adhere. For present purposes I will proceed, as I did in Coleman v Power⁴⁰³, upon the assumption that the decision in Lange accords with the Constitution and that I am bound to apply it.
The appellant does not contend that legislation with respect to electoral matters may not be constitutionally enacted, but submits that it will be invalid if it is inconsistent with the provisions for direct choice of candidates in accordance with ss 7 and 24 of the Constitution. The appellant submits, first, that there can be no direct choice unless the choice be a real and informed one. Next, he submits, the legislative regime for direct choice cannot be discriminatory in operation. If it is, it will "distort" choice and be contrary to the express requirements in ss 7 and 24 of the Constitution. To deny to an unregistered party, or an endorsed member of it, an entitlement to include information relating to his or her choice, is to burden the communication of that information to the public, and a right which the appellant says a candidate and his or her (unregistered) party has, to communicate it.
The appellant's submissions echo the language of Iacobucci J in Figueroa⁴⁰⁴ which is, in a sense, Canada's :

"[P]olitical parties play such a prominent role in our democratic system that the choice of candidates by some voters is based largely, if not exclusively, on party affiliation. Many individuals are unaware of the personal identity or background of the candidate for whom they wish to vote. In the absence of a party identifier on the ballot paper, it is possible that certain voters will be unable to vote for their preferred candidate. Furthermore, it also is possible that voters who are familiar with the identity of the candidate of a particular party will be discouraged from voting for a candidate nominated by a non-registered party. Owing to the prominence of political parties in our system of representative democracy, affiliation with an officially recognized party is highly advantageous to individual candidates. In the minds of some voters, the absence of a party identifier might make candidates nominated by parties that have not satisfied the 50-candidate threshold a less attractive option. It might create the impression that the candidate is not, in fact, affiliated with a political party, or that the political party with which she or he is affiliated is not a legitimate political party. In each instance, the restriction on the right of candidates to list their party affiliation interferes with the capacity of non-registered parties to compete in the electoral process.

The reasoning and decision in that case do not assist the appellant. The decision turned upon a very expansive reading of s 3 of the Canadian Charter of Rights and Freedoms. Adoption of the views there would require the equation of the Australian constitutional provisions for direct choice with that Canadian section, and an at least equally expansive reading of the former. I am not prepared to do that. It would require the making of further constitutional implications, in effect implications to be made from another implication. Implications of only the most necessary kind can be available in the context of a written constitution. This is not a case of necessity. Nor can s 3 of the Canadian Charter properly be equated with ss 7 and 24 of the Constitution which are directed to a particular purpose, of ensuring the direct election of members and senators, rather than election by, for example, electoral colleges. The ratio of Figueroa is a very broad one: that legislative interference with the right of citizens to play a meaningful role in the electoral process violated the Charter unless it could be justified under s 1. In particular, in determining whether the challenged provisions infringed s 3, it was inappropriate to balance this right against other democratic values. Any corresponding benefits flowing from the challenged provisions that related to other democratic values had to be considered only under s 1⁴⁰⁶.
I am not prepared to hold that ss 7 and 24 of the Australian Constitution go nearly so far. And, in any event, as will appear, I am not prepared to hold that the challenged provisions do deny to electors, or groups, or parties, opportunities of meaningful participation in the election of members of the Commonwealth Parliament.
For the same reasons I would reject the so-called purposive implication for which the appellant contends. There is no basis for, as the appellant puts it, a negative implication of a prohibition upon anything in derogation of a "grant" to the people of a direct choice.
The appellant put his arguments that ss 7 and 24 are infringed by the challenged provisions in another way, that:

"[l]egislation which unreasonably discriminates between candidates does not implement or facilitate 'direct choice' within the meaning of sections 7 and 24 of the Constitution, indeed is antithetical thereto, and accordingly is beyond the legislative power of the Commonwealth Parliament" (the "level playing field" argument).

The appellant went so far as to submit, in effect that discrimination of any kind between candidates was constitutionally impermissible. He sought to rely particularly in this regard on statements made by Mason CJ in ACTV⁴⁰⁷:

"The consequence is that the severe restriction of freedom of communication plainly fails to preserve or enhance fair access to the mode of communication which is the subject of the restriction. The replacement regime, though it reduces the expenses of political campaigning and the risks of trivialization of political debate, does not introduce a 'level playing field'. It is discriminatory in the respects already mentioned. In this respect I do not accept that, because absolute equality in the sharing of free time is unattainable, the inequalities inherent in the regime introduced by Pt IIID are justified or legitimate."

No other Justice in ACTV went so far. In any event much of what was said in that case must be read subject to the reasoning and conclusions in Lange.
The appellant accepts however that:

"each of McKenzie⁴⁰⁸, Abbotto⁴⁰⁹, McClure⁴¹⁰ and Ditchburn⁴¹¹ proceed on the foundation ... (as expounded in McGinty v Western Australia⁴¹²), that as there is no particular electoral system required by the Constitution (save that it must result in 'direct choice'), the Parliament is free to choose and that its choice of the particular electoral system may entail reasonable discrimination."

In my opinion the challenged provisions cannot be said to involve any unreasonable discrimination. The Constitution itself contemplates discrimination. Some might say that the election of an equal number of senators by each State discriminates against the more populous States. So too, a legislative entitlement to vote at age 18 years, may be thought by some to discriminate against people of 17 years. Lines must be drawn somewhere. The presence in the Constitution of ss 7, 8, 9, 24, 29, 30 and 34 provides a clear indication of the very broad power of the Parliament to make laws drawing those lines. Implicit in the challenged provisions are these propositions: political parties are comprised of people having a common political philosophy; political parties endorse and support candidates subscribing to that philosophy; endorsement by a political party may be a relevant matter for electors to know; and, to be a real political party of relevance, entitling it to various privileges, it should have no fewer than 500 members who are not members of other parties. Provisions containing, or based upon those propositions do not discriminate in any unreasonable way against either a party or a candidate for election.
As I have pointed out, in ACTV only Mason CJ used the expression "level playing field"⁴¹³. The legislated rules apply to all in exactly the same way. Any discrimination that may occur, by denying candidates of unregistered parties of 2 to 499 members the same sort of notation on a ballot paper as a candidate endorsed by a registered party of, say 501 members, is to do no more than to draw the sort of line that the Constitution empowers the Parliament to draw, and that line has not been shown to have been unreasonably drawn here. Even if I were to accept that a political surface as true and level as a well-calibrated bowling green was required by the Constitution, I would hold that the Act here substantially provides for it.
The appellant put a submission that there were other constitutional implications upon which he could rely, of freedom of association in relation to federal elections "and an associated freedom of political privacy relating thereto". These too were said to be derivable from ss 7 and 24 of the Constitution, or from the implied constitutional freedom of communication itself, in short, again that there should be drawn an implication on and from another implication. The appellant argued that these were necessary precursors to, and inextricably linked with direct choice. Disclosure, it was argued, of the names of members of the party, unreasonably interfered with or burdened these freedoms.
I would reject this submission also. It was not suggested by the appellant that the secret ballot was constitutionally protected, but yet he would have it that secrecy of affiliation with a party should be, even in circumstances in which disclosure is only required in order to verify a qualification applicable to all parties and people for inclusion of a notation on a ballot paper, and other privileges, including a public subsidy. Implications of the type suggested fall far short of being necessary. And even if they were, the Act, and the challenged provisions of it, having as they do, the purposes to which I just referred, are not disproportionate or inappropriate, or ill-adapted to the direct election of members and senators mandated by the Australian Constitution.

"The second principal ground taken by the plaintiff is that it offends general principles of justice to discriminate against candidates who are not members of established parties or groups. Section 7 of the Constitution provides, amongst other things, that the Senate shall be composed of senators for each State directly chosen by the people of the State. I am prepared to assume that s 7 requires that the Senate be elected by democratic methods but if that is the case it remains true to say that 'it is not for this Court to intervene so long as what is enacted is consistent with the existence of representative democracy as the chosen mode of government and is within the power conferred by s 51(xxxvi)' of the Constitution to use the words of Stephen J in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth⁴¹⁸."

The appellant has no constitutional right to have his party affiliation included on the ballot paper. Nor does any other candidate. The rights are entirely statutory. The Act could be repealed or amended so as to allow no right of inclusion of a party on the ballot paper at all. The appellant has no relevant rights other than such rights as may be conferred on him by the Act. In argument, McHugh J drew an analogy: protestors cannot complain about an interference with, or the prevention of their doing what they have no right to do anyway, for example, to communicate a protest on land on which their presence is a trespass⁴¹⁹. As the appellant has no relevant right to the imposition of an obligation upon another, to communicate a particular matter, he has no right which is capable of being burdened. The appellant is seeking a privilege, not to vindicate or avail himself of a right⁴²⁰. He can communicate his affiliation with the DLP as a candidate in any way and at any time that he wishes. What he cannot do is compel the respondent to do so in a way which would effectively discriminate in his favour, and would be tantamount to treatment of him as having a relevant right.
That is sufficient to dispose of the appellant's principal argument.
I would dismiss the appeal with costs.
HEYDON J. It was common ground that, subject to the appellant's argument, the legislation challenged in this case (which is set out in other judgments) was supported by at least the heads of power granted by ss 9, 10, 31 and 51(xxxvi) of the Constitution. Before analysing the appellant's arguments, it is convenient to set out the objects of the challenged legislation, the Commonwealth Electoral Act 1918 (Cth) ("the Act").

The objects of the challenged legislation

The overall scheme of the impugned provisions of the Act suggests that they have the following objects. First, they seek to ensure that genuine political parties (ie those that have a key characteristic of a political party, namely a modest but real level of community participation) can engage effectively in the electoral process. Secondly, they seek to protect public funds by ensuring that only those parties have access to public funding. Thirdly, they seek to reduce the risk of frustrating the choice of legislators by the people by preventing the participation of "parties" which have trivial levels of public support, but which catch the eye of the voter with a "one issue" party name and then channel preferences to other parties, thereby operating as decoys or dummies or fronts for other parties. Finally, they seek to reduce the risk of electors being misled into thinking, if all "parties" could be named on the ballot paper, that they all have existing representation in Parliament or a substantial membership.
The Act seeks to achieve these aims through, in part, the application of "the 500 rule", which essentially requires that registered political parties must either have at least one member who is a parliamentarian or have at least 500 members, and "the no-overlap rule", which prohibits two or more parties from relying on the same member for the purposes of registration. The appellant relied on three principal arguments against the validity of these rules.

The appellant's first argument: "directly chosen by the people"

Section 7 of the Constitution provides that senators are to be "directly chosen by the people" of the relevant State. Section 24 provides that members of the House of Representatives are to be "directly chosen by the people of the Commonwealth". The appellant submitted that the 500 rule and the no-overlap rule did not result in direct choice, and indeed were inconsistent with it. He did so because he contended that a direct choice must be a true choice, and hence an informed choice, and the impugned rules impaired the making of, or were antithetical to, an informed choice by voters. This was because they had the effect of preventing a candidate and his or her party from communicating to a voter that candidate's party affiliation or endorsement on the ballot paper in certain circumstances.

"A candidate may desire to communicate that he or she is endorsed by a particular party and therefore professes to hold or promotes particular political ideas or objectives. A political party involved in the electoral process may want to communicate to electors that its candidate is an endorsed candidate. An elector may desire to know, when voting, which candidates are affiliated with or endorsed by particular parties in order to make a 'true choice' or a 'real choice' as to who to vote for.

…

Further, not to communicate party endorsement (even with parties with less than 500 members) is apt to mislead electors who may otherwise assume that a candidate not displaying party endorsement has no affiliation with any party."

This argument was said to be supported by the decision of the Supreme Court of Canada in Figueroa v Canada (Attorney General)⁴²¹.

That argument fails. It cannot be said that elections conducted under the 500 rule and the no-overlap rule do not result in legislators being "directly chosen by the people". The "choice" must involve "an opportunity to gain an appreciation of the available alternatives"⁴²². Regulation of the electoral process is necessary for its effective operation⁴²³. Sections 7 and 24 forbid the interposition of an electoral college between the electors and those they elect⁴²⁴, but otherwise permit the legislature a wide range of choice as to how to ensure that the elected are directly chosen by the electors⁴²⁵. The 500 rule and the no-overlap rule do not prevent communication of party endorsement of candidates in any respect save one, and hence do not prevent steps being taken to ensure that electors realise that a candidate might be affiliated with a party not noted on the ballot. The goals of the legislation establishing these rules, so far as they seek to prevent electors from being misled, are substantially achieved. Hence, far from being injurious to informed choice, the 500 rule and the no-overlap rule foster it.
Figueroa v Canada (Attorney General) does not assist the appellant. While in Canada a political party seeking registered party status has to have 100 members, that requirement was not in issue in that case⁴²⁶. The main question in the case concerned the requirement that a political party must nominate candidates in at least 50 electoral districts in an election before it can be eligible for registered party status, and thereby obtain the right for its candidates to have their party affiliation listed on the ballot paper, together with financial advantages⁴²⁷.
The Supreme Court of Canada concluded that the 50-candidate threshold contravened s 3 of the Canadian Charter of Rights and Freedoms, and could not be justified under s 1⁴²⁸.
However, the case has no bearing on the present appeal, because the matter in issue in this appeal was not an issue in that case (and vice versa); the criteria against which validity of electoral laws must be tested in Canada are wholly different from the criteria here; and nothing was said in that case that affords any assistance here.

The appellant's second argument: unreasonable discrimination

The appellant submitted that the 500 rule and the no-overlap rule unreasonably discriminated between candidates and thereby contradicted the requirement that legislators be "directly chosen by the people", because they did not implement direct choice. He submitted that the 500 rule discriminated in favour of parties with larger membership bases to the disadvantage of smaller parties, discriminated in favour of incumbent parliamentarians to the disadvantage of other candidates, and discriminated in favour of parties associated with incumbent parliamentarians to the disadvantage of parties without incumbent parliamentarians. He said that while reasonable discrimination would not "contaminate or undermine the choice to be made by electors", it is not reasonable that a candidate from a party with 20, 50 or 100 members cannot display party affiliation on the ballot paper, while a candidate from a party with more than 500 can, or that a parliamentarian can automatically display party affiliation (whatever the size of the relevant party), whereas other candidates who wish to do so must belong to parties with more than 500 members.
The authorities on which the appellant relied can be dealt with at the outset. The appellant referred to a statement by McHugh J that the Commonwealth Parliament could not legislate "so as to prevent members of lawful political parties from being elected to Parliament"⁴²⁹. But the legislation postulated in that example goes beyond discrimination; the legislation challenged in this case is of a totally different character. The appellant also relied on statements by Mason CJ criticising as discriminatory a legislative system which favoured established political parties in allocating free broadcasting time during elections⁴³⁰. But those comments were made in relation to the implied constitutional freedom of political communication, not in relation to the express terms of ss 7 and 24, or the "necessary implications from the text of sections 7 and 24", on which the appellant's discrimination argument appears to rest.
That argument wavered between the contention that ss 7 and 24 in their terms forbid discrimination, and the contention that there is a constitutional implication forbidding it. The 500 rule and the no-overlap rule do not contravene the terms of ss 7 and 24, because they do not prevent legislators being directly chosen by the people. In McKenzie v Commonwealth of Australia⁴³¹, this Court upheld as not contravening s 7 provisions of the Act that allowed the name of "a registered political party" to be published next to the names of candidates on Senate ballot papers. Only an eligible political party could be registered, meaning a party which had at least one sitting member in a Commonwealth, State or Territory legislature, or a party with at least 500 members: ss 123 and 124. The legislation also allowed electors to vote in Senate elections either by marking boxes against the names of individual candidates set out below a line or by marking one of a number of boxes organised according to group voting tickets above the line: ss 168 and 211. Gibbs CJ said that the legislation was not inconsistent with the existence of representative democracy: any disadvantage caused to unaffiliated candidates did not so offend democratic principles as to render the legislation in breach of s 7. The provisions challenged in this case are not in a different category.

The appellant's third argument: implied freedom of political communication

The appellant contended that the 500 rule and the no-overlap rule contravened the implied freedom of political communication, because those rules prevented electors from being able to ascertain which candidates appearing on the ballot paper belonged to which parties. He submitted that the inclusion on the ballot paper of a candidate's party affiliation was a communication "between the people". He pointed out that the ballot paper is an official form of communication printed and published by the Australian Electoral Commission; that it communicates whether or not a candidate is endorsed by a particular party; that it is the final form of political communication to a voter in that it is taken to a polling booth, read, marked and deposited in the ballot box; and that "how to vote" cards from minor parties may not be available at all polling booths. He submitted that the legislation burdened the freedom of political communication by preventing some party affiliations from being revealed, and that the two rules were not reasonably appropriate and adapted to a legitimate or lawful objective.
These submissions fail.
First, there is no interference with any implied freedom of political communication in these circumstances because it is necessary that there be some relevant "right or privilege … under the general law"⁴³⁵ to be interfered with. In the absence of legislation permitting it, there is no right in any political party or candidate to have party affiliation indicated on the ballot paper. Indeed, the appellant conceded that a legislative prohibition on the appearance of any party affiliation on the ballot paper would not contravene the implied freedom. It follows that to legislate for a mixture of permissions and prohibitions, so as to permit the party affiliations of some candidates but not others to appear on the ballot paper, cannot interfere with the implied freedom⁴³⁶. The Full Federal Court saw the challenged statutory provisions as conferring "a limited privilege on registered political parties in relation to their communication with the voters", which was "a burden on all those seeking election that do not enjoy it"⁴³⁷. It would be paradoxical, however, if a complete prohibition was incontestably valid while a partial prohibition was not. It would also be paradoxical if an implied freedom created a right in individuals to have their party affiliation identified in the ballot paper, and created a correlative obligation on the Commission to include it there. Indeed, it would be contrary to principle, for "the freedom of communication implied in the Constitution is not an obligation to publicise … [I]t is not a right to require others to provide a means of communication." The Full Federal Court relied on passages that predate , were enunciated in a case in which a prior freedom to communicate by radio and television broadcasts was found to exist at common law, and were directed to the inadequacy of the regime which was introduced in substitution for that prior freedom.

The appellant's reference to derogation from grant

The appellant referred to an argument that ss 7 and 24 of the Constitution contained a "grant" to the people of "direct choice", and that the impugned legislation derogated from that grant. This was raised as a possibility rather than put as an argument, and in view of the appellant's statement that it was not necessary for his case, it need not be dealt with.

The appellant's reliance on constitutional rights of privacy and association

I agree with Gummow and Hayne JJ on these subjects.

Order

The appeal should be dismissed with costs.

Footnotes

Parliament of the Commonwealth of Australia, Joint Select Committee on Electoral Reform, First Report, September 1983. ↩
Australia, Senate, Parliamentary Debates (Hansard), 11 October 2000 at 18253. ↩
Mulholland v Australian Electoral Commission (2002) 193 ALR 710. ↩
Mulholland v Australian Electoral Commission (2003) 128 FCR 523. ↩
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. ↩
(1997) 189 CLR 520 at 557. ↩
(1975) 135 CLR 1. ↩
(1996) 186 CLR 140. ↩
(1975) 135 CLR 1 at 23-24. ↩
(2001) 207 CLR 391 at 402-403 [14]. ↩
See La Nauze, The Making of the Australian Constitution, (1972) at 95. ↩
Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1. ↩

Mulholland v Australian Electoral Commission [2004] HCA 41; 220 CLR 181; 209 ALR 582; 78 ALJR 1279

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