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

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

[66]

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 Taxation[32], 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 Ltd[33]. 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[34]. 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 McCulloch v Maryland. 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.

[405]

"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."

[447]

"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."

[453]

"[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. > > 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. It violates s 3 by ensuring that voters are better informed of the political platform of some candidates than they are of others." (original emphasis)

At a glance

Court

Decision date

Before

Source

Judgment (917 paragraphs)

Mulholland v Australian Electoral Commission [2004] HCA 41; 220 CLR 181; 209 ALR 582; 78 ALJR 1279 (8 September 2004)

Parties

Legislation Cited (39)

Cases Cited (58)