Babet v Commonwealth of Australia; Palmer v Commonwealth of Australia

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

Matter No B73/2024

RALPH BABET & ANOR  PLAINTIFFS

AND

COMMONWEALTH OF AUSTRALIA  DEFENDANT

Matter No B74/2024

CLIVE FREDERICK PALMER  PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA  DEFENDANT

Babet v Commonwealth of Australia
Palmer v Commonwealth of Australia

[2025] HCA 21

Date of Hearing: 7 February 2025
Date of Order: 12 February 2025
Date of Publication of Reasons: 14 May 2025

B73/2024 & B74/2024

ORDER

Matter No B73/2024

The questions stated for the opinion of the Full Court in the special case filed on 14 January 2025 be answered as follows:

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

Answer:No.

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

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

(ii)a Parliamentary party that has deregistered voluntarily?

Answer:No.

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

Answer:No.

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

Answer:None.

Question 5:Who should pay the costs of and incidental to this special case?

Answer:The plaintiffs.

Matter No B74/2024

The questions stated for the opinion of the Full Court in the special case filed on 14 January 2025 be answered as follows:

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

Answer:No.

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

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

(ii)a Parliamentary party that has deregistered voluntarily?

Answer:No.

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

Answer:No.

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

Answer:None.

Question 5:Who should pay the costs of and incidental to this special case?

Answer:The plaintiff.

Representation

D F Villa SC with S Palaniappan and P F Santucci for the plaintiffs in both matters (instructed by Alexander Law)

S P Donaghue KC, Solicitor-General of the Commonwealth, with B K Lim and C Ernst for the defendant in both matters (instructed by Australian Government Solicitor)

J E Davidson with A R Sapienza for the Attorney-General for the State of New South Wales, intervening in B73/2024 (instructed by Crown Solicitor (NSW))

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

CATCHWORDS

Babet v Commonwealth of Australia
Palmer v Commonwealth of Australia

Constitutional law (Cth) – Free and informed choice – Implied freedom of political communication – Where United Australia Party ("UAP") was formerly registered under Pt XI of Commonwealth Electoral Act 1918 (Cth) ("Act") and had been voluntarily deregistered under s 135(1) of Act – Where s 135(3) of Act precluded reregistration of UAP from occurring before next general election following voluntary deregistration – Whether s 135(3) invalid on ground that it impairs direct choice by people of Senators and members of House of Representatives – Whether s 135(3) invalid on ground that it impermissibly discriminates against candidates of political party or Parliamentary party that has deregistered voluntarily – Whether s 135(3) invalid on ground that it infringes implied freedom of political communication.

Words and phrases – "annual disclosure obligations", "anti-avoidance purpose", "anti-phoenixing purpose", "anti-rollover purpose", "burden or impairment", "deregistration", "effective burden", "electoral choice", "electoral expenditure", "explicature", "free and informed choice", "implicature", "implied freedom of political communication", "Parliamentary party", "rational connection", "reasonably appropriate and adapted", "registered political party", "reregistration", "structured proportionality", "transparency purpose", "voluntary deregistration".

Constitution, ss 7, 24.
Commonwealth Electoral Act 1918 (Cth), Pts XI, XX.

1. GAGELER CJ AND JAGOT J. Section 135(3) of the Commonwealth Electoral Act 1918 (Cth) ("the Act") renders a political party that was formerly registered under Pt XI of the Act and that has voluntarily deregistered ineligible for reregistration until after the general election for the House of Representatives next following the deregistration. The validity of s 135(3) was put in issue in two proceedings commenced by writs of summons in the original jurisdiction of this Court on 12 December 2024.

2. Both proceedings concerned the "United Australia Party", also known as the "UAP". The UAP was a voluntary association, established on the basis of a written constitution, the objects of which included "to secure the election of candidates selected by the [UAP] to the Australian Parliament". 

3. Having earlier been registered under Pt XI of the Act, the UAP endorsed candidates for election to all divisions in the House of Representatives in the general elections held in 2019 and in 2022 and also endorsed candidates for election to the Senate in each State and Territory. The UAP similarly intended to endorse candidates for election to the House of Representatives and the Senate in the next general election, the writs for which had not issued at the time of the commencement of the proceedings but which was required by ss 13, 28 and 32 of the Constitution, along with ss 158, 159 and 160 of the Act, to be held on or before 17 May 2025.

4. The problem for the UAP in implementing that intention was that it had been voluntarily deregistered under s 135(1) of the Act soon after the general election in 2022. Section 135(3) therefore precluded its reregistration from occurring before the next general election.

5. The plaintiffs in the first proceeding, Senator Ralph Babet and Mr Neil Favager, were members of the UAP. Senator Babet had been endorsed by the UAP as a candidate for the Senate election for the State of Victoria in 2022 as a result of which he was declared elected to the Senate for a term which, in the absence of a double dissolution under s 57 of the Constitution, was to expire on 30 June 2028. On 29 November 2024 he had made application for reregistration of the UAP which was subsequently denied by reference to the operation of s 135(3). Mr Favager was the National Director of the UAP and would have become its registered officer were it to have been reregistered.

6. The plaintiff in the second proceeding, Mr Clive Palmer, was the owner of the marks "United Australia Party" and "UAP" registered under the Trade Marks Act 1995 (Cth) which he licensed to the UAP. The defendant in each proceeding was the Commonwealth of Australia.

7. By special case in each proceeding, the parties to each proceeding agreed to state questions of law for the opinion of the Court. Those questions of law were stated in identical terms. The Court heard argument on those questions on 7 February 2025 and made orders answering them on 12 February 2025.

8. The questions stated and answers given in the special cases were to the following effect:

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

   Answer: No.

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

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

   (ii)a Parliamentary party that has deregistered voluntarily?

   Answer:No.

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

   Answer:No.

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

   Answer:None.

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

   Answer:The plaintiffs.

9. These are our reasons for giving those answers.

   Registration of political parties

10. Part XI of the Act is headed "Registration of political parties". For the purposes of the Act, a "political party" is an organisation an object or activity of which is the promotion of the election of candidates endorsed by it to the Senate or the House of Representatives.[1]

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

11. Part XI was inserted into the Act (in its original form as Pt IXA) by amendment enacted in 1983 which commenced in 1984 ("the 1983 Amendment Act").[2] Like many other provisions of the Act, the provisions of Pt XI have been amended on numerous occasions since its insertion. Aspects of their operation in variously amended forms have been considered in four prior decisions of this Court.[3] To answer the questions stated in the special cases required consideration of the operation of Pt XI within the current form of the Act.

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

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

12. The registration of political parties for which Pt XI of the Act provides is voluntary registration culminating in entry on a "Register of Political Parties"[4] through administrative action taken by the Australian Electoral Commission ("the AEC").[5] Subject to the substantive and procedural provisions of Pt XI, such voluntary registration is available, on application,[6] to an "eligible political party".[7]

    [4]Section 125 of the Act.

    [5]Section 133 of the Act.

    [6]Section 126 of the Act.

    [7]Section 124 of the Act.

13. Within the meaning of Pt XI, an "eligible political party" is a political party, established on the basis of a written constitution that sets out its objects, that either has at least 1,500 members or is a "Parliamentary party".[8] A "Parliamentary party" is a political party at least one member of which is a member of the Parliament of the Commonwealth.[9] There was no dispute that Senator Babet's membership meant that the UAP was a Parliamentary party and that the UAP was on that basis an eligible political party. 

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

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

14. Particulars to be entered by the AEC in the Register of Political Parties upon registration of an eligible political party include the name of the party, any abbreviation of that name and any party logo that may have been set out in the application, the name and address of the person nominated as the registered officer of the party for the purposes of the Act, and a statement indicating any wish of the party stated in the application to receive public funding under Div 3 of Pt XX of the Act.[10]

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

15. Apart from the potential for political parties to receive public funding under Div 3 of Pt XX if a party so wishes, voluntary registration under Pt XI affords political parties two main benefits within the contemporary scheme of the Act. The first benefit is a streamlining of the nomination process in so far as nominations of candidates endorsed by a registered political party are permitted to be signed by its registered officer and submitted in bulk.[11] The second, and more significant, benefit is the entitlement of a registered political party, on request, to have its registered name (or registered abbreviation of that name) and registered logo printed on ballot papers adjacent to the names of candidates endorsed by it and, if it has endorsed a group of two or more candidates for election to the Senate, to have its registered name (or registered abbreviation of that name) and registered logo printed on the ballot papers adjacent to the square printed "above the line" in relation to the group.[12]

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

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

    Annual disclosure obligations of registered political parties and others

16. Importantly, registration under Pt XI also triggers under Div 5A of Pt XX of the Act annual disclosure obligations on the part of registered political parties, and "associated entities" of registered political parties, recognition of which will be seen to be critical to an appreciation of the function served by s 135(3) within the contemporary scheme of the Act.

17. Within Div 5A is s 314AB, which obliges the agent or "financial controller" (the person responsible for maintaining financial records[13]) of each registered political party to provide to the AEC within 16 weeks of the end of each financial year an "annual return" that sets out information which includes:[14] the total amount received by or on behalf of the registered political party during the financial year together with particulars of amounts received during the financial year from persons or organisations above an indexed "disclosure threshold" the current amount of which is $16,900;[15] the total amount paid by or on behalf of the party during the financial year;[16] and the total outstanding amount at the end of the financial year of all debts incurred by or on behalf of the party, together with particulars of all outstanding debts to persons or organisations that are above the same disclosure threshold.[17]

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

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

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

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

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

18. Complementing s 314AB is s 314AEA, which obliges the financial controller of any entity that was registered under s 287L as an associated entity of a registered political party for a financial year likewise to provide to the AEC within 16 weeks of the end of that financial year an annual return setting out information of the same nature as that required to be set out in the annual return of a registered political party. Through the operation of s 287H, an entity that is not a "political entity" (and so is not a registered political party)[18] is compelled under sanction of civil penalty to be registered for a financial year under s 287L if, amongst other possibilities, the entity is controlled by or operates wholly or to a significant extent for the benefit of one or more registered political parties.

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

19. Each annual return provided to the AEC by a registered political party or associated entity under s 314AB or s 314AEA is required to be published by the AEC before the end of the first business day in February of the following calendar year on the "Transparency Register"[19] which it is required to maintain[20] and to make available to the public[21] and which it in fact maintains and makes available to the public through its website.

    [19]Section 320 of the Act.

    [20]Section 287N of the Act.

    [21]Section 287Q of the Act.

20. The extensive obligations to provide information in annual returns so imposed from year to year on a registered political party by s 314AB, and derivatively from year to year on its associated entities by s 314AEA, in consequence of the voluntary registration of the political party stand in contrast to other obligations to provide information in annual returns, which the AEC is likewise required to publish on the Transparency Register. Those other obligations are imposed under Div 5A of Pt XX of the Act from year to year on "significant third parties" and on "third parties" primarily by reference to their incurrence or intended incurrence during a financial year of "electoral expenditure", being expenditure incurred for the dominant purpose of creating or communicating electoral matter.[22]

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

21. For the purposes of Div 5A of Pt XX of the Act, a person or entity is a significant third party if registered as such for a financial year under s 287L. Through the operation of s 287F, a person or entity that is not a political entity (and therefore not a registered political party) is compelled under sanction of civil penalty to be registered as a significant third party for a financial year under s 287L only if the person or entity: incurred electoral expenditure during that financial year or any of the previous three financial years in an amount of $250,000 or more; incurred electoral expenditure during that financial year at least equal to the disclosure threshold and incurred electoral expenditure during the previous financial year amounting to at least one-third of their revenue for that year; or operates during that financial year for the dominant purpose of fundraising amounts the aggregate of which is at least equal to the disclosure threshold and that are for the purpose of incurring electoral expenditure or that are to be gifted for that purpose.[23] If a person or entity is registered as a significant third party for a financial year, s 314AB obliges their agent or financial controller to provide the AEC with an annual return for that financial year which contains information equivalent to the information required by the section in an annual return in respect of a registered political party.

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

22. As defined by s 287(1) for the purposes of Div 5A of Pt XX of the Act, a person or entity that is not a political entity (and so is not a political party) and is not required to be, and is not, registered as a significant third party is a third party during a financial year if electoral expenditure is incurred by or on behalf of that person or entity during that financial year in excess of the disclosure threshold. In the event of such electoral expenditure being so incurred during a financial year, s 314AEB obliges the third party to provide a return to the AEC for the financial year setting out details of the electoral expenditure so incurred and s 314AEC obliges the third party to provide a further return to the AEC for the financial year setting out details of any gifts exceeding the disclosure threshold which the third party received at any time and which the third party used during the financial year to enable or reimburse the incurrence of electoral expenditure.

    Context and purposes of s 135(3)

23. Within Pt XI of the Act s 135, headed "Voluntary deregistration", provides in relevant part:

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

    ...

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

24. Section 134, to which reference is made in s 135(1), allows for an application to be made to the AEC to change an entry in the Register of Political Parties in relation to a registered political party by a person or persons who include: the registered officer of the registered political party;[24] in the case of a Parliamentary party, its secretary or its member or all of its members who are members of the Commonwealth Parliament;[25] and in the case of a political party other than a Parliamentary party, three of its members.[26]

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

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

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

25. The deregistration of a registered political party which s 135(1) requires upon application of such a person is a consequence of the voluntary nature of registration of a political party under Pt XI. Subject to compliance with the substantive and procedural provisions of Pt XI, a political party can choose to be registered at any time and, through the operation of s 135(1), can choose to be deregistered at any time.

26. The triggering of s 135(3) is the inexorable consequence of the exercise by a registered political party of the choice to deregister under s 135(1). Section 135(3) renders that party and any party "that has a name that so nearly resembles the name of the deregistered party that it is likely to be confused with or mistaken for that name" ineligible for registration under Pt XI "until after the general election next following the deregistration".

27. The immediate context of 135(3) is provided by s 136, headed "Deregistration of party failing to endorse candidates", which provides in relevant part:

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

    (aa)the party has been registered for more than 4 years and during that time has not endorsed a candidate for any election; or

    (a)a period of 4 years has elapsed since the polling day in the last election for which the party endorsed a candidate.

    (1A)If a party becomes liable to deregistration, the [AEC] shall:

    (a)deregister the party;

    ...

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

    (3)A Parliamentary party shall not be deregistered under this section."

28. The legislative history of ss 135 and 136 reveals that the original versions of both were inserted into the Act, as ss 58N and 58P respectively, by the 1983 Amendment Act.[27] As introduced, the Bill for the 1983 Amendment Act contained equivalents of ss 135(1) and 136(1), (1A) and (2) but not of ss 135(3) and 136(3).

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

29. Section 136(2) (originally s 58P(2)) had, and in its current form still has, what the plaintiffs and the defendant were content to refer to in argument as an anti-rollover purpose in the sense that it was evidently designed to prevent the immediate reregistration of a party compulsorily deregistered under s 136(1) and (1A) for failing to endorse a candidate for a period of four years until after the general election next following the deregistration. Operating in furtherance of the anti-rollover purpose s 136(2) had, and in its current form still has, what the plaintiffs aptly referred to in argument as an anti-phoenixing purpose to prevent registration of a party having a name so nearly resembling the name of the deregistered party as to be likely to be confused with or mistaken for that name until after the general election next following the deregistration.

30. Section 135(3) (originally s 58N(3)) was introduced through an amendment to the Bill for the 1983 Amendment Act in the Senate to address a concern that a registered political party, facing imminent compulsory deregistration under what became s 136(1) and (1A) for failing to endorse a candidate for a period of four years, could avoid the operation of those provisions by voluntarily deregistering under what became s 135(1) and immediately applying to be reregistered.[28] To that extent, s 135(3) was evidently designed to have what the plaintiffs and the defendant were content to refer to in argument as an anti-avoidance purpose. Further, in so far as it was to operate to prevent registration of a party having a name so nearly resembling the name of the deregistered party as to be likely to be confused with or mistaken for that name until after the general election next following the deregistration, s 135(3) was evidently designed to have a complementary anti-phoenixing purpose like that of s 136(2).

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

31. At the same time, the Bill for the 1983 Amendment Act was amended in the Senate to introduce s 136(3) (originally s 58P(3)) to address a concern that the registered political party of a Senator who had a six-year term might become liable to deregistration under what became s 136(1) and (1A) during that term.[29] The resultant operation of s 136(3) to exclude a Parliamentary party from deregistration under s 136 meant that the original anti-avoidance purpose and complementary anti-phoenixing purpose of s 135(3) were redundant in relation to a Parliamentary party.

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

32. The current purpose of s 135(3) – the "public interest sought to be protected and enhanced"[30] by the provision or what the provision is designed to achieve in fact[31] – nevertheless falls to be determined in the context of the Act as currently amended. For that purpose, the Act as so amended is to be read as "an integrated whole" and as "a combined statement of the will of the legislature".[32] The meaning and contemporary purpose of s 135(3) are accordingly to be understood in the context of subsequent amendments framed against the background of its prior enactment and continuing legal operation.

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

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

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

33. Within the design of the Act as currently amended, s 135(3) can be seen to advance the additional contemporary purpose of encouraging continuing adherence to the annual disclosure obligations of registered political parties and derivatively of associated entities under Div 5A of Pt XX of the Act. Picking up on the terminology of the current requirement of the Act for information disclosed pursuant to those obligations to be made available to the public on the Transparency Register, the defendant labelled this contemporary purpose "the transparency purpose". This contemporary purpose is discernible within the scheme of the Act despite the argument of the plaintiffs that the legal operation of s 135(3) is so incongruent with it as to be incapable of being explained by it.[33]

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

34. Ultimately, for reasons to be explained, it is the existence of the contemporary transparency purpose, which not only is compatible with the constitutionally prescribed system of representative government but affirmatively promotes it, and of a rational connection between the legal operation of s 135(3) and advancement of that purpose which provides the short but sufficient answer to all of the plaintiffs' challenges to its constitutional validity.

    Applicable constitutional limitations

35. There was no dispute between the parties that s 135(3) of the Act is properly characterised as a law "relating to elections" of Senators and members of the House of Representatives within the meaning of ss 10 and 31 of the Constitution so as to fall within the power of the Commonwealth Parliament to enact under s 51(xxxvi) of the Constitution, subject only to such limitations arising from the text and structure of the Constitution as might potentially be applicable.

36. There was also no dispute between the parties as to the potential application of either or both of two limitations implied from the text and structure of the Constitution repeatedly recognised in decisions of this Court.

37. The first limitation, accepted most recently in the reasoning of all members of the Court in Ruddick v The Commonwealth,[34] is that a law, the legal or practical operation of which is to impose an effective burden on the making or expression by a voter of a free and informed choice between candidates for election, will infringe the requirements of ss 7 and 24 of the Constitution that Senators and members of the House of Representatives be "directly chosen by the people" unless the burden imposed by the law is shown to be justified as "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government".[35]

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

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

38. The second limitation, in the terms unanimously accepted in Lange v Australian Broadcasting Corporation[36] as reformulated by a majority in McCloy v New South Wales,[37] is the "qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may 'exercise a free and informed choice as electors'".[38] A law, the legal or practical operation of which is to impose an effective burden on freedom of political communication, will infringe that limitation unless the burden imposed by the law is similarly shown to be justified as "reasonably appropriate and adapted" to achieve a legitimate purpose by legitimate means requiring that both the purpose and the means of achieving it are "compatible with the system of representative government for which the Constitution provides".[39]

    [36](1997) 189 CLR 520.

    [37](2015) 257 CLR 178.

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

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

39. The first question stated in each special case concerned the application of the former of those limitations. The third concerned the application of the latter.

40. The second question stated in each special case, framed in terms of whether s 135(3) of the Act "impermissibly discriminates" against candidates nominated by political parties, differed from the other two in that it did not concern the potential application of a constitutional limitation recognised in previous decisions of this Court. Rather, the question was framed to allow consideration of an argument advanced by the plaintiffs that a further constitutional limitation based on the notion of impermissible discrimination against candidates for election should be recognised.

41. The premise of the plaintiffs' argument which informed the framing of the second question must be rejected. The statement of the plurality in McCloy on which the plaintiffs principally relied for the further constitutional limitation they propounded cannot properly be read as supporting it. The statement, made in the specific context of expounding the implied freedom of political communication, was that "[e]quality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution".[40] 

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

42. Professor Harrison Moore identified the "great underlying principle" of the Constitution to be "that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power".[41] The principle so identified has been recognised on numerous occasions in this Court.[42] The principle supports the implication and informs the application of each of the two potentially applicable constitutional limitations.[43] In particular, legislated inequality or discrimination between participants in political discourse or in the electoral process has been demonstrated by numerous decisions of this Court to be a dimension of a burden imposed by a law which, where present, warrants close scrutiny to assess its justification.[44] Fundamental though it is to understanding the constitutional text and structure, the principle does not support the implication of a separate and distinct limitation beyond those of informed electoral choice and freedom of political communication.

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

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

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

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

43. The second of the questions stated in each special case was accordingly answered in the negative for the reason that the novel constitutional proposition embedded in the question cannot be accepted.

    Informed electoral choice

44. The legal operation of s 135(3) of the Act imposes an effective burden on the making by a voter of an informed choice between candidates for election by denying to the voter, through omission from the ballot paper, a source of information about the party affiliations of some but not all candidates who wish to provide that information to the voter on the ballot paper. The asymmetry of the information about party affiliations consequently available on the ballot paper means that the burden is properly characterised as substantial to the voter.

45. The defendant sought to negative that burden by arguing that the deprivation of that source of information about party affiliations is wholly a product of the free choice of the political party to voluntarily deregister under s 135(1), with the consequences of such a choice known to or knowable by that party at the time of making that choice. From the perspective of the party, the operation of s 135(3) to deprive the voter of information on the ballot paper about the party affiliation of its candidates is no different from the position if the party had chosen not to be registered in the first place or had the party, having been registered and maintaining its registration, chosen not to take up the option available to it of having its registered name (or registered abbreviation of that name) and registered logo printed on the ballot papers.

46. The problem with that argument is that the existence and substantiality of a burden on the making of an informed choice by a voter between candidates for election is necessarily to be gauged from the perspective of the voter at the time of making or being required to make that choice. At that time and from that perspective, the voter is deprived through the operation of s 135(3) of information relevant to the voter's choice between candidates then sought to be provided in respect of one or more of those candidates.

47. Nor is the reasoning of the plurality in Ruddick indicative of the non-existence or insubstantiality of a burden of that nature. The plurality's conclusion that the plaintiff in that case had failed to establish that the amendment to the Act in 2021, which operated to deprive the Liberal Democratic Party of registration under that name, imposed a burden on electoral choice[45] was reached in light of the plurality's inference of fact that the name itself had most likely been a cause of voter confusion.[46]

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

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

48. Having established that s 135(3) imposes a substantial burden on the making of an informed electoral choice, the fundamental and ultimately insurmountable difficulty for the plaintiffs lay in negativing the implication that the burden is reasonably appropriate and adapted or, in other words, proportionate to the contemporary transparency purpose to which the defendant pointed. A comparison of the decision in Rowe v Electoral Commissioner[47] (where the burden on electoral choice was considered not to be reasonably appropriate and adapted to the identified legitimate purpose) with the decisions in Mulholland and Murphy v Electoral Commissioner (where the respective burdens on electoral choice were considered to be reasonably appropriate and adapted to the identified legitimate purpose) is sufficient to illustrate the central point made by French CJ and Bell J in Murphy:[48] that determination of whether or not a burden on electoral choice is reasonably appropriate and adapted to serve an identified purpose that is compatible with the constitutionally prescribed system of representative government cannot be reduced to a formula. Rather, it covers a spectrum of potentially sufficient connections from a "rational connection" to a "compelling justification" depending, amongst other things, on the nature and extent of the identified burden, the degree of compatibility of the identified purpose with the constitutionally prescribed system of representative government and the generality and longevity of the legislative means by which the burden is imposed.

    [47](2010) 243 CLR 1.

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

49. Debate about the best way in which to ascertain if the implied freedom of political communication has been infringed says nothing about the legitimacy of the principle. So much is clear from the synthesis of the principle achieved in Lange,[49] in which seven members of the Court recognised that the different formulations used to ascertain if the implied freedom had been infringed were immaterial to the legitimacy of the constitutional implication so that there was "no need to distinguish" between those formulations.[50] Structured proportionality can be a way of organising reasons and explaining the basis on which a conclusion is reached in a particular case as to whether a legislative provision is reasonably appropriate and adapted to advance a legitimate purpose that is consistent with the maintenance of the constitutionally prescribed system of government. The flexible application of all or any of the steps of structured proportionality is to be understood as a "tool of analysis",[51] express or ritual invocation of which is by no means necessary in every case.

    [49](1997) 189 CLR 520.

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

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

50. Within the scheme of the Act in its current form there is plainly a rational connection, neither tenuous nor remote, between the burden on electoral choice imposed by s 135(3) and furtherance of the contemporary transparency purpose. A political party which has chosen to voluntarily deregister under s 135(1) being unable to reregister and have its registered name (or registered abbreviation of that name) and registered logo printed on ballot papers until after the next general election creates a strong disincentive for a political party to chop and change its registration in a manner that interrupts the existence and performance of its obligation to provide annual returns containing information relevant to electoral choice required to be made available to the public on the Transparency Register.

51. The plaintiffs pointed to the incongruity between the position of a party relieved of its prior obligation to provide annual returns through voluntary deregistration under s 135(1) and the position of a newly registered party having no obligation to provide any annual return until after the end of a financial year in which an election is held, and no obligation in such annual returns to provide information pertaining to its finances or expenditure prior to registration. They also pointed to the potential for promoting the transparency purpose by the less burdensome means of requiring a party voluntarily deregistered under s 135(1) to provide backdated annual returns at the time of reregistration.

52. The types of considerations on which the plaintiffs relied are not irrelevant and, in another context, might carry considerable weight. However, they are insufficient to compel a conclusion that s 135(3), a longstanding machinery provision applicable to all political parties and which is triggered only by the choice available to any registered political party to voluntarily deregister under s 135(1), is not reasonably appropriate and adapted to serving the identified transparency purpose, which is not only compatible with the constitutionally prescribed system of representative government but which affirmatively promotes it.

53. As previously indicated, the existence of a rational connection between the burden imposed by s 135(3) and the contemporary transparency purpose that promotes the constitutionally prescribed system of representative government is sufficient to conclude that imposition of the burden is reasonably appropriate and adapted to that purpose.

54. The first of the questions stated in each special case was accordingly answered in the negative.

    Freedom of political communication

55. The argument of the plaintiffs that s 135(3) of the Act burdens freedom of political communication was based on the legal operation of the provision to prevent communication of party affiliation on a ballot paper. The argument was squarely met by the holding of a majority in Mulholland,[52] unchallenged and applied in Ruddick,[53] that a ballot paper is not within the qualified protection of the freedom of political communication.

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

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

56. Although the plaintiffs sought leave to re-open that aspect of Mulholland, the re-opening application was not appropriate to be entertained in circumstances where re-opening could not be dispositive. That is because, even were it to be accepted contrary to Mulholland that a ballot paper is within the qualified protection of the freedom of political communication, the considerations which demonstrate the justification for the burden placed by s 135(3) of the Act on informed electoral choice would equally demonstrate the justification for the putative burden which would so be placed on freedom of political communication.

57. The third of the questions stated in each special case was accordingly answered in the negative.

    Costs

58. The plaintiffs having failed to obtain the answers they sought to each of the substantive questions stated in the special cases, there was no reason why costs should not have followed the event in each proceeding.

59. GORDON J.   The United Australia Party ("the UAP") was registered as a political party under the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") from 12 December 2018 to 8 September 2022. As a registered political party, the UAP was required by the Electoral Act to,[54] and did, make annual returns in respect of the 2019 to 2023 financial years, the contents of which were summarised on the Transparency Register maintained by the Australian Electoral Commission ("the AEC").[55] That register discloses that while the UAP was registered it received public funding as well as many millions of dollars of donations from Mineralogy Pty Ltd and other named entities and also that it incurred various expenditures and debts.

    [54]Electoral Act, s 314AB.

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

60. On 8 September 2022, pursuant to s 135(1) of the Electoral Act, the UAP was voluntarily deregistered. The UAP was not registered for any part of the 2024 financial year. It was therefore not required to make an annual return for that year under s 314AB(1), nor did s 305B(1) require disclosure by donors of gifts to the UAP, subject to whether the UAP was required to register as a "significant third party". At the time of the hearing, the UAP was not included on the Transparency Register or the Register of Political Parties "as a political party or otherwise" and it was therefore not registered as a "significant third party" under the Electoral Act.[56] The annual returns for the 2024 financial year, which were required to be published on the Transparency Register in early February 2025,[57] did not include any return from the UAP. And when the donor returns are published after polling day,[58] they will not disclose any gifts made to the UAP in the 2024 financial year whether by Australian or foreign donors.

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

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

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

61. On 29 November 2024, the first plaintiff in the first proceeding, Senator Babet, lodged an application with the AEC for registration of the UAP pursuant to s 126 of the Electoral Act. Given that the UAP had been voluntarily deregistered under s 135(1) of the Electoral Act, on 20 December 2024 the AEC advised that, by reason of s 135(3), the UAP was ineligible for registration until after the general election next following its deregistration.

62. Section 135, headed "Voluntary deregistration", relevantly provides:

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

    ...

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

63. The plaintiffs in each proceeding filed a writ of summons in this Court seeking a declaration that s 135(3) of the Electoral Act is invalid and of no effect. In the first proceeding, Senator Babet, who applied for the UAP to be reregistered, was elected to the Senate for Victoria and intended to campaign in support of the election of candidates endorsed by the UAP in the 2025 general election. The other plaintiff in the first proceeding, Mr Favager, was the National Director of the UAP and would have been its registered officer if it had been reregistered. The plaintiff in the second proceeding, Mr Palmer, owned the registered trademarks in the name, abbreviation and previously registered logo of the UAP, which he licensed to the UAP.

64. The parties agreed in stating the following questions of law for the opinion of the Full Court:

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

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

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

    (ii) a Parliamentary party that has deregistered voluntarily?

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

65. On 12 February 2025, this Court made orders in each proceeding that each of those questions be answered "no" and that the plaintiffs pay the defendant's costs. These are my reasons for joining in those orders.

    Constitutional and statutory framework

    Informed choice

66. The constitutional framework underpinning the constraint deriving from ss 7 and 24 of the Constitution has been described and explained by this Court many times.[59] Applying that framework to the plaintiffs' challenges in this case, the following aspects of the framework repay repetition. The Constitution is for the "advancement of representative government".[60] The term "representative government" is not defined and does not appear in the text of the Constitution. Nevertheless, the institution of "representative government"[61] has been said to be "written into"[62] the Constitution. Like the closely related institution of "responsible government", "representative government" is part of the "fabric on which the written words of the Constitution are superimposed".[63] The text of the Constitution, and its structure, define how and the extent to which the Constitution gives effect to the institution of representative government.[64] The relevant question then is: "[w]hat do the terms and structure of the Constitution prohibit, authorise or require?"[65]

    [59]Murphyv Electoral Commissioner (2016) 261 CLR 28 at 112‑114 [260]-[264] and the authorities cited.

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

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

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

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

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

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

67. The starting point is s 1, contained in Pt I of Ch I of the Constitution, which vests the legislative power of the Commonwealth in the Parliament. Parts II, III and IV of Ch I establish that there are two Houses of the Parliament – the Senate and the House of Representatives – composed of senators and members respectively. Sections 7 and 24 of the Constitution, read in context, require those senators and members "to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively".[66] The Constitution then empowers the Parliament to make laws regulating those elections.[67] Although that legislative power is effectively a "plenary power over federal elections",[68] it is subject to express and implied limitations contained in the Constitution.[69] The mandate in ss 7 and 24 that senators and members be "directly chosen by the people" operates as one such limitation.[70] The Parliament may not establish an electoral system that does not comply with that requirement.[71] On occasion, this Court has held laws invalid on that basis.[72] Accepting that "directly chosen by the people" is a "broad expression to identify the requirement of a popular vote",[73] "care is called for in elevating a 'direct choice' principle to a broad restraint upon legislative development of the federal system of representative government".[74]

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

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

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

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

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

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

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

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

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

68. One dimension of the requirement in ss 7 and 24 of "direct choice by the people" is that "the people must have the ability to make an informed choice, which restricts Parliament's ability to constrain the extent to which the people can 'convey and receive opinions, arguments and information concerning matter intended or likely to affect voting'".[75] As with the direct choice constraint generally, that restriction must not be applied "in an over-broad manner which would fail to respect the constitutional design of leaving to Parliament the choice of how to legislate for every aspect, except the bare foundations, of the electoral system".[76]

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

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

69. Whether a law impermissibly constrains informed choice is answered first by determining whether the law imposes a burden on the informed choice of electors and, if so, the law will only be valid if it does so for a reason which is "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government".[77]

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

70. There are other limitations on the Parliament's power to make laws regulating elections.[78] But, outside those limitations, the Constitution does not prescribe the features of any particular electoral system.[79] That design was deliberate.[80] The result is that, subject to limitations deriving from the text and structure of the Constitution, the Parliament is left with a broad choice as to the features of the electoral system[81] and those features are not limited to minor matters.[82]

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

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

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

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

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

    Implied freedom of political communication

71. In Lange v Australian Broadcasting Corporation, this Court recognised the implied freedom of political communication, an independent and broader constraint on legislative power.[83] The implied freedom is based not only on ss 7 and 24, but also on the structure of the Constitution and provisions such as ss 64 and 128, which together create a system of representative and responsible government.[84] The implied freedom is an indispensable incident of that system because the system requires that electors be able to exercise a free and informed choice when choosing their representatives and, for them to be able to do so, there must be a free flow of political communication.[85]

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

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

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

72. A threshold issue in determining whether a law infringes the implied freedom is whether the law effectively burdens freedom of communication about government or political matters in its terms, operation or effect.[86] If it does, then it is necessary to ask whether the purpose of the provision is legitimate, being consistent with the maintenance of the constitutionally prescribed system of government; and, if it is, whether the provision is reasonably appropriate and adapted to advance that purpose in a manner consistent with the maintenance of the constitutionally prescribed system of government.[87] In relation to structured proportionality, I agree with [49] of the reasons of Gageler CJ and Jagot J. As these reasons will show, in this case, I do not consider that it is necessary (or helpful) to apply the three steps of structured proportionality in dealing with the application of the implied freedom.

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

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

73. Before describing the relevant features of the electoral system chosen by the Parliament, it is necessary to identify, at the outset, that there is a distinction between the positive constitutional requirement of informed choice and the implied freedom of political communication. As already explained, the source and basis of the informed choice requirement and the implied freedom differ. Sections 7 and 24 of the Constitution require that senators and members be "directly chosen by the people", whereas the implied freedom is an "immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters".[88] That the implied freedom operates in this manner follows from it being "limited to what is necessary for the effective operation of [the] system of representative and responsible government provided for by the Constitution".[89] In light of the limited scope of the implied freedom, when considering whether a challenged law burdens freedom of political communication, it may be necessary to consider whether the law "burdens a freedom that exists independently of that law".[90]

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

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

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

74. That question arose in Mulholland v Australian Electoral Commission, which concerned two conditions for a political party, the Democratic Labor Party, to obtain registration and have its name printed on the ballot paper under the Electoral Act, namely that (i) the party must have at least 500 members, and (ii) two or more parties could not count the same person as a member for the purposes of that requirement. Five members of this Court held that those conditions did not burden freedom of political communication because, relevantly, the Democratic Labor Party had no right to be included on the ballot paper independently of the provisions of the Electoral Act.[91]

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

75. The question also arose in Ruddick v The Commonwealth, which concerned provisions of the Electoral Act that required a later registered political party to deregister or to change its name if the AEC was satisfied that the party's name or logo contained a word that was in the name of a prior registered political party, on objection by the prior registered party. A majority of this Court upheld the validity of the provisions, concluding not only that they did not burden freedom of political communication,[92] but also that, as in Mulholland, the plaintiff did not establish that they burdened a freedom that existed independently of the entitlement to have a candidate's party affiliation appear on the ballot paper.[93] In a separate judgment, Steward J expressed his concurrence with the plurality's reasons and answers to the questions reserved for the Full Court.[94]

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

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

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

    Statutory framework

76. The Electoral Act establishes a scheme by which an "eligible political party"[95] may, by application under s 126 of the Act, become a "registered political party".[96] An "eligible political party" includes, relevantly, a "Parliamentary party", which is a political party at least one member of which is a member of the Parliament.[97] Once a political party is entered on the Register of Political Parties,[98] it remains registered unless it is voluntarily deregistered under s 135 or is mandatorily deregistered under s 136 or s 137.[99]

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

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

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

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

    [99]Electoral Act, s 138.

77. Aspects of the existing scheme for registration of political parties must be noted. The Electoral Commissioner must establish and maintain a Register of Political Parties containing a list of the political parties that are registered under Pt XI of the Act.[100] The Register of Political Parties may be, and is, included on the Transparency Register under s 287N of the Act.[101] Any application for the registration of an eligible political party must state, among other things, whether or not the party wishes to receive public election funding under Div 3 of Pt XX of the Act.[102] Where a statement is entered in the Register that a political party wishes to receive moneys under Div 3 of Pt XX, that party shall, for the purposes of Pt XX, be taken to have been registered for public funding.[103]

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

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

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

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

78. A political party that opts to register obtains certain benefits. For example, the nominations of its endorsed candidates are not required to be signed by at least 100 electors;[104] it may provide bulk nominations (nominations of more than one candidate);[105] it may request that the party affiliation (name and logo) of its endorsed candidates be printed on the ballot paper;[106] and it may receive public funding, subject to its performance in the election.[107] As ss 214 and 214A only apply in respect of registered political parties, a candidate of an unregistered political party is not able to have their political party affiliation appear adjacent to their name or the square printed "above the line" in relation to their group on the ballot paper. Further, the party of that candidate is not entitled to receive election funding payments.[108]

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

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

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

    [107]Electoral Act, s 293.

    [108]cf Electoral Act, s 293.

79. But a political party that opts to register also has obligations, which include that it must provide annual returns – detailing, among other things, the total amount received by or on behalf of the party during the financial year together with the particulars of amounts received from particular persons or organisations where the sum of all amounts received from them is above the disclosure threshold[109] – to the AEC.[110] Those matters are published on the publicly available Transparency Register.[111] Annual returns must be published before the end of the first business day in February in the year after they are provided.[112] Further, a registered political party cannot retain foreign donations of $1,000 or more.[113]

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

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

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

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

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

80. The registration status of a political party also affects the obligations of persons who make gifts to the party. A person or entity making gifts totalling more than the disclosure threshold to the same registered political party must provide a return to the AEC covering all of the gifts made during the relevant financial year.[114]

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

81. There are also disclosure obligations for "significant third parties",[115] "associated entities"[116] and "third parties".[117] A "significant third party" is subject to similar disclosure requirements to a registered political party.[118] A person or entity (except a political entity, a member of the House of Representatives or a senator) must be registered for a financial year as a significant third party within 90 days after being required to be registered[119] if the amount of electoral expenditure incurred by or with the authority of the person or entity during that year or any of the previous three financial years is $250,000 or more;[120] the amount of electoral expenditure incurred by or with the authority of the person or entity during that financial year is at least equal to the disclosure threshold and during the previous financial year was at least one-third of the revenue of the person or entity for that year;[121] or during that financial year, the person or entity operates for the dominant purpose of fundraising amounts the aggregate of which is at least equal to the disclosure threshold and that are for the purpose of incurring electoral expenditure or that are to be gifted to another person or entity for the purpose of incurring electoral expenditure.[122]

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

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

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

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

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

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

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

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

82. An "associated entity" is also required to register and then to submit annual returns detailing, among other things, the total amount received by the entity during the financial year and the particulars of amounts received from particular persons or organisations the sum of which is above the disclosure threshold.[123] An entity (except a political entity[124]) must be registered for a financial year as an associated entity if any of the following apply: the entity is controlled by one or more registered political parties;[125] the entity operates wholly, or to a significant extent, for the benefit of one or more registered political parties;[126] the entity is a financial member of a registered political party;[127] another person is a financial member of a registered political party on behalf of the entity;[128] the entity has voting rights in a registered political party;[129] another person has voting rights in a registered political party on behalf of the entity;[130] the entity operates wholly, or to a significant extent, for the benefit of one or more disclosure entities and the benefit relates to one or more electoral activities (whether or not the electoral activities are undertaken during an electoral period).[131] A "disclosure entity" is defined by reference to s 321B of the Act and relevantly includes a significant third party.[132]

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

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

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

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

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

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

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

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

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

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

83. Finally, a person or entity (except a political entity, a member of the House of Representatives or a senator) is a "third party" during a financial year if the amount of electoral expenditure incurred by or with the authority of the person or entity during the financial year is more than the disclosure threshold and the person or entity is not required to be, and is not, registered as a significant third party under s 287F for the year.[133] A third party is required to provide annual returns, but only, relevantly, in relation to electoral expenditure incurred in the relevant financial year,[134] as well as gifts received above the disclosure threshold at any time that were used during that year to enable the third party to incur or to reimburse electoral expenditure.[135]

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

    [134]Electoral Act, s 314AEB.

    [135]Electoral Act, s 314AEC.

84. A registered political party may be voluntarily deregistered.[136] The effect of the scheme is that, if a registered political party is voluntarily deregistered under s 135(1), this may relieve it of obligations to report details of the sources of funds it has received, at least until after the next election. The result is that, subject to whether the party would otherwise fall within the definition of "significant third party", on deregistration the information available to electors about who is funding the party is not disclosed annually and may be materially reduced or its availability deferred until after an election. Further, provided that a deregistered political party is not a third party in a given financial year, it would also not be prohibited from retaining donations from foreign donors.[137]

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

    [137]cf Electoral Act, s 302E.

85. A registered political party may also be mandatorily deregistered on various grounds,[138] including where it has failed to endorse a candidate for any election despite having been registered for more than four years, or where a period of four years has elapsed since the polling day in the last election for which the party endorsed a candidate.[139] However, a Parliamentary party cannot be deregistered on that basis.[140] Where a political party is deregistered voluntarily, or compulsorily on the ground of failing to endorse candidates, "that party, or a party that has a name that so nearly resembles the name of the deregistered party that it is likely to be confused with or mistaken for that name, is ineligible for registration under [Pt XI] until after the general election next following the deregistration".[141]

    [138]Electoral Act, ss 136 and 137.

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

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

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

86. This scheme is not new. The scheme for optional registration and voluntary deregistration was introduced as part of a comprehensive suite of interconnected reforms that commenced in 1984.[142] Those reforms introduced the entitlement of candidates endorsed by registered political parties to have their party affiliation printed on ballot papers[143] as well as Pt XVI, headed "Election funding and financial disclosure" (now Pt XX), which provided for the public funding of registered political parties and candidates endorsed by registered political parties (Div 3) alongside a regime for the disclosure of donations and electoral expenditure by political parties or in relation to elections (Divs 4 and 5). The First Report of the Joint Select Committee on Electoral Reform published in September 1983, on which the scheme was based, stated that the Committee believed "that in light of its recommendations with respect to 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 [was] necessary".[144]

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

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

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

87. The report recorded that the Committee had "considered at length a draft scheme for the registration of political parties submitted by the Australian Electoral Office" and, after considering various options, as well as the elements and likely effects of such a scheme, recommended that the scheme outlined in the report for the registration of political parties be adopted.[145] Optional registration and voluntary deregistration were central features of the new system.[146] In the Second Reading Speech for the Commonwealth Electoral Legislation Amendment Bill 1983 (Cth), disclosure was described as "[a]n essential corollary of public funding".[147] The two elements were seen as "two sides of the same coin"; "[u]nless there [was] disclosure the whole point of public funding [was] destroyed".[148]

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

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

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

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

88. A series of subsequent legislative amendments to the disclosure regime in 1991, 1992, 1995 and 2018 imposed further and specific obligations on and in relation to registered political parties and associated entities.[149] Those changes reinforced aspects of the scheme and emphasised its interconnected nature.

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

89. It is against that background that each of the plaintiffs' challenges to s 135(3) of the Act is to be assessed.

    Informed choice requirement not contravened

90. This Court has repeatedly recognised that the Constitution commits to the Parliament "a wide leeway of choice" to legislate for "every aspect" of the electoral process.[150] As will be explained, a provision limiting the ability of a political party to register following voluntary deregistration is squarely within that leeway of choice. Such a provision provides for a consequence that a political party must be taken to accept if it chooses to apply for registration and then chooses to apply for voluntary deregistration. The effect of s 135(3) is to enhance, rather than limit, the informed choice of electors by promoting transparency as to the source of political parties' funding. Consequently, s 135(3) does not contravene the informed choice constraint.

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

    Burden

91. In assessing whether there is a burden on informed choice, the comparator is not the Electoral Act without s 135(3). Given the scheme of the Act, that frames the inquiry too narrowly. It prioritises form over substance. To focus solely on s 135(3) is "artificial and … distracts attention from consideration of the whole structure" of the scheme.[151] That is, s 135(3) cannot be considered as a separate provision standing apart from the balance of s 135 and the other aspects of the scheme. The relevant comparator is that which would exist without the scheme, not that which would exist without s 135(3). Construed in that manner, any potential burden imposed by s 135(3) on the informed choice required by ss 7 and 24 of the Constitution is very slight for the following reasons.

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

92. First, any effect on the informed choice of electors did not occur solely by the operation of s 135(3). Any burden is properly attributed to the party's voluntary acts – first of registration and then of deregistration. Unlike in Mulholland and Ruddick, where changes to registration criteria meant that parties (through no action of their own) might lose their existing entitlement to be registered at all, or under particular names, no such change is in issue in this case. And the challenged laws in Mulholland and Ruddick imposed no burden on and did not otherwise infringe the informed choice constraint.[152]

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

93. Second, s 135(3) does not otherwise preclude the deregistered party or its candidates from communicating with the public using its name or logo.[153] It was an agreed fact that there was a general and significant decline in how many voters followed "how to vote" cards for the House of Representatives between 1996 and 2022.[154] The plaintiffs contended that this decline reinforced the significance of candidates' party affiliation appearing on the ballot paper. Notwithstanding the decline, candidates of unregistered political parties retain the ability to communicate their party affiliation through "how to vote" cards. They also retain the ability to use their party's name and logo in the parliamentary process, election campaigning and broader political debate, if they wish to continue to operate and to campaign under that name.[155]

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

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

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

    Reasonably appropriate and adapted

94. Even if s 135(3) imposed a very slight constraint on the quality of electoral choice by precluding candidates of a voluntarily deregistered party from having their party affiliation on the ballot paper, the scheme of which it forms part would be reasonably appropriate and adapted to pursuing its purpose of enhancing informed choice by promoting compliance by parties with their disclosure obligations.[156] Section 135(3) restricts the ability of a political party to opt in and out of the registration scheme as it wishes, thereby encouraging parties to accept both the benefits and obligations of registration. In turn, that allows voters to be informed of the sources from which political parties receive funding and, by extension, the persons and interests from which they might be liable to influence.

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

95. That the focus of the inquiry is on the information received by electors does not change the analysis. Section 135(3), properly understood in the context of the scheme, promotes informed choice by electors by promoting transparency as to political parties' sources of funding. Further, where s 135(3) effectively disincentivises parties from voluntarily deregistering, electors will receive information as to both party affiliation and sources of funding.

    Implied freedom not infringed

223. If Mulholland was overruled, it is arguable that s 135(3) would impose a burden on the implied freedom, for reasons closely related to the burden upon informed choice. The relevant burden may arise from the inhibition of communication by a voluntarily deregistered political party that would otherwise seek to communicate to voters its affiliation with a candidate on a ballot paper; and in the potential impairment of voters' ability to cast a fully informed vote.[386] The legal operation of s 135(3) is therefore capable of preventing political communication by a voter, through their vote, that reflects a misunderstanding of the affiliation of a candidate to a voluntarily deregistered political party. As with the burden on informed choice, the burden on the implied freedom is likely to manifest only rarely but is significant in the event that it does arise because s 135(3) has the capacity to affect political communications, through ballot papers and votes, that are central to the maintenance of the constitutionally prescribed system of government.

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

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

224. Once an effective burden is identified, it is necessary to consider whether that burden is justified.[387] For both constitutional limitations, that determination is made by deciding whether the law is "reasonably appropriate and adapted" to a legitimate end, being a legislative purpose compatible with the maintenance of the system of representative and responsible government for which the Constitution provides.[388] That formulation has long been recognised to import concepts of proportionality.[389]

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

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

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

225. As explained by Gageler CJ and Jagot J, s 135(3) has a purpose of enhancing transparency about the activities and relationships of political parties by, in effect, requiring compliance with disclosure obligations as the price for identification of party affiliations on a ballot paper. That purpose is indisputably compatible with the maintenance of the constitutionally prescribed system of government because it seeks to improve access to information relevant both to informed choice and to the implied freedom of political communication. Accordingly, what remains to be decided is whether s 135(3) is "reasonably appropriate and adapted" to its transparency purpose. That standard affords the Court a discretion, to be exercised in accordance with the judicial method.[390]

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

226. Since McCloy v New South Wales,[391] in cases concerning the implied freedom, most members of this Court have addressed the "reasonably appropriate and adapted" standard by reference to the structured proportionality framework stated by a majority in that case. That framework directs judicial consideration to three subsidiary questions: whether a law is (a) "suitable", (b) "necessary" and (c) "adequate in its balance".[392] Constitutional validity based on informed choice was first considered after McCloy in Murphy v Electoral Commissioner.[393] In that case, Kiefel J applied the structured proportionality framework stated in McCloy,[394] while French CJ and Bell J acknowledged that "suitability" is a requirement of "universal application", and considered that "necessity" and "adequacy in its balance" were of possible relevance "depending upon the character of the law said to diminish the extent of the realisation of [the constitutional mandate of choice by the people]".[395]

     [391](2015) 257 CLR 178.

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

     [393](2016) 261 CLR 28.

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

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

227. French CJ and Bell J considered that the use of structured proportionality analysis was inapposite in Murphy, where the complaint was that the legislation did not go far enough in the provision of opportunities for enrolment.[396] Thus, and in contrast to this case, it was not about "a law reducing the extent of the realisation of the constitutional mandate".[397]

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

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

228. No case in this Court concerning the constitutional validity of legislation has depended for its outcome on the application of the structured proportionality framework, as opposed to simply asking whether the law is "reasonably appropriate and adapted". Three examples illustrate the point.

229. In McCloy, a majority applied structured proportionality in holding that the impugned legislation did not impermissibly burden the implied freedom,[398] while Gageler J[399] and Gordon J[400] each did not but reached the same conclusion. In Brown v Tasmania,[401] Kiefel CJ, Bell and Keane JJ,[402] and Nettle J writing separately,[403] applied structured proportionality to find that provisions in the impugned legislation were invalid, while Gageler J applied a different approach to reach that conclusion.[404] In Unions NSW v New South Wales,[405] all Justices (save for Edelman J[406]) found that the burden imposed by the relevant provision was not necessary to achieve the purposes of the law.[407]

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

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

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

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

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

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

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

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

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

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

230. The test of "suitability", which asks whether there is a "rational connection" between the impugned law and its purpose, is the test applied by Gageler CJ and Jagot J to conclude that s 135(3) does not offend the constitutional protection of informed choice.[408] The test has been described as "highly deferent"[409] but that is not a criticism. The test conforms with the limits of the judicial function, as is illustrated by its application in other areas of legal reasoning.[410] The test was applied by members of this Court in Roach v Electoral Commissioner[411] and Brown.[412] In both cases, the lack of rational connection was found in the disconformity between the purpose of the laws and the over-inclusive nature of the relevant provisions.

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

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

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

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

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

231. The extent of the burden imposed on informed choice by the operation of s 135(3) warrants the application of the remaining steps in the proportionality analysis to assess the constitutional validity of s 135(3).

232. The concept of "necessity" addresses whether there is an "obvious and compelling alternative, reasonably practicable means of achieving the same purpose" as the impugned law, which has a less restrictive effect.[413] This concept is concerned with the connection between the end pursued by the impugned law and the means used to pursue it by considering the availability of alternative means of pursuing that end.[414] In addition to the extent of the burden as a reason for assessing s 135(3) by reference to this concept, it is relevant to the consideration of both constitutional limitations because, in each case, essentially the same underlying question arises, being whether the preclusion of information about party affiliation of the voluntarily deregistered party's endorsed candidates from a ballot paper is an excessive response to the absence of disclosure obligations upon a party that is deregistered.

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

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

233. The plaintiffs' argument that s 135(3) is not necessary in the relevant sense failed because the plaintiffs did not succeed in positing an alternative, less restrictive means of achieving the transparency purpose of the provision. The suggested requirement of financial disclosure of donations to and expenditure by the political party prior to, and as a condition of, reregistration necessarily entails a delay in the disclosure of relevant information. The Parliament's "wide leeway of choice"[415] to legislate with respect to federal elections empowers it to decide that such a delay is inconsistent with informed choice.

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

234. The question of "adequacy in the balance" asks whether the transparency benefit sought to be achieved by s 135(3) is disproportionate to the restriction imposed on either the implied freedom or informed choice.[416] For the same reasons that "necessity" is an appropriate lens through which to examine s 135(3) in relation to both constitutional limitations, I have also addressed this criterion. Section 135(3) is adequate in its balance because it supports voters' informed choice by promoting electoral transparency at the small cost of restricting a registered political party from deregistering and reregistering at will. That conclusion supports the validity of s 135(3) in relation to both constitutional limitations.

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

     Conclusions

235. Section 135(3) is justified in its burden upon informed choice. There would have been no utility in granting leave to reopen Mulholland because there was no prospect that s 135(3) would be found to be unjustified in its burden upon the implied freedom of political communication.

236. BEECH-JONES J.   The background to each special case, including the relevant legislative regime, is set out in the judgment of Gageler CJ and Jagot J, as well as the judgment of Gordon J. On 12 February 2025, I joined in the orders and answers described by Gageler CJ and Jagot J.[417] These are my reasons for joining in those orders and answers.

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

     Restraints on legislative power over federal elections, electors and candidates

237. Section 51(xxxvi) of the Constitution confers on the Parliament of the Commonwealth power to make laws for the peace, order, and good government of the Commonwealth with respect to "matters in respect of which [the] Constitution makes provision until the Parliament otherwise provides". As ss 10 and 31 of the Constitution make provision until Parliament "otherwise provides" in relation to elections for the Senate and the House of Representatives respectively, it follows that s 51(xxxvi) confers power to make laws for the conduct of such elections, including power to make laws for the regulation of political parties whose candidates seek to participate in those elections. Other provisions of the Constitution also either directly or indirectly combine to confer legislative power on the Parliament to make laws concerning federal elections, electors and candidates.[418] Textual,[419] structural[420] and historical[421] considerations all point to these legislative powers as being of wide import affording Parliament considerable flexibility in legislating for federal elections, electors and candidates,[422] with a concomitant obligation on this Court to afford substantial deference to the choices of Parliament. Subject to what follows, the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act"), including the provision the subject of challenge in each special case, namely s 135(3), is supported by these legislative powers.

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

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

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

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

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

238. Wide as they are, the Parliament's legislative powers concerning federal elections, electors and candidates are still subject to the limits imposed by the text and structure of the Constitution.[423] Two of those limits were said to warrant the conclusion that s 135(3) of the Electoral Act is invalid.

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

239. The first limit is what follows from that part of ss 7 and 24 of the Constitution that provides that the Senate and the House of Representatives shall be "directly chosen by the people". It has been said that caution should be exercised before construing that phrase as a "broad restraint upon legislative development of the federal system of representative government".[424] The phrase should be understood as specifying a boundary condition and not a prescription of a particular electoral system.[425] Nevertheless, it is difficult to conceive of a more important phrase in the Constitution.

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

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

240. While the meaning of "directly chosen by the people" does not change, the content of the limit the phrase imposes evolves over time.[426] It is a composite phrase; however, each of its components has significance so far as restricting legislative power is concerned. Without being exhaustive, "directly" includes a requirement for popular election and precludes the use of an electoral college[427] or State Parliaments to choose representatives,[428] save for certain special circumstances such as casual Senate vacancies or unopposed candidates;[429] "chosen" requires a free, fair and informed choice,[430] including a choice exercised in confidence,[431] and limits the power of the Parliament to exclude candidates;[432] and "by the people" precludes the unjustifiable exclusion from the franchise of particular electors or a class of electors.[433]

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

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

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

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

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

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

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

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

241. The second relevant limit on legislative (and executive) power is the implied freedom of political communication, which relevantly restricts the power to make laws that burden freedom of communication between the people of Australia concerning political or government matters and thus protects the exercise of a free and informed choice by the electors.[434] The implied freedom derives from those provisions of the Constitution (including but not restricted to ss 7 and 24) that ensure that the Parliament will be representative of the people of Australia.[435] Those provisions of the Constitution that prescribe a system of representative government[436] ensure that the operation of the implied freedom is not confined to the election period but extends through the life of the Parliament.[437] In this respect, the implied freedom complements the limits that flow from the phrase "directly chosen by the people" in ss 7 and 24 of the Constitution. Affording protection to the making of a free, fair and informed choice by the electors at an election would be pointless without affording a measure of protection to political communication between elections.

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

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

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

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

242. I agree with Gageler CJ and Jagot J in relation to "structured proportionality" and the implied freedom of political communication.[438]

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

     Question 1: impairment of direct choice

243. The first question stated in each special case is whether s 135(3) of the Electoral Act is rendered invalid by so much of ss 7 and 24 of the Constitution that requires the electors to have a free, fair and informed choice at an election. The question is answered by first asking whether s 135(3) imposes an effective burden on the exercise of a free and informed choice by the electors between candidates and then asking whether that burden is imposed for a substantial reason; ie, is the burden "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government"?[439]

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

244. The assessment of whether s 135(3) imposes an effective burden is to be undertaken from the perspective of the electors, not from the perspective of the candidate or political party. For that reason, the fact that the electors' choice is affected by a provision of the Electoral Act that is engaged as a consequence of the decisions of the candidate or political party is not determinative of whether there is or is not an effective burden. As explained by Gageler CJ and Jagot J,[440] by preventing the United Australia Party ("the UAP") from obtaining registration and thereby having its candidates listed as being affiliated with the UAP on ballot papers, s 135(3) imposes an effective burden on the making of an informed choice by the electors.

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

245. Is the burden imposed for a substantial reason? Given the numerous amendments to the Electoral Act since s 135(3) was introduced in 1983,[441] ascertaining the purpose of the provision is not assisted by a consideration of the extrinsic materials that accompanied the introduction of the provision. Instead, the "reason" or "purpose" for the provision is to be ascertained from the structure and text of the Electoral Act in its current form. As the reasons of Gageler CJ and Jagot J demonstrate,[442] that purpose is to encourage continued compliance by registered political parties (and associated entities) with the regime for filing annual returns contained within Div 5A of Pt XX of the Electoral Act.[443] Absent s 135(3), a registered political party with representatives in Parliament could avoid compliance with the disclosure regime between elections by deregistering and then reregistering just prior to the election to obtain the benefits of registration, including having its candidates' party affiliation listed on the ballot paper. Avoiding that form of "gaming" of the system of disclosure is a substantial reason. The burden imposed by s 135(3) is reasonably appropriate and adapted to serve an end which is compatible with the maintenance of the constitutionally prescribed system of representative government.

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

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

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

246. Accordingly, I joined in answering the first question stated in each special case "no".

     Question 2: discrimination

247. The second question stated in each special case is whether s 135(3) of the Electoral Act is invalid, in whole or in part, on the ground that it impermissibly discriminates against candidates of a political party that has deregistered voluntarily or a Parliamentary party that has deregistered voluntarily.

248. The major premise of the plaintiffs' case is that "impermissible discrimination" is, of itself, a basis for invalidating a law relating to federal elections, electors and candidates. The minor premise of the plaintiffs' case is that s 135(3) provides for such impermissible discrimination. Neither premise should be accepted.

249. In relation to the major premise, provisions of the Constitution limit legislative power to enact relevantly discriminatory laws,[444] invalidate statutes that relevantly discriminate,[445] protect citizens from being relevantly discriminated against[446] and expressly empower the Parliament to enact laws to forbid forms of discrimination.[447] "Discrimination" has a developed meaning[448] and application in most of those contexts, including what constitutes a proscribed discriminatory criterion.[449]

     [444]Constitution, s 51(ii).

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

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

     [447]  Constitution, s 102.

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

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

250. However, as explained by Gageler CJ and Jagot J, the validity of a law that relates to federal elections, electors and candidates is not necessarily dependent on the absence of any discrimination between candidates or between electors. Instead, the differential treatment of candidates and electors or potential candidates and potential electors may inform, in some cases decisively, the application of the two limitations described above. For example, a law relating to federal elections, electors and candidates that excludes or burdens electors or candidates by reference to class, race, gender, sexual orientation or other arbitrary criteria would violate the first and, where applicable, the second of the above limitations.[450] A law relating to federal elections, electors and candidates that discriminates, or differentiates, between "political viewpoints" would require an especially compelling justification before it could avoid being invalidated by reason of the above limitations, especially if the law advantaged incumbents.[451]

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

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

251. The plaintiffs contended that s 135(3) impermissibly discriminates against candidates for election who are affiliated with and endorsed by a Parliamentary party that voluntarily deregisters when compared to new parties seeking to register for the first time or a party that is mandatorily deregistered by the Electoral Commission under s 137. However, s 135(3) only operates with respect to parties that choose to deregister and then seek to reregister within the same electoral cycle. As noted, it operates to prevent such parties from circumventing the disclosure requirements between one election and another. That is of particular significance to Parliamentary parties in that, absent s 135(3), the party, having secured Parliamentary representation via one of its candidates at the last election, could again seek Parliamentary representation at the next election without having made annual disclosures in the meantime. It is true, as the plaintiffs contended, that new political parties seeking registration need not make disclosure of financial information from prior years. Nonetheless, that was a legitimate choice open to Parliament to avoid imposing burdens on new parties. Those new parties will not be standing candidates with the benefit of incumbency and affiliation to an existing Parliamentary party.

252. Otherwise, s 137 provides for the mandatory deregistration by the Electoral Commission of political parties, for example, that have ceased to exist,[452] that are not Parliamentary parties and no longer have 1500 members,[453] or whose registration was obtained by fraud or misrepresentation.[454] Deregistration under s 137 does not occur through a decision made by the political party, although the party could create the circumstances that might warrant its own deregistration under that section. Even so, the timing of the deregistration would not be within the political party's control and its path to reregistration is by no means clear.[455] Thus, s 137 does not provide the mechanism for "gaming" the system of disclosure for registered political parties that would otherwise exist absent s 135(3).

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

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

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

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

253. Accordingly, I joined in answering the second question stated in each special case "no".

     Question 3: the implied freedom of political communication

254. The third question stated in each special case is whether s 135(3) is invalid, in whole or in part, on the ground that it infringes the implied freedom of political communication.

255. The plaintiffs contended that s 135(3) effectively burdens the implied freedom because the inability of candidates endorsed by the UAP "to identify themselves on the ballot paper as UAP candidates imposes a practical burden upon their ability to communicate" that affiliation. This framing of the burden on the implied freedom as a basis to invalidate s 135(3) is precluded by the holding in Mulhollandv Australian Electoral Commission to the effect that, whether or not a ballot paper is,[456] may be[457] or is not[458] a form of political communication, any restriction on its content does not burden the implied freedom because it does not burden any right or liberty of communication on political or government matters that exists independently of any entitlement to be included on the ballot paper.[459] Accordingly, the plaintiffs sought leave to reopen and overrule Mulholland and, to the extent necessary, so much of the holding in Ruddick v The Commonwealth[460] that applies this aspect of Mulholland. Three matters should be noted about the plaintiffs' application.

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

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

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

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

     [460] (2022) 275 CLR 333.

256. First, in Ruddick, Gordon, Edelman and Gleeson JJ applied this aspect of Mulholland.[461] Kiefel CJ and Keane J, and Gageler J doubted so much of Mulholland that restricts the scope of the implied freedom of political communication to burdens on rights or liberties of political communication that exist independently of the legislative regime imposing the burden.[462] The other member of the Court in Ruddick, Steward J, agreed with Gordon, Edelman and Gleeson JJ that the impugned provision enhanced "the quality of a free and informed election" and "for that reason" agreed with Gordon, Edelman and Gleeson JJ's reasons and answers to the questions stated.[463] That conclusion pertains to so much of the reasoning of Gordon, Edelman and Gleeson JJ that rejected the challenge in Ruddick that was based on ss 7 and 24 of the Constitution (Question 2) and, at its highest, so much of their Honours' rejection of the challenge based on the implied freedom that did not involve reliance on the principle derived from Mulholland[464] (Question 1). Steward J otherwise referred to his Honour's reasons in LibertyWorks Inc v The Commonwealth,[465] in which his Honour stated that he was "concerned about the [existence of the] implied freedom".[466] An expression of concern about the existence of the implied freedom is not an endorsement of the above principle derived from Mulholland.

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

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

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

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

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

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

257. In the discharge of their function, it is for the individual judge to ascertain the effect of this Court's earlier authorities. A statement by an individual judge about the effect of one of their earlier judgments has no greater weight than the statement of another judge as to its effect. It follows that it is not necessary to reopen and overrule Ruddick in order to reopen and overrule the above aspect of Mulholland.

258. Second, the fact that restrictions on the inclusion of a candidate's party affiliation on a ballot paper do not directly burden the implied freedom does not preclude a finding that such restrictions indirectly burden forms of political communication which exist independently of the legislation imposing the burden.[467] For example, while a donation to a political party is not a form of political communication, restrictions on such donations can burden political communication because they potentially restrict the funds available to parties and candidates to meet the cost of those communications.[468] In this context, prior to or during the period of an election, a candidate endorsed and supported by a political party may be practically impaired in promoting an important aspect of their candidacy, namely their party affiliation, if that affiliation will not appear on the ballot paper. Neither Mulholland nor Ruddick precludes the implied freedom from being engaged where such burdens are established. However, for the following reason it is not necessary to consider that further.

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

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

259. Third, I agree with Gageler CJ and Jagot J that the application for leave to reopen the relevant part of Mulholland should not be entertained in circumstances where reopening and overruling Mulholland would not be dispositive. This is so because, even if the restriction on the inclusion of party affiliation on a ballot paper occasioned by s 135(3) burdens the implied freedom of political communication, the analysis in relation to the first question stated in each special case would nevertheless yield the answer that the restriction is justified.

260. Accordingly, I joined in answering the third question stated in each special case "no".

     Costs

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