Did amendments to Commonwealth Electoral Act 1918 (Cth) ("2021 Amendments") burden the implied freedom of political communication or political matters?
Ruddick v Commonwealth of Australia  HCA 9 (25 March 2022)
In 2021, after a series of amendments over many years to the Commonwealth Electoral Act 1918 (Cth) designed to reduce voter confusion at federal elections, the Commonwealth Parliament enacted items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) ("the 2021 Amendments"). In broad terms, those amendments constrain a registered political party from using a name or logo on the election ballot paper if that name or logo has a word in common with the name of a previously registered political party. The purpose of the 2021 Amendments is plain. It is to reduce confusion.
This case, as presented and argued, was particularly concerned with the application of the 2021 Amendments to the Liberal Democratic Party. If applied to the Liberal Democratic Party to preclude the use of its name on the ballot paper for a federal election, they would not prevent the party being registered under an alternative name, so that candidates could be identified on the ballot paper as affiliated with the same party bearing that alternative name. Alternatives conveying a similar view point include the party's previous name, the "Liberty and Democracy Party", or the name which the party has recently sought to register, the "Liberty & Democracy Party". The 2021 Amendments would not prevent the Liberal Democratic Party from campaigning, advertising, or communicating in any way under the name "Liberal Democratic Party". They would not prevent the Liberal Democratic Party from handing out "how to vote" cards with details of candidates endorsed by the Liberal Democratic Party, if it wished to continue to campaign under that name. They would not prevent endorsed candidates of the party from being identified on the ballot paper with the logo and initialism of "LDP".
The law from 1984
Historically, ballot papers for federal elections did not include any party endorsement with the names of candidates. That changed when, in 1983, a scheme was introduced for the registration of political parties which permitted registered parties to have their name (or, later, a registered abbreviation of it), and eventually their party logo, printed on the ballot paper next to the name of a candidate endorsed by the party.
The 1983 amendments permitted registration of a political party only in certain circumstances, which included compliance with provisions designed to avoid confusion of parties by electors. The provisions included a first‑in‑time priority to registered parties and Parliamentary parties which prevented registration of any subsequent party with a name or abbreviation that: (i) "is the name, or is an abbreviation or acronym of the name", of the prior registered party or Parliamentary party; or (ii) "so nearly resembles the name, or an abbreviation or acronym of the name" of the prior registered party or Parliamentary party that it was likely to be confused with or mistaken for the prior registered party or Parliamentary party.
In 2004, further amendments were made to the Commonwealth Electoral Act in order to address continuing confusion. Section 129(1)(da) was introduced to prevent registration of a political party if, in the opinion of the Electoral Commission, the proposed name of the party "is one that a reasonable person would think suggests that a connection or relationship exists between the party and a registered party if that connection or relationship does not in fact exist".
But even with these further amendments, Parliament considered there was still a likelihood of significant confusion. In 2005, the Joint Standing Committee on Electoral Matters observed that "[c]onfusion still arises, however, because parties that registered names prior to the 2004 amendments are still permitted to use those names". The Committee quoted a submission of the Liberal Party that the party name "liberals for forests" is "potentially confusing and can mislead voters into believing that liberals for forests has some connection to the Liberal Party or gives its preferences to the Liberal Party".
The confusion at the 2013 federal election
The confusion provisions failed to prevent significant confusion in voting in 2013. With Mr Leyonhjelm as its lead candidate, the Liberal Democratic Party received 415,901 votes (9.5 per cent of the votes) for the Senate election for New South Wales.
In a radio interview two days after the 2013 federal election, Senator Leyonhjelm said that the Liberal Democratic Party had initially expected a vote of about 2.5 to 3 per cent, which rose to about 4 per cent as a result of "donkey" votes due to the party's first position on the ballot paper. That view is consistent with a careful academic analysis that estimated that the benefit of being placed first on a ballot paper was, on average, a 1 per cent increase in a candidate's vote share. Senator Leyonhjelm referred to the 9.5 per cent of votes received and added that "you can't deny that some people would have ... mistaken us for the Liberals", although he speculated that the confusion might also have been with the Christian Democrats or the Australian Democrats. He accepted that it was possible that confusion could have contributed 75 per cent of the Liberal Democratic Party votes.
In an interim report on the inquiry into the conduct of the 2013 federal election, the Joint Standing Committee on Electoral Matters referred to concerns about "voter confusion", particularly in New South Wales, with "votes going to the Liberal Democratic Party rather than the Liberal/Nationals". The Committee observed that part of the reason may have been the position of the Liberal Democratic Party in the first column on the ballot paper combined with the format of the ballot paper, with "Liberal" as the more prominent part of the name on the line above "Democrats".
In its 2020 report, the Joint Standing Committee on Electoral Matters referred to the combination of the ballot position of the Liberal Democratic Party and the Democratic Labor Party and their use of "Liberal" and "Labor" as affecting the vote by a few percentage points, as voters had been misled. Although it is not possible to identify and then disaggregate all possible factors that might have contributed to the 9.5 per cent vote that the Liberal Democratic Party received, it is an available inference from those facts and matters, together with Mr Ruddick's admissions on the pleadings and in the agreed facts as to confusion in fact caused by the word "Liberal" in the party name, that the confusion caused by the similar name was responsible for a significant part of the increase in that vote.
Further legislative responses to avoid confusion
The Joint Standing Committee on Electoral Matters produced a further report in 2016 concerning the introduction of logos on ballot papers for reasons including assisting voters "to clearly locate their intended vote on the ballot paper". Those suggestions resulted in further amendments to the Commonwealth Electoral Act to permit the use of logos on ballot papers.
In December 2020, the Joint Standing Committee on Electoral Matters published a report on the conduct of the 2019 election. After consideration of the need to distinguish "party name registrations" because "voter choices and election outcomes should not be distorted by duplicative names", the Committee recommended that "section 129 of the Commonwealth Electoral Act 1918 should be amended to permit the Electoral Commissioner to remove a name or a part of a name from an existing or proposed party that replicates a key word or words in the name of another recognised party that was first established at an earlier time". This recommendation was the impetus for the 2021 Amendments.
The 2021 amendments
Parliament responded to the recommendation of the Committee by introducing the 2021 Amendments. The explanatory memorandum to the 2021 Amendments explained that the purpose of the amendments was to avoid confusion and to enhance the informed choice of voters: "[w]here overlap of names causes voters to mistake one party for another, it can distort their choices, in some cases by attracting a voter mistakenly to a party they did not intend to support and in other cases deterring them from supporting a party that they might otherwise give consideration to.
The impugned provisions have two central effects.
First, items 7 and 9 impose an additional requirement for registration of a new party, and hence for a party name (or abbreviated name) and logo to appear with the name of an endorsed candidate on the ballot paper. The additional requirement, contained in ss 129(3), 129(6) and 129A(2), is that the name, abbreviation or logo of an applicant party must not, without the consent of the prior registered political party, contain a word that is in the name, or the abbreviation of the name, of the prior registered political party.
Secondly, by items 11 and 14, introducing ss 134A(1)(a)(iii) and 134A(1A), an existing party cannot remain registered under its name if an earlier registered party objects to the existing party's name or logo and that name or logo contains a word that is in the name, or the abbreviation of the name, of the prior registered political party.
Legitimacy of the purpose of the 2021 amendments
As explained above, the history and sequence of amendments to the Commonwealth Electoral Act has been one of evolving legislative responses to minimise confusion. Each of the reports of the Joint Standing Committee on Electoral Matters identified a need to respond to voter confusion. It was against that background that the 2021 Amendments were enacted. The Assistant Minister began the second reading speech of the Electoral Legislation Amendment (Party Registration Integrity) Bill 2021 (Cth) by identifying that the purpose of the impugned provisions was to "reduce the risk of voter confusion". He added that the Bill "responds to reports of the Joint Standing Committee on Electoral Matters", concluding that "these provisions will enhance the integrity of the electoral process by reducing the likelihood of voters inadvertently associating or confusing political parties with similar‑sounding names".
Mr Ruddick submitted, however, that the purpose of the 2021 Amendments was illegitimate. Parliament cannot enact legislation for a purpose or design that is inconsistent with the Constitution. Mr Ruddick submitted that the purpose of the 2021 Amendments was inconsistent with ss 7 and 24 of the Constitution and the implied freedom of political communication because it was "anti‑competitive" in the sense that, despite references in the extrinsic materials to a purpose of avoiding confusion, the "real mischief" and the "true purpose" of the provisions is to reduce competition between major parties and minor parties. Mr Ruddick pointed to paras 7.41 to 7.44 in the 2020 Joint Standing Committee on Electoral Matters report, which made a number of references to major parties and minor parties.
Mr Ruddick's submission was essentially that the purpose of the 2021 Amendments expressed in the explanatory memorandum and in the second reading speech was a sham. It can be accepted that statements of purpose in an explanatory memorandum or a second reading speech are not conclusive, but it is a significant step to conclude that express statements in such extrinsic materials are a pretence designed to conceal an anti-competitive purpose.
Did the 2021 Amendment have the effect of imparing the quality of electoral choice by the public so as to be incosistent with ss 7 and 24 of the Constitution and the implied freedom of political communication?
The broader freedom of political communication constraint
In Lange v Australian Broadcasting Corporation, this Court recognised an implied freedom of political communication as a separate and broader restriction upon legislative power. This implied freedom was based not merely upon ss 7 and 24 but also upon the structure of the Constitution and provisions such as ss 64 and 128, each of which "give rise to implications of their own".
Provided that a law has a legitimate purpose, a threshold issue for determining the validity of any law alleged to infringe the implied freedom of political communication is whether the law effectively burdens freedom of communication about government or political matters either in its terms, operation, or effect. Since the implication is "an implication of freedom under the law of an ordered society", any burden upon the freedom of political communication must be measured against the valid, existing laws which form a "constitutionally valid baseline". Proof that the law imposes a burden requires that the existing freedom is curtailed or restricted in some way. In Levy v Victoria, McHugh J made the same point about the measurement of a burden against existing, valid laws, saying that the implied freedom "gives immunity from the operation of laws that inhibit [an existing] right or privilege to communicate political and government matters ... [T]hat right or privilege must exist under the general law."
The same point was reiterated in Brown v Tasmania. In the joint judgment of Kiefel CJ, Bell and Keane JJ, their Honours said that it was "logical to approach the burden which a statute has on the freedom by reference to what [persons] could do were it not for the statute". Nettle J said that the freedom is only a "freedom to communicate by lawful means". Gordon J said that "[t]o the extent that the impugned law is congruent with the existing law, it is any incremental burden that needs justification". And Edelman J said that there can be no burden on the freedom if "the conduct about which legislation is concerned is independently unlawful, so that there was no legal freedom to communicate about government or political matters".
Mr Ruddick did not establish any burden on electoral choice or the freedom of political communication
As explained above, a threshold issue for Mr Ruddick in his submissions concerning constraints on legislative power arising from (i) ss 7 and 24 of the Constitution, and (ii) the implied freedom of political communication was to establish that the 2021 Amendments placed some burden on, respectively, informed electoral choice or the ability to communicate on government or political matters. Both of Mr Ruddick's submissions fail at this threshold stage.
Mr Ruddick effectively asks this Court to infer that the quality of electoral choice, or the freedom of communication on government or political matters, will be impaired due to the inability of a candidate to have, accompanying their name on the ballot paper, the name and logo of a party which includes a word used in another party's name. That conclusion is not self‑evident. Rather, on the material before the Court, the expected conclusion would be the opposite. The likely effect of the narrow restrictions imposed by the 2021 Amendments is, overall, to improve the clarity, and hence the quality, of electoral choice and communication on government or political matters.
The starting point is the impugned provisions of items 11 and 14 of the 2021 Amendments, which introduced ss 134A(1)(a)(iii) and 134A(1A) concerning existing registered political parties with a word in their name or logo that is used in the name or abbreviation of an earlier registered political party which objects to the use of that word. As explained above, the manner in which Mr Ruddick's challenge was made focused upon the application of these provisions to the Liberal Democratic Party.
On the assumption that the 2021 Amendments would operate to require the deregistration of the Liberal Democratic Party under that name, as it was registered after the Liberal Party, Mr Ruddick's submission invites consideration of how that deregistration would impair the quality of electoral choice by the public, or the quality of communication on government or political matters to the public.
Apart from the content of the ballot paper, deregistration of the Liberal Democratic Party would not preclude any communication with the public, including communication using the name "Liberal Democratic Party". The only potential restraint on the quality of electoral choice by the public, or on communication on government or political matters to the public, is that, by s 169 of the Commonwealth Electoral Act, a candidate for election endorsed by the Liberal Democratic Party, such as Mr Ruddick, would be unable to have that party name printed adjacent to their name on the ballot paper. Yet, as the 2013 election demonstrated, that would have the effect of reducing confusion and thus enhancing the quality of electoral choice by the public.
Even if it were accepted that there was some small constraint upon political communication and the quality of electoral choice by the inability of a candidate endorsed by the Liberal Democratic Party to use the word "liberal" on the ballot paper, the net effect would still be an enhancement of electoral choice and the quality of communication on government or political matters to the public. Contrary to Mr Ruddick's submissions, the Liberal Democratic Party would not be precluded, or impaired in any real way, from using its name to communicate any message of political philosophy. As the Commonwealth correctly submitted, items 11 and 14 do not preclude registration of names which use derivatives of the word "Liberal" in its title. The variety of the English language permits many possible derivatives of a word, compounds of the word, or synonyms for the word.
The same point can be made in relation to another political party mentioned in the special case, the "liberals for forests". In 2001, the Administrative Appeals Tribunal held that the "liberals for forests" did not present any "real risk" of being confused with or mistaken for the "Liberal Party of Australia" or the name "Liberal", although the Tribunal accepted that "[i]t may be that some persons will draw the inference that members of 'liberals for forests' are former members or have some affiliation with the Liberal Party of Australia or one of its State divisions". The latter confusion by electors was not held to be sufficient to preclude registration of the "liberals for forests".
Just four years later, in its 2005 report, the Joint Standing Committee on Electoral Matters concluded that confusion between the liberals for forests and the Liberal Party was the reason for the narrow defeat of the National Party candidate for Richmond in the 2004 federal election. The Committee referred to evidence that the "how to vote" card for the liberals for forests replicated the colours and layout of previous Liberal Party "how to vote" cards and emphasised the word "LIBERALS" in capitals, overshadowing "for forests".
The obvious inference to be drawn from the material in the special case is that the absence of the party name "liberals for forests" on the ballot paper would enhance the quality of electoral choice and political communication by reducing the potential for confusion. Conversely, there was no fact in the special case, and no written or oral submission from Mr Ruddick, which would permit any inference that, if the liberals for forests were prevented from using the word "liberal" in their party name on the ballot paper, the quality of choice of even a single elector, or any communication on a government or political matter, would be impaired in any way.
The liberals for forests, in this example, could have continued to operate and campaign under that same name or a similar name and hand out "how to vote" cards with that or a similar name, which explained that liberals for forests would be named on the ballot paper with the chosen alternative, including any derivative word from "liberal".
The implied freedom of political communication was not engaged
Mr Ruddick's case based on the implied freedom of political communication fails for a further reason. His submissions are indistinguishable from the basis upon which five members of this Court in Mulholland v Australian Electoral Commissionupheld the validity of earlier amendments to the registration scheme in the Commonwealth Electoral Act. Mr Ruddick did not seek leave to challenge the correctness of that decision.
Like this case, the appeal in Mulholland concerned Pt XI of the Commonwealth Electoral Act. Mr Mulholland, the registered officer of the Democratic Labor Party, challenged two conditions for a political party to obtain registration and have its name printed on the ballot paper as contrary to the implied freedom of political communication. Those conditions were: (i) the party must have 500 members, and (ii) two or more parties could not count the same person as a member for the purposes of registration. Each of McHugh J, Gummow and Hayne JJ, Callinan J and Heydon J expressly approved the reasoning of McHugh J in Levy v Victoria and held that proof of a burden on the freedom of political communication requires "proof that the challenged law burdens a freedom that exists independently of that law". Mr Mulholland's challenge failed because the Democratic Labor Party had no right to be included on the ballot paper, independently of the provisions of the Commonwealth Electoral Act.
The questions of law stated for the consideration of the Full Court in the Special Case filed on 3 December 2021 should be answered as follows:
Question 1. Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they infringe the implied freedom of political communication?
Answer: In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.
Question 2. Are any of items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) invalid, in whole or in part, on the ground that they preclude 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: In relation to items 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth), the answer is "No". Otherwise unnecessary to answer.
Question 3. In light of the answers to Questions 1 and 2, what relief, if any, should issue?
Question 4. Who should pay the costs of and incidental to this special case?
Answer: The plaintiff.