Head, Michael --- "The High Court and Australia's New Electoral Laws: Mulholland v Australian Electoral Commission" [2006] UWSLawRw 8; (2006) 10(1) University of Western Sydney Law Review 171
Case Commentary
THE HIGH COURT AND AUSTRALIA’S NEW ELECTORAL LAWS
Mulholland v Australian Electoral Commission
Michael Head[∗]
In Mulholland v Australian Electoral Commission[1] the High Court unanimously dismissed a challenge to federal electoral laws denying registration to political parties that refuse or fail to satisfy the 500-member rule. Under the Commonwealth Electoral Act 1918 (Cth), political parties cannot be registered, unless they either have at least one parliamentary representative or satisfy the Electoral Commission that they have at least 500 members.
Without official registration, parties are denied the basic democratic right to stand candidates in their name. Their members can nominate, but only as “Independents” or with no affiliation next to their names on the ballot paper. This deprives voters of the fundamental right to vote for the party of their choice, as well as the elementary right to identify the political allegiance and platform of the various candidates. Non-registered parties are also barred from running “above the line” on the Senate voting ticket—an option available to registered parties that eliminates the confusing task of putting consecutive numbers beside the names of every state-wide candidate in order to cast a valid ballot.
The court rejected an appeal by the Democratic Labor Party (DLP), which argued that the laws discriminated in favour of incumbent parliamentary parties and were an unconstitutional interference with basic political rights, including freedom of association and communication, voters’ privacy and the right of electors to cast a free and informed vote. Whatever one’s views of the politics of the DLP, which kept Liberal governments in office federally from the mid-1950s to the early 1970s, the objections it raised to the party registration regime were entirely legitimate. The High Court’s dismissal of them has far-reaching implications for the fundamental rights of ordinary people to politically organise, nominate candidates and contest elections, free of state monitoring and interference.
The Court’s decision demonstrates the lack of any guaranteed support within the Constitution, other legislation and the judiciary itself for voting rights. Echoing similar sentiments expressed by members of the US Supreme Court when its majority awarded the 2000 presidential election to George W Bush[2], Chief Justice Murray Gleeson and several other judges cast doubt on the existence of the right to vote under the Australian Constitution.
Gleeson CJ observed that judicial opinion was divided on whether the Constitution guaranteed universal suffrage.[3] He referred to a 1975 case, in which judges pointed out that when the Constitution was adopted in 1901 it contained no explicit guarantee of voting rights, but instead permitted the states or federal parliament to set franchise qualifications.[4] At Federation, in fact, most women had no right to vote; many states imposed property or income qualifications, and also barred Aborigines and Pacific islanders from voting. Most Aborigines were denied the right to vote at federal elections until 1962.
But it is one thing to record the undemocratic birth of the Australian nation and its shameful record; it is quite another to declare openly in 2004 that the existing parliamentary parties can overturn basic voting rights won in decades of political struggles. Yet, Gleeson CJ and several of his colleagues (notably McHugh, Gummow and Hayne JJ) called these rights into question. The Chief Justice insisted that the Constitution did no more than impose “a basic condition of democratic process”, leaving “substantial room for parliamentary choice, and for change from time to time”.[5]
The court also upheld the violation of privacy, secret voting rights and other political rights entailed in requiring 500 rank-and-file party members to publicly identify their political persuasion. Justice Michael Kirby warned that public indications to government officials of political allegiances could, in the coming period, lead to personal, political and property disadvantages, as happened when the Menzies government moved to outlaw the Communist Party in 1950. Yet, he joined the rest of the bench in declaring the 500-rule to be an acceptably “proportionate” infringement of electoral rights.[6]
John Mulholland, the DLP’s registered officer under the Commonwealth Electoral Act, mounted several strong arguments. First, he contended that the 500-members rule prevented voters from exercising a “free and informed choice” as required by sections 7 and 24 of the Constitution, which specify that parliament must be “directly chosen” by electors. The DLP pointed out that the rule denied voters important information by barring the inclusion of a candidate’s party affiliation on ballot papers.
Second, the DLP argued that the measures discriminated in favour of large and parliamentary parties, to the disadvantage of small, new and non-parliamentary parties. It said the laws expressed the partisan interests of the established parliamentary parties, which enjoyed the advantages of incumbency. Third, the party said the rule infringed the implied constitutional freedoms of political communication, and associated freedoms of association and participation in federal elections. Non-parliamentary parties were denied the right to equally communicate the affiliations of their candidates. Finally, the DLP pointed to the flouting of the freedom of political privacy. It said potential members were intimidated by the risk of disclosure to government officials of their private political opinions.
The High Court dismissed these arguments on the basis of several anti-democratic assumptions, underpinned in some instances by references to protecting the political system from mounting popular disaffection. Members of the court also reiterated several recent rulings that the Constitution’s implied freedom of political communication did not create any rights at all—it merely prohibited “disproportionate” official regulation of political discussion.[7]
Gleeson CJ described the ability of a registered party to have its candidates’ affiliation recorded on ballot papers as a “privilege”, rather than a fundamental democratic or constitutional right. It was a privilege created by parliament, he stated, and therefore parliament could simply take it away.[8] While admitting that the 500 level was “arbitrary”, the Chief Justice said parliament could set any “reasonable” membership requirement for party registration. This could pave the way for legislation to impose even more onerous restrictions. Would 5,000 be “reasonable”, or even 50,000? Gleeson CJ said such rules were needed to demonstrate “a certain minimum level of public support”, asserting that their purpose was to assist voters to identify genuine parties, rather than impede political communication.[9]
Likewise, Justice Ian Callinan said parliament had every right to insist that only “a real political party of relevance” should enjoy various electoral “privileges”.[10] In this view, it is up to the parliamentary establishment, not the voters, to determine which parties are “relevant”, even to the extent of restricting access to ballot identification by potential challengers. The purpose of elections is meant to be to allow voters to consider and assess an array of political programs and perspectives, and freely decide which parties they support, on the basis of equal access to information about their policies. In other words, it is up to the voters to decide who has “community support”. Instead, according to the court, the established parties—and the judges—have the power to pre-determine which parties have support. This is the antithesis of genuine democracy.
Kirby J, generally regarded as the court’s most “liberal” judge, observed that many parties, including the Labor and Liberal parties, had been launched with far smaller memberships than 500. He acknowledged that newly-established, marginalised or less popular parties would be directly disadvantaged by the 500-rule. Nevertheless, he endorsed the erection of such obstacles today, saying they were necessary to reduce confusion in the size and form of ballot papers, discourage the creation of phoney political parties and “protect voters against disillusionment with the system of parliamentary democracy, reliant as it is so heavily in Australia on the organisation of political parties”.[11] In another passage, Kirby J expressed concern that recent Australian elections, at both federal and state levels, had seen large numbers of parties field many candidates, “producing extremely unwieldy ballot papers”.[12]
The proliferation of parties and candidates is a symptom of the distrust and hostility felt by many quite well-informed voters, particularly young people, toward the existing political set-up. Over the past decades, widening social inequality, the destruction of secure jobs and working conditions, and the erosion of public health, education, housing and welfare, under both Labor and Liberal governments, has seen the votes for major parties decline. In recent years, the essential bipartisan Coalition-Labor unity on the Iraq war and the accompanying assault on legal and democratic rights under the banner of the “war on terrorism” have intensified these sentiments.
The High Court has, in effect, rubberstamped the response of the political elite, which is to further narrow, stifle and limit political debate, seeking to paint all non-registered parties as illegitimate. The mass media has been complicit in this political censorship, giving saturation coverage to the mainstream parties during election campaigns while imposing an almost complete blackout on other parties. True to form, the media barely reported the DLP’s High Court challenge, and provided no indication, let alone criticism, of its anti-democratic logic.
The judges’ assertion that the 500-rule was designed in 1983 to help voters make informed choices flies in the face of the political record. The rule was established as part of the wider scheme of state funding of registered political parties. State funding sought to bolster the declining finances of the old parties, make them increasingly financially dependent on the state and give the authorities immense powers to pry into the affairs of new parties.
Apart from having their names on ballot papers, registered parties can apply for public funding, at a rate of approximately $1.80 per vote. For the 2004 election, Howard’s Coalition and the Labor opposition picked up nearly $38 million between them, with $3.3 million going to the Greens.[13]
To register, parties without a representative in parliament must submit to the electoral authorities signed membership application forms and personal details—names, addresses, telephone numbers and dates of birth—of 500 members.[14]
By requiring rank-and-file members to publicly identify their political persuasion, this requirement directly infringes their privacy and exposes them to surveillance and harassment by government agencies, including the police and intelligence services. The Register of Political Parties is open to public inspection[15] and the legislation does not prevent the Australian Electoral Commission (AEC) from divulging party membership lists to anyone, even the Australian Security Intelligence Organisation (ASIO).
The highly technical membership requirements for registered parties can also become a vehicle for state and mass media provocation. Whether registered parties apply for funding or not, they must file extensive annual returns, right down to the local branch level, and publicly name their financial contributors. In the guise of checking membership or financial returns, the Electoral Commission can carry out highly prejudicial public raids on party offices, seize documents and records, and interrogate party members under oath. It can insist on a detailed timetable of a party’s activities and by scheduling inspections and audit meetings, constantly monitor and disrupt these activities.
In 2003, two leaders of One Nation, Pauline Hanson and David Ettridge, were jailed for “fraud” in relation to the party’s registration. Their subsequent acquittal by the Queensland Supreme Court confirmed that they and their party were victims of a high-level political witchhunt, involving senior Coalition politicians, backed by a series of legal travesties.[16] Many of us might deeply oppose One Nation’s politics, yet the persecution of Hanson and Ettridge and the legal assault on their party set a dangerous precedent for use against any party that presents a genuine challenge to the existing political order. None of the High Court judges referred to the Hanson case.
The Mulholland ruling followed a set of High Court decisions that eroded other precious democratic rights. Earlier in 2004, the court cast aside the principle of habeas corpus to rule that the federal government can, without any form of trial, detain rejected asylum seekers indefinitely—perhaps for life—even if they cannot be deported to any other country, and irrespective of the intolerable conditions inside the government’s immigration detention centres.[17]
Disenfranchising voters
Following the Mulholland decision, the Howard government proceeded to use its confirmed constitutional power by introducing the cynically titled Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth). Literally behind the backs of the Australian population—with virtually no mention in the media or serious opposition in parliament—the government brought forward sweeping laws that aim to further prevent or handicap ballot challenges to the mainstream political parties.
The legislation automatically de-registers all non-parliamentary parties and blocks the registration of new ones, while systematically disenfranchising many thousands of ordinary voters. At the same time, it shields the rich and powerful from scrutiny as they dominate the finances and dictate the policies of the major parliamentary parties.
The new laws were pushed through in June 2006 with little publicity, public discussion or debate. In one fell swoop, they will remove 20 parties from the official register. All parties not currently represented in parliament will be automatically deregistered at the end of 2006, six months after the legislation commenced.[18] The only exemption will be for parties, such as One Nation and the DLP, that have previously had representation in federal parliament. In the meantime, the register has been frozen, stopping any new registrations before January 2007.[19]
Moreover, if the next federal election is called before June 2007, the register will revert to what it was in June 2006, preventing any new party from registering for that election.[20] In other words, were Prime Minister John Howard to call an early election, all new challengers would be disqualified.
The entire parliamentary establishment—the Liberal-National Coalition government, Labor, the Australian Democrats and Greens—backed the purging of the party register. While certain features of the electoral bill attracted criticism during the perfunctory parliamentary debates, there was no opposition to the de-registration provisions. Democrats Senator Andrew Murray described them as “not so controversial”.[21]
Over the past decade, the Democrats and Greens have similarly joined hands with Labor and the Coalition to support the introduction of restrictive measures against new parties in many states, including in New South Wales, where 750 members must give their names and addresses to the electoral authorities for a non-parliamentary party to appear on the ballot.[22] Despite these measures, new parties and “independent” candidates have proliferated since the mid-1980s as disgust toward the old parties has intensified.
The Howard government claimed that the wholesale removal of non-parliamentary parties from the register was necessary to stop the use of misleading party names, such as Liberals for Forests. But the Australian Electoral Commission (AEC) already had the power to refuse registration to a name that would confuse voters.[23] In any case, no evidence was produced to show that any of the other 20 or so parties to be de-registered are in any way bogus.
Voting rights cut
The new electoral laws flagrantly attack the most fundamental democratic right—the right to vote. The electoral rolls will be closed on the same day that an election is called, potentially disenfranchising all voters—about half a million at the 2004 federal election—who have changed address or failed to enrol.
Most affected will be the young, recently-arrived migrants, the poor and workers—those who became eligible to vote after the previous election, or moved house, often living in rental accommodation or employed in insecure or casual jobs. New voters—those turning 18 or due to be sworn in as citizens before the election—will have only three days, half the present seven-day period of grace, to enrol.[24]
Secondly, in order to enrol, and vote at each election, voters will either have to present a form of photo-ID, such as a driver’s licence or passport, or statements from two enrolled voters.[25] These requirements are also likely to strip voting rights from low-income and young people, particularly those who cannot afford to drive or travel overseas.
Thirdly, all prisoners will be denied the right to vote.[26] Previously only prisoners serving sentences of more than three years were disenfranchised at federal elections. This measure will again particularly target the poor and disadvantaged, because inmates disproportionately come from the ranks of the unemployed, poorly-educated, mentally-ill or indigenous.
The new legislation represents a major reversal of the steady expansion of the franchise that developed before World War I—beginning with secret ballots, then votes for women and postal voting—as a result of significant political struggles. In 1967 Aboriginal people finally won voting rights after an overwhelming “yes” vote in a national referendum and in 1973, the voting age was lowered from 21 to 18, largely in response to the mass movement against conscription and the Vietnam War.
The government claimed the new restrictions were needed to stop enrolment fraud. Electoral statistics, however, show that since 1990 more than 66 million votes have been cast for the House of Representatives, yet just 71 attempts at multiple voting have been detected.[27] This negligible rate—about one in a million—could not possibly have affected any election outcome. When the Australian National Audit Office conducted a review of the electoral roll in 2001, it described it as being of “high integrity”.[28]
Similarly, the government asserted that the electoral commission could not adequately check all enrolment forms to guard against fraud. But the AEC opposed the proposal, describing it as a “backward step” that would reduce the accuracy of the electoral rolls.[29] In one survey, the AEC found that 11 percent of electors were enrolled at an old address.[30] They could now all be barred from voting under the new rule, which prevents them from correcting their details once an election is announced.
The Act also makes it more difficult for working people to stand for parliament, by increasing election candidates’ deposits by almost 50 percent, from $350 to $500 for the House of Representatives and from $700 to $1,000 for the Senate.[31] These requirements inherently discriminate against people on lower incomes, who are also to be least likely to have access to professional and party fund-raising machines.
At the same time, the legislation has made it easier for corporations and rich individuals to keep their political patronage secret. It increased the disclosure threshold for political donations from $1,500 to $10,000, with an annual upward adjustment in line with the cost of living index.[32] In effect, donors can contribute $90,000 a year without public disclosure, if they donate $10,000 to each of their preferred party’s eight state and territory branches, as well as to a federal division.
The tax deductibility level for political donations has also increased 15-fold from $100 to $1,500 per year, and the tax breaks have been extended to companies as well as individuals.[33]
Just months before the legislation passed, AEC statistics confirmed that both major parties were heavily reliant on huge sums from wealthy donors in the 2004 election. Officially-recorded donations for 2004-05 showed that $48.6 million flowed into Liberal Party coffers and $48.1 million into Labor’s, a total of almost $100 million.[34]
No doubt other contributions remained camouflaged by a complex array of trusts and foundations.
In another provision designed to stifle dissent, the legislation forces anyone who spends more than $10,000 a year on a “political purpose,” which includes expressing views on political parties, to lodge an annual financial disclosure form.[35] Previously, this requirement was confined to election campaign spending. Any group or publication that actively engages in political commentary and activity, whether it is contesting an election or not, can now be subjected to highly-intrusive and widely-publicised financial investigations by the electoral authorities and federal police, just as happened to One Nation.
The virtual silence in the political and media establishment on the electoral legislation suggests an advanced state of decay in official Australian democracy. The most elementary legal and political rights are being repudiated, and anti-democratic measures introduced, with hardly a murmur of dissent.
[∗] Dr Michael Head teaches law at the University of Western Sydney. An earlier version of parts of this commentary was published on the World Socialist Web Site. Comments are welcome: m.head@uws.edu.au.
[1] [2004] HCA 41; (2004) 209 ALR 582.
[2] Bush v Gore 531 U.S. __ 2000.
[3] [2004] HCA 41, [14].
[4] Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1.
[5] [2004] HCA 41, [14].
[6] [2004] HCA 41, [256]-[270].
[7] See, for example, Gleeson CJ at [2004] HCA 41, [40], citing Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106, Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579.
[8] [2004] HCA 41, [26].
[9] [2004] HCA 41, [41].
[10] [2004] HCA 41, [332].
[11] [2004] HCA 41, [292].
[12] [2004] HCA 41, [263].
[13] Australian Electoral Commission, 2004 Federal Election Funding Payments, http://www.aec.gov.au/_content/how/funding_payments/2004_election.htm
(accessed 28 August 2006).
[14] Australian Electoral Commission, Party Registration, http://www.aec.gov.au/_content/who/party_reg/index.htm
(accessed 28 August 2006); Commonwealth Electoral Act 1918 s 123.
[15] Commonwealth Electoral Act s 139.
[16] M. Head, ‘The Jailing of Pauline Hanson – A Victory for Democracy?’ (2003) 28 Alternative Law Journal 264-268.
[17] M. Head, ‘Detention Without Trial – Is There No Limit?’ (2005) 30 Alternative Law Journal 63-69.
[18] Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) [‘the Act’], Schedule 3, ss 1-4.
[19] Act, Schedule 3, s 5.
[20] Act, Schedule 3, s 6.
[21] Hansard, Senate, 16 June 2006, 7.
[22] Parliamentary Electorates and Elections Act 1912 (NSW) s 66A.
[23] Commonwealth Electoral Act 1918 (Cth) [Commonwealth Electoral Act] s 129.
[24] Act, Schedule 1, ss 51, 52.
[25] Act, Schedule 1, ss 18-49.
[27] Hansard, Senate, 16 June 2006, 2 (Senator Carr).
[28] Hansard, Senate, 20 June 2006 (Senator Murray).
[29] Hansard, Senate, 16 June, 2 (Senator Carr).
[30] Hansard, Senate, 20 June 76 (Senator Abetz).
[31] Act, Schedule 1, ss. 53, 54.
[32] Act, Schedule 2.
[33] Act, Schedule 4.
[34] Australian Electoral Commission, Summary of Donations Reported by Donors, http://fadar.aec.gov.au/
(accessed 28 August 2006).