High Court: Restrictions on duplicating political party names are constitutional
Ruddick v Commonwealth of Australia [2022] HCA 9
Summary
Mr John Ruddick (the applicant) challenged the constitutional validity of recent amendments to the Commonwealth Electoral Act 1918 (Cth) (the Act) which limit registration of political parties whose name or logo contains a word in common with that of a previously registered political party. The High Court rejected the applicant's submissions, finding that these new rules were lawful, and did not burden any principles contained in the Constitution.
Facts
In 2021, the Commonwealth Parliament (the respondent) passed the Electoral Legislation Amendment (Party Registration Integrity) Bill 2021 (the Amending Act), which amended the Act. Relevantly, these changes resulted in alterations to ss 129, 129A and 134A of the Act (the relevant sections), with the effect of preventing the registration of political parties whose name or logo shares a word in common with the name or logo of a previously registered political party. These changes emerged from a report authored by the Joint Standing Committee on Electoral Matters, and were designed to reduce voter confusion.
On 9 November 2021, under these new regulations, the Liberal Party of Australia (the LP) objected to the Liberal Democratic Party's (the LDP) name, and the commonly used abbreviation, 'Liberal Democrats'. This objection was lodged on the basis that both parties' names contain the word 'liberal', and the LP's registration preceded that of the LDP. In response, the applicant, who is the leader of the LDP, commenced legal action which challenged the constitutional validity of the relevant sections, on the basis that their purpose was invalid, and that they burdened constitutionally recognised freedoms and principles.
A 4-3 majority of the High Court found in favour of the respondent, concluding that the purpose of the Amending Act (reducing voter confusion) was valid, and that the way it pursued this objective was not unconstitutional.
The majority decision
In this case, the Court was asked to answer two questions:
Is the purpose of the relevant provisions valid?
Do the relevant provisions place a burden on constitutionally recognised freedoms/principles?
Justices Gordon, Edelman, Gleeson, and (separately) Justice Steward delivered the majority judgment, which answered 'no' to both questions.
The purpose of the Amending Act
In the second reading speech for the Amending Act, the Assistant Minister identified that the restrictions on party names and logos were designed "to reduce the risk of voter confusion", and 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". The applicant contended that these comments were misleading, and disguised the Amending Act's true purpose of reducing competition between major and minor parties.
In assessing the applicant's claim, their Honours said that determining legislative purpose involves "ordinary processes of interpretation, including considering the meanings of statutory words in the provision, meanings of other provisions in the statute, the historical background to the provision, and any apparent social objective".
In addition to the express wording of the second reading speech, the relevant sections, and both Acts, the majority referenced historical context, including a significant change to the Act in 1983, which introduced restrictions regarding party names, abbreviations, and acronyms "to avoid confusion by electors". Another change occurred in 2004, which expanded the Electoral Commission's powers to prevent registration of a political party where its proposed name may incorrectly suggest, to a reasonable person, a connection between that party, and another.
Their Honours also considered a growing body of statistical and anecdotal evidence suggesting that voter confusion, caused by the names of political parties on ballot papers, has materially affected election outcomes in the past. In summary, this evidence indicated that minor parties whose name contained the word 'liberal' or 'labor' received a higher-than-expected number of votes when placed in the first position on the voting ballot.
With the benefit of this information, the majority were unable to locate any evidence in favour of the applicant's claim of a constitutionally invalid legislative purpose. The available facts supported the conclusion that the relevant provisions were designed to reduce voter confusion, which is a statistically recognised problem, and was a longstanding and permissible function of the Act.
Burden on constitutionally recognised rights/freedoms
The applicant also contended that the relevant sections 'burdened' constitutionally protected aspects of the electoral system – specifically, the requirement that parliamentary representatives must be "directly chosen by the people", and the implied freedom of political communication (the constitutional principles). In considering this argument, the majority outlined that the Constitution sets out the basic requirements for the Australian electoral system, and any law which 'burdens' these principles will be 'unconstitutional'. However, they also recognised that the Constitution is drafted to provide Parliament with substantial leeway regarding its authority to legislate with respect to the remainder of the electoral system, and that this should raise the evidentiary threshold for establishing the existence of such a burden.
With this in mind, their Honours concluded that the relevant sections did not burden, but rather supported, the constitutional principles by improving the quality of electoral choices made by voters, and enhancing communication on government or political matters. With respect to the applicant's contention that requiring the LDP to deregister under their current name would weaken the electoral process, the majority noted at paragraphs 165 and 166 that:
the LDP would not be precluded from using its current name on any marketing materials, or other forms of communication with the public; and
regardless of whether the LDP's mandatory deregistration represented a constraint on the constitutional principles, it would have the net effect of improving the overall quality of the electoral process.
The minority decisions
Two minority decisions were delivered in this case. The first by Chief Justice Kiefel and Justice Keane, and the second by Justice Gageler. The conclusions of both minority judgments were the opposite to that of the majority, and their reasons were largely consistent with each other.
Justice Gageler's decision
Justice Gageler noted that both constitutional principles are founded upon the concept of an "informed choice" by the people. With this in mind, he referred to Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, which establishes a two-limb test for determining the validity of a Commonwealth or State law which limits electors' receipt of information that may influence their ability to make an informed electoral choice, such as the relevant sections.
The Lange test requires that (1) the purpose of the Amending Act, and (2) the manner in which it pursues that purpose, must both be compatible with the constitutionally prescribed system of government. Justice Gageler considered that the purpose of the relevant sections (i.e. reducing voter confusion) supported the constitutionally prescribed system of government – thereby satisfying the first limb. However, he took issue with how the relevant sections interacted with the second.
His Honour acknowledged that the Constitution does not permit incumbent political parties to give themselves "monopolies over words that express political ideologies". Second, his Honour questioned why the relevant sections were necessary, when earlier amendments to the Act had already been included to, in his opinion, serve the exact same purpose. Third, Justice Gageler noted that "it simply does not follow from the mere fact that one name contains a word contained in another name that confusion of those names might occur". Fourth, his Honour considered the statistical and anecdotal evidence referenced in the majority's reasons, but arrived at a different conclusion. Specifically, his Honour expressed that the problems with voter confusion identified only reveal that "a real issue can from time to time arise as to whether the particular name of some other party which has the word 'liberal' in its name might be confused with the name 'Liberal Party', and that this issue was already addressed by provisions contained in the Act. Justice Gageler, therefore, determined that no reason for the relevant sections to exist were established.
Chief Justice Kiefel and Justice Keane's decision
Their Honours largely concurred with the reasoning of Justice Gageler, with a few minor exceptions. Chief Justice Kiefel and Justice Keane noted that, given the wide authority of Parliament to legislate with respect to the electoral system, it was not the Court's responsibility to make decisions with respect to that authority. Instead, their Honours concluded at paragraph 16:
[i]t is the role of the Court to ensure that the limitations that the Constitution itself places upon legislative powers affecting the choice of the people as electors are observed. If they are not, the Court is duty bound to hold legislative provisions which are inconsistent with them to be invalid.
This minority judgment suggested that this involves assessing whether any burden imposed on the constitutional principles are justified to an extent which is commensurate with the impact of the burden. Chief Justice Kiefel and Justice Keane decided, at paragraphs 20 and 21, that the relevant sections do impose burdens on the constitutional principles, because:
the relevant sections prevent voters from accessing information relating to a candidate's affiliation with a political party (whose name is said to contain words describing its political philosophy), thereby distorting the electors' choices; and
including the name of a political party on ballot papers is a form of political communication which is protected under the Constitution.
Furthermore, their Honours determined that the legislature had not provided a substantial reason for significantly impairing the constitutional principles in this way, and the relevant sections were therefore invalid.
Commentary
In this case the Commonwealth convinced a majority of the Court that voter confusion has arisen from political parties using the same words in their party names, and that this is a material threat to democracy which requires attention. In upholding the amendments to the Act, this decision seemingly empowers sizeable, well-established political parties who have had control of the legislature to affect how smaller political parties present themselves to the voting public.
Ultimately, the impact of these provisions will become clearer with time. Given only a slim majority found the relevant sections to be valid, this decision may be revisited in the future.
The full case can be read here.