Common(wealth) Knowledge #119: UAP absence from ballot paper 'own fault,' High Court rules

The High Court has prevented parties from using voluntary deregistration as a loophole to avoid accountability.

The Australian Electoral Commission’s refusal to accept the United Australia Party’s re-registration for the 2025 election has been unanimously upheld by the High Court.

The party had voluntarily deregistered after the 2022 election, and their re-registration was blocked to prevent the party from avoiding financial transparency rules for party donations.

Section 135(3) of the Commonwealth Electoral Act 1918 (Cth) says that a party which voluntarily deregistered cannot re-register until after the next federal election, in this case the 2025 election.

Given the looming election, on 12 February, just 5 days after hearing oral arguments, the High Court ruled against the UAP and decided to publish its reasons later. Those oral arguments were covered in this series at the time. The reasons have now been published.

The UAP, represented by Senator Ralph Babet and Clive Palmer, relied on an unlawful burden or limitation on the informed choice of voters and the implied freedom of political communication.

Ironically, while bringing a case based on the ‘informed choice’ of voters, the UAP refused to inform the High Court why they de-registered, which several judges called them out for.

Sections 7 and 24 of the Australian Constitution state that Senators and Members must be “directly chosen by the people,” with the “democratic theme of the Constitution” giving rise to the need for a ‘free and informed choice’ about the candidates.

Contrasted with that are sections 10 and 31, which allow Parliament to determine all aspects of the electoral process.

The broader implied freedom of political communication limits this power to ensure that voters can engage in the political process and discuss political issues, involving some elements of ‘free speech.’ The test for this has been explored in detail in other articles.

Led by the joint judgment of Chief Justice Gageler and Justice Jagot (the remaining judges made individual judgments), the High Court identified several legitimate purposes and upheld the legislation.

The court was also asked to reopen Ruddick v Commonwealth (2022), briefly covered here. There, the AEC gave the Liberal Democrats notice under section 137(1)(ca) that an objection had been raised by the Liberal Party to their registered name.

There, Justices Gordon, Edelman, Steward and Gleeson upheld the provision on a ‘broad’ approach that considered it in context, finding that there was no burden on the implied freedom or informed choice, while Chief Justice Kiefel and Justices Keane and Gageler dissented by ruling against it under the ‘narrow’ approach of considering just that provision.

Here, all the judges agreed on section 135(3), refused to reopen Ruddick and rejected the implied freedom argument , but the Ruddick split on informed choice was not fully resolved.

The narrow approach

Chief Justice Gageler and Justice Jagot, joined by Justices Gleeson and Beech-Jones, formed the majority.

The joint judgment maintained that the majority in Ruddick was wrong to find that there was no burden on informed choice in that case, and held that there was a “substantial burden” here there was a disadvantage to the voters as the party affiliations of some candidates would be removed. However, there were legitimate purposes for that burden, and the burden was a reasonable one:

• Transparency - registered parties have to disclose large political donations and their finances. Without section 135(3), a party could deregister, receive massive non-disclosed donations, and then re-register to spend that money at the next election. Transparency is necessary to keep voters informed.

• Avoidance - Under section 136, a party will be deregistered if it does not endorse or nominate a candidate for 4 years. Without section 135(3), voluntary deregistration and then immediate re-registration to ‘reset the clock’ defeats the purpose of section 136.

Section 135(3) also prevents parties from deregistering and then reregistering under a similar name to avoid those consequences.

Justice Gleeson, a member of the majority in Ruddick, “readily” accepted a burden on the ‘informed choice’ ground. Her Honour agreed with the joint judgment that the “ballot paper can be expected to be an important source of information about party affiliation.”

It was different from Ruddick, because Her Honour argued that similar party names led to confusion for voters. However, despite the burden, section 135(3) was sufficiently narrow in scope to be allowed, especially as it would rarely be relevant

Justice Beech-Jones agreed with the joint judgment about the consequences of ‘obscuring’ certain “political viewpoints” by removing some party names and logos, “especially if the law advantaged incumbents.” However, he accepted the above purposes, and added that the deregistration is only limited to one term of Parliament, so isn’t disproportionate.

The broad approach

Justices Gordon, Edelman and Steward were members of the majority in Ruddick v Commonwealth, where they held that there was no burden. Here, they maintained their “broad approach” that section 135(3) shouldn’t be considered on its own, but as part of the “whole structure” of the legislative scheme, which includes sections 136 and 137.

It should be noted that they recognised the legitimate purposes, but not the narrow approach.

Justice Gordon held that there was a “very slight burden.” The UAP, not the legislation, had affected the informed choice of the voters because the UAP decided to voluntarily de-register. Further, the party’s name and logo could still be used “in the parliamentary process, election campaigning and broader political debate.”

Taking a slightly different approach, Justice Edelman said the test was whether the whole “scheme” imposed a burden, and then if that burden changed by removing section 135(3).

Given His Honour’s reasoning that there was no burden by the scheme in Ruddick, he identified a “narrow and shallow” burden here.

Justice Steward agreed with Justice Gordon’s reasoning, but found no burden whatsoever. His Honour also directly criticised the joint judgment, saying that there is no rule that “the existence of a burden must be measured only from the perspective of the voter.”

The position taken by His Honour and Justice Gordon, which placed the burden on the UAP’s actions, was also the Commonwealth’s argument.

Although the UAP was unsuccessful, the High Court once again endorsed the implied right to informed choice, separate from the implied freedom of political communication, repeating its stance in Ruddick here.