What’s in a Name? Political Party Names and Ruddick v Commonwealth
Graeme Orr
01.04.2022
In late 2021, the Australian government enacted various amendments affecting the registration of political parties, with the support of the Labor opposition. The oddest, if not most contentious, aspect of the reforms is a rule allowing established parties to effectively “bags” key words in their names. Words such as ‘liberal’, ‘labo(u)r’, ‘greens’ – even ‘Christian’ – and grammatical variants are now controlled by the oldest registered party with that word in its name. (Certain words, such as ‘democratic’ or ‘country’, place names like ‘Australia’ and ‘collective nouns for people’ are not so controlled.)
The relevant provisions, in the tendentiously subtitled ‘Party Registration Integrity Act’ (the Act), were challenged by John Ruddick. Ruddick, who once ran for the presidency of the Liberal Party of Australia (the Liberals), is now a key figure in the Liberal Democratic Party (the Liberal Democrats).
Ruddick argued that legislative power was limited by the concept of electoral ‘choice’ (in ss 7 and 24 of the Constitution) and by the implied freedom of political communication. The High Court dismissed Ruddick’s challenge. Its reasons, released late March 2022, reveal a 4:3 split. The split ran along familiar lines of reasoning: between those who would rein in implications and preserve wide leeway for parliaments, and those who would forensically apply proportionality testing, wary of governmental assertions about the necessity of restrictive provisions.
In what follows, I will first note the context of party registration and naming. The key here is that our law essentially treats parties as electoral machines. Whilst parties can call themselves what they like at common law, what matters most in their registration is securing a memorable name on the ballot paper. The post will then explore the constitutional arguments and judgments. Finally it will consider the broader landscape of the law of politics, as well as some fascinating jurisprudential and temperamental fissures in the High Court bench.
Regulating Party Names – the Story So Far
Australia has long had both a partisan system of representative government and a tendency to detailed electoral law. However it was not until 1983 that the Commonwealth provided for party names on ballots. Party labelling is a vital cue to electors, given compulsory voting and the need to rank numerous options to cast a valid vote. Party labels are not ‘intellectual property’, unless a party trademarks a name for the limited purpose of marketing political tat. Nor are party names protected by consumer or passing off law (see generally The Law of Politics at 133-134).
Instead, the party name on the ballot is a public and administrative law concept. In 1983, it was married with a then new system of party registration. This was to avoid a problem experienced in the UK, where candidates could nominate any political descriptor on the ballot. Famously, this led to mischief such as the ‘Literal Democrats’, a brand-jacking of the better-known British ‘Liberal Democrats’.
Party registration is very different from incorporation. But registration still raises regulatory conundrums. It invites statutory law, and by implication the Australian Electoral Commission (AEC), into party affairs. Who can register? (Answer: parties with an MP or at least 1500 members nationally). Do party rules have to be minimally democratic? (Answer: no. Members may have no rights beyond being on a mailing list). How is membership defined? (Answer: it is left to freedom of association. A party can offer $0 membership.)
Over recent decades, minor and even micro-parties have proliferated, along with an erosion of the two-party system. This has been evolutionary in Australia, compared to other systems where party realignment has been dramatic. But it is nevertheless apparent in the rise of ‘hung’ parliaments and decline in core vote share of the major parties. In part it is also due to incentives in voting systems for those upper houses, like the Senate, that are elected by proportional representation.
Political freedom suggests it is healthy to have many registered parties. But ballot papers full of parties with similar sounding names are a recipe for confusion, like a shelf full of ‘colas’ in the supermarket aisle. That can taint the basic aggregative purpose of elections, which is to accurately record all electoral preferences. Long ballots, like the Senate’s, where electors may have to scan many dozens of party names, can exacerbate this.
As a result, party registration rules in Australia have always required the AEC to weed out names that so resemble an existing party name (or abbreviation) as to be likely to cause confusion or mistake. In allowing ‘liberals for forests’ to be registered in 2001, a three-judge bench of the Administrative Appeals Tribunal noted that liberalism is a multi-faceted concept. The name in question was a generic description of a real group (economic liberals who were environmentalists).
Perturbed by decisions such as this, the major parties tweaked the law in several ways. One was to include logos on the Senate ballot. This is a useful visual cue. But the logos are neither big nor colourful, and they open a second front for arguments about brand-jacking.
Another measure was to prohibit parties whose names could objectively suggest a connection to an existing party. This seems fair, until one recalls the history of organic splintering within parties. Famously, the Democratic Labor Party (DLP) was a Catholic, anti-communist breakaway from the Australian Labor Party (ALP) in the 1950s-70s. The DLP survived into the 21st century, primarily in Victoria where it had one Senator. It added a ‘u’ to ‘Labour’ in 2013, partly to distinguish the ALP’s Americanised spelling. It was finally deregistered this year, unable to meet the heightened requirement of 1500 members. Even if it had, the ALP had convinced the AEC to require the DLP to drop the ‘L-word’.
The Constitutional Arguments and Judgments in Ruddick v Commonwealth
For the Liberal Democrats, Ruddick argued that the constitutional mandate of electoral ‘choice’ in ss 7 and 24 requires, in turn, both rational ballot procedures and open discourse. Effectively, he argued that this structural requirement cuts two ways. Electors need an informed choice at the point of balloting and his party was entitled to keep its name in the register as a key piece of electoral information.
For the Commonwealth, supported by NSW and WA intervening, reliance was placed on Mulholland’s case from 2004. In that case, the DLP had objected to the membership requirements for party registration, claiming they unduly burdened political communication. A clear majority of the High Court then held that party registration was not a burden on political communication; it was merely an administrative system. Parties are, theoretically, still free to campaign using any name, even if not registered.
Even accepting a burden on choice or on communication, the Commonwealth argued that the risk of confusion between names like the Liberal Party and the Liberal Democrats was real. It also cited a recent Joint Standing Committee on Electoral Matters Report supporting the measure.
In a much-negotiated statement of agreed facts, the Solicitor-General of the Commonwealth managed to introduce evidence about the unusually high percentage of the vote received by the Liberal Democrats in the NSW Senate race which elected Senator David Leyonhjelm in 2013. Leyonhjelm admitted his good fortune at the time, having drawn the easy-to-find, left-hand edge of a long ballot paper. The Liberal Party, buried in the middle, suffered an unusually low vote compared to its vote in the House. A combination of the random draw for ballot positions and name similarity probably tilted that election.
Formally, the 4-judge majority in Ruddick had a relatively easy path. Mulholland’s case carried significant gravitational weight. The plurality opinion of Gordon, Edelman and Gleeson JJ stressed originalism: ‘[the] deliberate design of the [Australian] Constitution included leaving Parliament with a wide leeway of choice, even concerning the fundamental features of the operation of elections’ (at [149]). They went so far as to hold that Ruddick failed at the threshold stage. That is, no ‘burden’ on choice or political communication was established. Even if a ‘small constraint’ could be detected, ‘the net effect [of the restriction on names] would still be an enhancement of electoral choice and the quality of communication on government or political matters’ (at [166]).
Justice Steward added a one paragraph concurrence, stating that ‘[t]he invalidation of “Parliament’s work” must … be reserved to those more extreme laws which offend the most essential of democratic values and systems’ (at [174]). He finished by referencing his scepticism, in Libertyworks, that ‘the implied freedom does not exist’ (Libertyworks at [249]).
In stark contrast, Kiefel CJ, Keane and Gageler JJ were clear that choice and political communication were unduly burdened. The Queensland duo (the two-Ks) gave a relatively brief joint judgment. They held that the law prevented electors from identifying ‘all that is associated with the name of a political party’, thereby impairing the ‘irreducible minimum’ constitutional requirement of informed choice (at [21]). The Act was disproportionate – unnecessary overreach – given the law already allowed for the rejection of names likely to confuse, via an independent electoral commission itself subject to merits and judicial review. They reduced the confusion problem to one of the ordering of parties on ballots (at [15]). Perhaps, to extend the ugly supermarket metaphor, the more popular parties should be on the eye-level shelf – up first on the Senate ballot – with minor parties making up the pack.
Justice Gageler gave the most detailed of the judgments, as he often does in public law cases. He observed that, but for a ‘quirk of fate’, the Act would allow the minnow DLP to force the storied ALP to change its name (at [56]; the DLP was listed on the initial party register just seven weeks after the ALP). The point here seems to be that the meaning of political words is linked to substance, not to formalities like registration.
Curiously, no Judges engaged with the more nascent implications beyond choice and political communication. In particular, there is no mention of the ‘equality of opportunity to participate in political sovereignty’, as hatched in McCloy’s case (at [45]), where limits on political donations were upheld in 2015. More understandably, the Court’s recent suggestion that electoral law should not privilege parties or candidates over other actors did not get a run. (Fortunately, as it is a truly odd suggestion in a Westminster system: it appears in Unions NSW (No 2) in 2019.) On the other hand, Ruddick is reassuring to the extent that their Honours were willing to engage with social fact and statistical evidence.
Lessons for the Law of Politics and the Politics of Law
An immediate upshot of the case is that the Liberal Democrats need a new ballot label. One suspects they’ll plump for ‘Liberty and Democracy Party’. The plurality interprets the law as restricting ‘inflections’ of words, but not ‘derivatives’ (at [129]). So ‘liberals for forests’ is out. Yet ‘Liberalist Party’ may be okay, a result that would surprise the drafters of the Act.
What of the future of the law of politics? 20 years ago I wondered if Australia was heading for party ‘juridification’. Whilst the record is patchy and episodic, that has not come to pass. Party finance law, at the national level, is woefully underdeveloped. Party constitutions, let alone balance sheets, still do not have to be published, even though at every triennial election, each elector is worth up to $6 to a party.
Such under-development is understandable, given that parties-in-parliament decide how far to take the statute law. Even the courts are becoming more, not less, reluctant to even enforce party rules. That said, the law at issue in Ruddick is an instance of linguistic micro-management, motivated by the concerns of the established parties.
Whilst observers expected the Commonwealth to succeed, the 4-3 split is not merely close numerically. It is also temperamentally revealing. It could hardly not be, given the differences in how the two “camps” viewed the substratum of legal facts and applied the principles.
The split is also curious in that the three most senior Judges (each with upwards of 10 years or more on the High Court) all found emphatically for the plaintiff, whereas the four newer Judges found just as clearly for the Commonwealth. This inverts the folk idea that newer or younger appointees might be more ‘activist’. The majority here is keen to give Parliament wide leeway, even in the law of politics, whilst the older hands are much more willing to smell a rat.
The Act here was obviously problematic, including for a reason not canvassed in the judgments. If the restrictions on registration of party names were only directed at confusion, why does the Act allow an existing party to ‘consent’ to a newer party using a key word in its name (s 129(3)(b))? The government’s answer would be that this permits closely aligned parties to share names: the Liberals and the Country Liberal Party (of the NT) or Labor and its Country Labor brand (in NSW). But if so, the law should require proof of a connection. There is a real danger that a more powerful party could do a backroom deal with a newer party, effectively licensing its name in return for political or policy support. There is also a risk of ‘name-squatting’, of the kind familiar in internet domains.
The law is also a weird – internationally unique – attempt to control the fluidity of political language. Its carve-outs, such as for any ‘collective noun for people’ (s 129(5)), are likely to generate some angels-on-pins statutory interpretation. Is ‘Indigenous’ such a noun? And if so, why would the party register reserve its use on a first-come-first-served basis?
To my mind, Keane and Gageler JJ are the two Judges who most “get” politics: Keane J in a practical, contextual and historical sense, and Gageler J in being willing, ready and able to articulate a rationale for judicial intervention based on concern about self-dealing by incumbents or a major-party cartel. It has long been thought that, through his Harvard LLM, Gageler J imbibed the work of American theorists like John Hart Ely. This seeps through in his re-invocation in Ruddick of his earlier plea to avoid proportionality testing and adopt a more intense, ‘compelling justification’ scrutiny for any law that ‘discriminates between political viewpoints’ (at [83]).
The majority here would object that, whilst this law may prioritise established parties, it is viewpoint neutral. Justice Gageler, however, would channel Ely in retorting that stricter scrutiny is required when a law ‘discriminates in favour of incumbency’. For normative support, he cites US Professor Laurence Tribe’s fears of ‘a temporary majority entrenching itself’ (at [79]). In a judo manoeuvre, the plurality responds by digging into US cases, to argue that even under a Bill of Rights, ballot access can be regulated to avoid confusion, provided the rules are politically neutral (at [157]).
In short, there is a delicious distinction between the minority’s distaste for the law in question, and the majority’s finding that the law did not burden any constitutional value and its preference for a wide leeway for Parliament. Poles apart from Gageler J, Steward J sees the courts’ role, at best, as an emergency backstop. In doing so he channels not the American Ely, but the English-born Stephen J in McKinlay’s case from 1975. There, Stephen J emphasised the thinness of the Australian Constitution on basic democratic values, noting that representative democracy was not an easily definable conception but a wide spectrum of possible models.
In the end, Ruddick’s case did not involve a momentous issue, unlike vote-weighting in McKinlay, the right to vote in Roach’s case, or compulsory voting in Judd’s case. Yet in its grain of sand we find a jurisprudential microcosm.
—
Post-script (6 April 2022): the Liberal Democratic Party appears to have found a procedural loophole to keep that name into the 2022 election.
—
Graeme Orr is Professor of Law at the University of Queensland and author of works on elections as rituals and The Law of Politics (2019, 2nd ed)
Suggested citation: Graeme Orr, ‘What’s in a Name? Political Party Names and Ruddick v Commonwealth’ on AUSPUBLAW (01 April 2022) <https://www.auspublaw.org/blog/2022/04/whats-in-a-name-political-party-names-and-ruddick-v-commonwealth>.