Major Parties protect themselves with Bad Law
Chris Merritt 31 March 2022
Published in the Australian Newspaper
Politicians are only human. So it is entirely understandable that they occasionally persuade themselves that laws that serve their self-interest are, by definition, in the public interest.
Normally, the competition between different parties is enough to temper excesses and protect the community from abuse of the legislative process.
If one party goes too far, its foibles will be exposed and checked by others.
When politicians are at each other’s throats democratic societies can be confident that the community is safe from the excesses of an over-powerful political class.
But every now and then this process breaks down and the self-interest of the established political class overwhelms partisan tensions. That’s when society should be worried.
That concern should be most acute when the main players agree to change the electoral laws in a way that disadvantages parties that are not part of the club.
This is what happened last year with changes to the Commonwealth Electoral Act that, while ostensibly designed to prevent confusion, have the practical effect of serving the self-interest of the established parties.
The Liberal and Labor Parties combined to change the Electoral Act to require the deregistration of any political party with a name containing the words Liberal or Labor.
And it’s not just the Liberals and Labor. This law serves the interests of all the established parties. It prevents parties using a word in their title that is in the name of a party that had been registered first.
A challenge to this provision failed in the High Court by the narrowest of margins – four to three. The court’s reasons, which were made public last Friday, show that the fourth judge in the majority, Justice Simon Steward, seems to have only upheld this law while holding his nose.
His curt, half-page ruling says the amendments “may rightly be characterised as heavy-handed” and an “unappealing” method of “conferring upon the country’s two major political parties enduring monopolies over the words “liberal” and “labor” (or “labour”) for the purposes of party registration”.
This law only survived because of Steward’s legal conservatism and his reluctance to alter the balance of power between parliament and the judiciary.
This law might stink. But Steward believed the invalidation of parliament’s work should be reserved for only the most extreme laws that offend the most essential of democratic values and systems.
Labor and the Liberals have dodged a bullet.
But their manipulation of the laws governing the coming election has been exposed. It is unworthy.
The failed challenge was brought by John Ruddick of the Liberal Democratic Party, which is now proposing to change its name to the Liberty & Democracy Party to avoid deregistration.
In time, this case will be remembered not for the fact that the challenge to these amendments failed, but for the fact that Steward and the three judges in dissent have exposed a form of lawmaking that should not be repeated.Malcolm Stewart, who is senior vice-president of the Rule of Law Institute, believes it may be thought to be somewhat unseemly for the two major political parties to use parliament to pass a law to their advantage and the detriment of minor parties.
Stewart is also managing partner of law firm Speed & Stracey which, along with Bret Walker SC, was part of Ruddick’s legal team for the High Court challenge.
His analysis of the case, which appears on the website of the Rule of Law Institute, says the fact that the Liberal Party now has a monopoly over the word “liberal” is particularly odd.
“The word ‘liberal’ has a variety of different meanings, depending on the place and the time. In the early 1800s it meant not strict or rigorous. Today in the United States a liberal is a person who believes that government should be active in supporting social and political change,” Stewart writes.
The self-interest of the major parties is apparent when the genesis of this change is considered. It arose from a recommendation of the 2020 report of parliament’s joint standing committee on electoral matters.
Those involved in that committee’s report were from the Liberals, Labor, the Nationals, the Queensland Greens, the Liberal National Party and the Centre Alliance.
How extraordinary, then, that a series of exceptions in the new law means the parties represented in parliament when this law was passed have been immunised from provisions that might otherwise have put some of them in the same position as John Ruddick’s Liberal Democrats.
Justice Gageler’s dissenting judgment makes this clear: “The combination of the exceptions … meant that no political party represented in the Senate or in the House of Representatives at the time of the passage of the Amending Act became vulnerable to deregistration on the objection of any other despite having common words or variants of words in their names.”
The logic of banning political names might look like a solution to the donkey vote, but it’s not.
The report of the joint select committee on electoral matters says the Labor vote is impaired whenever the Democratic Labor Party is listed higher on the ballot paper.
The report says the same applies when the Liberal Democratic Party is listed higher on the ballot paper than the Liberals.
This, according to the dissenting joint judgment of Chief Justice Susan Kiefel and Justice Patrick Keane, means that the problem arises not from a party’s name but from the location of that name on the ballot paper.
The major parties have taken aim, hit the wrong target, served their self-interest and encouraged voters to hold their noses on polling day.