Tuesday, October 12, 2004

Cited by the High Court

In early September 2004, I found out I've been cited by the High Court. First time, as far as I can tell. It's in Mulholland v Australian Electoral Commission [2004] HCA 41 (8 September 2004), per Kirby J's footnote 348 to paragraph 265. On some previous occasions, I'd idly run a search through AUSTLII looking for my own name, but it only picks up the 100,000 instances of “around/ ground/ roundabout”, etc (eg, it wouldn’t have picked up this citation). Two ironies about being cited in this context: (1) In Parags 268-270, Kirby also discusses how the Commonwealth Electoral Act’s party registration provisions relate to Constitution Sec 15:
The provisions of s 15 are confirmatory: 268. There remains the question whether the amended language of s 15 of the Constitution, with its express reference to candidates “publicly recognised by a particular political party”, necessarily denies the entitlement of the Parliament to impose burdens upon political parties of the kind introduced into the Act by the “500 rule” and the “no overlap rule” and the provisions allowing the AEC to enforce those “rules”. 269. The provisions of s 15, as now amended, appear to preserve a constitutional entitlement of candidates in an election to the Senate, to organise themselves in “particular political part[ies]” without inhibitions that would frustrate the arrangements postulated by the section. none of the provisions of the Act which the appellant challenged calls into question the entitlement of the DLP to form itself as a “particular political party” for the purposes of s 15 of the Constitution. none prevents or limits the DLP offering candidates for election to the Senate as such. All that the impugned provisions do is to impose the identified restrictions upon any such “political party” if it wishes to be “registered” under the Act. 270. Nothing in s 15 of the Constitution, as amended, therefore casts doubt on my previous conclusion. The impugned provisions are within the relevant express law-making powers of the Parliament referred to in the Constitution. They are proportionate to the express terms of the relevant sections of Ch I by which the Parliament is accorded power to enact electoral laws governing the election of Senators and members of the House of Representatives. The first part of the appellant’s challenge therefore fails. It remains to consider whether this conclusion has to be qualified, or reversed, by reference to the implied “freedoms” contained within the Constitution to which the applicable laws must also conform...
If only His Honour’s research associate had delved a little further and found my “Party Endorsement and Senate Vacancies: The Constitution and the Commonwealth Electoral Act” (1998) 7 GLR 297, s/he would have had yet another footnote to add to the heap. Moral 1: Judges’ associates read books, not law journals; and/or they know how to search for titles in library catalogues, but not for keywords in journal databases. Moral 2: Publish book chapters, not journal articles. (2) Mulholland involved a failed challenge by the Democratic Labor Party (DLP) -- yes, it still exists -- to get its own team column and ticket-voting square on the Senate ballot paper, despite the fact it can't show the Australian Electoral Commission that it has 500 members, as required by the Commonwealth Electoral Act. My late uncle, Dr FJ Carroll, was heavily involved in the DLP thirty years ago – he was Queensland State State President, and also stood as a House of Reps candidate once or twice. While living at Ipswich he had some memorable political tussles with Bill Hayden; one of them is outlined (rather one-sidedly) in John Stubbs’ biography Hayden (Heinemann, 1989).


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