What is a burden on political communication?: Method and disagreement in 'Ruddick v Commonwealth'

Abstract

<p>In March 2022 the High Court split 4–3 in 'Ruddick v Commonwealth' ('Ruddick') in rejecting a challenge to the constitutional validity of federal electoral laws regulating party affiliation on a ballot paper. The plaintiff had argued that some legislative items added to the 'Commonwealth Electoral Act 1918' (Cth) in September 2021 placed an impermissible burden on the implied freedom of political communication (implied freedom) and, relatedly, were incompatible with the guarantee of an informed electoral choice arising from the operation of sections 7 and 24 of the Australian 'Constitution'. Antecedent to the Court’s decision in Ruddick was a sharp division on whether the impugned law imposed a burden on the implied freedom or voter choice. The Court was also split 4–3 on that binary question. This comment focuses on the re-emergence of doctrinal uncertainty on the threshold question as to what constitutes a legislative burden on the implied freedom. The analytical approach adopted in Gordon, Edelman, and Gleeson JJ’s plurality judgment in Ruddick, with Steward J writing separately to make up the majority, in not finding a burden on the implied freedom seems at odds with the Court’s settled practice. In their dissenting judgments, Kiefel CJ and Keane J, with Gageler J writing separately, held not only that 2021 legislative amendments imposed a serious burden on the implied freedom and informed electoral choice, but also that the constraint could not be justified and was therefore unconstitutional. A further point of contention in Ruddick concerned the nature of political communication that the implied freedom has the capacity to engage. With significant divisions affecting other areas of the implied freedom’s operation, and doubt over its very existence voiced for the first time in a decade from the Court’s Bench, the doctrine can little afford further destabilisation. Consistency of judicial method in the initial task of identifying what constitutes a statutory burden on political communication ought, then, to be a pressing concern.</p>