Babet v Commonwealth of Australia; Palmer v Commonwealth of Australia
High Court of Australia · 2025
Babet v Commonwealth of Australia; Palmer v Commonwealth of Australia [2025] HCA 21
A political party deregistered itself, then asked for its name back on the ballot paper before the next election. The High Court's orders were unanimous. The reasons were not.
What happened?
The United Australia Party (UAP) was registered as a political party under Pt XI of the Commonwealth Electoral Act 1918 (Cth) until it was voluntarily deregistered under s 135(1) on 8 September 2022 ([4], [60]). While registered it had to file annual returns disclosing its receipts, payments and debts, which the Australian Electoral Commission published on a Transparency Register ([17]-[19], [59]). Section 135(3) provides that a party deregistered under s 135(1) is "ineligible for registration under this Part until after the general election next following the deregistration" ([23]).
On 29 November 2024 Senator Ralph Babet applied for the UAP to be registered again, and the application was refused because of s 135(3) ([5], [61]). Senator Babet and Mr Favager (the UAP's National Director), and separately Mr Clive Palmer (who owned the registered trade marks the UAP used), commenced proceedings in the High Court's original jurisdiction, and the parties agreed special cases stating questions of law for the Full Court ([5]-[7]). The questions asked whether s 135(3) was invalid because it impaired the "direct choice by the people" required by ss 7 and 24 of the Constitution, because it impermissibly discriminated against candidates of a party that had deregistered voluntarily, or because it infringed the implied freedom of political communication ([8]).
What did the Court decide?
The Court heard the matters on 7 February 2025, answered each of the first three questions "No" on 12 February 2025, ordered that no relief issue, and ordered the plaintiffs to pay the costs; the reasons were published on 14 May 2025 (cover page; [8]). Seven Justices sat. There were six sets of reasons: Gageler CJ and Jagot J jointly ([1]-[58]), Gordon J ([59]-[128]), Edelman J ([129]-[204]), Steward J ([205]-[212]), Gleeson J ([213]-[235]) and Beech-Jones J ([236]-[261]).
Proposition
What is the principle?
In the implied freedom of political communication enquiry, Gageler CJ and Jagot J said that structured proportionality "can be a way of organising reasons", that "[t]he flexible application of all or any of the steps of structured proportionality is to be understood as a 'tool of analysis'", and that "express or ritual invocation" of its steps "is by no means necessary in every case" ([49]). They also said that "[d]ebate about the best way in which to ascertain if the implied freedom of political communication has been infringed says nothing about the legitimacy of the principle" ([49]). Gordon J agreed with [49] on structured proportionality and did not consider it "necessary (or helpful)" to apply the three steps in dealing with the implied freedom in this case ([72]; see also [118]). Beech-Jones J agreed with Gageler CJ and Jagot J "in relation to 'structured proportionality' and the implied freedom of political communication" ([242]). That is four of the seven Justices. Edelman J took a different view and held that "[e]ven as a 'tool of analysis', structured proportionality has precedential value" ([177]) and said it was his "present duty of fidelity to precedent" to apply it in its most coherent form until a majority accepts a submission that it should be abolished ([184]). Steward J agreed with Edelman J "that the doctrine is binding on this Court unless and until it is overruled" ([211]). Gleeson J, for her part, agreed with Gageler CJ and Jagot J for the answers to the questions, subject to what she went on to say ([213]), did not address [49], and applied the necessity and adequacy-in-balance steps ([231]-[234]). The Justices who addressed the status of the test therefore divided, and the orders were reached by different routes.
Section 135(3) of the Commonwealth Electoral Act 1918 (Cth), which makes a political party that has voluntarily deregistered under s 135(1) ineligible for registration until after the general election next following the deregistration, was held not invalid on any of the three grounds stated: impairing direct choice under ss 7 and 24, impermissible discrimination, or infringing the implied freedom of political communication.
Informed choice. Gageler CJ and Jagot J held that s 135(3) imposes an effective burden on informed choice, properly characterised as substantial from the voter's perspective ([44]-[46]), and that the burden was reasonably appropriate and adapted because there is a rational connection between it and the contemporary transparency purpose ([50]-[53]). They said that whether such a burden is justified "cannot be reduced to a formula" and "covers a spectrum of potentially sufficient connections from a 'rational connection' to a 'compelling justification'" ([48]). The other Justices differed on the size of the burden: Gordon J thought it "very slight" ([91]); Edelman J "narrow" and "shallow" ([195]-[197]); Steward J could not agree that there was "any burden, or even a slight burden" ([207]); Gleeson J thought its scope "particularly narrow" but its consequences significant where it applies ([221]); Beech-Jones J agreed with Gageler CJ and Jagot J that there was an effective burden ([244]). Steward J, finding no burden to justify, found it unnecessary to consider justification ([210]); each other Justice held, or said that if there were a burden it would be, that the burden was justified ([53], [94], [198], [235], [245]).
Implied freedom. Gordon, Edelman and Steward JJ held that Mulholland v Australian Electoral Commission (2004) 220 CLR 181 foreclosed a burden on the implied freedom, because the claimed freedom did not exist independently of the statutory entitlement to have party affiliation on the ballot paper, and refused leave to reopen it ([97]-[98], [203], [205], [209]). Gageler CJ and Jagot J, Gleeson J and Beech-Jones J did not entertain reopening Mulholland because it would not be dispositive: even on the plaintiffs' premise, the justification for the burden on informed choice would equally justify any burden on the freedom ([56], [235], [259]). So no majority decided whether Mulholland is correct.
Discrimination. Gageler CJ and Jagot J rejected the proposed further limitation against impermissible discrimination between candidates ([41]-[43]); Beech-Jones J agreed that the premise could not be accepted ([248], [250]); Gleeson J agreed that it failed for the reasons Gageler CJ and Jagot J gave ([217]); Edelman J found no basis in the text for such an implication ([190]). Gordon J did not decide whether such an implication exists, because s 135(3) was not discriminatory in any event ([128]).
Why does this case matter?
Babet is the case a student is most likely to meet as a one-line citation for a point of method in the implied freedom. Use it as a source of passages to attribute, not as a rule to recite: marks go to the answer that says whose words a sentence is and how far they carry.
Its facts also fit a recurring problem-question shape: a challenge to electoral regulation such as registration, the content of a ballot paper, or disclosure. In that shape, look for what the claimant opted into and what consequence the statute attached to its own choice, then ask which constitutional limit the challenger actually invokes.
Exam and application relevance
Attribute each statement about structured proportionality to the Justices who made it: Gageler CJ and Jagot J at [49], with whom Gordon J ([72]) and Beech-Jones J ([242]) agreed on structured proportionality. Four Justices is a majority of the bench but not the Court's unanimous view, so describe it as the view of those four and say that Edelman J and Steward J took a different one.
If a problem is set under the McCloy framework, you may apply it as a tool for answering whether the law is reasonably appropriate and adapted, and say that is what you are doing. The reasons do not make reciting the steps an error, and two Justices here treated them as binding while a third applied them ([177], [211], [231]-[234]).
Babet produced no majority determination endorsing or rejecting the correctness of the Mulholland rule, so do not cite it as either. Three Justices applied the rule and four declined to entertain reopening it ([56], [97]-[98], [203], [235], [259]).
Do not cite the case for a free-standing constitutional limit against discrimination between candidates. At least four Justices rejected one ([41]-[43], [190], [217], [250]).
When you describe the burden on informed choice, say whose perspective you are taking. Gageler CJ and Jagot J gauged the burden "from the perspective of the voter" ([46]); Steward J said no authority supports that proposition ([208]).
The legitimacy sentence is in [49] of Gageler CJ and Jagot J's reasons. Gordon J's agreement at [72] is expressed to be "[i]n relation to structured proportionality", and Beech-Jones J's at [242] points to [49] in a footnote. Do not write that the whole Court rejected doubts about the implied freedom's existence: Steward J said of his earlier obiter dicta about the implied freedom in Ruddick that he adhered to it "all the more strongly" ([206]).
Check your understanding
1. Which Justices agreed with [49] on structured proportionality? Which two Justices expressed a contrary view, and what did Gleeson J do? Give a pinpoint for each. 2. The Court's orders were unanimous. Why does that not tell you what the Court held about the test for the implied freedom? 3. Gordon J, Edelman J and Steward J held there was no burden on the implied freedom, while Gageler CJ and Jagot J, Gleeson J and Beech-Jones J did not decide that. Why did the second group decline to reopen Mulholland? 4. A student writes that Babet held the High Court no longer applies structured proportionality. Identify what is wrong and rewrite it accurately.