The Trumpet of Patriots party has been created after the High Court blocks the reregistration of the UAP.
With the federal election due to be called within the next few weeks, Clive Palmer has established the Trumpet of Patriots party after the High Court struck down an attempt to re-register the United Australia Party.
After the 2022 election, despite still having a federal politician, Senator Ralph Babet, the party was voluntarily deregistered. Senator Babet claimed that this was for ‘administrative reasons’ and that it would be re-registered before the next election.
Section 135(1) of the Commonwealth Electoral Act 1918 (Cth) allows a party to be voluntarily de-registered for whatever reason. Section 134(1)(a) allowed Babet to deregister the party because he was the only sitting member, although the decision was likely not his alone.
However, section 135(3) states a party deregistered under sub-section (1) “is ineligible for registration under this Part until after the general election next following the deregistration.”
When they deregistered, UAP leadership was already aware that sub-section (3) would block their reregisteration, yet did not challenge it at the time.
Ironically, as the High Court’s decision suggests, the legislation preventing a party from being reregistered until after the 2025 election has an administrative purpose, to prevent wasting the Electoral Commission’s time and money.
The UAP’s assertion that it could voluntarily deregister and then reregister before the next election is the waste of Commission resources that Parliament was concerned about.
When the UAP’s application for reregistering was rejected, Senator Babet, Clive Palmer, and national director Neil Favager brought the matter before the High Court, challenging the constitutionality of the sub-section (3).
The UAP members argued that sub-section (3) impermissively infringed the implied freedom of political communication.
As established throughout this series, the early ‘free speech’ approach to the implied freedom has given way to one of participation in the democratic process, best summarised by the majority judgment of Chief Justice French and Justices Kiefel, Bell and Keane in McCloy v NSW (2015):
“Equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution.”
It is derived primarily from sections 7 and 24 of the Australian Constitution, which provide for the election of Senators and members of the House of Representatives by Australian voters.
For an implied freedom argument to be successful, the UAP leaders would have to argue that the legislation placed a ‘substantial burden’ on the implied freedom of political communication, before addressing factors like necessity, appropriateness, and any reasonable alternatives.
The UAP argued that the law prevented voters from fully appreciating the values and principles of candidates on the ballot paper through party affiliation.
They relied on a summary given by the High Court in Lange v ABC (1997) on the judgment of Justice Dawson in ACTV v The Commonwealth (1992):
“Legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.”
Against this, the Commonwealth government argued that, among other things, “there is no common law liberty of communication to have your party affiliation on a ballot paper because the content of the ballot paper is determined exclusively by the statutory provisions … the conditions that govern the conferral of a statutory entitlement are incapable of burdening entitlement.”
Essentially, there was no previous right to have a candidate’s political affiliation on the ballot paper. It was granted through legislation, so can only be limited by that legislation.
In Mulholland v AEC (2004), the High Court unanimously ruled against the Democratic Labor Party’s challenge to legislation that required parties to have 500 party members or a parliamentary member to be registered. The DLP also used the ‘free and informed choice’ argument.
The Commonwealth government was quick to point out that Mulholland was unanimous, and at least in that case the deregistration was mandatory. The UAP could not make that same argument, because theirs was voluntary.
The High Court has expressed some division over the scope of Mulholland.
Ruddick v Commonwealth (2022), which we briefly covered here, saw the High Court rule that legislation preventing parties from having a name similar to an existing party, specifically the Liberal Democrats (now Libertarian Party) versus the Liberal Party, was valid.
But Justice Gageler, as he was then, ruled against the legislation and was very critical of Mulholland. Chief Justice Kiefel and Justice Keane agreed that its scope should be limited “to the issues there presented and the arguments there put,” not as a broad rule. They argued that Mulholland was about registration requirements, and this was about party names, so Mulholland was irrelevant.
On the other hand, Justices Gordon, Edelman and Gleeson upheld the legislation and the broader definition, which is closer to the ‘statutory entitlement’ argument put forward here. Justice Steward questioned the existence of the implied freedom altogether. All four are still on the court.
Unfortunately, we may have to wait months for the High Court’s reasons in this judgment. After hearing oral arguments on 7 February, the High Court announced on 12 February that they were ruling against the UAP on all issues raised.
This is a repeat of what happened for NZYQ v Commonwealth (2023), and that gives us two conclusions. Firstly, the High Court recognised that the election was coming up, so the case could not wait for full reasons to be written.
More importantly, for the Court to be that certain, it must have been unanimous. Again, that was the case in NZYQ. Given Ruddick, we can presume that for it to be unanimous this judgment will be very narrow in scope, limited to voluntary deregistration.
It remains to be seen whether the UAP, which Babet remains a member of, will be reregistered after this election, and whether there will be a split between Babet’s UAP and Palmer’s Trumpet of Patriots if it is.
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