Reframing the Burden Inquiry: The High Court’s Shift in Babet v Commonwealth (2025) 423 ALR 83
Reece Blackett
22.10.2026
Sections 7 and 24 of the Constitution require that parliamentarians be ‘directly chosen by the people’. This constitutional mandate of direct choice by the people limits Parliament’s otherwise broad power to regulate federal elections, operating through a two-stage test that asks: (1) whether a law burdens the exercise of the franchise (the burden inquiry); and, if so, (2) whether that burden is justified by a substantial reason (the justification stage). The evolution of the burden inquiry under the implied freedom of political communication is well documented, but its development in the context of the constitutional mandate of direct choice is less established.
In jurisprudence considering how a burden on the mandate is identified, two distinct approaches have emerged. One adopts a broader lens, situating the impugned provision within the context of the electoral scheme in which it operates and asks whether the scheme, considered as a whole, burdens the exercise of the franchise. This broader approach places greater emphasis on Parliament’s constitutional discretion to regulate elections and permits features of the wider scheme to offset or qualify the provision’s adverse effects. The narrower approach instead isolates the impugned provision and asks whether its direct effect burdens electors’ exercise of electoral choice. By making a burden easier to establish, the narrower approach expands the range of electoral laws attracting judicial scrutiny and shifts consideration of Parliament’s regulatory choices to the second stage of the test.
This distinction is decisive, as the narrower approach operates to expand the ambit of judicially reviewable burdens, while the broader approach tends to defer to Parliament’s institutional role in regulating elections. The tension between these approaches has played out in successive challenges to electoral legislation, most prominently in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 (Mulholland), Ruddick v Commonwealth (2022) 275 CLR 333 (Ruddick), and Babet v Commonwealth (2025) 423 ALR 83 (Babet). This post traces the Court’s movement towards a narrower burden inquiry and considers its implications for Parliament’s power to regulate federal elections.
Mulholland
Mulholland concerned a challenge to requirements under the Commonwealth Electoral Act 1918 (Cth) (Act) that a political party seeking registration demonstrate a membership of at least 500 individuals who were not also members of another registered party (the restriction). One ground of challenge concerned a contravention of the constitutional mandate. Writing separately, the High Court unanimously rejected that ground, though the bench differed in their reasoning.
Although some members of the Court accepted that distortions to the form of the ballot paper, including the omission of party affiliation from the ballot paper, could impede the constitutional mandate of direct choice (Gleeson CJ at 191–2 [18]; McHugh J at 213–4 [78]; Kirby J at 271 [261]), the majority held this restriction’s broader purpose of enhancing electoral integrity through the requirement of a minimum level of community support was instead consistent with direct choice and therefore within the scope of Parliament's power to legislate in respect of Commonwealth elections (Gleeson CJ at 194–5 [26]; McHugh J at 214 [79]–[80]; Gummow and Hayne JJ at [164]; Heydon at [344]). The requirement for a reasonable minimum number of members served to prevent the multiple registration of eye-catching, ‘single-issue’ party names and to limit party endorsements to organisations with an officially sanctioned indication of legitimacy (McHugh J at 214 [80]). This purpose was found to reinforce the principles of representative government by ensuring that registered parties possess genuine community support rather than being mere ‘shells’ or ‘fronts’ (Gummow and Hayne JJ at 239–40 [162]–[164]). In construing the restriction in light of this broader purpose rather than limiting the calculus to the immediate effect of omitting party affiliation from the ballot paper, the majority found there was no burden on the exercise of the franchise. Likewise, Heydon J held (at 300 [344]) that the restriction did not impair direct choice but fostered informed choice by reducing the risk that electors would be misled. Justice Callinan rejected (at 295 [325]–[327]) any negative implication from ss 7 and 24 prohibiting legislative derogation from a purported ‘grant’ of direct choice.
By contrast, Kirby J narrowly construed the burden solely in light of its potential to create confusion amongst electors through the omission of party affiliation from the ballot paper and concluded that the exercise of the franchise was burdened (at 265 [245]–[246]). This conclusion shifted consideration of the impugned provision’s broader purpose of legitimising party affiliation to the second limb of the two-stage test, demonstrating how a narrow lens can amplify judicial scrutiny at the first stage and reserve broader policy considerations for the justification stage of analysis. In this instance, Kirby J found (at 270 [261]) the impugned restriction to be justified as it advanced legitimate aims such as reducing voter confusion, preventing deceptive practices, and safeguarding electoral integrity. This reasoning foreshadowed the approach later adopted by the majority in Babet.
Ruddick
Ruddick concerned a challenge to the deregistration of the Democratic Liberal Party (DLP) on the ground that its name contained the word ‘liberal’, already in use by the previously registered Liberal Party of Australia. Although the measure had the effect of restricting the ability of voters to identify a candidate’s DLP affiliation on the ballot, the majority considered this consequence was outweighed by the overarching objective of preventing voter confusion arising from parties with similar names.
The majority (Gordon, Edelman and Gleeson JJ, with Steward J agreeing) adopted a broad approach by assessing the cumulative effect of the impugned provision in light of its purpose of preventing electors from misidentifying candidates’ party affiliations (at 395 [165]). On this broader view, the majority found (at 395 [165]) no burden arose, accepting that the exercise of the franchise was impeded to the extent that voters were deprived of the ability to identify candidates’ party affiliations on the ballot paper. However, consistent with the approach adopted by the majority in Mulholland, the burden was outweighed by the enhancements the impugned provisions made to electoral choice, particularly through their broader purpose and effect of reducing voter confusion by preventing the registration of parties with similar names. Overall, the restrictions were found to improve, not inhibit, the exercise of the franchise.
The dissenting judgments isolated the restriction on party affiliation from the broader purpose identified by the majority, leading each to conclude both that the provision imposed a burden on the exercise of the franchise and that this burden was not justified by a substantial reason. Justice Gageler, with whom Kiefel CJ and Keane J agreed, narrowly assessed the impugned law based on its direct effect of depriving electors of information relevant to making an informed choice between candidates when casting their ballots (at 352 [31]). Consistent with the dissenting judgment of Kirby J in Mulholland, consideration of the law’s broader purpose and effect were confined to the inquiry into whether the burden was justified.
Babet
Babet marked a departure from the broader, contextual, and purpose-driven analysis ultimately favoured in Mulholland and Ruddick, with the majority of the High Court shifting direction to adopt a narrower lens that focused exclusively on the immediate effect of the impugned provisions.
Following the voluntary deregistration of the United Australia Party (UAP), Clive Palmer and Senator Ralph Babet challenged the validity of s 135(3) of the Act, which prohibits a political party from re-registering under the same name, or a name so closely resembling it as to be likely to cause confusion, prior to the next general election.
Competing arguments on the burden
The parties’ arguments reflected the broader disagreement over how the burden inquiry should be approached. The plaintiffs’ case adopted the narrower approach and focused on the immediate consequence of s 135(3) for voters. They argued that the provision could result in the omission of a candidate’s party affiliation from the ballot paper, thereby depriving voters of information connecting candidates with the party, its leaders and its policies and impairing informed electoral choice (Gageler CJ and Jagot J at [30]; Gordon J at [96], [101], [103]; Gleeson J at [216]; Beech-Jones J at [255]).
The Commonwealth advanced the broader conception of the inquiry. Its argument was that the effect of s 135(3) should not be isolated from the statutory scheme in which it operated. Rather, whether the provision burdened informed choice required consideration of its overall operation, including that:
its operation was triggered by a party’s voluntary deregistration;
it formed part of a registration scheme linking ballot-paper benefits with disclosure obligations; and
restricting the re-registration of the same or confusingly similar party names reduced the potential for voter confusion.
On that broader analysis, the Commonwealth contended that the provision enhanced, rather than burdened, informed electoral choice.
Majority adopts a narrower approach
The voluntary nature of party deregistration assumed particular importance. While a narrow approach would treat the mere absence of party affiliations as a burden, a broader perspective would view deregistration in its wider context as a mechanism of transparency triggered only by the voluntary actions of the political party. Departing from the dominant position in Mulholland and Ruddick, four members of the Court in Babet adopted the narrow approach and concluded that an effective burden did arise due to the mere omission of political party affiliation from the ballot paper while the remaining three members emphasised the intentionally broad power vested in Parliament by the Constitution to regulate elections.
Chief Justice Gageler and Jagot J (with whom Beech-Jones J agreed) concluded (at 96 [44]) that the provision imposed an ‘effective burden’ that was ‘substantial to the voter’ on the basis that the omission on the ballot paper is a ‘source of information about the party affiliations of some but not all candidates who wish to provide that information to the voter’. Their Honours emphasised that the burden must be assessed ‘from the perspective of the voter at the time of making or being required to make [their] choice’, rejecting arguments that framed the burden solely in terms of the voluntary decisions of deregistered parties (Gageler CJ and Jagot J at 96 [45]–[47]; Beech‑Jones J at 149 [244]). Justice Gleeson reached a similar conclusion, accepting (at 143 [220]) that s 135(3) of the Act could ‘readily be seen to impose such a burden’ on informed choice given the potential for it to exclude relevant party affiliation from the ballot paper. Her Honour acknowledged (at 143 [221]) that the provision had a ‘particularly narrow’ scope of operation, being triggered only in the ‘unusual event’ of voluntary deregistration before an election, but maintained that where the impugned law does apply, its consequences were ‘significant for informed choice’ given the ‘real prospect’ of voter confusion. Importantly, Gleeson J held (at 143 [221]) that the seriousness of this consequence was heightened by the ‘importance of party affiliation information in a system of compulsory voting’, thereby elevating the extent of the burden imposed by s 135(3).
The majority’s isolation of the burden imposed by the restriction to the loss of party affiliation is a departure from the approach adopted by the majority of the Court in both Mulholland and Ruddick and expands the scope of what electoral legislation is reviewable. This approach is consistent with that of Kirby J in Mulholland, where considerations of the broader purpose of the law are taken into account during the justification stage of the analysis. In Babet, each member of the Court proceeded to conclude through the second limb of their assessment that the burden was justified by a substantial reason, though their Honours differed on the nature of this justification (Gageler CJ and Jagot J at 96–7 [48], [50]; Gleeson J at 145 [231], 146 [233]–[234]; Beech‑Jones J at 149 [245]).
Justices Edelman, Gordon and Steward adopt broader approaches
In separate judgments, Edelman J, Gordon J and Steward J each adopted a broader approach than the majority. This led their Honours to conclude that no burden, or only a ‘very slight’ one, existed.
Justice Edelman departed somewhat from the majority, finding that s 135(3) of the Act imposed a slight burden on the quality of information provided to voters when considered in the context of the broader legislative scheme (at 136–8 [192], [195]–[197]). His Honour distinguished between the impugned provision’s anti‑stultification function, which prevents re-registration of a party deregistered for failing to endorse a candidate pursuant to s 136 of the Act, and its transparency function, which restricts re-registration of voluntarily deregistered parties prior to the next general election (at 137 [193]–[196]). For both functions, his Honour accepted that for a single election voters may not see party affiliation next to a candidate’s name, but found that this absence of information is offset by the broader integrity of the scheme which prevents confusion and facilitates ongoing financial disclosure (at 137 [195]–[196]). His Honour held the anti‑stultification and transparency purposes of the impugned law constituted a ‘substantial reason’ which justified this ‘shallow’ and ‘very narrow’ burden (at 137–8 [196]–[200]).
Finally, writing separately, Gordon J and Steward J emphasised the high threshold demanded by the mandate of direct choice and applied an even broader assessment of whether a burden exists. Justice Gordon held (at 108 [91]) that any constraint imposed by s 135(3) is ‘very slight’. Her Honour emphasised (at 108 [90], 109 [94]–[95]) that the provision enhances transparency by discouraging strategic deregistration to evade funding disclosure obligations, thereby promoting disclosure of party funding sources. Her Honour also identified (at 108 [92]) two important countervailing points that negated the posited burden. First, any burden is attributable to voluntary acts of the political party. Second, s 135(3) does not prevent unregistered parties or their candidates from publicly using their name or logo to communicate party affiliation (at 108–9 [93]). To the extent that a ‘very slight’ burden exists, Gordon J concluded (at 109 [94]–[95]) that s 135(3) is reasonably appropriate and adapted to its purpose of encouraging compliance with disclosure obligations, thereby enhancing informed voter choice. Justice Steward went further, stating (at 140 [207]) s 135(3) imposes no burden at all on the exercise of the franchise. Contrasting the approach of Gageler CJ and Jagot J, his Honour agreed with Gordon J (at 140 [207]) that the plaintiffs’ voluntary actions were central to the analysis.
Conclusion – Narrower approach now prevails
Babet therefore represents a decisive shift in the High Court’s methodology for determining whether a law burdens the constitutionally protected exercise of the franchise. Where earlier cases like Mulholland and Ruddick applied a broader, deferential framework that contextualised electoral provisions within the statutory regime in which they operate, Babet adopted a narrower lens that isolates the immediate effect of the impugned law. This shift substantially enlarges the scope of electoral legislation that may be subject to judicial review, signalling a departure from the wide leeway traditionally accorded to Parliament. It also highlights the centrality of the threshold inquiry into whether a burden exists, as the approach selected will determine the intensity of judicial scrutiny. The significance of this approach lies not in establishing that electoral laws will necessarily be invalidated more readily, but in relocating considerations concerning a law's purpose and asserted benefits from the burden inquiry to the justification stage. As a result, a broader range of electoral laws may be found to impose a burden on direct choice, requiring Parliament to justify that burden by identifying a substantial reason for restrictions on the incidents of direct choice, such as the registration of political parties.
Reece Blackett is a legal practitioner at Allens, a sessional academic at the University of Technology Sydney, and a Master of Laws (LL.M.) candidate at the University of Sydney. He holds a Bachelor of Laws (Hons I) and Bachelor of Economics (Distinction) from the University of Technology Sydney. All views expressed are his own.
Suggested citation: Reece Blackett, ‘Reframing the Burden Inquiry: The High Court’s Shift in Babet v Commonwealth (2025) 423 ALR 83 ’ (22 October 2026) <https://www.auspublaw.org/blog/2026/10/reframing-the-burden-inquiry>