MulDowney v. The State of South Australia and Others 93/005: Restrictions imposed on freedom of speech are an incident of that protection. It is reasonably capable of being regarded by Parliament as appropriate and adapted to the achieving of a legitimate legislative purpose of protecting the prescribed primary method.
Facts: The plaintiff, an enrolled elector for the South Australian electoral division of Mitchell under the Electoral Act 1985 (SA), sought declarations that section 76 and section 126 of the Electoral Act 1985 (SA) were invalid because they exceeded a limit on the legislative power of the Parliament of the State of South Australia to be implied from the Constitution of the Commonwealth of Australia. Section 76 of the Act dealt with the way in which ballot papers should be filled out. Section 126 provided that a person should not publicly advocate that a person fill out a ballot paper otherwise than in the manner prescribed in section 76 of the Act.
Held per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ: neither section 76 nor section 126(1) of the Electoral Act 1985 (SA) is invalid. Per Brennan CJ, the freedom of political discussion implied in the Commonwealth Constitution is implied to protect the working of the system of government of the Commonwealth prescribed by the Constitution, but not to protect the working of the system of government prescribed by the Constitution of a State. Although the provisions of the Commonwealth Constitution prevail in the event of any inconsistency with the powers otherwise vested in the Parliament of a State, none of the provisions from which a freedom of political discussion is inferred affects the method of election of the members of a State Parliament. Nor does section 126 affect the government of the Commonwealth. The validity of section 126 is therefore unqualified by the implied freedom of political discussion to be found in the Commonwealth Constitution.
In any event, the restriction of discussion imposed by s126 is not a restriction of the kind that, if imposed by a law of the Commonwealth, would be inconsistent with the freedom of political discussion implied in the Commonwealth Constitution. Section 126 (like s329A of the Commonwealth Electoral Act) is means of protecting the method which Parliament has prescribed for the election of members of Parliament. The restrictions imposed on freedom of speech by s126(1)(b) and (c) are an incident of that protection. It is reasonably capable of being regarded by Parliament as appropriate and adapted to the achieving of a legitimate legislative purpose of protecting the prescribed primary method of choosing members to sit in the respective Houses of Parliament of South Australia. As s126(1)(b) and (c) does not impose a restriction of a kind that would be invalid under the Commonwealth Constitution, it does not impose a restriction that is invalid under the Constitution of South Australia.
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