Party registration decision: Communist Alliance

The decision by a delegate of the Australian Electoral Commission (the Commission) to federally register the Communist Alliance as a political party was reviewed by the Commission. The Commission determined that the delegate's decision to register the Communist Alliance under the Commonwealth Electoral Act 1918, should be affirmed and the registered name 'Communist Alliance' and abbreviation 'Communist' should remain on the Register of Political Parties.

Background

The Communist Alliance applied for registration as a political party on 29 August 2008. The application was approved for advertisement on 17 December 2008. Two relevant objections to the advertisement were lodged by the Community Alliance Party (ACT) and by a Community Alliance Party member, Dr Alvin Hopper.

The Community Alliance Party is a registered party in the Australian Capital Territory but is not registered under the Commonwealth Electoral Act 1918 (Electoral Act).

The delegate's decision to register the Communist Alliance was made on 16 March 2009 and the party was entered on the Federal Register of Political Parties accordingly.

Both objectors then lodged applications for the Commission to review the decision to register the Communist Alliance as detailed below.

Relevant legal provisions and case law

The legal provisions relevant for the appeal against the federal registration of the Communist Alliance political party are in s129 and s141 of the Electoral Act.

Paragraph 129(1)(d) of the Electoral Act provides that a political party name or abbreviation that so nearly resembles the name, or an abbreviation or acronym of the name of another recognised political party, that it is likely to be confused with or mistaken for that name, abbreviation or acronym is prohibited. The decision of the Commission to affirm the delegate's previous decision was based on an assessment of the application of this provision.

Paragraph 129(1)(d) was considered in a 2001 decision of the Administrative Appeals Tribunal (AAT) in Woollard v Australian Electoral Commission ([2001] AATA 166). Woollard decided that the name "liberals for forests" was not prohibited in spite of objection from the Liberal Party of Australia (abbreviation Liberal) which was already registered. The case considered s129(1)(d) and s129(1)(da) of the Electoral Act in detail. In 2009, the AAT handed down a decision in the matter of The Fishing Party v AEC and the Australian Fishing and Lifestyle Party [2009] AATA 170 which, in part, considered the effect of s129(1)(d) on an application by the Australian Fishing and Lifestyle Party for registration, over an objection by The Fishing Party, which was already registered. The Commission noted the comments of the AAT in paragraph 40, which refer to whether the two party names are sufficiently dissimilar to 'aurally and visually distinguish the two parties as separate entities without risk of confusion or mistake'.

Requests for review

Community Alliance Party (ACT)

The Community Alliance Party objected to the original application for registration by the Communist Alliance and on 7 April 2009 lodged an application for review by the AEC following the registration of the Communist Alliance. A supplementary submission was lodged on 26 June 2009 following the Communist Alliance response being copied to Community Alliance Party.

The issues raised by Community Alliance Party were:

• the delegate of the Commission should not have relied on the fact that the two parties cannot appear on the same ballot paper as s129(1)(d) specifically requires consideration of parties registered in States and Territories only and those parties cannot appear on federal ballot papers;
• the delegate of the Commission has ignored the effect of the similarity of names in day-to-day affairs, such as press coverage and releases;
• the delegate of the Commission failed to take into account a possible future move by the Community Alliance Party to register federally. It would be unjust if the delegate of the Commission were now to register Communist Alliance and then to reject the Community Alliance Party because it was too similar to Communist Alliance;
• the decisive point in Woollard was that no similarity of names was found;
• the facts of the Woollard case were different to this matter in that, in Woollard, both contesting parties were (or were trying to be) on the federal register to contest the same ballot papers. The decision in Woollard cannot be a precedent for this matter;
• the Communist Alliance might well become generally known as the Communist Alliance Party, in which case there would be greater risk of confusion; and
• the AAT was in error in Woollard in not applying the onus required in trade mark cases, where the newer party applying for the similar name has the onus to produce the necessary evidence that the names are not similar.

Dr Alvin Hopper (a Community Alliance Party member)

Dr Hopper objected to the original application for registration by the Communist Alliance and on 6 April 2009 lodged an application for review by the Commission following the party's registration. On 10 June 2009, Dr Hopper lodged a final submission following the Communist Alliance response being copied to him. On 21 September 2009 Dr Hopper submitted an 'addition' to his original submission in which he requested consideration of an additional case, Williams v Australian Electoral Commission, that had been decided prior to the Woollard case, but which he felt supported his argument.

The issues raised by Dr Hopper were:

• the delegate of the Commission should not rely on the fact that the two parties cannot appear on the same ballot paper as paragraph 129(1)(d) specifically requires consideration of parties registered in States and Territories only, which cannot appear on federal ballot papers;
• the delegate of the Commission has ignored the effect of the similarity of names in day-to-day affairs, such as press coverage and releases;
• the delegate of the Commission fails to take into account a possible move by the Community Alliance Party to register federally. It would be unjust if the delegate of the Commission was then to reject Community Alliance Party because it was too similar to Communist Alliance;
• the Woollard decision should not be taken to mean there cannot be confusion or mistake unless both contesting parties appear on the same ballot paper; and
• the decision in the case of Williams v Australian Electoral Commission, which was handed down prior to the Woollard decision, should be taken into account by the Commission in deciding whether the name 'Communist Alliance' is allowed under the Electoral Act. The decision stated that the effect of the Electoral Act granted the first organisation that uses a name an exclusive right over it and that an application for registration of a political party cannot be accepted unless the parties are related.

Response by Communist Alliance

The Communist Alliance was offered the opportunity on 11 May 2009 to respond to the applications for review and again to make a final submission when a package containing each application for review (and the original objection to the advertisement) along with the Communist Alliance responses was sent to all parties on 26 May 2009. On 20 May 2009 the Communist Alliance raised the following matters (it did not respond to the 26 May 2009 invitation which contained no new material on which it had not already commented):

• there would be no confusion on ballot papers as the abbreviations of the two parties (Community Alliance and Communist) are distinct;
• the two words Communist and Community entail different specific concepts and, given the long international history of the word Communist, the electorate would be able to tell them apart; and
• the Community Alliance Party should not be trying to suppress the use of the word Communist in elections as it has been variously used since 1923. The Communist Alliance has no objection to the name Community Alliance and is confident supporters could tell the difference.

As above, the Communist Alliance did not respond to the invitation to comment on the Community Alliance Party submissions. It is the opinion of staff of the Commission that the additional submission from Dr Hopper has already been addressed in the previous submissions from the Communist Alliance. Accordingly, the additional submission was not sent to the Communist Alliance for further comment.

Reasons for the Commission's decision

For the reasons given in our decision published today in the application concerning the Liberal Democratic Party, we do not agree with the statement in Woollard that paragraph 129(1)(d) is only concerned with confusion or mistake in the "brief time in the polling booth".

Nevertheless, we affirm the delegate's decision to register.

For the purposes of paragraph (1)(d) there is some resemblance between the two names. However, that resemblance is visual rather than aural.

The question then is whether that resemblance is so near that the name 'Communist Alliance' is likely to be confused with or mistaken for the name 'Community Alliance Party'.

'Likely' here does not mean more likely than not: Woollard paragraph 38. As to the persons who are likely to be confused or mistaken, the Tribunal says:

The assessment [of the risk of confusion or mistake] will have regard to the fact that not all electors are equally knowledgeable of political parties, nor equally intelligent in discriminating between different terms used on a ballot paper, nor equally literate in appreciating that terms do differ.

The Tribunal did not go to the length of accepting the argument that account should be taken of 'the ignorant, unthinking and credulous voter who is governed by appearances and general impressions' (paragraph 33).

In considering the consequences of resemblance of names, the meanings conveyed by those names is relevant. The term "Communist" conveys the concept of a political system which has operated in various countries since the time of the Russian Revolution and still operates in China and other countries today. We think that understanding of the term would be widely understood in Australia.

While the matter is open to reasonable argument, on balance we think that the difference in meaning is sufficient to lead to a conclusion that, in our opinion, confusion or mistake is not likely.

P Heerey
Chair

E Killesteyn
Electoral Commissioner

B Pink
Commissioner

18 February 2010