Application for registration approved – Australian Progressives

File reference: Reg5734c, 14/907

The delegate of the Australian Electoral Commission determined that the application to register the Australian Progressives under the Commonwealth Electoral Act 1918 should be approved.

Background

Each application to enter a political party in the Register of Political Parties is assessed against the requirements in Part XI of the Commonwealth Electoral Act 1918 (the Act).

On 9 October 2014, the Australian Electoral Commission (AEC) received an application under s.126(1)(b) of the Act from the Party for registration as a non-Parliamentary political party. On 8 December 2014, the AEC approved the publishing of the Party’s application as required under s.132(1) of the Act.

The Party’s application was published on the AEC website and in newspapers around the country on 17 December 2014.

Section 132(2) of the Act invites any person to submit written particulars of the specified grounds under which the Party should not be registered within one month after the date that notice of the application was published on the AEC website. Two written objections to the registration were received by the deadline of 19 January 2015.

Objection from Kathryn Crosby

On 15 January 2015, the AEC received an objection from Ms Kathryn Crosby (the Crosby Objection). The Crosby Objection made the following allegations as outlined below:

• the Party did not fulfil the definition of ‘eligible political party’ outlined in s.123(1)(a) of the Act, as it did not have at least 500 members
• the Party had obtained its members through deception and/or misrepresentation.

In her objection, Ms Crosby provided details of meetings held between herself and the Party, and urged the AEC not to approve the Party’s application until a trademark dispute between the Party and the Australian Progressive Party, a separate entity, had concluded.

The Crosby Objection did not supply any evidence to support its allegations.

Objection from Marcia Ruf

On 19 January 2015, the AEC received an objection from Ms Marcia Ruf (the Ruf Objection). The Ruf Objection made the following allegations as outlined below:

• the Party did not fulfil the definition of ‘eligible political party’ outlined in s.123(1) of the Act, because:
  • an unknown number of members were also listed on the membership rolls of the Australian Progressive Party
  • an unknown number of members were not aware that they were signing up to be members of the Party
  • members of the Party did not have access to a copy of the Party’s constitution and therefore the Party was not established on the basis of a written constitution
• 10 members should be disqualified from the Party’s membership list under s.126(2A) of the Act, as:
  • they are also listed as members of the Australian Progressive Party
  • they are alleged to have contacted the Australian Progressive Party with concerns that they had joined the wrong party
• the AEC should refuse the Party’s application on the basis that the application was made through fraud or misrepresentation. The AEC is awarded the power in s.137(1) of the Act to deregister political parties on this basis and this power should extend to refusing an application for registration.

Ms Ruf supplied the following particulars to support her objection:

• a copy of an email from Mr Niall O’Brien stating that he had unintentionally joined the wrong party
• a copy of two emails from Ms Di Granger stating that she had not intended to join a political party, only a movement which she described as a ‘spin-off from March Australia’
• a copy of an email from Mr Vinay Orekondy stating that the Party’s ‘online work’ included March Australia, which he described as ‘one of the larger online campaigns in recent years’
• a copy of an email from Ms Margaret McMillan refuting a link between a person named Mr Tim Jones and the March Australia online campaign. In her email, Ms McMillan alleged that Mr Jones did not own March Australia but had been attempting to take control of the campaign.

The Party’s response

On 21 January 2015, the AEC provided the Crosby and Ruf Objections to the Party for comment. On 8 February 2015, the AEC received a response from the Party. The Party submitted the following arguments in relation to its membership list:

• the Australian Progressive Party is not a registered political party, so s.126(2A) does not apply to any members shared between the parties, if any
• of the 10 specific members listed in the Ruf Objection, only five were included in the Party’s application. Of these five, the Party submitted that three were no longer members of the Party
• the Crosby objection does not provide any evidence to suggest that a member had mistakenly joined the Party. The Ruf objection provided evidence that only one person had mistakenly joined the Party
• the Party has in excess of 1000 members. The Party provided details for an additional 15 members and stated that they could identify a further 115 members who had been verified on the Electoral Roll.

The Party submitted the following arguments in response to allegations of fraud or misconduct:

• if a member has completed all of the requisite membership forms then forgets that they are a member, they are still to be treated as a member for the purposes of s.123(a)(ii)
• the Party has never intentionally engaged in fraud or misleading conduct. The Party has never intentionally lied, deceived or misled any person to induce that person to become a member. The Party ‘has always, and will continue to endeavour to ensure that all members understand the nature of the political party they have joined’
• due to the setup of the Party’s webpage and membership forms, people are unlikely to be confused as to what party they are joining.

The Party also submitted the following arguments in response to specific allegations made by the Ruf Objection:

• the statements made in the Ruf Objection relating to s.137(1)(c) of the Act fall outside of the matters on which objections may be lodged
• the Party published a copy of its constitution on the Australian Progressives website. The constitution was unavailable from 9 October 2014 to 26 October 2014 but was available upon request.

The Party included a Statutory Declaration stating that they had over 1000 members and would immediately be able to produce a list of 115 members, further to the membership list supplied, who had been verified against the Electoral Roll.

Issues

Section 132(2)(b) of the Act allows objections on the following grounds:

• the application does not relate to an eligible political party
• the application is not in accordance with section 126
• the application should be refused under section 129.

Eligible political party

Section 123(1) of the Act requires a non-Parliamentary ‘eligible political party’ to have at least 500 members and be established on the basis of a written constitution.

Both the Crosby and Ruf Objections alleged that the Party does not have the requisite 500 members to fulfil the definition of ‘eligible political party’. Ms Ruf supplied a list of 10 members who are alleged to have contacted her organisation regarding their confusion between the Party and her organisation. The Party’s response submitted that five of these members were not used to support the Party’s application and that the three of the remaining five listed in the Ruf Objection were listed but are no longer members of the Party. The information provided by the Party has been cross-checked against the membership list they provided to the AEC and it is accurate.

The AEC performs membership testing on all applications for registration made by non‑Parliamentary parties. In the case of the membership list submitted by the Party, 540 members were found to be enrolled on the Electoral Roll and not supporting the registration of another political party.

The AEC contacted a random sample of 42 members, with five denials of membership permitted for the AEC to still have confidence that the Party had met the membership requirement. Of these, 41 people confirmed their membership of the Party. One person contacted as part of the random sample stated that he had been confused between the Party and the Progressive Party and had mistakenly signed up to be a member of the Party. The membership testing conducted by the AEC indicated a level of confidence sufficient to satisfy the delegate of the AEC that the Party had sufficient membership.

Since the membership testing was performed, the Party provided additional information to confirm that three members out of the 540 had resigned. If these three former members had been removed from the Party’s membership testing, the random sample would be the same size and the result would be unchanged. If these three former members had all been included in the random sample, the number of denials would have been four. According to advice provided by the Australian Bureau of Statistics (ABS), four denials from a sample of 42 would still provide confidence that the Party had met the membership requirement.

In any case, the new information provided by the Ruf Objection and confirmed by the Party’s response would not have altered the outcome of the membership testing.

The Ruf Objection alleged that the Party was not established on the basis of a written constitution, as required by s.123(a)(ii), because Party members did not have access to a copy of the constitution. The AEC is of the view that a party can be established on the basis of a written constitution without such constitution being made continuously available to its members or the public.

The Party is therefore an eligible political party as defined by s.123(1) of the Act. The AEC is satisfied that the Party has at least 500 members on the Electoral Roll and that the Party was established on the basis of a written constitution.

Section 126(2A)

The Ruf Objection alleged that an unknown number of members could not support the Party’s application as they were members of the Australian Progressive Party. Ms Ruf argued that these members could not be members of both parties due to s.126(2A) of the Act.

Section 126(2A) of the Act states that:

‘Two or more parties cannot rely on the same member for the purpose of qualifying or continuing to qualify as an eligible political party.’

A person is permitted to be a member of more than one party however they may only support the registration, or continued registration, of one party. In this instance, s.126(2A) does not apply, as the Australian Progressive Party is not registered as a political party with the AEC and has not applied for registration.

Neither of the two objections provided any further allegations that the Party’s application was not made in accordance with s.126 of the Act.

Section 129

Neither of the two objections alleged that the Party’s proposed name would not be allowed under s.129 of the Act, however the Crosby Objection did refer to a trademark dispute between the Party and the Australian Progressive Party. The Crosby Objection urged the AEC to refrain from making a final determination until the trademark dispute has been resolved.

Section 129 of the Act does not extend to political parties which are not registered and does not take trademark disputes into account.

Section 137(1)

The Ruf Objection submitted that the AEC’s power to deregister parties under s.137(1) of the Act should extend to the refusal of registration of new political parties. Ms Ruf alleged that the Party had intentionally misled prospective members by ‘creating deliberate confusion as to the purpose of their organisation, the origins of their group and their associations with other known organisations.’

Section 137(1)(c) of the Act states that the AEC may consider deregistering a political party if it is satisfied on reasonable grounds that

(c) the registration of a political party so registered was obtained by fraud or misrepresentation

Section 137(1)(c) is a review power granted to the AEC for use on registered political parties only. It does not allow the AEC to immediately deregister a party, as the AEC must give the party notice of its intention to deregister, to which the party may respond. Accordingly s.137(1)(a) does not extend to preventing the registration of political parties which have not yet achieved registration.

The AEC has not been supplied with sufficient evidence to be satisfied on reasonable grounds that the Party is attempting to achieve registration by fraud or misrepresentation. The Party:

• fulfils the definition of ‘Political party’ in s.4 of the Act, as its constitution states an aim of endorsing candidates for the Australian Parliament
• fulfils the definition of ‘eligible political party’ in s.123(1) of the Act, as testing has given the AEC confidence that the Party has at least 500 members and is established on the basis of a written constitution. When contacted, only one in 42 members expressed that they were confused and had mistakenly signed up to be a member
• submitted an application which fulfils all technical requirements of s.126 of the Act
• proposed a name which is not prohibited under s.129 of the Act.

In any case, s.132(2)(b) of the Act does not permit objections on the grounds of alleged fraud or misrepresentation.

Conclusion

As a result of this Party’s application being published under s.132 of the Act, two objections were lodged by the closing date of 19 January 2015.

Section 132(2)(b) of the Act allows objections on the following grounds:

• the application does not relate to an eligible political party
• the application is not in accordance with section 126 or
• the application should be refused under section 129.

As discussed above, neither objection has:

• brought into question the Party’s fulfilment of the definition of ‘eligible political party’ as outlined by s.123(1) of the Act
• alleged that the Party’s application was not made in accordance with s.126 of the Act
• alleged that the Party’s name would be prohibited under s.129 of the Act.

On this basis the Australian Progressives was registered as a non-Parliamentary party on the Register of Political Parties.

Notice under section 132A(1)(b) of the Act

On 17 February 2015, as a delegate of the AEC under ss.126(3), 129(1), 132A(1) and 133(3) of the Act, I approved the application made by the Australian Progressives for registration as a political party under the provisions of Part XI of the Electoral Act.
   (signed)

Seema Srivastava

Assistant Commissioner, Funding and Disclosure Branch

Delegate of the Australian Electoral Commission