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Australian Electoral Commission
File reference: Reg3243b, 2005/967-2
Application for a name change under Part XI of the Commonwealth Electoral Act 1918, by the Northern Territory Country Liberal Party.
The Delegate of the Australian Electoral Commission refused the application for a name change.
The Northern Territory Country Liberal Party applied to change its registered name to "Country Liberals" and to delete its registered abbreviation of "C.L.P.".
The Australian Electoral Commission (the AEC) is established as a statutory authority of the Commonwealth of Australia under section 6 of the Commonwealth Electoral Act 1918 (the Electoral Act). The functions and powers of the AEC are set out in section 7 of the Electoral Act and include "to perform functions that are permitted or required to be performed by or under this Act".
Section 125 of the Electoral Act requires the AEC to establish and maintain a Register of Political Parties. Section 134 of the Electoral Act sets out the requirements for making an application to change the Register of Political Parties and applies some of the provisions governing applications for party registration to applications to change the Register of Political Parties.
The AEC is required, under s.131 of the Electoral Act, to make an initial assessment of an application made under s.134, before proceeding to advertise the application under s.132 inviting objections from members of the public and other political parties. After consideration of any response to the notice under s.131, a final determination of the application is made. Review of the determination is possible under s.141 of the Electoral Act, including review by the Administrative Appeals Tribunal (the AAT).
One of the provisions to be considered in making an initial assessment of an application to change a registered name is s.129 of the Electoral Act, dealing with names that are not to be registered. Relevantly, s.129(1)(d) provides that a name shall not be registered if it so nearly resembles the name or abbreviation of a recognised party that it is likely to be confused with or mistaken for the name or abbreviation of that party, unless the parties are formally related. A recognised political party is a party entered in the Register of Political Parties, or a party registered under a State or Territory party registration scheme which has endorsed a candidate in an election in that State or Territory within the previous five years.
On 24 November 2008, the AEC received an application from Senator the Hon. Nigel Scullion, on behalf of the Northern Territory Country Liberal Party (the NTCLP), to change its registered name from "Northern Territory Country Liberal Party" to "Country Liberals". The party also sought to change its registered abbreviation from "C.L.P." to "Country Liberals", but as that was identical to the proposed registered name, the application was taken to be requesting no abbreviation. Applications to change the Register of Political Parties from parliamentary parties may be made by the secretary of the party or all its members in the federal Parliament. Senator Scullion is the NTCLP's only member in the federal Parliament.
After an initial consideration of the written application, a Delegate of the AEC wrote to the Registered Officer of the NTCLP on 26 February 2009 issuing a notice pursuant to s.131 of the Electoral Act. Section 131 enables the AEC to issue a notice in certain circumstances inviting the applicant to vary the application where after initial consideration of an application, the AEC is of the opinion that it is required to refuse it. The Delegate advised the Registered Officer that the AEC was of the initial opinion that the name "Country Liberals" could not be registered because it was likely to be confused with or mistaken for the registered abbreviation of the Liberal Party of Australia, "Liberal". The NTCLP was invited to show that it was related to the Liberal Party of Australia or put forward argument to show that the proposed name does not invoke the prohibition in s.129(1)(d) of the Electoral Act.
On 6 April 2009, the AEC received a letter from Mr Bruce Edwards of the Federal Secretariat of the Liberal Party of Australia urging the AEC to approve the application by the NTCLP because the Liberal Party does not operate separately in the Northern Territory, but supports what the NTCLP does there. The Liberal Party advised that the NTCLP constitution restricts its actions to the Northern Territory.
On 20 April 2009, the AEC received a letter from Mr Rick Setter, the President of the NTCLP, in response to the s.131 notice and attaching a copy of MrEdwards' letter. Mr Setter also made the point that the NTCLP had the support of the Liberal Party of Australia which does not contest elections in the Northern Territory, that the NTCLP is restricted by its constitution to operating in the Northern Territory and that the two parties never contest the same election. Mr Setter's letter does not constitute a formal response under the Electoral Act, as s.131(3) permits a response to be only from the applicant, who was Senator Scullion.
Under s.134(1)(a), the President could not have been an applicant to change the Register of Political Parties. The AEC responded to Mr Setter and advised that a formal response to the s.131 notice needed to be from Senator Scullion, the applicant.
On 29 May 2009, the AEC received a formal response from Senator Scullion, reiterating the points made by Mr Setter.
The prohibition against the NTCLP changing its registered name to "Country Liberals" is in applying s.129(1)(d) of the Electoral Act to this application.
The landmark decision applying this provision is the decision of the AAT in the "liberals for forests" case, Woollard and the AEC and the Liberal Party ([2001] AATA 166). This case, decided by three Federal Court Justices, considered the application of s.129(1)(d) to an application to register the name "liberals for forests". The question was whether that name should be prohibited because it was likely to be confused with or mistaken for "Liberal", the registered abbreviation of the Liberal Party of Australia, and more generally to be mistaken for the Liberal Party of Australia with whom the word "Liberal" in Australian politics was claimed to be synonymous.
The AAT decision ordered the registration of "liberals for forests" and commented variously that:
There is however a tension between the protective function of par 129(d) and the freedoms of association and political expression that are incidents of representative democracy. Political parties in Australia use, and historically have used, in their names generic words such as "Australia", "liberal", "labour", "democrat", "national", "christian", "progressive", "socialist" and the like. Absent clear language to contrary effect, the disqualifying provision is not to be construed so as to lock up generic words as the property of any organisation when it comes to names that can be used on the ballot paper. And it is significant that there is no registration requirement conditioning the wider use of party names outside the polling booth. This suggests that the language of par 129(d) should be read according to the ordinary meaning of its words and not strained beyond them…
The term "liberals for forests" is a combination of words emphasising a specific issue and describing a party by a name different from that of the Liberal Party of Australia or any of its State divisions. It may be that some persons will draw the inference that members of "liberals for forests" are former members or have some affiliation with the Liberal Party of Australia or one of its State divisions. It is unlikely that any elector, seeing the two names on a ballot paper, will draw the conclusion that "liberals for forests" is a political party related to the Liberal Party of Australia or any of its State divisions. In this case, the possibility that the name "liberals for forests" could be mistaken for the registered name "Liberal Party of Australia (WA Division)" or the abbreviation "Liberal" is, in the opinion of the Tribunal, not such as is "likely" to occur in the sense explained earlier, namely that there is a real chance that it will occur. Similarly, the possibility that an elector confronted with the two names on a ballot paper would be in a state of uncertainty as to whether one was the other is not such as to amount to a likelihood. It is not accepted that there is any real risk that the name "liberals for forests" will be confused with or mistaken for the name "Liberal Party of Australia" or the name "Liberal".
The AAT was considering s.129 of the Electoral Act as it stood before amendments in October 2000. Those amendments require the AEC to additionally consider confusion with or mistake for political parties registered under State or Territory law and having endorsed candidates at relevant State or Territory elections in the previous five years. These additional parties, needing to be considered since 2000, could not be present on ballot papers for federal elections along with federally registered parties. The test for party names or abbreviations that are likely to be confused with or mistaken for those already registered seems now to be wider than that applied by the AAT in the "liberals for forests" case.
In 2007, the AEC approved the registration of the Australian Fishing and Lifestyle Party despite objections to the name from The Fishing Party. In 2009, the AEC approved the registration of the Liberal Democratic Party (name) and Liberal Democrats (LDP) (abbreviation) despite objections to the name from the Liberal Party of Australia, the Australian Democrats and the Liberal National Party of Queensland. It also approved the registration of the Communist Alliance despite an objection to the name from the Community Alliance (ACT), a party registered for ACT elections.
The AEC also registered the Liberal National Party of Queensland (LNP) in 2009, but only after receiving evidence that the LNP is a party formally related to both the Liberal Party of Australia and the National Party of Australia.
The relevant judgement to make in the current decision is whether "Country Liberals" is so similar to "Liberal" that it is likely that people would confuse one with the other or mistake one for the other. These two names are in a different relationship to previously approved names, in that "Country Liberals" could easily appear to be a geographic application of "Liberal" serving country people. In other words, the AEC would have refused "Country Labor" except that Country Labor is formally related to and a branch of the Australian Labor Party. The AEC would equally be inclined to refuse the Queensland Democrats unless they were formally a branch of the Australian Democrats, because the party would be likely to be confused with a branch of the Australian Democrats serving the people of Queensland.
While the AEC has in previous years registered the Rex Connor Senior Labor Party, it would not be inclined to register the NSW South Coast Labor Party unless it was formally a branch of the Australian Labor Party, because such a proposed party would be likely to be mistaken for a South Coast branch of the Australia Labor Party. The same argument is applied to the consideration of "Country Liberals".
The name "Country Liberals" is likely to be confused with or mistaken for the branch of the Liberal Party of Australia which aims to serve people in the country areas of Australia, particularly given the registered abbreviation "Liberal". The NTCLP is not formally related to the Liberal Party of Australia in the terms prescribed in s.123 of the Electoral Act.
The AEC appreciates that at present the two parties operate in separate geographical areas in that the NTCLP operates only in the Northern Territory and the Liberal Party of Australia operates only in the States and the Australian Capital Territory. Neither party, however, is restricted to its current mode of operation. The NTCLP could evolve its constitution and contest elections across Northern Australia or in every electorate. The Liberal Party of Australia could at any time determine to contest elections for seats in the Northern Territory.
In all of the circumstances, the Delegate is of the opinion that the name "Country Liberals" is a name prohibited for registration by s.129(1)(d) of the Electoral Act because it is likely to be confused with or mistaken for the registered abbreviation "Liberal" as used by branches of the Liberal Party of Australia as a ballot paper affiliation.
The application is refused.
Paul Dacey
Deputy Electoral Commissioner
Delegate of the Australian Electoral Commission
12 June 2007
The AEC acknowledges the Traditional Owners of country throughout Australia and recognises their continuing connection to land, waters, culture and community. We pay our respects to Elders past, present and emerging.