Why were the Liberal Democrats allowed to change their name and why were they given the first position on the NSW Senate ballot paper?

The AEC maintains a Register of Political Parties. This register lists parties eligible to have the party affiliation of their endorsed candidates printed on ballot papers.

The AEC considers an application for the registration of a new political party (or the change of name of an existing party) according to the provisions of the Commonwealth Electoral Act 1918 (Electoral Act) and according to judicial interpretation of the provisions.

The AEC is often required to consider two legal tests in s129 of the Electoral Act regarding party names:

1. whether the name so nearly resembles the name of an existing political party that it is likely to cause confusion for electors
2. whether a reasonable person would think there is some connection between the two parties which does not exist.

The first test was considered by the Administrative Appeals Tribunal (AAT) in the case of Woollard v AEC [2001] AATA 166. The AAT overturned the AEC decision not to register the name "liberals for forests". The AAT did not accept that "liberals for forests" would be confused with or mistaken for the "Liberal Party of Australia" or "Liberal".

The AAT stated:

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.

The second test was considered by the AAT in the case of The Fishing Party and Australian Electoral Commission and The Australian Fishing and Lifestyle Party [2009] AATA 170. The AAT affirmed the AEC decision to register the name of The Australian Fishing and Lifestyle Party despite the existing registration of The Fishing Party. The AAT stated:

there are sufficient additional words in the new name to aurally and visually distinguish the two parties as separate entities without risk of confusion or mistake, and would prevent a reasonable person from thinking there was any connection or relationship between the two parties.

The Australian Government Solicitor's (AGS) advice is that the provisions of s129(d) and (da) do not preserve the use of words such as 'Australia', 'liberal', 'labor', 'democrat' and 'national' to political parties that are already registered.

Based on the AAT precedents and AGS advice, on 18 February 2010 the three-person Electoral Commission rejected the Liberal Party of Australia's appeal against the decision to approve the name change from the Liberty and Democracy Party (LDP) to the Liberal Democratic Party – Liberal Democrats (LDP). The decision was not further appealed to the AAT. The Liberal Democratic Party was registered in the ACT for the 2001 ACT election and has contested ACT elections since then.

On 25 June 2013 the delegate approved the Liberal Democrats (LDP) application to change its registered abbreviation to 'Liberal Democrats'. The Liberal Party of Australia appealed this decision on 23 July 2013. The appeal was to be considered by a meeting of the AEC Commissioners on Wednesday 7 August 2013, but under s127 of the Electoral Act the Register of Political Parties is frozen in the period between the issue and the return of the writ for an election. The writs were issued on Monday 5 August 2013. The appeal will be heard as soon as practicable after the writs are returned.

Determining candidate position on the ballot paper?

Section 213 of the Electoral Act sets out the process for determining the position of candidates and parties on a ballot paper. The AEC has no control over the order in which names appear on the ballot paper. The process – called a double randomised draw – is open to the public and the media. The same process determines positions on each ballot paper for the House of Representatives and the Senate:

A blindfolded person withdraws numbered balls from a spherical container to allocate a number to each candidate or party

the numbered balls are returned to the container and withdrawn to allocate the order on the ballot paper.

The public draw for positions on the NSW Senate ballot paper for the 2013 federal election took place on Friday 16 August 2013, with candidates, party representatives and the media all among those observing proceedings. The fact that the Liberal Democrats drew the position in the first column on the ballot paper was entirely by chance.