Party registration

Updated: 14 November 2011

Part XI of the Act provides for the registration of political parties and the maintenance of a public Register of Political Parties (the Register).

While it is not a statutory requirement for this report to include information on the operation of party registration, it is included because of its intricate relationship with the funding and disclosure of political parties and because it is one of the functions undertaken by the Funding and Disclosure Section of the AEC.

The party registration scheme has remained mostly unaltered since its commencement in 1984. Some changes have been made to the prohibition of certain party names in s.129 of the Act and changes have been made to strengthen the AEC's power to review parties' eligibility for continuing registration.

Party registration is not compulsory. However, it does provide political parties with the following benefits:

  • Party affiliation (party name or abbreviation) may be shown next to the names of endorsed candidates and Senate groups on ballot papers.
  • The party's registered officer (or a deputy registered officer) can:
    • nominate the party's candidates without need for the signatures of 50 electors entitled to vote in the particular election being contested,
    • nominate all the party's endorsed House of Representatives candidates at a single office instead ofdirectly to each DRO.
  • Access to information, for each state and territory on the basis of which the party has a branch organised, including:
    • enrolment information on a regular basis in electronic format,
    • a list of postal vote applicants,
    • other voting information.
  • Election funding for endorsed candidates and Senate groups is paid to the party, rather than to each candidate.

Registered political parties and their state and territory branches and associated entities have financial disclosure obligations as outlined earlier in this report.

Registration criteria

The key requirements to be established by a party seeking registration are that it:

  • is an organisation established on the basis of a written constitution that sets out the aims of the party. The constitution must be lodged with the application,
  • has an objective or activity of endorsing candidates for Senate or House of Representatives elections,
  • has a name (and optional abbreviation) that is not prohibited under the Act,
  • proposes a person to be the registered officer of the party,
  • satisfies membership requirements either as:
    • a parliamentary party with at least one member who is a member of the Commonwealth Parliament, or
    • a non-parliamentary party with at least 500 members entitled to enrolment on the Commonwealth electoral roll. A detailed list of 500 members must be provided to the AEC.
  • pays an application fee of $500.

The party name and abbreviation prohibition relates to names that are:

  • too long,
  • obscene,
  • likely to be confused with or suggest a relationship with another (unrelated) party, or
  • use the word 'independent' in a prohibited manner.

All applications must be advertised in the national press and are subject to a one month period during which public objections may be lodged.

The AEC is required to publish its reasons for a decision when it has rejected any of the following:

  • an application for registration of a political party,
  • an application for a change of registered party name or abbreviation,
  • an application to enter a party abbreviation in the Register.

The AEC has published its reasons for all significant decisions relating to the Register on its website since early 2007.

No action can be taken on an application for the registration of a political party during an election period from the issue of the writ to the return of the writ.

Writs for the 2010 federal election were issued on Monday 19 July 2010, at which time the AEC was processing seven applications for party registration. The AEC wrote to each party and advised it that progress on their application would be suspended until the return of the election writs.

Four of the seven suspended applications were received during the eight weeks prior to the issue of the writs. This was too late for the AEC to undertake the necessary testing of the applications and permit the statutory requirements for registration to be completed before the issue of the writs.

Processing on three applications received more than eight weeks before the issue of the writs was also suspended when the writs were issued. These applications were incomplete because they were either lacking the necessary signatures or did not have sufficient members to support the application.

Of the seven party applications held over for the election, four parties were later registered successfully and three were refused registration as the deficiencies in the applications were not remedied by the parties.

Section 4 of the Act requires a political party to be an organisation. Section 123 of the Act requires an eligible political party to be a political party established on the basis of a written constitution (however described) that sets out the aims of the party.

Most states and territories have legislation specifying minimum standards for constitutions or rules for registered associations, generally administered by their consumer affairs or fair trading arms. Model association rules or constitutions are published on government websites for easy adoption by new organisations with minor amendments to the model. The sort of items mandated for these constitutions under state and territory legislation include:

  • the name of the organisation
  • the objects or purpose of the organisation, their primary activities
  • the powers of the organisation, who exercises them and in what manner
  • the rules about membership, including:
    • membership qualifications
    • types of membership
    • procedures to admit new members
    • subscriptions
    • resignations
    • expulsions
    • register of members
  • dispute resolution
  • who manages the organisation's funds and property
  • how fundraising and/or shares will be handled
  • the powers, duties and manner of appointment of the managing committee, including:
    • composition of the committee
    • terms of office of committee members
    • notice of proposed appointments/elections of committee members
    • filling of casual vacancies on the committee
    • disqualifications of committee members
  • meeting procedures, including:
    • annual general meetings
    • special general meetings
    • notice of meetings
    • proceedings at meetings
    • voting at meetings
    • polling at meetings
    • special and ordinary resolutions
    • possible proxy voting
    • possible postal voting
  • appointment of an auditor
  • the manner in which these rules may be altered

One of the regular concerns of political parties in development and intending to apply for registration is the amount of details that the AEC requires in their constitutions. Sometimes the new political party is seeking an absolute minimum. More often the party is seeking guidance on a constitution suitable for registration and appropriate for the party's purposes.

The Electoral Commission of Queensland (ECQ) is required to publish the constitutions of its registered political parties on its website and enquiring parties can be directed there for examples to follow. The party constitutions on the ECQ website range from 20 pages to 88 pages and most are more complex than would be required for a newly developing political party.

The AEC considers that the adoption of a model constitution to show the minimum requirements of a constitution for a political party would be of benefit to people endeavouring to form a new political party intending to contest federal elections. Such a minimum model constitution would also assist the AEC when complex internal party disputes about the proper election of new officers occur (such as the petition lodged in the Senate in August 2011 against the election of Senator Madigan). It also assists the AEC if the party constitution has detailed provisions concerning the election or appointment of new officers or a new committee. The AEC can then make an informed decision when faced with competing claims to be party secretary or registered officer.

A model constitution for political parties could be based on the mandatory model constitutions already published on government websites at state or territory level for incorporated or registered organisations.

RECOMMENDATION 28

The Act be amended to provide for the adoption of a prescribed model political party constitution, all the elements of which would need to be included in the mandatory constitution currently required under s.123 of the Act.

Party registration applications

The AEC determined 23 applications for registration between the 2007 and 2010 federal elections, resulting in 18 successful registrations. The AEC also determined eight applications to change a party name and/or party abbreviation on the Register.

Five applications for registration were refused:

  • The Australian Alliance for Climate Protection – the party did not submit comprehensive membership details, finally withdrawing its application and joining an already registered party.
  • The Cheaper Petrol Party – insufficient party members confirmed their membership and the AEC could not be satisfied that the party had 500 members.
  • The Help End Marijuana Prohibition (HEMP) Party – insufficient party members confirmed their membership and the AEC could not be satisfied that the party had 500 members. This party applied again for registration in 2010 and was successful.
  • The Progressive Labour Party – insufficient party members confirmed their membership and the AEC could not be satisfied that the party had 500 members.
  • The Republican Party of Australia – insufficient party members confirmed their membership and the AEC could not be satisfied that the party had 500 members.

The Northern Territory Country Liberal Party applied for a change of name to the Country Liberals. The AEC refused this application on the basis the name might be confused with a division of the Liberal Party of Australia set up to service country areas of Australia. The party reapplied to change its name to the Country Liberals (Northern Territory).

Both the Young National Party of Australia and the Peter Andren Independent Group requested voluntary deregistration following contact from the AEC.

Party membership

Subsection 123(3) of the Act currently provides that a member of a political party is a person who is "entitled to enrolment" under the Act.

Subsection 126(2)(ca) requires an application for party registration to include a list of the names of the 500 members of the party to be relied on for the purposes of registration.

Subsection 126(2A) provides 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.

In comparison, to nominate as a candidate in an election ss.166(1)(b)(i) of the Act requires that a nomination form be signed by not less than 50 persons "entitled to vote" at the election. By data-matching the details of the nominators on a candidate's nomination form against the electoral roll it is easy to determine whether a nominator is eligible to vote at the election by way of their being on the electoral roll or not. However, in the case of determining the eligibility of a member of a political party this process is made more complicated as it can be difficult to determine a person's entitlement to enrolment from the details provided on party membership lists.

The AEC uses electoral roll data to check eligibility for enrolment to ensure parties meet the minimum party membership requirement. This process relies on parties providing sufficient details of their members in order to undertake a thorough data-matching exercise. However, there is no provision in the Act that requires a party to provide sufficient information for this purpose. This limits the AEC's ability to identify those members who are not entitled to enrolment, or those members who are members of more than one party.

To facilitate this process the AEC proposes that party members should be on the electoral roll and that party membership lists include dates of birth and residential addresses of members. This will facilitate quicker and more accurate decision making when matching party membership lists against electoral roll data and assist to identify members who have supported another party's registration.

RECOMMENDATION 29

Subsection 123(3) of the Act be amended to change the requirement for registration of a political party from having 500 members 'entitled to enrolment under this Act' to having 500 members 'entitled to vote in General elections'.

RECOMMENDATION 30

The Act be amended to require political parties to provide the residential address and date of birth details of members.

The most common source of dispute between the AEC and parties applying for registration, or being reviewed to establish continuing eligibility for registration, is the status of their members. Under current legislation nonparliamentary parties are required to provide a list of at least 500 members entitled to electoral enrolment. None of those members can be also listed as supporting the registration of another political party.

The Act does not provide any guidance on what an application for party membership actually means or requires. Some new parties assume membership by a method more akin to getting people to sign a form in support of a cause, even though the form used can be headed with information about the party. The AEC checks for evidence of entitlement to electoral enrolment, that none of the members are already recorded as supporting the registration of another party and tests a sample of the members to ensure they can confirm their membership of the party. Some people contacted during membership testing stated that they remember signing a petition but don't remember joining a political party.

The AEC also reviews each party's continuing eligibility for registration once in the life of each parliament. The review process effectively operates as a 're registration' mechanism. A party must submit all materials required for an initial application for registration (except for the application form). The AEC assesses the party constitution and conducts the approved test of the party membership list to determine whether the party still meets all legislative requirements for registration.

It might be more relevant to establishing a party's eligibility if the Act required more detail and more currency in party membership. For example, each member should be formally accepted under the party's constitution or rules, each member used to support registration should have joined or renewed their membership in the previous 12 months and each member should pay a minimum annual membership fee to demonstrate their active membership of the party.

RECOMMENDATION 31

The Act be amended to expand requirements for membership so that a member being used to support a party's registration must have:

  1. been formally accepted as a member according to the party's written rules,
  2. joined the party or renewed their membership within the previous 12 months prior to a list of members being lodged with the AEC, and
  3. paid a minimum annual membership fee in the last 12 months.

The Bill proposes increased penalties for failure to furnish a return, for furnishing an incomplete return and for furnishing a return that is false or misleading under Divisions 4, 5 and 5A of the Act. These increases reflect the significance of complete and transparent disclosure. Given the important role that political parties play in this process failure to comply with Part XX of the Act could be a factor the AEC could consider when conducting reviews of a party's continued entitlement to remain registered.

Failure to lodge, or continued failure to lodge, a disclosure return by the due date could also be grounds for review or forfeiture of party registration if a return is not lodged or not amended within 30 days, but with the avenue to review the decision. For associated entities, a penalty could be the forfeiture of the equivalent sum of funding provided to the related political party.

RECOMMENDATION 32

The Act be amended to include failure to lodge, and continued failure to lodge, by a political party by the due date for returns as grounds for forfeiture of party registration.

Parties registered for the 2010 federal election

There were 25 unrelated registered political parties at the 2010 federal election, plus a further 24 separately registered branches from the Australian Greens, Australian Labor Party (ALP), Liberal Party of Australia and National Party of Australia, giving a total of 49 entries in the Register.

A list of parties registered at the time of the 2010 federal election is provided at Table 17.

All 25 unrelated registered political parties endorsed candidates or Senate groups at the 2010 federal election. While six of the 49 parties entered in the Register did not endorse candidates, in each case other related branches of the same party endorsed candidates at the election.

Table 17 – Political parties registered at the 2010 federal election
Name Abbreviation
Australia First Party (NSW) Incorporated Australia First Party
Australian Democrats Democrats
Australian Fishing and Lifestyle Party AFLP
Australian Greens
  The Greens NSW
  The Australian Greens – Victoria
  Queensland Greens
  The Greens (WA) Inc
The Greens
The Greens
Australian Greens
The Greens
The Greens (WA)
Australian Labor Party (ALP)
  Australian Labor Party (N.S.W. Branch)
    Country Labor Party
  Australian Labor Party (Victorian Branch)
  Australian Labor Party (State of Queensland)
  Australian Labor Party (Western Australian Branch)
  Australian Labor Party (South Australian Branch)
  Australian Labor Party (Tasmanian Branch)
  Australian Labor Party (ACT Branch)
  Australian Labor Party (Northern Territory) Branch
A.L.P.
Labor
Country Labor
Australian Labor Party
Australian Labor Party
Australian Labor Party
Australian Labor Party
Australian Labor Party
Australian Labor Party
A.L.P.
Australian Sex Party Sex Party
Building Australia Party Building Australia
Carers Alliance Carers
Christian Democratic Party (Fred Nile Group) Christian Democratic Party
Citizens Electoral Council of Australia Citizens Electoral Council
Communist Alliance Communist
Country Liberals (Northern Territory) Country Liberals (NT)
Democratic Labor Party (DLP) of Australia D.L.P. – Democratic Labor Party
Family First Party Family First
Liberal Democratic Party Liberal Democrats (LDP)
Liberal Party of Australia
  Liberal Party of Australia, NSW Division
  Liberal Party of Australia (Victorian Division)
  Liberal National Party of Queensland
  Liberal Party (W.A. Division) Inc.
  Liberal Party of Australia (S.A. Division)
  Liberal Party of Australia – Tasmanian Division
  Liberal Party of Australia – ACT Division
Liberal
Liberal
Liberal
LNP
Liberal
Liberal
Liberal
Liberal
National Party of Australia
  National Party of Australia – N.S.W.
  National Party of Australia – Victoria
  National Party of Australia (WA) Inc
  National Party of Australia (S.A.) Inc.
The Nationals
Nationals
The Nationals
The Nationals
National Party
Non-Custodial Parents Party (Equal Parenting)  
One Nation ON
Secular Party of Australia  
Senator On-Line SOL
Shooters and Fishers Party Shooters and Fishers
Socialist Alliance  
Socialist Equality Party  
The Climate Sceptics T.C.S.

At the 2007 federal election there were 27 unrelated registered political parties, plus a further 26 branches of those parties, giving a total of 53 entries in the Register. Forty six of those 53 parties endorsed candidates at the 2007 election.

Political parties are able to register different levels of the party. This has resulted in ten registrations for different parts of the Australian Labor Party, eight for the Liberal Party of Australia, five for the National Party of Australia and four for the Australian Greens. Generally the additional registrations are for state or territory branches of those parties which are already separately registered with the relevant state or territory electoral commission to contest elections in that state or territory. There have been other examples where parties have sought to widen the choice of names available for use on ballot papers, such as the Country Labor Party and the Young National Party of Australia.

If the main purpose of party registration is to use party names on ballot papers for federal elections, consideration could be given to whether there is a continuing need to have multiple levels of parties registered. That is, there appears to be little, if any, benefit in having a federal body and a state and territory body of the same party registered. The deputy registered officer can perform the same functions as the registered officer and the provisions are simple to administer and do not require the formal process to amend a registered officer. The public funding of political parties and the requirement to appoint an agent and lodge disclosure returns is based on whether the party is organised in respect of a state or territory and does not rely on the registration of the state or territory branch. The AEC is of the view that having a single registration for each party would be much clearer for voters, parties, the media and the AEC.

RECOMMENDATION 33

The Act be amended to limit the registration of political parties to one registration for each party. That is, no separate registrations for additional state or territory branches or other levels of the party.

Incorporation of political parties

Parties are required under the definition of 'political party' in s.4 of the Act to be an organisation before they can be eligible for registration. Particularly where a new political party is being formed, it may be difficult for them to show that they are an organisation at the time they apply for registration. It is equally difficult for the AEC to assess whether the new group is an organisation or simply a person with an idea, a written constitution and some supporters. Parties also report to the AEC that they have difficulty opening party bank accounts, party post office boxes and party telephone accounts before there is independent evidence that they are a bona fide organisation registered with state or federal authorities.

There are provisions in other Acts that deem organisations to have legal standing without going through the process of becoming an incorporated association under state law. For example, organisations registered under the Fair Work (Registered Organisations) Act 2009 become incorporated upon registration.

The AEC considers it reasonable to include a similar provision in the Act, deeming registered political parties to be incorporated associations by virtue of their inclusion in the Register of Political Parties. There would be additional benefits in that political parties would then have clearer legal status in the cases of:

  • incorrect payment of election funding being recovered. Currently, overpaid funds are recoverable from the party agent even though the party receives the election funding, and
  • recovery of any unlawful gift or loan under s.306 or s.306A of the Act.

This step would also assist with prosecution, penalties and recovery of funds.

RECOMMENDATION 34

The Act be amended to deem registered political parties to be incorporated associations.

Reviews of registered parties continuing entitlement

Section 138A(1) of the Act confers upon the AEC the power to determine whether one or more of the parties included in the Register is eligible to remain registered.

The AEC's practice is to review each registered political party once in the life of each federal parliament. The Funding and Disclosure Section commenced a review of the eligibility of all registered political parties to remain on the Register in August 2009. As a result of the review seven political parties were deregistered.

Two parties were deregistered for failing to respond to a Notice of Review issued under ss.138A(3) and a Notice of Intention to Deregister issued under ss.137(1) of the Act:

  • The Fishing Party
  • What Women Want (Australia)

One party was deregistered for failing to satisfy the AEC that it continued to have the requisite 500 members to remain on the federal register:

  • 4Change

One party applied for voluntary deregistration upon receipt of a Notice of Review under ss.138A(3):

  • Nuclear Disarmament Party

Three parties applied for voluntary deregistration upon receipt of a Notice of Intention to Deregister:

  • Hear Our Voice
  • Environmentalists for Nuclear Energy
  • Pauline's United Australia Party

Party names

In order to avoid confusing or misleading voters, the AEC is of the view that political party names should not closely resemble the names of recognised organisations (which could be defined in legislation). The AEC is also of the view that the use of the name of an individual in a political party name can cause confusion in some circumstances.

For example, Pauline Hanson was elected to the House of Representatives at the 1996 election and registered Pauline Hanson's One Nation political party before the 1998 election. Some years later, Ms Hanson left the party and contested the 2004 election for Queensland Senators as the lead candidate in an unendorsed Senate group. At that same election, Pauline Hanson's One Nation endorsed candidates for the election of Senators in Queensland and other states. There was no effective way to remove Ms Hanson's name from the political party name even though Ms Hanson had not been a member of the party for some time. It took until mid-2007 before Ms Hanson was able to negotiate with the party and have them remove her name from the party name. It is likely there were voters at the 2004 election in various states mistakenly thinking they were voting for a party led by Pauline Hanson when they voted for Pauline Hanson's One Nation candidates.

Similarly, where a political party is established using an individual's name and that person dies, it should be compulsory that the party name is changed to remove that individual's name.

If a party wants to be registered with a name that includes or closely resembles the name of an organisation, the application should be required to include some form of consent from the organisation. The consent could be in the form of a letter, on company letterhead, signed by someone in a position of authority within the organisation. The organisation should have the ability to withdraw the consent to the continued use of the name if the relationship with the party changes.

If a party wants to be registered using the name of an individual, the application should be required to include some form of consent from that person confirming their consent to the use of their name in the name of a political party. The person should have the ability to withdraw their consent to the continued use of the name if the relationship with the party changes.

If an organisation or individual objects to a party name based on the resemblance to the name of that organisation or person, legislation must make it clear that the onus is on the recognised organisation or individual to lodge an objection, rather than the AEC having the task of determining which organisations or people are 'recognised' or not.

Organisations and individuals should have the ability to appeal the decision, including following registration, as they may not see the initial party registration advertisement.

RECOMMENDATION 35

The Act be amended to prevent political parties from registering or maintaining registration in the name, abbreviation or acronym of a prominent organisation without the written approval of that organisation.

RECOMMENDATION 36

The Act be amended to prevent political parties from registering or maintaining registration in the name of an individual without the written approval of that individual.

Similarly, the Order of Australia objected to the registration of the One Australia Movement because their abbreviation OAM is the honorific for the Order of Australia Medal. The objection was unsuccessful as the Act does not provide protection in these situations. However it does highlight a need for the Act to be amended to restrict the use of certain words or acronyms such as Anzac and OAM when deciding an application for registration or change of party name. For example, the Protection of the Word 'Anzac' Regulations made under the War Precautions Act Repeal Act 1920 prohibits the use of the word 'Anzac' under certain circumstances, but it is not clear that it would prohibit the word Anzac from being used in the name of a registered political party.

RECOMMENDATION 37

The Act be amended to prevent the name, abbreviation or acronym of certain special words (for example, Anzac, OAM) from being used in the name or abbreviation of a registered political party.

Party deregistration

In accordance with s.138A of the Act the AEC may review the Register of Political Parties to determine the continuing eligibility of one or more parties or to determine if one or more parties should be deregistered. To do this, the AEC may give written notice to the registered officer of a party, requesting specific information on the party's eligibility. The AEC must give at least two months for the information to be provided.

However, it is currently the party secretary who is responsible for the administration and correspondence of the party, including:

  • Parliamentary party – the secretary may sign applications dealing with the Register of Political Parties including registration, deregistration and change of name of the registered officer.
  • Non-parliamentary party – the secretary must be one of the 10 signatories for an application to register a party.

Section 135 of the Act currently permits any three members of a registered non-parliamentary political party to make an application for voluntary deregistration. In the case of a parliamentary party, the secretary alone can make an application for voluntary deregistration.

AEC procedures require that evidence is provided that the deregistration is in accordance with the rules and constitution of the party, including a formal and legal resolution to deregister which has been voted on by party members.

The AEC considers that requirements for an application to deregister a parliamentary party should be similar to those that currently exist for a non-parliamentary party. That is, an application made to the AEC to deregister a party should be made by three members of the party, one of which is the party secretary.

RECOMMENDATION 38

The Act be amended to provide that an application to deregister a parliamentary party must be submitted by three members of the party, with the party secretary being one of those members.

If a party is deregistered as a result of an application for voluntary deregistration the Act does not currently provide for a review of that decision. That is, if a party is deregistered under s.135 of the Act it is not a reviewable decision under s.141. If these decisions were made reviewable decisions it would provide a faction in a political party the opportunity to seek a review of a surprise successful application made by another faction in the party to voluntarily deregister the party.

The AEC is of the view that a decision under s.137 to deregister a party for failing to respond to a notice of review under s.138A, issued by pre-paid post in accordance with ss.140(1), could be included as a reviewable decision under s.141. The AEC has had a complaint from a party that was deregistered for failing to respond to formal review notices which the party claims not to have received. Review notices are issued to the registered officer. If, for some reason, the registered officer does not respond to such a notice and the AEC deregisters the party for failing to respond to the review notice the Act does not provide an opportunity to seek a review of the decision.

RECOMMENDATION 39

Section 141 of the Act be amended to provide a right of review of decisions to approve an application for voluntary deregistration under s.135 or decisions to deregister a party under ss.137(1)(cb) where a registered officer has failed to respond to a notice of review issued under s.138A.

Review of party registration decisions

Six reviews of party registration decisions made by an AEC delegate were determined between the 2007 and 2010 federal elections by the AEC Commissioners. Two of those review decisions were further appealed to the Administrative Appeals Tribunal (AAT) and one review decision made before the 2007 election was later appealed to the AAT. Brief summaries of the reviews are provided below and detailed statements of reasons for each of the AEC decisions are published on the AEC website.

Australian Fishing and Lifestyle Party

The delegate's decision to register the Australian Fishing and Lifestyle Party (AFLP) in August 2007 was upheld in September 2007 following an application for review by The Fishing Party.

The Fishing Party further appealed to the AAT which confirmed the AEC Commissioners' review decision on 17 March 2009. The AAT considered whether the application documentation lodged by the AFLP was in order, whether members of The Fishing Party were improperly used by the AFLP to support its application and whether the similarity of names should prevent the registration of the AFLP.

Help End Marijuana Prohibition (HEMP) Party

The HEMP Party sought a review of a delegate's decision to refuse registration because the AEC could not be satisfied that HEMP had at least 500 members. The application for review was made on the basis that the testing conducted by AEC officers to assess whether HEMP had the required 500 members was inappropriate.

The AEC Commissioners considered HEMP's appeal on 5 November 2008 and asked AEC officers to do more exhaustive testing of 40 HEMP members selected at random. The result of that testing was 14 confirmations of membership, 11 denials of membership and the remainder were unable to be contacted by phone or post.

On 19 February 2009 the AEC Commissioners upheld the delegate's view that the AEC could not be satisfied that HEMP was eligible for registration on the basis of the membership list supplied.

Liberal Democratic Party

The Liberal Party of Australia, the Liberal National Party of Queensland and the Australian Democrats (ACT Division) all appealed against the July 2008 decision of the AEC delegate to approve a change of name and abbreviation for the Liberty and Democracy Party (abbreviation LDP) to the Liberal Democratic Party (abbreviation Liberal Democrats (LDP)).

On 18 February 2010, the AEC Commissioners upheld the delegate's decision, following an extensive delay while the Liberal Party successfully appealed to the AAT against an AEC decision to refuse a freedom of information request. The request was for a copy of the relevant legal advice under which the AEC was acting in considering similarity of political party names.

The freedom of information request was successful and the legal advice was then provided to the Liberal Party and published on the AEC website. The AEC Commissioners also considered two previous AAT decisions on the application of the restrictions set out in s.129 of the Act regarding similar party names.

Australian Sex Party

On 18 February 2010, the AEC Commissioners upheld an August 2009 delegate's decision to register the Australian Sex Party. An application for review of the decision was lodged on the basis that the party name was obscene and that proper membership testing was not carried out, indicating that the party might not have the required membership.

This was the first time that the AEC Commissioners had considered whether a party name might be prohibited because it was obscene.

Communist Alliance

A further review was determined by the AEC Commissioners on 18 February 2010 of an August 2009 decision by an AEC delegate to register the Communist Alliance. The basis for the applications for review was the similarity of names between the Communist Alliance (abbreviation Communist) and The Community Alliance Party (ACT) (abbreviation Community Alliance) registered under Australian Capital Territory (ACT) legislation to contest elections for the ACT Legislative Assembly. The AEC Commissioners considered confusion for electors casting a vote was unlikely because the words "communist" and "community" were distinct and known to most people and the two parties were not registered to contest the same elections.

This decision has been further appealed to the AAT and a hearing was scheduled for 28 June 2011, but was subsequently adjourned indefinitely with the AEC to provide further information by 30 September 2011 regarding a new application by the Communist Alliance to change its name to The Communists.

Democratic Labor Party (DLP) of Australia

On 28 May 2010 the AEC Commissioners upheld a January 2010 decision of the AEC delegate to replace the former registered officer of the Democratic Labor Party (DLP) of Australia, Mr John Mulholland, with Mr Anthony Zegenhagen. Mr Mulholland disputed that the provisions of the party's constitution were properly followed in the election of office bearers in the DLP and that the persons applying to change the party's registered officer were not entitled to do so.

Mr Mulholland has further appealed to the AAT and a hearing was scheduled for June 2011. That hearing was adjourned until a date yet to be advised.

The Fishing Party

On 28 May 2010 the AEC Commissioners upheld an AEC delegate's March 2010 decision to deregister The Fishing Party for failure to respond to a notice issued under s.137 of the Act. The notice was issued because the party failed to respond to a notice of review of the party's eligibility for continued registration.

The applicant sought review of the decision on the basis that the party had not received some of the correspondence sent from the AEC. The Commissioners noted that the delegate of the AEC followed the relevant provisions of the Act before reaching the decision to deregister the party and that the party had a responsibility to promptly deal with correspondence.

Political party constitution

Political parties are required to satisfy the AEC that they are an organisation with at least one of their objectives or activities being the promotion of the election to the Senate or the House of Representatives of a candidate or candidates endorsed by them (s.4 of the Act). They are also required to satisfy the AEC that they are established on the basis of a written constitution that sets out the aims of the party (s.123 of the Act).

The AEC uses the detail of a political party's constitution as one element in assessing whether the party is an organisation rather than a loose association of like-minded people, or one person with an idea and a group of supporters. Parties are not legislatively required to include a base set of rules or provisions into their constitution, but if significant items are missing the AEC may seek further evidence to be satisfied that the party is an organisation and meets the requirements of the Act.

There has been discussion in the JSCEM over a number of years on a further role for the AEC in oversighting the internal operations of political parties. The AEC does not seek an increased role here, but part of a submission in response to the Government's December 2008 Electoral Reform Green Paper – Donations, Funding and Expenditure lodged by former Senator Andrew Murray raised the following:

To bring political parties under the type of accountability regime that befits their role in our system of government, the following reforms are needed:

  • The Commonwealth Electoral Act should be amended to require standard items be set out in a political party's constitution to gain registration, similar to the requirements under Corporations Law for the constitution of companies.
  • Party constitutions should specify the conditions and rules of party membership; how office bearers are preselected and selected; how pre-selection of candidates is conducted; the processes for the resolution of disputes and conflicts of interest; the processes for changing the constitution; and processes for administration and management.
  • Party constitutions should also provide for the rights of members in specified classes of membership to: take part in the conduct of party affairs, either directly or through freely chosen representatives; to freely express choices about party matters, including the choice of candidates for elections; and to exercise a vote of equal value with the vote of any other members in the same class of membership.
  • Party constitutions should be open to public scrutiny and updated on the public register at least once every electoral cycle.
  • The AEC should be empowered to oversee all important ballots within political parties. At the very least, the law should permit them to do so at the request of a registered political party.
  • The AEC should also be empowered to investigate any allegations of a serious breach of a party constitution, and be able to apply an administrative penalty.

The JSCEM has not made any recommendations to expand the AEC's role regarding party constitutions or internal operations.

Appointment of party agent

While there is no requirement in the current provisions of the Act, the AEC considers there would be administrative advantages in including an appointment of a party agent with the application for party registration in a similar way that the proposed registered officer is required.

Political parties should be aware of the responsibilities of the office of party agent and by nominating a designated office bearer to take effect at the time of registration of the party, it becomes an appointment which is given due consideration by prospective political parties.

An appointment of a party agent at the outset of the registration of the party would ensure that an officer has been identified to maintain records in accordance with s.317 of the Act, and be responsible for the reporting requirements of Part XX of the Act.

Section 292B of the Act imposes the obligations of a party agent with the executive committee of the party or branch where no party agent is appointed or if the position is vacant. However, this provision is deemed to be inconsistent and unworkable by the AEC as there is no requirement for the party to advise the details of members of the executive committee and no way for the AEC to confirm the bona fides of the committee members.

Given the importance of the role of party agent the AEC is of the opinion that penalties need to be considered for political parties where no agent is appointed for a designated period of time.

RECOMMENDATION 40

The Act be amended to require the nomination of a party agent as part of the registration of a political party.

The Act provides that a political party "shall have an agent".

The Act currently has no penalty provision to apply to registered political parties for failure to appoint a party agent. The AEC has had difficulty trying to get some parties to replace agents that have left, died or resigned, or new parties to appoint an agent. The AEC is of the view that deregistration should be an option for political parties where no agent appointment is in force for a designated period of time.

The AEC currently has no authority to require a party to appoint an agent, which makes it difficult to enforce the disclosure obligation of the party. The AEC considers that the application of a penalty would be appropriate for failing to have an appointment of an agent in effect. A penalty could be in the form of the AEC issuing a notice of intention to deregister the party if there is no agent appointment in force and the position has been vacant for more than 28 days of the revocation, resignation or death of the previous party agent.

RECOMMENDATION 41

The Act be amended to empower the AEC to serve a Notice of Intention to Deregister to political parties who fail to appoint an agent for a period of 28 days on the revocation of appointment, resignation or death of the previously appointed party agent.