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Australian Electoral Commission
File reference: Reg3142, 08/1203
The delegate of the Australian Electoral Commission determined that the application by the Communist Alliance to be registered as a political party under the Commonwealth Electoral Act 1918 should be accepted and the Party entered in the Register of Political Parties.
On 29 August 2008, the Australian Electoral Commission (AEC) received an application from the Communist Alliance (the Party) for registration as a political party under the provisions of Part XI of the Commonwealth Electoral Act 1918 (the Electoral Act).
Notice of the Party's application was advertised in the Commonwealth Gazette and in ten major newspapers throughout Australia on Wednesday, 14 January 2009.
The provisions specifically relevant for the current application under consideration are sections 4, 123, 124, 126, 129, 132, 132A and 133 of the Electoral Act. An extract of the relevant provisions is available on this website at:
http://www.aec.gov.au/Parties_and_Representatives/Party_Registration/files/decisions/cea_extracts_party_reg.pdf [PDF 63KB]
The reader should consult this extract at the link above to see a copy of the legislative provisions applied in the tests below.
The Party met the provisions set out in section 4 of the Electoral Act in that it is an organisation based on a constitution that has an objective of promoting the election to Federal Parliament of candidates endorsed by the Party.
The Party passed the test of being a political party.
The application conformed to the technical requirements in section 126 of the Electoral Act, in that it satisfies each of the elements set out in that section. The Party applied for registration as a non-parliamentary party. The application was made by 10 members of the Party, of whom one is the secretary of the Party, and included a list of the names of the 500 members of the Party to be relied on for the purposes of registration. The application was accompanied by a copy of the Party's constitution and the application fee.
The Party satisfied the technical provisions in s.126 of the Electoral Act.
Section 123 of the Electoral Act defines a party secretary as a person, however described, who is responsible for the administration and the conduct of the correspondence of the party. The AEC needs to be able to identify the party secretary who has roles under Parts XI and XX of the Electoral Act.
An examination of the Party's constitution refers to the position of party secretary as the person who:
The role of the position of party secretary as described in the Party's constitution is assessed as reasonably meeting the definition of secretary in s.123 of the Electoral Act.
The Party passed this test.
Section 123 of the Electoral Act requires a non-parliamentary party to have at least 500 members who are entitled to enrolment.
The criterion for membership is set out in the Party's constitution and the statutory declaration by the secretary states that each of the members on the list has been accepted as a member of the Party in accordance with the rules of the Party.
To test that a party has 500 members who are entitled to enrolment, the AEC:
The test for fraudulent membership involves contacting a random sample of 20 people from the membership list by phone and by mail if necessary. Where more than one of the contacted people from the membership list cannot be confirmed as a member, then the membership test has been failed.
A random sample check of 20 members was completed in November 2008. All 20 members selected at random for the membership status check, confirmed their membership of the Party. A check against all available membership lists was conducted, and of the 541 members provided by the Party, two members were identified as having being supporting members of another party applying for registration and were removed from the Party's list of members eligible to support this application.
The Party has demonstrated that there is no fraud in its membership list and that it has the 500 members to be eligible for registration.
The Party provided a copy of its constitution with its application. The constitution contains the following matters relevant to registration:
The Party passes this test.
Section 129 prohibits the registration of parties with certain names. A party cannot be registered if its name or abbreviation is:
| REGISTER | REGISTERED NAME | REGISTERED ABBREVIATION |
|---|---|---|
| Federal | Socialist Alliance | No abbreviation |
| Federal | Carers Alliance | Carers |
| NSW | Socialist Alliance | No abbreviation |
| Vic | Country Alliance | Not shown on VEC website |
| Vic | Socialist Alliance (Victoria) | Not shown on VEC website |
| Tas | Socialist Alliance | Not shown on TEC website |
| ACT | The Community Alliance Party (ACT) | Community Alliance |
In determining whether the name is so similar as to be likely to be confused, the precedent of the 'liberals for forests' Administrative Appeals Tribunal decision (Woollard and the AEC and the Liberal Party [2001] AATA 166) is used as a guide. In particular, the statement by the Tribunal that:
Absent clear language to contrary effect, this disqualifying provision is not to be construed 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.
The AEC's initial assessment was that that no recognised party has a name so similar to the new Party that would invoke a prohibition under section 129.
Before a decision can be made on an application to register a political party, the AEC is required to advertise the application seeking written submissions objecting to the registration of the party.
Written submissions objecting to an application to register a political party can only address three matters:
The AEC received three written submissions objecting to the Party's registration from:
The first submission is from the secretary of The Community Alliance Party (ACT) and the second from a candidate endorsed by that party for the 2008 ACT Territory election. The grounds of their objections are very similarly stated. Although the objection submitted by the secretary of The Community Alliance Party (ACT) did not include the objector's street address as required by ss.123(1) and 132(3) of the Electoral Act, the objection was considered.
These two submissions argue that the application from the Party should be refused as it contravenes section 129(1)(d) of the Electoral Act. The objections are based on the claim that the name 'Communist Alliance' is so similar to the ACT abbreviation 'Community Alliance' that the parties are likely to be confused with each other. The Community Alliance has ACT registration and contested the 2008 ACT election. It is not registered to contest elections for the Senate or House of Representatives. The Communist Alliance is seeking federal registration to contest elections for the Senate and House of Representatives. While the two party names are similar, there is no possibility of the two party names appearing on the same ballot papers. There may be a remote possibility that some ACT voters at the next federal election would mistake Communist Alliance candidates for candidates associated with the Community Alliance party which contested the 2008 ACT election, however the AEC is not satisfied that this remote possibility is sufficiently likely to occur to invoke the prohibited names provision.
The objectors also argued that the application should be refused as a contravention of section 129(1)(da). This prohibition applies only where a reasonable person would think the two names suggest a connection or relationship between two registered parties. The Community Alliance is not a registered party under the provisions of the Electoral Act, so the s.129(1)(da) prohibition is not invoked by similarity with the name Community Alliance.
The AEC does not accept the view in the first two objections that the names Communist Alliance and Community Alliance are, in practice, likely to be confused or mistaken for each other, as the two names will not appear on the same ballot papers.
Ms Prendergast's objection is based on her view of the philosophy adopted by the Communist Alliance and of perceived harm that might occur to Australia. As Ms Prendergast's submission does not address any of the grounds under which objections are permitted in s.132(2)(b) of the Electoral Act, the delegate did not consider her submission.
The Communist Alliance has been registered as a political party under the Electoral Act.
Paul Dacey
Deputy Electoral Commissioner
Delegate of the Australian Electoral Commission
16 March 2009
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