The decision by a delegate of the Australian Electoral Commission (the Commission) to federally register the Communist Alliance as a political party was reviewed by the Commission. The Commission determined that the delegate's decision to register the Communist Alliance under the Commonwealth Electoral Act 1918, should be affirmed and the registered name 'Communist Alliance' and abbreviation 'Communist' should remain on the Register of Political Parties.
The Communist Alliance applied for registration as a political party on 29 August 2008. The application was approved for advertisement on 17 December 2008. Two relevant objections to the advertisement were lodged by the Community Alliance Party (ACT) and by a Community Alliance Party member, Dr Alvin Hopper.
The Community Alliance Party is a registered party in the Australian Capital Territory but is not registered under the Commonwealth Electoral Act 1918 (Electoral Act).
The delegate's decision to register the Communist Alliance was made on 16 March 2009 and the party was entered on the Federal Register of Political Parties accordingly.
Both objectors then lodged applications for the Commission to review the decision to register the Communist Alliance as detailed below.
The legal provisions relevant for the appeal against the federal registration of the Communist Alliance political party are in s129 and s141 of the Electoral Act.
Paragraph 129(1)(d) of the Electoral Act provides that a political party name or abbreviation that so nearly resembles the name, or an abbreviation or acronym of the name of another recognised political party, that it is likely to be confused with or mistaken for that name, abbreviation or acronym is prohibited. The decision of the Commission to affirm the delegate's previous decision was based on an assessment of the application of this provision.
Paragraph 129(1)(d) was considered in a 2001 decision of the Administrative Appeals Tribunal (AAT) in Woollard v Australian Electoral Commission ( AATA 166). Woollard decided that the name "liberals for forests" was not prohibited in spite of objection from the Liberal Party of Australia (abbreviation Liberal) which was already registered. The case considered s129(1)(d) and s129(1)(da) of the Electoral Act in detail. In 2009, the AAT handed down a decision in the matter of The Fishing Party v AEC and the Australian Fishing and Lifestyle Party  AATA 170 which, in part, considered the effect of s129(1)(d) on an application by the Australian Fishing and Lifestyle Party for registration, over an objection by The Fishing Party, which was already registered. The Commission noted the comments of the AAT in paragraph 40, which refer to whether the two party names are sufficiently dissimilar to 'aurally and visually distinguish the two parties as separate entities without risk of confusion or mistake'.
The Community Alliance Party objected to the original application for registration by the Communist Alliance and on 7 April 2009 lodged an application for review by the AEC following the registration of the Communist Alliance. A supplementary submission was lodged on 26 June 2009 following the Communist Alliance response being copied to Community Alliance Party.
The issues raised by Community Alliance Party were:
Dr Hopper objected to the original application for registration by the Communist Alliance and on 6 April 2009 lodged an application for review by the Commission following the party's registration. On 10 June 2009, Dr Hopper lodged a final submission following the Communist Alliance response being copied to him. On 21 September 2009 Dr Hopper submitted an 'addition' to his original submission in which he requested consideration of an additional case, Williams v Australian Electoral Commission, that had been decided prior to the Woollard case, but which he felt supported his argument.
The issues raised by Dr Hopper were:
The Communist Alliance was offered the opportunity on 11 May 2009 to respond to the applications for review and again to make a final submission when a package containing each application for review (and the original objection to the advertisement) along with the Communist Alliance responses was sent to all parties on 26 May 2009. On 20 May 2009 the Communist Alliance raised the following matters (it did not respond to the 26 May 2009 invitation which contained no new material on which it had not already commented):
As above, the Communist Alliance did not respond to the invitation to comment on the Community Alliance Party submissions. It is the opinion of staff of the Commission that the additional submission from Dr Hopper has already been addressed in the previous submissions from the Communist Alliance. Accordingly, the additional submission was not sent to the Communist Alliance for further comment.
For the reasons given in our decision published today in the application concerning the Liberal Democratic Party, we do not agree with the statement in Woollard that paragraph 129(1)(d) is only concerned with confusion or mistake in the "brief time in the polling booth".
Nevertheless, we affirm the delegate's decision to register.
For the purposes of paragraph (1)(d) there is some resemblance between the two names. However, that resemblance is visual rather than aural.
The question then is whether that resemblance is so near that the name 'Communist Alliance' is likely to be confused with or mistaken for the name 'Community Alliance Party'.
'Likely' here does not mean more likely than not: Woollard paragraph 38. As to the persons who are likely to be confused or mistaken, the Tribunal says:
The assessment [of the risk of confusion or mistake] will have regard to the fact that not all electors are equally knowledgeable of political parties, nor equally intelligent in discriminating between different terms used on a ballot paper, nor equally literate in appreciating that terms do differ.
The Tribunal did not go to the length of accepting the argument that account should be taken of 'the ignorant, unthinking and credulous voter who is governed by appearances and general impressions' (paragraph 33).
In considering the consequences of resemblance of names, the meanings conveyed by those names is relevant. The term "Communist" conveys the concept of a political system which has operated in various countries since the time of the Russian Revolution and still operates in China and other countries today. We think that understanding of the term would be widely understood in Australia.
While the matter is open to reasonable argument, on balance we think that the difference in meaning is sufficient to lead to a conclusion that, in our opinion, confusion or mistake is not likely.
18 February 2010