File reference: Reg3584
The decision of the delegate of the Australian Electoral Commission (the Commission) to register the Australian Sex Party was reviewed on appeal to the Commission. The Commission decided the decision should be affirmed and that the Australian Sex Party should remain on the Federal Register of Political Parties.
On 5 August 2009 the delegate of the Commission made a decision to register the Australian Sex Party. One application for review by the Commission following the registration of the Australian Sex Party was lodged on 1 September 2009.
The legal provisions relevant to the application for review are sections 123, 129(1)(b), 131, 141(2) and 141(3) of the Commonwealth Electoral Act 1918 (Electoral Act). The relevant provisions of the Electoral Act are attached to the Statement of Reasons.
Subsection 141(2) of the Electoral Act provides that where a delegate makes a reviewable decision, a dissatisfied person who is affected by the decision may make a written application for its review within 28 days. Subsection 141(3) provides that an application made under s141(2) must set out the reasons for making the application for review. One application for review was received following the registration of the Australian Sex Party.
The issues raised by the applicant for review were:
This issue has not previously arisen. The staff of the Commission undertook a detailed analysis of the case law and legislation in relation to the use of the word 'obscene' in other contexts. That analysis suggests that three elements may require consideration:
In addition to the three considerations listed above, where electoral matters are concerned, it is necessary to take into account public interest concepts relating to the Australian political and democratic process.
However, the Commission was of the opinion that the standard dictionary meaning should be applied to the word 'obscene' in Part XX of the Electoral Act. The Commission formed the view that the prohibition in paragraph 129(1)(b) is not concerned with depraving and corrupting but rather is directed to the protection of the public from an offensive name appearing in advertising and media.
The Macquarie Dictionary defines 'obscene' as being 'offensive to modesty or decency, indecent'. This view concords with that stated in Gregory Paul Best v Electoral Commissioner of NSW, that the standards applied to [as in that case] material distributed on election day must meet the 'broadest community expectations of not causing offence to the broadest range of electors'.
In the Commission's opinion, 'sex' in itself is a completely inoffensive word. It does not become offensive merely because it identifies this particular party as being concerned with public and political issues of a sexual nature.
The staff of the Commission have developed procedures for membership testing for applications for federal registration of political parties in consultation with representatives from the Australian Bureau of Statistics (ABS). The applicant's argument refers to the issuing of a notice under s131 of the Electoral Act to the Australian Sex Party following the initial consideration of the application for federal registration by staff of the Commission. The applicant's argument is that more rigorous testing of the member names provided by the Australia Sex Party should have been conducted, due to the initial shortcomings of the application.
The membership testing procedures applied by staff of the Commission involve conducting a test of a random sample of members. The process is designed to detect fraudulent membership in the list of members supplied by the Party in its application on the basis that an application that contains fraudulent memberships is unlikely to be from a political party which has 500 true members, as required by s123 of the Electoral Act. Nineteen out of the random twenty members contacted confirmed their membership. The other person stated that he was not a member of the Party and that a friend had put his name down as a joke. In the Commission's view, a success rate of 19/20 for the random sample is acceptable.
However the Australian Sex Party submitted exactly 500 member details with its application for registration and accordingly, were issued with a s131 notice following the completion of membership testing. The Party submitted additional member details in response to the notice and staff of the Commission were satisfied that the Party has 500 members. The Australian Sex Party was registered the on 5 August 2009.
Staff of the Commission adhered to all membership testing procedures established in consultation with the ABS. The Commission accepted this.
The Australian Sex Party's response to the notice issued to it in accordance with s131 of the Electoral Act allowed staff of the Commission to confirm that it has the requisite 500 members for registration as a political party. An assessment of the Party name shows that it is not 'obscene' as would be prohibited by paragraph 129(1)(b) of the Electoral Act.
The decision of the delegate of the Commission to register the Australian Sex Party was affirmed by the Commission.
18 February 2010