File reference: Reg3112, 08/1412
The delegate of the Australian Electoral Commission determined that the Australian Sex Party should be registered under the Commonwealth Electoral Act 1918.
On 10 March 2009, the Australian Electoral Commission (AEC) received an application from the Australian Sex Party (the Party) for registration as a political party under the provisions of Part XI of the Commonwealth Electoral Act 1918 (the Electoral Act).
On 26 May 2009 the delegate of the AEC determined the initial consideration of the Party's application and issued a notice under s131 of the Electoral Act. The s131 notice invited the Party to lodge additional members details as the Party had lodged details of only 500 members and one of those denied being a member of the Party.
The Party submitted additional members details and the AEC was satisfied that the Party has 500 members. The intention to register was advertised nationally under s132(1) of the Electoral Act and a number of objections were received and considered.
Political parties may apply for registration for the purposes of federal elections in accordance with the requirements of Part XI of the Electoral Act. The Act requires the AEC to maintain a publicly available 'Register of Political Parties'.
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 adjacent to this document on this website.
In relation to this Party, the relevant provisions require it to:
The Party is established on the basis of a constitution, which sets up an organisation with established principles and enunciates its objectives. These include an aim to carry forward the work done by the Eros Association, in part, by endorsing candidates to contest Senate and House of Representatives elections.
The party has its own phone number, as well as a physical address, a postal address and an active website. The physical address appears to be the same as an address for an Eros Association retailer. As this is a newly formed political party, the AEC was unable to assess its ongoing financial activity.
The Party meets the test of being a political party under s4 of Electoral Act.
The application meets the technical requirements in s126(2) of the Electoral Act.
A registered political party needs to identify the office which fits the definition of secretary set out in s123 of the Electoral Act, as the party secretary has functions under the Electoral Act. The role of Party Secretary is described in detail in the Party's constitution and meets that definition.
Section 123 of the Electoral Act requires a non-parliamentary party to have at least 500 members who are entitled to enrolment and are not relied on by another registered party to support its registration. 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.
Four of the members did not provide any address details on their application forms as they were enrolled as silent voters. Without addresses, those members could not easily be checked for duplication as the automatic computer system accepts only members with full details including addresses.
Convenience addresses of "West Block" were entered for these 4 members to enable the automatic check to proceed using names and dates of birth. No duplicate members were identified among the 500 members provided by the Party. A check against all registered party membership lists was conducted and there were no members that were identified as supporting the registration of any other party.
The AEC conducts a test of a random sample of members designed to detect fraudulent membership in the list of members on the basis that an application that contains fraudulent memberships is unlikely to be from a political party which has 500 true members. Nineteen out of the random 20 members contacted confirmed their membership. The other person stated his name had been put down by a relative as a joke at a public function and that he is not a member of the Party. A success rate of 19/20 for the random sample is accepted.
The Party satisfies the membership requirements for eligibility.
The Party provided a reasonably detailed constitution with its application. The constitution contains the following matters relevant to registration:
The Party's constitution provides for membership and membership votes on policies. The constitution provides for annual general meetings to be held at a time and place determined by the Committee. Apart from the Party Secretary, the National President is identified as another office-bearer.
The constitution also provides for a Party Committee comprised of elected members of the Eros Association Committee to act as the principal governing body of the party. The Party Committee's responsibilities include setting membership fees, selecting candidates for Federal elections, formulating and adopting federal policies consistent with the principles of the Party.
The constitution meets the limited requirements for a party constitution required in the Electoral Act.
Section 129 prohibits the registration of parties with certain names. Specifically, the name shall not be approved if any of the following conditions are met. That it:
The AEC has checked the federal Register of Political Parties and that of each State and Territory and there are no similar party names registered. The proposed name and abbreviation do not invoke any of the similar names prohibitions in s129.
The AEC received four objections to the registration of the Party upon its advertisement under s132(1). Section 132(2) of the Electoral Act permits written submissions to be lodged objecting to the application for registration on the grounds that the application:
The only valid grounds raised in the objections as a whole was that the federal registration of the Party should be refused on the basis that the name is 'obscene' and is thus prohibited under s129(1)(b) of the Electoral Act.
An application for registration as a federal political party has never previously been refused on the basis of the name being 'obscene'. Accordingly, the AEC had to assess the validity of this claim by conducting an examination of case law and statute relating to the word 'obscene' in order to obtain some guidance on the standard that must be met for an application to be refused under s129(1)(b). When the Party name and abbreviation are assessed in light of the guidance afforded by existing case law and statute on the word 'obscene', the name 'Australian Sex Party' and the abbreviation 'Sex Party' are not prohibited under s129(1)(b).
I am satisfied the Party is an eligible political party under s123 of the Electoral Act. The Party's response to the s131 notice issued to it allowed the AEC to confirm that it has 500 members eligible for electoral enrolment. An assessment of the Party name shows that it is not 'obscene' as would be prohibited by s129(1)(b) of the Electoral Act and thus the objections received in response to the advertisement of the party's registration are not upheld.
The Australian Sex Party is registered.
Deputy Electoral Commissioner
Delegate of the Australian Electoral Commission
5 August 2009