Party registration decision: The Fishing Party

Updated: 4 January 2011

Party entered in the Register of Political Parties

File reference: Reg2556 – 07/0160

The delegate of the Australian Electoral Commission determined that the application by The Fishing Party 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.

Background

On 21 December 2006, the Australian Electoral Commission (the AEC) received an application from The Fishing 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 14 May 2007, the delegate of the AEC determined the initial consideration of the Party's application and wrote to the Party advising it that it had not met the membership requirements for registration. The Party was given an opportunity to lodge an updated membership list.

On 18 June 2007, the AEC received a revised membership list from the Party. The Party passed the membership requirements with this revised list.

The Party's application was advertised in the Commonwealth Gazette and in 10 newspapers circulating in the various states and territories on Friday 20 July 2007. Two written submissions objecting to the registration of the Party were received.

Application of the relevant legal provisions

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 Electoral Act requires the AEC to maintain a publicly available 'Register of Political Parties'.

The provisions specifically relevant for this application are sections 4, 123, 124, 126, 129, 132, 132A and 133 of the Electoral Act. An extract of the provisions is available adjacent to this notice on this website.

The provisions require this Party to:

  • be an organisation with an aim of promoting candidates it endorses for election to the House of Representatives and/or the Senate;
  • have at least 500 members eligible to be on the electoral roll;
  • make application for registration in the manner prescribed in section 126; and
  • propose a name and optional abbreviation for registration that is not prohibited by section 129.

Political party

Subsection 4(1) of the Electoral Act defines a political party as an organisation that has the object or activity of, or has as one of its objects or activities, the promotion of the election to the Senate or to the House of Representatives, of a candidate or candidates endorsed by it.

The delegate determined that the Party is an organisation, as it was recognised as an organisation by the AEC during its previous registration from 2001–06 and because it submitted annual returns for the last five financial years. Secondly, its constitution has an aim of seeking 'election to the Australian Federal, State Parliaments and Local Governments in sufficient numbers to affect political outcomes'.

The Party is accepted as a political party as defined in section 4 of the Electoral Act.

Application

The application conforms to the technical requirements set out in section 126 of the Electoral Act.

The membership

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. 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:

  • removes from the list members under 17 years of age;
  • removes any duplicate memberships on the list;
  • removes people who have already been used by another party to establish its eligibility for registration; and
  • conducts a random test for fraudulent membership.

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 randomly selected 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 May 2007. Sixteen people confirmed they were members of the Party, 1 person denied being a member of the Party and 3 people did not respond to telephone calls or a letter.

On 14 May 2007, the delegate wrote to the Party to advise it that it had failed its membership test and that, unless the Party provided a fresh membership list for testing, it may not be registered.

The Party provided a second membership list on 18 June 2007.

A random sample check of 20 members was completed in September 2007. Nineteen members confirmed their membership and one person did not respond to phone and written contact by the AEC.

The Party satisfied the delegate that it had the necessary 500 members to be eligible for registration.

Constitution

The Party has an up-to-date constitution that was provided with its application. The constitution contains the following matters relevant to registration:

  • an aim of seeking election to the Federal Parliament;
  • a secretary with a partially defined role; and
  • membership criteria.

The Party's constitution satisfies the requirements of the Electoral Act.

Party name

Section 129 of the Electoral Act prohibits the registration of parties with certain names. This is called the names test. The names test requires that a political party cannot be registered if its name or abbreviation:

  • is more than six words;
  • is perceived to be obscene;
  • is the name, abbreviation, or acronym of the name of another political party (not being a political party that is related to the applicant party) that is a recognised political party;
  • so nearly resembles the name, abbreviation, or acronym of the name of another recognised political party (not being a political party that is related to the applicant party) that it is likely to be confused with that other recognised political party;
  • is one that a reasonable person would think suggests a connection or relationship with another registered political party, if that relationship does not exist;
  • is comprised of the words 'Independent Party';
  • is comprised of, or contains, the word 'Independent', and the name, abbreviation or acronym of a recognised political party; or
  • is comprised of, or contains, the word 'Independent' and matter, that so nearly resembles the name, or an abbreviation or acronym of the name of a recognised political party, that the matter is likely to be confused with, or mistaken for, that recognised political party.

The name of the Party, 'The Fishing Party', does not offend any of the section 129 prohibitions.

The Party passes the names test in section 129 of the Electoral Act.

Objections

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:

  • that the application does not relate to an eligible political party;
  • that the application has not been made in accordance with section 126 of the Electoral Act (the section setting out the requirements to be met by an applicant political party); and
  • that the application should be refused under section 129 of the Electoral Act (the names test).

The Party's application was advertised in the Commonwealth Gazette and in 10 newspapers circulating in the various states and territories on Friday 20 July 2007.

Two written submissions were received from the The Fishing Party (AFLP) on 17 August 2007.

The two submissions raise six relevant matters:

  • the name The Fishing Party so nearly resembles the name of The Fishing Party (Qld) (a Queensland registered party) that it is likely to be confused or mistaken for that party;
  • the constitution supplied with The Fishing Party's application is not the Party's constitution;
  • The Fishing Party does not have the objective of endorsing candidates for federal elections;
  • a number of persons claimed as members of The Fishing Party are in fact members of the AFLP;
  • the members of The Fishing Party have not paid a membership fee as required by the Party's constitution; and
  • The Fishing Party does not have an elected executive and has not held an annual general meeting.

Process for dealing with objections

Subsection 132(5) of the Electoral Act requires that the AEC provide the proposed registered officer of the applicant Party with a copy of all submissions received and provide them with the opportunity to comment on the submissions.

The Party provided a response to the submissions on 6 September 2007.

Analysis of objections

Objection on the basis of name

The AFLP claims that the name 'The Fishing Party' offends section 129 of the Act. It claims that 'The Fishing Party' 'so nearly resembles the name of The Fishing Party (QLD) that it is likely to be confused with or mistaken for that name'.

The AFLP also claims that 'The Fishing Party' is one that 'a reasonable person would think suggests that a connection exists between the applicant Party and The Fishing Party (QLD)' and that 'there is no such connection or relationship'.

The AFLP's objection relates to the similarity between the name of the applicant Party and The Fishing Party (Qld), which is the state registered name of the AFLP. The objection therefore relates to paragraph 129(1)(d) of the Act – that the Commission shall refuse an application where the abbreviation so nearly resembles the abbreviation of a recognised political party that it is likely to be confused or mistaken for that party.

Subsection 129(2) defines a recognised political party as including a political party registered or recognised under a state or territory law for the purposes of state or territory elections that has endorsed a candidate for election in the previous five years.

In its response to the AFLP objection, the Party argued that The Fishing Party (Qld) has never endorsed a candidate for election.

The AEC sought the advice of the Electoral Commission Queensland as to the status of The Fishing Party (Qld). The Electoral Commission Queensland advised that The Fishing Party (Qld) was registered for the first time on 14 September 2006, after the most recent Queensland State electoral event.

Based on the evidence provided by the Electoral Commission Queensland, the delegate is of the view that The Fishing Party (Qld) has not endorsed candidates for election in the past five years, and consequently does not offend the naming prohibition in paragraph 129(1)(d).

There are no grounds for upholding this objection.

Objection on the grounds that the Party's constitution has not been formally adopted

The AFLP claims that that the constitution submitted with The Fishing Party's application was not a copy of its current constitution and had not been formally adopted by the Party.

The Fishing Party did not address this matter in its response to the AFLP's objections.

After reviewing The Fishing Party's response, the AEC contacted to Party to seek clarification of this matter.

After discussions with the AEC, The Fishing Party provided a copy of the minutes of its Central Committee meeting of 8 November 2006 at which the Party's constitution was adopted.

There are no grounds for upholding this objection.

Objection on the basis that the Party is not a party within the meaning of the Electoral Act

The AFLP also claim that The Fishing Party is not a political party within the meaning of the Electoral Act as their mission statement does not include as an objective or activity the promotion of the election to the Senate or to the House of Representatives of a candidate or candidates endorsed by the Party.

This claim is based on the definition of a political party in section 4 of the Electoral Act, which requires that a party have as an objective the endorsement of candidates for elections in federal parliament.

The Fishing Party advises in its response that its mission statement is to seek fair representation for the fishing community, and that the Party has a history of running candidates for federal election.

The AEC examined the Party's constitution and determined that it contains a charter, which includes the statement that: '…we will seek election to the Australian Federal, State Parliaments and Local Governments…'

There are no grounds for upholding this objection.

Objections on the grounds of membership

The AFLP claims that a number of persons used by The Fishing Party to support its application are members of the AFLP.

The Fishing Party, in its response to the objections, claims in response that the members used to support the application of the AFLP are in fact members of The Fishing Party.

There is no prohibition in the legislation on people being members of more than one party.

An objection in relation to party membership can only be based on the requirements of paragraph 126(2)(ca) and subsection 126(2A) of the Electoral Act.

Paragraph 126(2)(ca) requires that a non-parliamentary party provide a list of 500 members to be relied on for the purposes of registration. Subsection 126(2A) of the Electoral Act states that two or more parties cannot rely on the same member for the purposes of qualifying to be a registered political party.

The party membership requirement is therefore only that the 500 members an applicant party is relying on for registration have not been used to support an application to register another party.

The AEC cross-checked the second membership list of The Fishing Party against all other memberships lists, including the AFLP's list. The AEC did not identify any duplicate members. Each members' application form was checked and in all instances the forms related to 'The Fishing Party' and not to the AFLP.

The delegate is satisfied that the members provided with the Party's application are in fact members of The Fishing Party.

There are no grounds for upholding this objection.

Objection on the basis that the members have not paid a membership fee

The AFLP also claims that the list of members provided by The Fishing Party as part of their application have not paid a fee to join the Party and therefore do not qualify for membership under the terms of their constitution.

Apart from stating that the members provided by it were genuinely members of The Fishing Party, the Party did not address this matter in its response to the AFLP's objections.

After reviewing The Fishing Party's response, the AEC contacted to Party to seek clarification of this matter.

The Fishing Party advised that at the time the Party's application was made, the membership fee had not been set by the Central Committee as required by its constitution. The Party advised that until such a fee were approved, the fee would effectively be $0.00 as there has been no fee for membership of the Party under its previous constitution.

The Fishing Party also stated that the members supplied with the Party's application were accepted under the previous constitution. The Party argued that these members remain recognised under the new constitution.

While the Party has adopted a new constitution, there is no doubt that the party established under the previous constitution is the same as the party established under the new constitution. Under these circumstances it is reasonable that party members accepted under the old constitution would continue to be members under the new constitution until such time as they either resign or become unfinancial.

The delegate is satisfied that on balance there is sufficient evidence that the members provided with the Party's application are valid members of the Party.

There are no grounds for upholding this objection.

Objection on the grounds that the Party does not have an elected executive

The AFLP claims that the constitution provided by The Fishing Party requires the election of certain office bearers at an AGM, and that no such election has taken place. The AFLP therefore claims that The Fishing Party has no elected office bearers and cannot therefore have validly completed an application for registration.

The Fishing Party did not address this matter in its response to the AFLP's objections.

For registration purposes, a political party is required to identify two positions within its structure – the person who holds the position of a secretary, however described, and the person who is to be the registered officer.

Whether or not the other executive positions within the Party have been filled in accordance with the Party's constitution is a matter beyond the scope of the registration process, and so cannot be considered as part of the objection.

The Party's application indicates that the secretary of the Party is Robert Arthur Smith. The minutes of the Central Committee meeting of 8 November 2006 at which the Party's constitution was adopted also indicate that the secretary is Robert Arthur Smith.

The AEC has no evidence to suggest that Mr Smith was removed from the position of secretary of the Party between the 8 November 2006 Central Committee meeting and 20 December 2006 when the application to register the Party was signed.

There are no grounds for upholding this objection.

Conclusion

The delegate did not uphold the objections it received to the registration of the Party. The Fishing Party has now been registered.

Tim Pickering
A/g Deputy Electoral Commissioner
Delegate of the Australian Electoral Commission

21 September 2007

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