Party registration decision: Help End Marijuana Prohibition (HEMP) Party

Updated: 4 January 2011

Application for Registration of the Help End Marijuana Prohibition (HEMP) Party under Part XI of the Commonwealth Electoral Act 1918.

The Determination of the Delegate to Refuse Application for Party Registration

File reference: 07/622 – Reg2687

Following the delegate's determination on 20 August 2007 that the Party failed its initial consideration and the Party's decision not to vary its application in response to the Australian Electoral Commission's request to do so, the delegate of the Australian Electoral Commission has determined that the application by the Help End Marijuana Prohibition (HEMP) Party to be registered as a political party under the Commonwealth Electoral Act 1918 should not be accepted and the Party not entered in the Register of Political Parties.

Background

The Australian Electoral Commission (the AEC) is established as a statutory authority of the Commonwealth of Australia under section 6 of the Commonwealth Electoral Act 1918 (the Electoral Act). The functions and powers of the Commission are set out in section 7 of the Electoral Act and include "to perform functions that are permitted or required to be performed by or under this Act".

Section 126 of the Electoral Act sets out the requirements for the making of an application for registration as a political party. Subsection 126(3) of the Electoral Act states that when an application for registration as a political party is received by the AEC, it shall be dealt with in accordance with Part XI and the AEC shall "determine whether the party can be registered". One of the requirements contained in section 126 of the Electoral Act is that an application may only be made by an "eligible political party". The term "eligible political party" is defined in subsection 123(1) of the Electoral Act and in the case of a political party that is not a Parliamentary party, it must have "at least 500 members". Paragraph 126(2)(ca) of the Electoral Act requires that when making a written application for registration, the intended registered officer of the eligible political party shall "include a list of the 500 members of the party to be relied on for the purposes of registration".

The Party application

In an application dated 16 April 2007, the person who is the secretary of the Help End Marijuana Prohibition (HEMP) Party (the Party), Mr Graham Askey, along with nine other members of the Party, lodged a written application with the AEC for the registration of the Party as a non-parliamentary party under Part XI of the Electoral Act. In that application, it was indicated that the Party would seek to receive election funding.

After an initial consideration of the written application, a delegate of the AEC wrote to the intended registered officer of the Party on 21 August 2007 issuing a variation letter under section 131 of the Electoral Act because the AEC was of the opinion that it was required to refuse the application. In the delegate's letter of 21 August 2007, the delegate advised that staff of the Commission had completed a random sample of the Party's membership list in August 2007 and that based on the results, the delegate was of the opinion that the AEC could not be satisfied that the Party had the required 500 members.

In a letter dated 5 October 2007, Mr Graham Askey as the secretary of the Party, responded to the delegate of the AEC requesting that the Party's application proceed in its current form and, if rejected, informed the AEC that he would be appealing the delegate's decision.

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 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 notice on this website.

In relation to this Party, the relevant provisions require it to:

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

Application of relevant legal provisions

Political party

Section 4 of the Electoral Act defines 'political party' as an organisation which has as its object or activity, or one of its objects or activities, the promotion or the election to the Senate or to the House of Representatives of a candidate endorsed by it.

The Party submitted a copy of its constitution with its application. The constitution contains an aim of endorsing candidates to contest elections in the federal parliament of Australia. In addition to this, the Party has a history of endorsing candidates at federal elections and was recognised as an organisation for federal registration purposes between 2000 and 2006. The Party has lodged annual disclosure returns from 1999–2000 to 2005–06 with a steady amount of financial activity each year.

In light of this, the AEC believes the Party is a political party as defined in section 4 of the Electoral Act.

Application

The application dated 16 April 2007 was signed by ten members of the Party, including the Party secretary, and set out the names, addresses and particulars of the capacity in which each applicant made the application. The application also set out the name, address and signature of the intended registered officer of the Party, Mr Graham Askey, and listed the name and abbreviation that the Party wished to use for the purposes of the Electoral Act. The Party's application was accompanied by 538 membership forms as well as a statutory declaration affirming the membership details.

A Party is usually required to lodge a $500 application fee with their application. This Party was not required to lodge the application fee due to Item 4 of Schedule 3 of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006, which provides that a party was not required to pay the $500 fee with its application if it was deregistered under Schedule 3 and applied for re-registration by 22 June 2007.

The AEC believes the Party's application fulfils the requirements set out in section 126 of the Electoral Act.

Secretary

The Party's application was signed by the Party secretary. The Party's constitution states that the secretary is responsible for the issuing of notices for the annual general meetings, receipt of nominations for positions within the Party and making regulations for "extraordinary general meetings".

The description of the role of secretary in the Party's constitution does not precisely match that required by the Electoral Act, however, there is sufficient similarity for the AEC to be of the view that the definition of secretary in the Party's constitution is sufficient for registration purposes.

Membership

Subsection 123(1) of the Electoral Act defines an "eligible political party" as a political party that is either a Parliamentary party or has 500 members.

Subsection 123(3) indicates that a member of a political party means a person who is both a member of a political party and is entitled to enrolment under the Electoral Act (see Part VII for the enrolment requirements).

Subsection 126(2) requires that an application to register a political party that is not a Parliamentary party be accompanied by a list of the names of 500 members to be relied on for the purposes of registration.

In considering the application, the staff of the Commission conduct a series of tests to determine whether an applicant party has 500 members, including:

  • removing from the list members under 17 years of age;
  • removing any duplicate memberships on the list;
  • removing people who have already been used by another party to establish its eligibility for registration; and
  • conducting a random sample test for membership to verify if there are at least 500 members as required by the Electoral Act.

The random sample test of 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.

Combined, the membership tests are intended to allow the delegate of the Commission (and on review the Commission itself) to be satisfied that an applicant party has the required 500 members.

A random sample check of 20 members was completed in August 2007. Two members confirmed their membership when phoned, one person advised that she is no longer a member of the Party and letters were written to seventeen people who could not be contacted by phone. Replies were received from only four people, giving a final figure of six confirmations, one decline and thirteen who have not responded. The Party had no cross-party or internal duplicates and no member under 17 years of age.

The AEC is not satisfied that the applicant Party has 500 members as required by section 123 and 126 of the Electoral Act.

Constitution

The Party has a constitution that was provided with its application. The constitution contains the following matters relevant to registration:

  • an aim of endorsing candidates to contest election to the federal parliament;
  • a secretary with a defined role; and
  • membership criteria.

The AEC believes the Party passes this test.

Party name

The Party's name fulfils the criterion outlined in section 129 of the Electoral Act and does not resemble the name of any other party registered at federal, State or Territory level, which would invoke the names prohibition in section 129 of the Act.

Objections

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 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 Act (the names test).

No written submissions were received objecting to the Party's application for registration.

Conclusion

The AEC is not satisfied that the applicant Party has 500 members as required by section 123 and 126 of the Electoral Act given that the list submitted under paragraph 126(2)(ca) of the Electoral Act (which the Party refused to vary despite being afforded the opportunity with the variation letter) contained no more than 538 alleged members and the results of the test indicated a significant probability that there were not 500 members.

The application for registration by the Help End Marijuana Prohibition (HEMP) Party is refused.

Paul Dacey
Deputy Electoral Commissioner
Delegate of the Australian Electoral Commission

14 May 2008

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