Party registration decision: Liberal Democratic Party

Updated: 4 February 2011

Name change entered in the Register of Political Parties

File reference: Reg2946d, 07/384-2

The delegate of the Australian Electoral Commission determined that the application by the Liberty and Democracy Party (LDP) to change its registered name under the Commonwealth Electoral Act 1918 should be accepted and the name (and abbreviation) Liberal Democratic Party (Liberal Democrats [LDP]) be entered in the Register of Political Parties.

Background

On 18 January 2008, the Australian Electoral Commission (the AEC) received an application from the Liberty and Democracy Party (the LDP) to change its registered name and abbreviation under the provisions of Part XI of the Commonwealth Electoral Act 1918 (the Electoral Act). The new name sought was Liberal Democratic Party and the new abbreviation was Liberal Democrats (LDP).

The AEC conducted a series of tests usually undertaken as part of the initial consideration of an application and on 28 July 2008, the delegate of the AEC approved the advertisement of the LDP's application. The application was advertised in the Commonwealth Gazette and newspapers circulating generally in each State and Territory on 1 August 2008.

Five objections to the LDP's application were received from:

  • Mr B Loughnane, the Federal Director of the Liberal Party of Australia;
  • Dr J Page of Corinda, Qld;
  • Mr A Green of Ulladulla, NSW;
  • Dr A Paul, National President of the Australian Democrats; and
  • Mr M O'Dwyer, Acting State Director of the Liberal National Party of Queensland.

Test of relevant legal provisions

The legal provisions relevant for an application to change the Register of Political Parties are in section 4 and Part XI of the Electoral Act. An extract of the relevant provisions is on the AEC website.

The reader should consult this extract at the link above to understand the legal provisions being applied in the tests below.

Application

The application satisfied the requirements in section 134 of the Electoral Act, in that it contained all the technical requirements for an application to change a registered party's name and/or abbreviation.

The application passes this test.

Party name

There are several parties registered at federal, state or territory level, as set out in the following table, having the word Liberal or the word Democrat/Democratic in their names and/or abbreviations.
Register Registered name Registered abbreviation
Federal (AEC) Australian Democrats
Christian Democratic Party (Fred Nile) Group
Liberal Party of Australia
Liberal Party of Australia, NSW Division
Liberal Party of Australia (Victorian Division)
Liberal Party of Australia – Queensland Division
Liberal Party of Australia (W.A. Division) Inc
Liberal Party of Australia (S.A. Division)
Liberal Party of Australia – Tasmanian Division
Liberal Party of Australia – ACT Division
Northern Territory Country Liberal Party
Democrats
Christian Democratic Party
Liberal
Liberal
Liberal
Liberal
Liberal
Liberal
Liberal
Liberal
C.L.P.
NSW Australian Democrats (NSW Division)
Christian Democratic Party (Fred Nile) Group
Liberal Party of Australia New South Wales Division
Australian Democrats
Christian Democratic Party
Liberal
Vic Australian Democrats (Victorian Division)
Christian Democratic Party (Fred Nile) Group
Democratic Labor Party (DLP) of Australia
Liberal Party of Australia – Victorian Branch
not shown on VEC website
Qld Liberal National Party of Queensland LNP
WA Australian Democrats
Christian Democratic Party WA
liberals for forests
Liberal Party of Australia (Western Australian Division) Incorporated
DEMOCRATS
Christian Democratic Party WA
liberals for forests
Liberal
SA Australian Democrats (South Australian Division Inc.)
Christian Democratic Party (Fred Nile) Group
Liberal Party of Australia (S.A. Division)
Australian Democrats
CDP
Liberal Party
Tas Liberal Party of Australia, Tasmanian Division not shown on TEC website
ACT Liberal Party of Australia – ACT Division
Liberal Democratic Party
Canberra Liberals
Liberal Democrats
NT Northern Territory Country Liberal Party not shown on NTEC website

The AEC needed to consider whether section 129 of the Electoral Act prohibits the proposed name/abbreviation being registered unless the applicant provides evidence that any or all of the parties listed in the table above are related parties. Several objections to the LDP's proposed change of name on the basis of section 129 and this question is considered below under Objections.

The Liberal National Party of Queensland, registered under Queensland State law, is neither a registered party nor a recognised party under s.129, as it is not registered federally and has not endorsed a candidate in a Queensland State election in the last 5 years. The Liberal Democratic Party, registered under ACT Territory law, is the same party applying for this change of name.

Objections

Four formal objections satisfying the requirements of the Electoral Act were received from the following:

  • Mr Brian Loughnane, the Federal Director of the Liberal Party of Australia;
  • Dr James Page of Corinda Qld;
  • Mr Allan Green of Ulladulla NSW; and
  • Dr Aron Paul, National President of the Australian Democrats.

One informal objection, quoting only a post office box address in contravention of s.132(3), was received from:

  • Mr Michael O'Dwyer, Acting State Director of the Liberal National Party of Queensland.

The AEC, nevertheless, considered the arguments put forward in this objection to assist it to apply section 129 of the Electoral Act to this application.

The Loughnane objection

Mr Loughnane puts the view that approval of the use of the word "Liberal" in the proposed name and abbreviation would be contrary to section 129 of the Electoral Act as the LDP has no connection with the Liberal Party of Australia. He asserts that the name "Liberal" is clearly identified in the public's mind with the Liberal Party of Australia and that there is a high likelihood of confusion if another party was permitted to include the word as part of its name.

Mr Loughnane asserts that at the 2004 federal election, voters were mislead into believing that "liberals for forests" candidates were in fact Liberal Party candidates. He cites particularly the seats of Richmond and Parramatta as examples. Mr Loughnane quotes the Liberal Party submission to the Joint Standing Committee on Electoral Matters inquiry into the 2004 election for more detail, as well as his discussion before the Committee on 8 August 2005.

Mr Loughnane refers particularly to the changes to section 129, particularly the insertion of section 129(1)(da) in 2004 following the Administrative Appeals Tribunal (the AAT) decision that "liberals for forests" should be registered in the face of the AEC's rejection of its application. The Liberal Party of Australia is firmly of the view that if the name and abbreviation sought in this application are approved, the use of the name/abbreviation on ballot papers would suggest to voters that there was a connection between that party and the Liberal Party.

Mr Loughnane cites the AEC's 2007 rejection of an application for registration by Brandon Rayner's Green Liberals and the fact that it issued a section 131 notice to the Liberal Democratic Party in 2007 requiring it to change the name in which it sought registration or face refusal.

The Page objection

Dr Page also refers to the AEC's decision in 2007 that the name Liberal Democratic Party was prohibited under section 129. He puts the view that the LDP accepted this ruling in 2007 by varying its application to be in the name of the Liberty and Democracy Party instead of appealing the decision which would have been its right. He asserts that the LDP should not now be permitted to change its mind.

The Green objection

Mr Green's main point of objection is that small parties split the overall vote and there are already too many of them registered. He also asserts that the name sought by the LDP is too close to the Liberal Party which has been operational for years.

The Paul objection

Dr Paul makes brief but similar points to those made in the Loughnane objection, but referring to similarities between the Australian Democrats being commonly known as the Democrats and the name/abbreviation proposed by the LDP.

The O'Dwyer objection

Mr O'Dwyer makes the same points as made in the Loughnane and Paul objections and adds some further claims. He proposes that section 129(c) of the Electoral Act which prohibits the use of names that are the same as a recognised political party (unless the parties are related) should be read as prohibiting the use of a part of the name of a recognised party.

Mr O'Dwyer makes the point that political branding in Australia is an important part of the political process and involves shortening the names of well-known parties in common usage. This results in the Australian Labor Party (ALP) being referred to as "Labor", the Liberal Party of Australia being referred to as "Liberal" and the Australian Democrats being referred to as "Democrat". Mr O'Dwyer quotes polling results which support this view in Soft Name ID research (where the party name is recognised when provided to the subject) and Hard Name ID research (where the party name is not provided to the subject). A copy of the research was not provided with the objection.

Mr O'Dwyer also puts the view that the AEC should take note of the points made in the previous paragraph when applying the provisions of section 129 and the likely confusion which would result from approval of the LDP's name change.

LDP comments on objections

Under sections 132(5) and (7) of the Electoral Act, the AEC must make any objections available to the applicant party for their comments and must consider both the objections and the applicant party's comments on them before coming to a decision.

The LDP commented that the point made by Mr Green has no support in the legislation. It commented on the point raised by Mr Loughnane, Dr Paul and Dr Page that the LDP should not have a second chance after accepting the 2007 decision by the AEC that the name sought for registration was not available. The LDP advised that its action in not immediately appealing the 2007 AEC decision was prompted by the imminent 2007 election and there is no provision preventing it from making applications to change its name.

On the major point of the objections, that the name/abbreviation sought by the LDP is prohibited because it might be confused with or mistaken for that of the Liberal Party or Australian Democrats, the LDP says –

  • the claim that confusion arose as a consequence of the party name "liberals for forests" omits some important details. The "liberals for forests" workers in the 2004 election distributed how-to-vote leaflets using a style and colour scheme almost identical to that of the Liberal Party, with Labor party members or supporters paying for the printing and handing out the leaflets wearing t-shirts in the same colours as the Liberal Party. While minor party preferences determined the outcome in Richmond and Parramatta, no evidence was provided that the similarity in names caused confusion in contrast to the behaviour of party workers in passing themselves off as Liberal Party workers.
  • Both the Liberal Party and the Australian Democrats suggest that the name sought might indicate a non-existent connection with their parties, but the fact that the name and abbreviation sought include both "liberal" and "democratic/democrats" means that there is no likely connection to be made with either the Liberal Party or the Australian Democrats, or indeed the Christian Democrats.
  • The Liberal Democratic Party is registered in the ACT and has contested the last three ACT elections. The percentages of the vote won by the LDP in those three ACT elections are from 0.7% to 1.8%. The figures don't support any assumption that voters for any other parties were confused by the names into giving their support to the LDP. Given the number of elections contested by the LDP and the importance placed by objectors on "liberals for forests" contesting past elections, objectors should have lodged empirical evidence of past confusion instead of arguments on first principles.
  • There is empirical evidence to show that the registration of the Democratic Labor Party has not confused voters. The LDP quotes instances where the Labor Party and Democratic Labor Party votes moved in similar directions at elections they both contested and in opposite directions. It quotes the recent Lyne by-election which the Labor Party did not contest and in which the Democratic Labor Party achieved only 1.15%, indicating that Labor voters were not confused by the Democratic Labor Party candidate. And the Mayo by-election which the Labor Party did not contest and in which there is no evidence that Democrat voters were confused by the Democratic Labor Party. Equally, Liberal voters or Democrat voters would not be confused by the LDP.
  • The AAT, in its decision on "liberals for forests" advised that political parties in Australia use, and have used, generic words such as 'Australia', 'liberal', 'labour', 'democrat', 'national', 'christian', 'progressive', 'socialist' and the like. Absent clear language to the contrary the disqualifying provision is not to be construed so as to lock up generic words as the property of any organisation when it comes to names that can be used on the ballot paper.
  • The ACT Electoral Commission recently approved the LDP's change of abbreviation from 'LDP' to 'Liberal Democrats' notwithstanding objections by the Liberal Party and Democrats. The ACT legislation mirrors that of the Commonwealth with the exception of s.129(1)(da)

AEC view of objections and LDP comments

The only relevant matter raised in the objections is whether the name/abbreviation sought by the LDP is prohibited by section 129 of the Electoral Act.

The AEC acknowledges the guidance given on section 129 in 2001 by the AAT in its decision in the "liberals for forests" matter (Woollard and the AEC and the Liberal Party [2001]). This decision is of particular significance in that the AAT for the hearing comprised three serving judges of the Federal Court. The AEC also acknowledges that s.129 was amended in 2004 following the decision in "liberals for forests". In late 2007, the AEC sought external legal advice on the effect of section 129 as amended, on similar matters as decided by the AAT in "liberals for forests".

The advice provided to the AEC, from an AGS Senior General Counsel, was that the amended section 129 would not be likely to result in a different outcome were the AAT to again decide the "liberals for forests" matter or a similar matter. The advice also considered the need for the AEC to have evidence that similarity in names would be likely to be confused or mistaken, or lead a reasonable person to think a connection or relationship exists when it doesn't. The advice suggested that it would be open to but not necessary for the AEC to commission such evidence by surveys or other research, or to rely on objectors to put forward evidence necessary to support their assertions, giving that evidence an appropriate weight.

As a senior delegate of the AEC for the purposes of party registration, I have formed the view that the operation of section 129 of the Electoral Act on this application, for a change of name and abbreviation by the LDP, is not completely without doubt. Nevertheless, in all the circumstances I am not satisfied that section 129 prohibits the name Liberal Democratic Party or the abbreviation Liberal Democrats (LDP). In reaching this view, I have considered:

  • the guidance given in the AAT decision in 2001 on the registration of "liberals for forests";
  • the 2007 legal advice by counsel provided to the AEC on the effect of the 2004 amendments to section 129 of the Electoral Act;
  • the matters raised in objections to this application including the lack of objective evidence offered;
  • the response to those objections from the LDP; and
  • the history of the Register of Political Parties including registrations for the –
    • ACT Green Democratic Alliance;
    • Australian Ethnic Democrats;
    • Christian Democratic Party (Fred Nile Group);
    • Curtin Labor Alliance;
    • Democratic Labor Party (DLP) of Australia;
    • Democratic Socialist Electoral League;
    • Democratic Socialist Party;
    • Liberty and Democracy Party;
    • Progressive Labour Party; and
    • Rex Connor (Snr) Labor Party.

Conclusion

The application by the Liberty and Democracy Party to change its registered name and abbreviation is approved and the changes are made to the Register of Political Parties.

Tim Pickering
A/g Deputy Electoral Commissioner
Delegate of the Australian Electoral Commission
17 December 2008

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