McLindon and Katter's Australian Party (Qld Division) v The Electoral Commission of Queensland

[2012] QSC 44

SUPREME COURT OF QUEENSLAND

CITATION:

McLindon & Anor v Electoral Commission of Queensland [2012] QSC 44

PARTIES:

AIDAN PATRICK MCLINDON (first applicant)

AND

KATTER'S AUSTRALIAN PARTY (QLD DIVISION) (second applicant)

AND

THE ELECTORAL COMMISSION OF QUEENSLAND (respondent)

FILE NO/S:

1878 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 March 2012

DELIVERED AT:

Brisbane

HEARING DATES:

5 March 2012

JUDGE:

Atkinson J

ORDERS:

1.   Application dismissed. 

2.   Costs reserved.

CATCHWORDS:

CONSTITUTIONAL LAW – NON-JUDICIAL ORGANS OF GOVERNMENT – LEGISLATURE – ELECTIONS AND RELATED MATTERS – where the second applicant applied for an abbreviated title for printing on ballot papers – where the respondent granted that application – where the abbreviation contained definite article ‘the’ whereas the full name did not – whether the abbreviated title was an abbreviation within the meaning of s 102(2)(g) of the Electoral Act 1992 (Qld) – whether the abbreviation was likely to cause confusion – whether the respondent was in breach of s 73 of the Electoral Act 1992 (Qld)

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF COMMONWEALTH CONSTITUTION – GENERAL MATTERS – RELATIONSHIP BETWEEN COMMONWEALTH AND STATES GENERALLY – EFFECT OF STATE LAWS ON THE COMMONWEALTH – PARTICULAR CASES – where respondent granted registration of abbreviated title of second applicant party’s name for printing on ballot papers – where applicants argued that the abbreviation was likely to confuse – whether s 102(2)(g) the Electoral Act 1992 (Qld) permitted the registration of an abbreviation prohibited by s 129(1)(d) of the Electoral Act 1918 (Cth) – whether the Queensland Act was invalid to the extent of the alleged inconsistency

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION – RIGHTS AND FREEDOMS IMPLIED IN COMMONWEALTH CONSTITUTION – FREEDOM OF POLITICAL COMMUNICATION – PARTICULAR CASES – where respondent granted registration of abbreviated title of second applicant party’s name for printing on ballot papers – where applicants argued that the abbreviation obscured the identity of the entity endorsing the candidates of that party – whether s 102(2)(g) the Electoral Act 1992 (Qld) created an unacceptable burden on the freedom of political communication – whether the Act was invalid

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUCTIONS – where the applicants sought an interlocutory injunction to restrain the respondent from distributing further ballot papers with the abbreviated name of the appellant party and reinstate its full name – whether the applicant has a prima facie case – whether the balance of convenience favours the granting of an injunction

Electoral Act 1992 (Qld), s 71(4)(b), s 73, s 75(3), s 88(1)(a), s 102(2)(g), s 196(5)
Electoral Act 1918 (Cth), s 129(1)(d)
Commonwealth Consitution, s 109
Judiciary Act 1903 (Cth), s 78B

Australian Broadcasting Corporation v O'Neill (2006)
227 CLR 57, followed
Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148, followed
Woollard v The Australian Electoral Commission and the Liberal Party of Australia (WA Division) Inc (2001) 32 AAR 492, considered

COUNSEL:

AW Street SC with K Fleming QC for the applicants

PJ Flanagan SC with J Horton for the respondent

SOLICITORS:

Carswell and Company for the applicants
Clayton Utz for the respondent

HER HONOUR:  On 1 March 2012, an originating application was
filed in this Court by the first applicant, Aidan Patrick
McLindon, and the second applicant, Katter's Australian Party
(Qld Division).  The respondent to the originating
application was the Electoral Commission of Queensland
(Queensland Electoral Commission).

The originating application sought a declaration that upon a
proper construction of the Electoral Act 1992 (The Queensland Act), and section 102 of that Act, candidates endorsed by Katter's Australian Party (Qld Division) for the Queensland
State Election scheduled for 24 March 2012, be entitled to
have, on the ballot paper and beside their names, the full
title of Katter's Australian Party (Qld Division).

The second order sought was that pursuant to s 196(5)(a) of the Queensland Act, the Queensland Electoral Commission be
restrained from further publishing and distributing ballot
papers with the words "Australian Party" upon the ballot
paper.

The third order sought, was that pursuant to section 196(5)(b)
of the Queensland Act, the Queensland Electoral Commission cause to be inserted the name "Katter's Australian Party (Queensland Division)" upon the ballot paper for the candidate, Aidan Patrick McLindon, in the Queensland State Election scheduled for 24 March 2012.

That application was amended by leave today to add a new
paragraph 1A, which sought a declaration that “the Australian
Party” is not a valid abbreviation within section 102 of the
Queensland Act, and paragraph 1B, that alternatively a declaration issue that section 102 of the Queensland Act is inoperative under section 109 of the Commonwealth Constitution, insofar as it purports to authorise the abbreviation “the Australian Party”, in circumstances where that abbreviation has been considered and rejected under Part XI of the Electoral Act 1918 (Commonwealth (The Commonwealth Act)), and/or insofar as it purports to authorise an abbreviation contrary to Part XI of the Commonwealth Act.

The amendment also sought to add paragraph 1C seeking a
declaration that section 102 of the Queensland Act is invalid and inoperative, insofar as it purports to authorise as an
abbreviation “the Australian Party”, that impedes the implied
constitutional freedom of political discourse by materially
stifling, and/or misleading the public, as to the identity of
the endorsed candidates of the Katter's Australian Party
(Qld Division) in the State Election.

It also sought to amend the originating application by adding
as paragraph 4, "An order until further order restraining the
Electoral Commission from publishing and distributing ballot
papers with the words 'Australian Party' upon ballot papers for candidates endorsed by the second applicant".  That was
further amended on the oral hearing of the application by
deleting the word "publishing" and replacing it with the word
"supplying" and inserting the word "the" after the quotation mark and before "Australian Party".  None of those amendments was opposed and the applicants were given leave to make those
amendments.

Those amendments raise for the first time constitutional issues under section 78B of the Judiciary Act 1903 (Cth). Under subsection 78B(1), where a cause is pending in a Court of a State, which involves a matter arising under the Constitution or involving its interpretation, it is the duty of the Court not to proceed in the cause unless and until the Court is satisfied that notice of the cause, specifying the nature of the matter, has been given to the Attorneys-General of the Commonwealth and of the States and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General of the question of intervention in the proceedings or removal of the cause to the High Court.

No section 78B notices have been given to any Attorney General
and so, accordingly, it is my duty not to proceed.  However,
subsection (5) provides that nothing in subsection (1)
prevents a Court from proceeding without delay to hear and
determine proceedings, so far as they relate to the ground of
urgent relief of an interlocutory nature, where a Court thinks
it necessary in the interests of justice to do so. That
subsection means that in those specific circumstances the
Court, notwithstanding the restriction on its power mentioned
in section 78B(1), has the power to grant urgent relief of an
interlocutory nature.

I have been informed that notices under section 78B of the
Judiciary Act will be provided to the Attorneys-General
Today, 5 March 2012.  The matter has, according to the applicants, some high degree of urgency, and in view of the forthcoming State Election, that must be correct and so I have said this the return date for those notices should be Wednesday of that week, that is 7 March.  Of course, if that is not sufficient for the Attorneys-General to take the view that they have had the opportunity to properly consider the matter, then any one of them may seek an adjournment and I will determine that on its merits.  Nevertheless, urgency suggests that the matter should be brought on sooner rather than later.

The principles governing the grant or refusal of interlocutory
injunctions have been set out comprehensively by the High
Court in Australian Broadcasting Corporation v O'Neill (2006)
227 CLR 57, in particular, by Gummow and Hayne JJ, at
[65] – [72].  The principles set out by their Honours
were specifically followed by Gleeson CJ and Crennan J at [19] where their Honours said, "a Court will ask whether the plaintiff has shown there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.  These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.  We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Limited v. Bristol Laboratories Pty Limited (1968) 118 CLR 618 should be
followed."

At [65], Gummow and Hayne JJ held, "The relevant principles in Australia are those explained in Beecham Group Limited v. Bristol Laboratories Pty Limited.  This Court (Kitto, Taylor, Menzies and Owen JJ) said that, on such applications the Court addresses itself to two main inquiries, and continued at 622-623, ‘The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief...the second inquiry is...whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused, outweighs or is outweighed, by the injury which the defendant would suffer if an injunction were granted.’

By using the case phrase ‘prima facie case’, their Honours did
not mean that the plaintiff must show that it is more probable
than not that at trial the plaintiff will succeed; it is
sufficient that the plaintiff show a sufficient likelihood of
success to justify in the circumstances the preservation of
the status quo pending the trial.  That this was the sense in
which the Court was referring to the notion of a prima facie
case is apparent from an observation to that effect made by
Kitto J in the course of argument. With reference to the first inquiry, the Court continued in a statement of central importance for this appeal:

’How strong the probability needs to be depends no doubt upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order he seeks.’” 

At [66], importantly for this application, their Honours continued, "For example, special considerations apply where
injunctive relief is sought to interfere with the decision of
the Executive Branch of Government to prosecute offences. Again, in Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148, Mason ACJ in the original jurisdiction of this Court said that, ‘in the absence of compelling grounds’ it is the duty of the judicial branch to defer to the enactment of the legislature until that enactment is adjudged ultra vires, and dismissed applications for interlocutory injunctions to restrain enforcement of the law under challenge.”

In Castlemaine Tooheys Limited v South Australia, Mason ACJ, as his Honour then was, set out how the principles relating to the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration.  His Honour referred to situations in which injunctions have been granted where they have not occasioned any significant detriment to the public interest and stressed the importance of the public interest in public law litigation and its importance in determining where the balance of convenience lies.  It is with those principles in mind that I turn to determine this application.

I should now set out the factual background to the application
because of its relevance to both whether or not there is a
serious question to be tried, in the sense of the plaintiffs’
having established a prima facie case, and where the balance of convenience might lie, with the public interest steadily in mind.

A chronology was provided by the respondent to the application, the correctness of which has not been sought to
be impugned by the applicants.  In doing so, the respondent,
Queensland Electoral Commission, stressed that it saw its role
as that set out in conformity with the judgment of the
Australian Administrative Tribunal in Woollard v. The
Australian Electoral Commission and the Liberal Party of
Australia (WA Division) Inc (2001) 32 AAR 492; [2001] AATA 166 and that is that it takes an impartial role. Its role in this Court has been to assist the Court in the construction of the Act and in considerations relating to the electoral process generally.

In a case such as this, where there is no other contradictor,
then as Mr Flanagan SC submitted on behalf of the Commission, it is left in the position of having to put all arguments to the Court that fairly bear upon the considerations relevant to the decision.  It should be made explicit that the Commission has not deviated from presenting its argument in that objective way.

I turn to the chronology of events which was presented and has been expanded in argument and reference made to the documents filed before me from which that information is taken.  On 11 August 2011, that is last year, the National General Secretary of the political party, known as Katter's Australian Party, made an application for registration of the second applicant, Katter's Australian Party (Qld Division) as a registered political party under the Queensland Act.

Shortly thereafter, an application for Commonwealth registration was refused and on 18 August 2011, the National General Secretary of Katter's Australian Party made an amended application for registration under the Queensland Act. That application was accepted and on 20 September 2011, the Queensland Electoral Commissioner advised that under s 73 of the Queensland Act, the name “Katter's Australian Party (Qld Division)” had been entered into the Register of Political Parties in Queensland.

What happened thereafter is germane to these matters.  On
20 December 2011, the second applicant, Katter's Australian Party (Qld Division) made an application in the approved form to register an abbreviation of the party’s name.  The application said, "I hereby apply to have the following abbreviation of the party's name entered in the register". The abbreviation given was "The Australian Party".
...

HER HONOUR:  Upon looking at the registration, I realise that the name of the second applicant is slightly different from the name of the registered party and so I have given leave without objection for the second applicant's name to be amended on the originating application to conform with that found as its registered name which is Katter's Australian Party (Qld Division).

...

HER HONOUR:  An application for the registration of an abbreviation may be made under s 77 of the Queensland Act, which provides that an application may be made to the Queensland Electoral Commission for the amendment of the information in the Register of Political Parties in relation to a registered political party.  There has been no suggestion that the application was not made in a regular way.  Once such an application is made, section 77(4) requires the Queensland Electoral Commission to treat it as if it were an application for registration of a political party.

Conformably with those requirements advertisements were placed
inviting objections to the application.  They were placed in
the Queensland Government Gazette and in The Courier Mail, a
newspaper which circulates throughout Queensland.  The notice
in the Gazette provided as follows:

"The Electoral Commission of Queensland has received an
application under the provisions of Part 6 of the Electoral
Act 1992 to make the following change in the Register of
Political Parties -
Name of party: Katter's Australian Party (Qld Division)
Party's name as it is shown on ballot papers now: Katter's
Australian Party (Qld Division)
Proposed abbreviation of the party's name to be shown on
ballot papers:  The Australian Party"

• Change the abbreviation of the party's name shown on ballot papers. 

The notice in the Gazette and in The Courier Mail invited
members of the public and any others who were interested, if
they believed the amendment should not be made, to submit that
to the Queensland Electoral Commission by Monday 23 January
2012, setting out a statement as to the grounds for the
person's belief.

The reasons presumably why the Queensland Electoral Commission
described the process in the way in which it did, that is the
proposed abbreviation of the party's name to be shown on the
ballot papers, is because section 71(4)(b) of the Queensland Act provides that, "An application for registration must be made to the Commission in a form approved by the Commission for the purposes of this section and must, if the political party wishes to use an abbreviation of its name on ballot papers for elections, set out the abbreviation".

It would also have been made in that way because section 102(2)(g)(i) of the Queensland Act provides that, "Ballot papers for an election, for an electoral district, must, if the candidate endorsed by registered political parties was nominated under section 88(1)(a) [which is the case here] - contain, printed adjacent to the candidate's name, if the register of political parties includes an abbreviation of the party's name - the abbreviation". In spite of the valiant attempt by the applicants to argue that the provision is ambiguous, it is quite clear.

The notice in the Gazette and the advertisement caused the
receipt of three objections.  Those are exhibited to the
affidavit by the Queensland Electoral Commissioner.  Those
objections were sent to the Registered Officer for the second
applicant.  The Registered Officer for the second applicant
was invited to respond to those objections and was informed
that the Queensland Electoral Commissioner would consider the objections and his comments in relation to them, when determining in accordance with the Queensland Act, whether to amend the Register of Political Parties to add the abbreviation, “The Australian Party”, that it sought.

In the letter to the second applicant, the letter of the
second applicant commences, "As you know, the Commission
advertised the party's application to amend the Register of
Political Parties by adopting the abbreviation 'The Australian
Party' for use on ballot papers in the Gazette of Friday, 23
December 2011 and The Courier Mail on Saturday, 24 December
2011".

A response was received from the second applicant on
23 January 2012.  It commenced, "I refer to the correspondence
received from your Mr David Gottke covering objections to amend the Register of Political Parties by adopting the abbreviation The Australian Party for use on ballot papers.  Please find below my reply to the objections."

In particular, he submitted that the abbreviation was not misleading or confusing and set out arguments as to why that was so.  In particular, and no doubt in reference to the reasons that the Commonwealth Electoral Commissioner had refused the registration, he pointed out that in Queensland there was no likelihood of confusion between the proposed abbreviation and those parties' abbreviations listed in the register, as only one other party used the word "Australian".  It should be noted that one other party used the word "The", which was not at that time a matter of any moment but the use of the definite article is apparently now of some relevance.  He argued, historically and legally, there could not be any objection to the registration of the abbreviation.

It could not have been clearer that, even if the second
applicant had not read the correspondence or the
advertisements carefully, nor indeed was familiar with the
provisions of the Queensland Act, that the use of the words by
the second applicant showed that the second applicant was very well aware that the abbreviation was "for use on ballot papers".  That is relevant to the question of delay in this case.

The Queensland Electoral Commissioner has set out the Register
of Political Parties in Queensland.  It shows that only one
other party, The Australian Labor Party (State of Queensland)
has a registered abbreviation with the word "Australian" in
it.  That registered abbreviation is Australian Labor Party.
It also shows, as I mentioned incidentally, that one political
party, Queensland Greens, has a registered abbreviation "The
Greens", the significance of which I will return to.

On 31 January 2012, the Queensland Electoral Commission wrote to the second applicant saying that it had considered the comments objecting to the party's proposed adoption of the abbreviation "The Australian Party" and had given careful consideration to them and it also considered the views of the second applicant.  The Commission had, he said, amended the Register of Political Parties to include the abbreviation ”The Australian Party" for Katter's Australian Party (Qld Division) and told the second applicant that notice of the change would be printed in the Gazette on 3 February 2012.

It should be perfectly clear that the reason why the second
applicant, Katter's Australian Party (Qld Division), is to be
known by the abbreviation "The Australian Party" is because it
applied for that abbreviation and that abbreviation was
allowed by the Queensland Electoral Commission.  Further, it
was explicit in the correspondence that the second applicant
knew that the abbreviation "The Australian Party" would be
used on the ballot paper.

On 19 February 2012, a writ for election was issued by her Excellency Penelope Wensley AC, the Governor of Queensland.  It provided for specific dates, as it is required to do.

It provided that the cut-off day for electoral rolls for the State election would be 25 February 2012.  The cut-off date for the nomination of candidates would be 27 February 2012.  Polling day was to be 24 March 2012 and the date for the return of the writ is said, in paragraph 5, to be 23 April 2012.

On 24 February 2012, Mr Shaw, styling himself as a Campaign
Director for the second applicant, sent a copy of a "How to
vote" card to the respondent Electoral Commissioner for the
approval of the Queensland Electoral Commissioner setting out under the name of the candidate for Katter's Australian Party (Qld Division) on the proposed ballot paper, the abbreviation “The Australian Party” as provided by the Act.  Those proofs of "How to vote" cards were approved by the Electoral Commissioner, subject to certain conditions which are not here relevant.

Notwithstanding that history, on 27 February 2012, a week ago, a person styling himself the National General Secretary of Katter's Australian Party sent a letter to the Queensland Electoral Commissioner advising him that Katter's Australian Party required that the full party name, that is Katter's Australian Party (Qld Division), appear on the ballot paper next to the name of each candidate, rather than the abbreviation, as had been listed on the “candidates in ballot paper order” on the Commission's website.  That letter was sent by email at 11.35 p.m.

On 28 February 2012, Mr Rowe, on behalf of Katter's
Australian Party (Qld Division) wrote to the Queensland
Electoral Commissioner saying, "Please take immediate action
to remove from the Register of Political Parties the
abbreviation ‘The Australian Party’”. Notwithstanding its lack of form, the Queensland Electoral Commissioner was prepared to take this to be an application to alter the registration of the party. However, section 73(3) of the Queensland Act, unsurprisingly, provides that the Commission must not take any action in relation to an application to register a political party during the election period in relation to an election. The election period commenced the day after the writ was issued, that is on 20 February 2012.

Accordingly, the Queensland Electoral Commissioner is precluded from considering an application to amend the registration and the Queensland Act precludes his referring to the second applicant on a ballot paper by any other name than the abbreviation which the second applicant itself sought to have registered and which it said in at least one letter, it knew was to be registered for that purpose.

On 28 February 2012 Mr Rowe, as National General Secretary of Katter's Australian Party also wrote to the Operations Manager of GoPrint informing him that the party intended to seek injunctive relief.  He was encouraged to take account of that in determining the printing schedule of ballot papers which GoPrint had presumably been instructed to do by the Queensland Electoral Commission.  It would have been entirely improper for the manager of GoPrint to take any notice of any instruction given to it other than by the Queensland Electoral Commission or in accordance with an order made by this Court.

On 28 February 2001, the Queensland Electoral Commissioner informed the National General Secretary of Katter's Australian Party of the fact that he was precluded by law from making amendments to the Register of Political Parties during the election period.

On Tuesday of last week, 28 February 2012, the Commissioner
received notice from solicitors for the applicants that the
applicants would be applying for an injunction before the
Court and requesting that the printing of ballot papers should
be stayed until it was determined which name should appear on
the ballot papers.  Of course, unless and until the
Commissioner is restrained by this Court, or it is contrary to
the Queensland Act, he must comply with his statutory duties in the conduct of the elections and, accordingly, given the provisions of the Queensland Act, he is in my view obliged to do precisely what he is presently doing.  He has informed the applicants of that situation and informed them that the distribution of ballot papers had commenced in order to allow pre-poll voting to take place from Friday 2 March 2012.

This being Monday 5 March 2012 that has, of course, occurred,
as is sworn in Mr Kerslake's second affidavit.  Approximately
6.5 million individual ballot papers, out of a total of
approximately 7.16 million, have been printed.  Of those
6.5 million that have been printed, only approximately 450,000
are yet to be distributed and pre-poll centres have already
been supplied with some ballot papers and I was informed today
that pre-poll voting has already commenced.

The first question to be determined is whether or not the
applicants have shown a prima facie case for the grant of
relief in the sense in which I have mentioned the cases referred to.  The application was put on a number of bases.  The first was to seek an injunction under the Queensland Act,
under section 196.  I should immediately mention subsection
(7) which provides that "The Court may refuse to grant an
injunction if it appears to the Court that the application was
not made to the Court at the earliest possible opportunity".

The long history which I have traversed shows that it is beyond doubt that the application was not made to the Court at the earliest possible opportunity.  On the contrary, in the knowledge that that the abbreviation would be the name by which the second applicant would be known on the ballot papers, the applicant continued to advocate that that should be the case until about a week ago.  Even though it changed its mind about that and was minded to bring an injunction application within the electoral period, knowing the restrictions that there must be on the Queensland Electoral Commission, it did not immediately file an application for an
injunction.  It could not be said that the application was
made to the Court at the earliest possible opportunity.

However, returning to the grounds for seeking it, the Court
has the power under section 196(3) of the Queensland Act to grant an interim injunction pending the determination of the application.  An injunction may be granted under section 196(1) if either an offending party has engaged, is engaging, or is proposing to engage, or has failed, or is failing, or is proposing to fail to do anything, and the conduct or failure constituted, constitutes, or would constitute a contravention of or an offence against the Queensland Act.

It is extremely difficult to understand how the Queensland
Electoral Commission could be alleged to be contravening the
Queensland Act when my examination of the Act, as referred to so far in these reasons, shows that its actions are resolutely in accordance with the Act.

The argument appears to be that the Queensland Electoral Commissioner contravened the Act by accepting the application by the second applicant to amend its registration to include as its abbreviation the name "The Australian Party".  This is a somewhat unusual argument, since it was the Commission's acceptance of the arguments put forward by the second applicant that the second applicant now relies upon to argue that the Commission has contravened the Act.  Nevertheless I shall consider the arguments.

It is argued that the term "The Australian Party" cannot, as a
matter of law, be an abbreviation of “Katter's Australian Party (Qld Division)”.  This is said to be because the definite article "the" is used and since the definite article is not used in the longer name, it cannot be used in a shortened or contracted form of the phrase.  As can be seen from the Register of Political Parties in Queensland, as I have already mentioned, there is another political party with the definite article in its abbreviated name, which does not appear in its longer name.  It is irrelevant whether or not the abbreviation includes the definite article.  It cannot mean that it is not an abbreviation of the longer name.

The second argument is that the name sought by the second
applicant as its abbreviation is confusing or at least that it
has the potential for confusion.  This was said to be an
independent substantive ground.  This argument seems to have
some basis because the Australian Electoral Commission refused an application to register Katter's Australian Party, partly because the party abbreviation requested was "The Australian Party".

An objection was received to that name and the Australian
Electoral Commission determined that prima facie there was a
resemblance between the proposed abbreviation and six
registered party names, that is parties registered with the
Australian Electoral Commission.  That led to the Australian
Electoral Commission taking the view that it could well be
confusing and refusing the registration.  Of course, that
decision by the Australian Electoral Commission relates to the
registration of the party under the Commonwealth Electoral
Act.

There are different political parties registered under the
Commonwealth Electoral Act from those registered under the Queensland Act it is a question of fact in each case, whether or not it is confusing.  Given that the Queensland Electoral Commissioner has already determined on the arguments made by the second applicant that it would not be confusing, and there is nothing to suggest that the Commissioner's decision was wrong, it could not be said that there is any merit at all in the argument that the Queensland Electoral Commissioner was involved in any contravention of the Queensland Act by registering the abbreviation sought by the second applicant.

I have stated the arguments fairly briefly and they were
expanded upon but that is sufficient for our purposes today when I must give a decision immediately because, as I have said, of the urgency of the application and the consequences of the Court not dealing with it immediately.

In addition to those arguments, the applicants argued that it
had two constitutional arguments which would mean that
section 102(2)(g) of the Queensland Act was unconstitutional
and therefore invalid. Section 102(2)(g) is the section that
provides that ballot papers for an election must, in the
circumstances that here prevail, contain printed, adjacent to
the candidate's name, where the Register of Political
Parties includes the abbreviation of the party's name, the
abbreviation.

The arguments as to that being constitutionally invalid fall into two categories: firstly, that it is invalid for direct and indirect inconsistency with Commonwealth legislation under section 109 of the Commonwealth Constitution; and, secondly, that it is an impermissible burden on the freedom of political communication.

The first thing to be said about the inconsistency argument is
this: the Commonwealth Act governs the operation of
Commonwealth elections; the Queensland Act governs the operation of State elections.  The functions of the Queensland Electoral Commission under the Queensland Act include "to perform functions that are permitted or required to be performed by or under this Act, other than functions that a specified personal body or the holder of the specified office is expressly permitted or required to perform".

Section 7(3) provides that "The Governor of Queensland may
arrange with the Governor-General for the performance by the
Australian Electoral Commissioner of any functions on behalf
of the Queensland Commission", but that cannot suggest that
the Act which governs the operation of Queensland elections and the Queensland Electoral Commission is invalid if it is different from the Act which governs the operation of Commonwealth Elections and the Australian Electoral  Commission.  In fact, it is difficult for me to understand how the contrary could be argued.

It is perhaps better if I do not descend into the particulars of that since the argument will be no doubt traversed once the
section 78B notices have been attended to and the attorneys
have determined whether or not they wish to appear.  Suffice
it to say, I am not satisfied that there is a prima facie case
of any argument on direct or indirect inconsistency under the
Commonwealth Electoral Act and the Queensland Electoral Act.

The next constitutional argument was that it represented an impermissible burden on freedom of political communication. I accept unreservedly that ballot papers are a form of political communication but the question is whether there is a prima facie case that section 102(2)(g) could be considered an impermissible burden on that communication.

Again, I should refrain from expressing any final views either
way, but parliamentary democracy requires that the conduct of
elections must be regulated in an open and transparent way.
The most effective open and transparent regulation of
elections is through legislation, which is available to all
persons.  This legislation is clear.  The second applicant was
not required to register an abbreviation but the effect of
doing so is set out in the Act.  As I have said, I am not
expressing a final view, but as presently advised I
cannot see that there is a prima facie case that
section 102(2)(g) of the Queensland Act, could be considered an impermissible burden on the freedom of political
communication.

In the circumstances, in my view, the applicants have not
demonstrated a prima facie case, although, as I have said, on
the constitutional questions that must await further
argument. 

On the balance of convenience, it is quite clear that it is in the public interest that an election which has not been shown to being conducted otherwise than in accordance with the law should proceed.  It is in the public interest in a parliamentary democracy for elections to take place and the
balance of convenience does not favour the grant of the
injunction, even if my views on the prima facie case are
incorrect.  Accordingly, I refuse any interim relief.  The
matter is adjourned till Wednesday 7 March.  Costs
reserved.

-----