The Fishing Party and and The Australian Fishing and Lifestyle Party

[2009] AATA 170

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 170

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4990

GENERAL ADMINISTRATIVE  DIVISION		)
Re		The Fishing Party

Applicant

And Australian Electoral Commission

Respondent

And The Australian Fishing and Lifestyle Party

Joined Party

DECISION

Tribunal Justice Tamberlin, Presidential Member
J. Kelly, Senior Member
N. Isenberg, Senior Member

Date17 March 2009

PlaceSydney

Decision 1)     The decision under review is affirmed.

..................[sgd]............................

Presidential Member

CATCHWORDS

ELECTORAL LAW – registration of political party under Commonwealth Electoral Act 1918 (Cth) – whether Commission erred in registering The Australia Fishing and Lifestyle Party as a federal party – whether registration invalid due to fraud or misrepresentation – whether party names so similar as to cause confusion or mistake at the ballot box – whether s 131(4) of the Commonwealth Electoral Act 1918 (Cth) requires a varied application to be treated as a new application – whether change of party name unauthorised - decision under review affirmed.

RELEVANT ACTS:

Commonwealth Electoral Act 1918 (Cth): s 126, 131, 141,

Electoral and Referendum Amendment (Electoral and Other Measures) Act 2006 (Cth)

CITATIONS

Re Woollard v Australian Electoral Commission & Ors [2001] AATA 166

REASONS FOR DECISION

17 March 2009 Justice Tamberlin, Presidential Member, J. Kelly, Senior Member, N. Isenberg, Senior Member    

1.      This is an application for review of a determination by the Australian Electoral Commission (the Commission) to affirm a decision by a delegate of the Commission to register the Australian Fishing and Lifestyle Party (the Lifestyle Party) as a political party under the Commonwealth Electoral Act 1918 (Cth) (the Act).

2. The broad question before the Tribunal is whether the Commission’s determination to affirm the delegate’s decision under s 141(4) of the Act was the correct or preferable decision.

History of the matter

3.      The application is brought by The Fishing Party, which was represented by the secretary, Mr Robert Smith. The Fishing Party is a federally registered political party under the Act. In addition, it is registered as a political party under the electoral legislation at State level in Queensland and New South Wales. For the purposes of this decision, the Queensland State party shall be referred to as “The Fishing Party (Qld).”

4.      On 22 December 2006 The Fishing Party (Qld) applied to the Commission for registration under the Act as a federal political party, using the name “The Fishing Party.”

5.      Only 5 days later, on 27 December 2006, the federal body registered as The Fishing Party was deregistered under the Act due to that party’s failure to comply with requirements under the Electoral and Referendum Amendment (Electoral and Other Measures) Act 2006 (Cth) (the Electoral and Other Measures Act). The evidence before the Tribunal is that The Fishing Party had due warning this would occur, but we note that Mr Smith says that he was told over the phone by a Commission officer that the party need not comply strictly with the cut-off date and that those who applied promptly for registration would have their applications expedited.

6. Notwithstanding that the Fishing Party had been deregistered federally, on 10 May 2007 the Commission wrote to The Fishing Party (Qld) in relation to its December 2006 application, informing it that there was a party already registered under the Act with the name The Fishing Party, and giving The Fishing Party (Qld) an opportunity to vary its application under s 131 of the Act. On 24 May 2007 The Fishing Party (Qld) sent in a new application form for registration as “The Australian Fishing and Lifestyle Party” (the Lifestyle Party).

7.      Public notice of the Lifestyle Party’s application for registration was given on 4 July 2007, and objections were invited from the public.

8.      On 12 and 16 July 2007 Mr Smith wrote to the Commission informing it that The Fishing Party was currently in the course of re-registration, and objecting to the registration of The Lifestyle Party on the grounds that it “will give voters the wrong Federal Party direction as being related to the Fishing Party and [that] as a matter of other interest its abbreviation of AFLP could also be confused with the Australian Labor Party – ALP.” Mr Smith also raised the objection that The Fishing Party believed that the names of existing members had been used by the Lifestyle Party to support its application for federal registration.

9.      On 21 August 2007 Mr Dacey, the Deputy Electoral Commissioner, recommended that approval be granted for registration of the Lifestyle Party, and it was subsequently entered into the Register of Political Parties on that date.

10.     On 22 August 2007 Mr Smith again wrote to the Commission with concerns about the registration of the Lifestyle Party, alleging that the Lifestyle Party had wrongly and without authority attempted to change the name of The Fishing Party to the Australian Fishing and Lifestyle Party. In his letter Mr Smith also alleges that the members of the Fishing Party (Qld) who were sampled by the Commission as part of the registration checking process were asked whether they were members of “The Fishing Party” or “The Fishing Party (Qld),” and he submits that therefore these letters from the Commission could be misleading because they were not limited to ascertaining membership of “The Fishing Party (Qld).”

11.     We are not persuaded on the evidence before us that any members were mislead in responding to these letters so as to support a conclusion that the challenged registration was invalid.

12.     Although we do not rely on this as determinative, it is worth noting that, at the time the registration and membership checking was being carried out by the Commission in relation to the Lifestyle Party’s application, The Fishing Party was not currently registered as a federal political party due to its deregistration under the Electoral and Other Measures Act.

13. On 28 August 2007 the Fishing Party applied for a review of the Delegate’s decision to grant registration of the Lifestyle Party. This was treated as an application for review under s 141 of the Act, and was considered by the Commission at its meeting on 28 September 2007, when the Commission affirmed the delegate’s decision to register the Lifestyle Party.

14. The present application to the Tribunal was filed on 15 October 2007. Although the application itself refers to a decision made on 21 August 2007, the decision that is reviewable under s 141(5) of the Act is that of the Commission, made on 28 September 2007.

Grounds of the application

15.     Mr Smith contends that the Lifestyle Party should not have been registered for the following reasons: firstly, that the revised application submitted by The Lifestyle Party on 24 May 2007 ought to be treated as a new application and not as a variation of the application in the name “The Fishing Party”, and therefore it was invalid; secondly, that the change of party name was unauthorised and had the consequence that the party could not rely on the 1064 persons they had identified as members; thirdly, that the statutory declaration in support of The Lifestyle Party’s original application, signed by Mr Richard Night Bayne, was false; fourthly that The Lifestyle Party obtained its registration through fraud or misrepresentation, to satisfy the requirements of s 126 of the Act; and finally, that the similarity between the party names is misleading or confusing.

Effects of varied application

16.     Mr Smith says that because the original application for registration of the Lifestyle Party was varied, then the varied application should have been treated as a new application by the Commission, and the Commission was therefore under an obligation to begin the checking and verification process from the start.

17.     Subsection 131(4) of the Act provides that, where notice is given to a party seeking registration of an opportunity to vary its application, the application as varied is to be treated for the purposes the section as if it were a new application. Mr Smith submits that if this is the case, then the varied application for registration submitted on 24 May 2007 by The Lifestyle Party is a new application and is incomplete, as it was not submitted with new membership lists or any supporting documentation, as required by s 126 of the Act.

18. The respondent submits that s 131(4) of the Act only requires a varied application to be treated as a fresh application for the purposes of s 131. It does not require, for example, the payment of a further application fee or the resubmission of membership lists. Where a s 131(1) notice to vary is given to a party, the Commission cannot further consider the application for registration until the party resubmits the application form requesting a variation be made (in this instance, to the name of the party). There is no requirement under the Act that if a variation to an application is made the material that has already being provided to the Commission must be updated. Under s 131(4), a varied application will be treated for the purpose of subsequent steps as if it were the original application.

19.     Dr Perry submits for the respondent that the purpose of the inclusion of subsection (4) is to prevent the party seeking registration from repetition and having to start all over again, by paying the application fee and providing the copy of the constitution. Once this occurs, the Commission is required to comply with the variation request and treat the application from then on as if it were a new application.

20.     The respondent also makes the point that if subsection 131(4) were read to indicate that a varied application be treated as a fresh application for the purposes of the Act as a whole, as submitted by the applicant, then this would mean that there was effectively no power to vary an application because each asserted variation would, in truth, be a new application, meaning that a party would have exactly the same obligations to pay the fee again, and to provide all the documentation again for example, and there would be no point in making a provision for variation under the Act.

21.     Accordingly, the respondent submits that the validity of the varied application submitted by The Lifestyle Party was not affected by the fact that supporting material was not lodged again. The Tribunal agrees with this interpretation of the Act.

Unauthorised change of party name

22.     Mr Smith submits that the Fishing Party (Qld) changed its name to the Lifestyle Party without the authority of its members. Mr Smith’s says that the members of the Fishing Party (Qld) were members of a state branch of the federal Fishing Party. He says that the party has been receiving complaints from members who understood themselves to be signed up as members of the Fishing Party and not the Lifestyle Party.

23.     Mr Smith refers to the sign-up page of the Fishing Party (Qld) website, in evidence in the hearing, which states that the party is the state branch of the federally registered Fishing Party, with its national executive in Singleton, NSW. He also refers to the membership form signed by those members of the Fishing Party (Qld), which is an AEC Appendix 1 federal party membership application form.

24.     At the Tribunal hearing, Dr Perry submitted on behalf of the respondent that the change of the Lifestyle Party’s name did not of itself create a new entity or sever the relationship of that party with its members. If those persons were members of the party which had applied for registration in December 2006 then, absent any evidence of mass resignation or dissolution of that party, they must be taken to have remained members after the name change.

25.     The Tribunal notes that several letters and emails from members of the Fishing Party (Qld), expressing their disapproval with the name change, were tendered in support of the application. However, it is important to note that this disapproval relates to a dispute which arises from an internal division within the Fishing Party itself, and that these conflicts are not the concern of the Commission on an application for registration. The Commission has no power or obligation to investigate whether a party is following its own constitution. It is not the role of the Commission to adjudicate on internal differences within a body applying for federal registration. It is a matter of concern within the body itself where there is an internal difference of view between the federal body and the state branches. The Commission is concerned that there is compliance with the requirements of the Act which must be ratified before registration.

Statutory declaration of Mr Bayne

26.     Mr Smith contends that Mr Bayne signed a false statutory declaration on the registration application form submitted to the Commission by the Fishing Party (Qld) on 22 December 2006. He submits that Mr Bayne signed himself as “secretary” of the Fishing Party, when in fact the secretary of the Fishing Party is Mr Smith.

27.     There was no specific evidence led by the applicant in support of this argument at the hearing. Mr Shawn O’Brien, a delegate of the Commission, gave evidence [at T64] that the accepted procedure within the Commission, if a false statutory declaration is submitted, is to refer the matter to the Director of Public Prosecutions for advice. However, Mr O’Brien was not shaken in his statement that the Commission had, at the time of application, and at the present time, not believed that the statutory declaration submitted in support of the registration application for the Lifestyle Party was false.

28.     The respondent submits that whether or not Mr Bayne swore a false statutory declaration would have no bearing on whether the Lifestyle Party met the membership criterion for registration as a federal party. The respondent further submits that if a sufficient number of persons who had signed each of the 1064 membership forms submitted by the Lifestyle Party in support of its registration were not in fact members of the party seeking registration (the Lifestyle Party), this could affect the Lifestyle Party’s eligibility to be registered, but no cogent evidence was adduced at the hearing which could support such a contention. We agree with these submissions.

Registration obtained through fraud or misrepresentation

29.     Mr Smith submits that the Commission, in accepting the Lifestyle Party for registration as a federal political body, contravened s 7 of the Act and ‘interfere[d] with the political affiliation of federal members of the Fishing Party.’ The Commission denies that it has contravened the Act or sought to interfere with the political affiliations of any person. The Tribunal finds that there is no evidentiary basis for the applicant’s assertion on this issue.

30.     Mr Smith further submits that the Lifestyle Party obtained registration through fraud or misrepresentation, in that the Lifestyle Party cited as members of the Fishing Party in support of the application. In other words, it submits that the members whose names and signed membership forms were sent to the Commission to support the Lifestyle Party’s application for registration were members of the Fishing Party, not the Lifestyle Party, and that as a result the Commission incorrectly registered the Lifestyle Party using paid and signed up members of the Fishing Party.

31.     At the hearing, Mr Smith framed the above allegation of fraud in terms of s 137 of the Act, which provides for the deregistration of political parties where certain grounds are made out. Specifically, s 137(1)(c) provides the Commission with the power to deregister a party where it is satisfied, on reasonable grounds, that the registration of the party was obtained by fraud or misrepresentation.

32.     The Commission denies the existence of any fraud or misrepresentation in accepting the Lifestyle Party for registration. However, they submit that, should it be determined by the Tribunal that registration was obtained by fraud or misrepresentation, whilst this may be a matter for comment it does not advance Mr Smith’s position before the Tribunal, because the Tribunal must decide whether, on the material before it, the Lifestyle Party meets the statutory test for registration.

33.     The Tribunal is not satisfied on the evidence adduced by Mr Smith that the serious allegation of fraud has been made out, or that there has been any misrepresentation.

34. Part XI of the Act provides for the registration of political parties. Under s 124, an ‘eligible political party’ may be registered for the purposes of the Act; ‘eligible political party’ is defined by s 123(1) to mean a political party that has at least 500 members and is established on the basis of a written constitution that sets out the aims of the party. Under s 126 of the Act, a party must apply for federal registration in writing and must include a list of the names of the 500 members of the party to be relied on for the purposes of registration. Section 126(2A) specifies that two or more parties cannot rely on the same member for the purposes of qualifying as an eligible political party.

35.     The Tribunal heard evidence from Mr Shawn O’Brien, a delegate of the Commission. At [34] of his affidavit, Mr O’Brien refers to the membership cross-checks carried out as part of the processing of the Lifestyle Party’s application for registration. He details how the membership list of the Fishing Party was manually cross-referenced against the membership list of the Lifestyle Party, and it was found that no duplication in members’ names existed between the Lifestyle Party and any other party, including the Fishing Party.

36.     At [35] of his affidavit, Mr O’Brien also testifies that he had compared the memberships of the Lifestyle Party and the Fishing Party on 29 July 2008 for the purposes of drafting his affidavit, by way of the scrolling through the membership lists on the Commission’s computer system, and he determined that the list of members provided in support of the Lifestyle Party’s application for federal registration were solely from Queensland addresses, whilst the list of members for the Fishing Party contained members from various states, primarily New South Wales, but had no members listed as living in Queensland. From this, Mr O’Brien concluded that no members who were counted for the registration of the Fishing Party were also relied on by the Lifestyle Party in their application for federal registration. In the absence of any contradiction of this evidence the Tribunal accepts that there has been no duplication of members’ names in relation to the application.

37. The respondent says that the fact that the members whose membership supported the application for registration were members of the Fishing Party did not mean that there were not also members of the Lifestyle Party, as there is nothing in the Act to prevent the state branch of a federally registered body being separately registered on a federal level. Dr Perry submits, and we accept, that s 126 specifically envisages the possibility that a person may be members of more than one political party. Section 126(ii)(a) provides a mechanism whereby a person whose membership has been put forward in support of two separate applications for federal registration of two different parties can elect not between their party membership, but as to which application for registration they support. There is no requirement under the Act for a party member to choose membership within one party at the expense of the other. What the Act requires is that the 500 memberships submitted in support of an application uniquely support that application, as opposed to requiring that they must be members only of one political party.

Similarity between party names misleading or confusing

38.     Section 129(1) of the Act provides that:

Section 129 - Parties with certain names not to be registered

(1)  The Commission shall refuse an application for the registration of a political party if, in its opinion, the name of the party or the abbreviation of its name that it wishes to be able to use for the purposes of this Act (if any):

(d)  so nearly resembles the name, or an abbreviation or acronym of the name, of another political party (not being a political party that is related to the         party to which the application relates) that is a recognised political party           that it is likely to be confused with or mistaken for that name or that           abbreviation or acronym, as the case may be; or

(da)  is one that a reasonable person would think suggests that a         connection or relationship exists between the party and a registered   party if that connection or relationship does not in fact exist (Emphasis       added).

39.     The purpose of this provision is identified in the matter of Re Woollard v Australian Electoral Commission & Ors [2001] AATA 166 as being to avoid confusion or mistake by voters at the ballot box. Presidential Members Gray, French and Nicholson JJ say at [23]:

The confusion or mistake that is relevant… is that of the elector preparing to vote by marking the ballot paper at an election. It is the judgement of the elector in that brief time in the polling booth that is to be protected.

The respondent submits that there can be no suggestion, in this proceeding, that someone going to the federal ballot box would be confused about whether the Lifestyle Party was, in fact, the Fishing Party, and that as this is the relevant test, this argument by the applicant is not made out.

40.     The Commission has previously formed the opinion that the two names of the Fishing Party and the Australian Fishing and Lifestyle Party are not sufficiently similar as to be misleading or confusing. No argument was advanced by Mr Smith in support of this contention. We agree with this determination because the words “and Lifestyle” are sufficient to aurally and visually distinguish the two parties as separate entities without risk of confusion or mistake, and would prevent a reasonable person from thinking there was any connection or relationship between the two parties.

41.     For the above reasons the decision under review is affirmed.

42.     The Tribunal is greatly indebted to Mr Collins for making himself available to assist in this matter by giving evidence during the course of the hearing.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Tamberlin, SM Kelly and SM Isenberg

Signed:         .............[sgd]...................................................................
  Associate

Dates of Hearing   17-18 November 2008
Date of Decision  17 March 2009
Appearance for the Applicant   Mr R. Smith
Counsel for the Respondent     Ms M. Perry QC
Counsel for the Respondent     Mr G. Kennett
Solicitor for the Respondent     Ms L. Tolland