Watson and Australian Electoral Commission

[2018] AATA 4914

Watson and Australian Electoral Commission [2018] AATA 4914 (20 December 2018)

Division:GENERAL DIVISION

File Number:          2017/3419

Re:Louise Watson  

APPLICANT

Australian Electoral CommissionAnd  

RESPONDENT

AndAustralia First Party (NSW) Incorporated

JOINED PARTY

Decision

Tribunal:Justice A Robertson, Deputy President

Senior Member R Pintos-Lopez

Senior Member R Cameron

Date of decision:               20 December 2018

Date of written reasons:         4 February 2019

Place:Melbourne

The Tribunal affirms the decision under review, being the reviewable decision made by the Australian Electoral Commission in May 2017. 

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

The Honourable Justice A Robertson, Deputy President

ELECTIONS – whether the application by the Australia First Party (NSW) Incorporated to enter in the Register of Political Parties the logo set out in its application should be granted – Commonwealth Electoral Act 1918 (Cth) s 129A – logo including the Eureka flag – whether, in the Tribunal’s opinion, the applicant’s logo is the logo of any other person – whether, in the Tribunal’s opinion, the applicant’s logo so nearly resembles the logo of any other person that it is likely to be confused with or mistaken for that logo

Legislation

Acts Interpretation Act 1901 (Cth) s 23(b)
Commonwealth Electoral Act 1918 (Cth) ss 129A, 134, 141
Commonwealth Electoral Amendment Act 2016 (Cth)

Commonwealth Electoral (Logo Requirements) Determination 2016 (Cth)

Cases

Environment Protection Authority v Rashleigh [2005] ACTCA 42; 159 ACTR 8
Federal Commissioner of Taxation v Swift [1989] FCA 593; 18 ALD 679

Woollard and Australian Electoral Commission [2001] AATA 166; 32 AAR 492

REASONS FOR DECISION

The Tribunal

4 February 2019

Introduction

1. The issue is whether the application by the Australia First Party (NSW) Incorporated (Australia First) to enter in the Register of Political Parties (Register) the logo set out in its application is to be granted.

2. By s 134 of the Commonwealth Electoral Act 1918 (Cth) (the Act), where a political party is registered under Part XI, an application may be made to the Australian Electoral Commission (Commission) to change the Register by entering in the Register the logo set out in the application: see s 134(1)(eb).

3. The Commission made a decision in May 2017 under s 141(4) of the Act affirming the decision of the delegate of the Commission made on 13 October 2016 to grant an application by Australia First, made on 13 April 2016, to enter in the Register that party’s logo.

4. By s 141(5) of the Act, application may be made to this Tribunal for review of such a decision. Such an application was made by Ms Louise Watson on 9 June 2017. Ms Watson was one of the objectors to whom written notice under s 133(1)(c) of the Act was given by the Commission that it had entered the logo in the Register. On 9 November 2016, Ms Watson had requested a review of the delegate’s decision dated 13 October 2016.

5. No action may be taken in relation to any application to change the Register during the period commencing on the day of the issue of a writ for a Senate election or a House of Representatives election and ending on the day on which the writ is returned: see s 127 and s 134(4) of the Act. This explains the suspension of activity by this Tribunal over a number of periods. It is also the reason this Tribunal has given its decision expeditiously.

   The central provision of the Act

6. By s 129A of the Act, certain party logos are not to be entered in the Register. That section is in the following terms, so far as relevant:

   129A Certain party logos not to be entered in the Register

   The Electoral Commission may refuse to enter in the Register a logo of a political party (the applicant), set out in an application to register the applicant, if, in its opinion, the applicant’s logo:

   (a)      …; or

   (b)      is the logo of any other person; or

   (c) so nearly resembles the logo of any other person that it is likely to be confused with or mistaken for that logo; or

   (d) is one that a reasonable person would think suggests that a connection or relationship exists between the applicant and a registered political party if that connection or relationship does not in fact exist; or

   (e) ….

7. The application by Australia First was made by three members of the party: Mr William Waterson, Dr James Saleam and Ms Tania Rollinson: see s 134(1)(b) of the Act.

8. A party’s logo, when entered in the Register, may be printed on ballot papers: see s 214A read with s 209 and Sch 1 of the Act. The name of the registered political party would appear adjacent to any logo of that party.

   The logo 

9. The logo of Australia First set out in its application is as follows:

10. By s 126(2AA) of the Act a logo set out in an application must be in black and white and meet any other requirements determined under s 126(2AB). The relevant legislative instrument made under s 126(2AB) is the Commonwealth Electoral (Logo Requirements) Determination 2016 (Cth).

11. The word “logo” as such is not defined in the Act.

    The issues

12. The logo was assessed against the specifications described in the Commonwealth Electoral (Logo Requirements) Determination 2016 and no issue arises before the Tribunal as to the logo meeting those requirements.

13. The question for the Tribunal’s determination is whether the application to change the Register by entering the logo in the Register should be granted: see s 134(6).

14. On this application for merits review, the issues which arise before the Tribunal may be summarised as follows:

    Is a ground made out under s 129A of the Act? That is:

    (i)is it the Tribunal’s opinion that the applicant’s logo is the logo of any other person; or

    (ii)is it the Tribunal’s opinion that the applicant’s logo so nearly resembles the logo of any other person that it is likely to be confused with or mistaken for that logo?

    If one of those grounds is made out, then the Tribunal may refuse to enter the logo in the Register: see the opening words of s 129A.  If there is a ground to refuse to enter the logo in the Register then the Tribunal must determine whether it should exercise that discretion to refuse so to enter it.

15. As to the question being the opinion of the Tribunal, see Woollard and Australian Electoral Commission [2001] AATA 166; 32 AAR 492 at [27].

    The submissions of the parties

16. The applicant opposed the registration of the logo. In her statement of facts, issues and contentions, the applicant submitted (although see now the submission recorded at [20] below) that the Eureka flag was an element of the logo being proposed for registration. She submitted that the appropriate decision under s 129A(b) was that the Eureka flag was the logo of many other persons and that as a result the Tribunal’s discretion was enlivened. In exercising that discretion the Tribunal should have regard to the need to ensure that the use of a logo for the purposes of Part XI of the Act was not the logo of other persons, including individuals and organisations (whether or not incorporated). In other words, the applicant submitted, a registered logo should be distinctive. On the basis of the widespread use of the Eureka flag, which was a key element of the logo of which registration was sought, the correct conclusion was that the Eureka flag and a logo that relied heavily upon it as an element of the logo could not be distinctive and that the discretion should be exercised to refuse registration. The applicant submitted that it was necessary to distinguish between the logo and its separate elements.

17. In relation to s 129A(c), the applicant submitted that the material available to the Tribunal consisted of statements from objectors as to their use of a logo or logos; trade mark registrations; and other uses of the Eureka flag including use by “cultural, historic, civic and commercial organisations” and by unions. The applicant submitted that there had been no attempt by the delegate to categorise other uses of the Eureka flag associated with the commercial sale of goods and services as opposed to use in a social, political or electoral context. The context of use, the applicant submitted, may have a significant effect on whether further use was confusing.

18. The applicant highlighted, in annexure A to her statement of facts, issues and contentions, the extent of the use and the variety of connections and meanings associated with the Eureka flag.  The applicant submitted that there was a real possibility of confusion or mistake.  She submitted that it was necessary to deal with the widespread use of the Eureka flag, the resulting similarity between the logo and other logos in use and the potential of this use to cause confusion or mistake. The applicant referred to Woollard and Australian Electoral Commission as providing an appropriate description of the applicable decision-making process for the purposes of s 129A(c).

19. In her outline of written submissions dated 7 December 2018, the applicant submitted the Tribunal should have regard to both the approach of the delegate in her 13 October 2016 decision “and the terms in which the [Commission’s May 2017 decision] describes the [delegate’s decision].”  The applicant also submitted that the key issue was whether the use by Australia First in its logo of a version of the Eureka flag was confusing.

20. In those submissions, the applicant contended that the correct analysis was that the logo under consideration was a combination of words and a version of the symbol widely recognised as the Eureka flag. In this composite form, the applicant considered that the logo could not reasonably be interpreted as the logo of any other person. As a result, the applicant submitted, this review should be determined by reference to s 129A(c) alone, without regard to s 129A(b).

21. Earlier, the applicant had submitted that there was no requirement of proprietorship for a logo to be the logo of a person in the current context. The applicant submitted that a logo could be the logo of a person, even if:

    a.       it is very similar to or a minor variation of other logos that are in use;

    b.the relevant use could be prevented if it occurred in a commercial context –perhaps by reason of confusion or deception; and

    c.       the user could not prevent others from using the same of [sic] a similar logo.

22. The applicant submitted that this was consistent with a statutory regime which was not seeking to provide exclusive rights of use to a name or logo, but rather to ensure that names and logos used at elections were not likely to confuse or lead to mistake.

23. The applicant submitted the issue in this review was not whether a logo was identified by a voter with a particular other person, but whether because of use of a similar logo by another person, a voter was likely to be confused or misled. For this to occur, the voter did not need to identify the ‘other person’, but rather to be (likely to be) confused or mistaken as to whether they were voting for the party in respect of which the logo was registered.

24. The applicant submitted it was inappropriate to conclude that the discretion in s 129A(c) only arose where a hypothetical voter could ‘identify’ a specific person other than the applicant for registration of a logo as the user of a similar logo. Confusion may arise from not being able to identify any single person by reason of widespread use in different contexts.

25. The applicant submitted that the evidence demonstrated that there were many similar logos and that each included the Eureka flag and was used by a person.

26. The applicant submitted that in assessing whether a logo of another person was likely to cause confusion or mistake, the Tribunal should take into account that logos registered for the purposes of s 129A were printed on ballot-papers in a small enough size so that variations in a symbol that formed part of a composite logo (such as the disputed logo here) may not be clear or otherwise readily apparent; appear in black and white so variations that rely on colour need to be ignored; and were designed to be a reference point not only for the more able “reasonable person”, but also for those who were less knowledgeable of political parties.  The applicant relied on Woollard and Australian Electoral Commission at [33] for the proposition that account should be taken of the “ignorant, unthinking and credulous voter who is governed by appearances and general impressions if full force and effect was to be given to the policy of the Act.” We note that the cited paragraph of Woollard and Australian Electoral Commission appears to record and summarise the submission of the Commission in that case, rather than express a conclusion of the Tribunal.

27. The applicant submitted there was no explicit requirement in s 129A(c) regarding the extent of use of a logo of another person. A requirement for use (of greater or lesser extent) could be implied into the requirement that confusion or mistake were “likely”.

28. The applicant submitted that the use of the Eureka flag as an element of a logo of persons conducting a wide range of politically linked activities made its use for electoral purposes very significant in the context of s 129A(c).

29. The applicant submitted that the widespread use of the Eureka flag added significantly to the likelihood that use of that symbol on electoral voting papers would lead to confusion or mistake. This widespread use had been accepted as a matter of fact by each of the earlier decision makers.  Indeed the key oral submission made by the applicant was that the Eureka flag was the subject of diverse use: it had many diverse and contradictory meanings and it stood for whatever the particular proponent felt was appropriate on the day.

30. The applicant submitted the evidence before the Tribunal regarding the alternative uses of the Eureka flag relevant to electoral issues, widely throughout Australia or significant portions of Australia, supported a conclusion that use of a similar logo for electoral purposes carried with it a significant likelihood of confusion or mistake.  In oral submissions the applicant contended that a test was the perspective of a resident of Ballarat or of a member of the BLF, who was aware of only one use.

31. In its statement of facts, issues and “averments”, Australia First said the Eureka flag was a generic iconographic image which may be employed by any person.  It submitted that the common sense meaning of s 129A was that if the logo in toto resembled the logo of another registered party, or if it was so close in overall presentation to the logo of “someone else” it could not be registered.  No other registered party had a Eureka flag in its logo and no other logo of any other body so resembled the registered logo of Australia First that it could not be so registered.  The logo was in black but it also carried the words “Australia First”.  That made it a unique logo.

32. In its written submissions dated 14 December 2018, Australia First submitted that the Eureka flag was a generic image drawn from Australian history and was in the same class of image as the national flag which appeared on all manner of advertising, by parties on different sides of the political contest, by companies and all manner of trade and community associations.  The Eureka flag may mean whatever the viewer wanted it to mean and given it had a general community currency that did not mean one group or party may not employ it.  The Eureka flag was ambiguous because of the breadth of its use and no voter could really become confused about its particular significance in the exercise of his or her vote.

33. Australia First submitted that no reasonable voter would be confused.  It would not be unimaginable that a handful of citizens might assume the logo implied some support for or by a union or some other group but whether any number of voters, so as to invite intervention, would so assume should be discounted.

34. In its statement of facts, issues and contentions in reply the respondent Commission said the question for determination by the Tribunal was not whether the decision which the decision maker made was the correct or preferable one on the material before the decision maker but was whether that decision was the correct or preferable one on the material before the Tribunal.  Further, the decision under review was not the decision of the delegate, criticised by the applicant, but the decision of the Commission made in May 2017.

35. The Commission submitted that, contrary to the applicant’s contention, there was no requirement that a logo be distinctive in order to be eligible for registration under the Act.

36. The Commission submitted in relation to s 129A(c) that to the extent that the size of the logo was relevant in considering whether one logo was likely to be confused with or mistaken for another on a ballot-paper, it was also important to take into account the proximity of the logo to the name or abbreviation of the relevant political party, particularly where the logo itself incorporated all or part of that name.

37. The Commission contended that the test which should be adopted by the Tribunal for whether confusion or mistake was likely was that the relevant risk was one which “will not be remote or fanciful but, within the limits imposed by the language of the paragraph, will be relevant to the integrity of the voting process”: citing Woollard and Australian Electoral Commission at [38].

38. In answer to the applicant’s description of the decision-making process summarised in Woollard and Australian Electoral Commission at [44], the Commission submitted that in order to be the logo of “any other person” a logo must be one which identified that person in the minds of electors, not merely one which was “in use” by that person.  Further, the mistake must be one which was “relevant to the integrity of the voting process”. This could involve voting for the party designated by the logo because the elector believed that the party had an association with, or the endorsement of, the person identified by the other logo.  However, the Commission submitted, the mistake must be a mistake that flowed from the elector believing that the proposed logo was the logo of the “other person”.  It was not sufficient if the elector believed that the user of the proposed logo supported the other person or the uses to which the other logo had previously been put if the elector did not otherwise have cause to believe that the logos were the same.  The subject matter of the paragraph was limited to mistakes flowing from mistaken identification of one logo as another.

39. The Commission contended that the test was whether the logo “so nearly resembles the logo of any other person that it is likely to be confused with or mistaken for that logo” when the elector was preparing to vote by marking the ballot-paper at an election: citing Woollard and Australian Electoral Commission at [23].

40. In its outline of submissions dated 14 December 2018, the Commission again did not seek to address the merits of the decision under review but addressed the proper construction of the relevant provisions of the Act in the context of the electoral process.

41. The Commission submitted that a logo could be the logo “of” another person because that person was the holder of a registered or unregistered trade mark in the logo or because the logo had been used by a person in such a way that it had come to be identified with that person in the minds of electors.  However, if the logo simply comprised a generic image or symbol that was not identified with any person but was simply associated with particular beliefs, ideas or ideologies, then the requirements of s 129A would not be satisfied and there would be no basis to refuse the application for registration.  With reference to Woollard and Australian Electoral Commission, the Commission submitted that having regard to the freedoms of association and political expression that were incidents of representative democracy, the disqualifying provisions of Part XI of the Act should not be construed so as to lock up generic words and symbols that were and had historically been used in connection with political parties and the democratic process in Australia.

1. As to the issue of sufficient resemblance between logos, the Commission submitted the critical consideration was that the focus of the comparison was solely on the logos themselves, and the relevant mischief was confined to a belief that the logos were, or may be, the same. The requirements of s 129A(c) could not be satisfied where there was a likelihood of confusion that did not involve some form of recognition of the existing logo and belief that the applicant’s logo was, or may be, that logo.

2. In comparing logos for the purposes of s 129A, the Commission submitted, it was necessary to have regard to the logos as a whole, rather than simply to discrete or isolated elements within the logos.

3. In the applicant’s outline of written submissions in reply, dated 17 December 2018, she submitted that the wide range of objections received to the registration of Australia First’s logo must not be ignored in making a decision under s 129A(c).

4. The applicant also submitted that a logo may still be likely to cause confusion even if that logo was widely used.

5. Further, the applicant submitted, as the statutory provision was designed to prevent confusion, every similar logo, using similar elements or symbols, should be accepted as having a resemblance and so it should be considered whether its use was likely to confuse or lead to mistake.

6. The applicant submitted that the potential for confusion or mistake in an electoral context was greater where the competing use was political in nature, as was frequently the case with the Eureka flag.  Consistently with that approach, the applicant did not place substantial reliance on purely commercial uses.

7. The applicant submitted that the role of logos was intended to mitigate the confusion which arose from similar names.  In considering logos which included the Eureka flag, there was such compelling evidence of contradictory use that there was a strong case for precluding the use of this symbol on ballot papers as part of the logo of any party.  The potential for confusion or mistake in particular electorates or regions also justified precluding the use of this symbol for electoral purposes.  The notable example, the applicant submitted, was in and around Ballarat, where the symbol had particular civic significance.

   Consideration

8. The Tribunal does not accept the applicant’s submission that the Tribunal should have regard to the earlier primary decisions referred to at [3] above if that is intended to mean that this Tribunal’s decision-making should somehow be constrained by those decisions. The task of the Tribunal is to make the correct or preferable decision on the material before it and it is a mistake to assume the correctness of, or merely to adopt without more, the primary decision: Federal Commissioner of Taxation v Swift [1989] FCA 593; 18 ALD 679 at 691 per French J; approved by the Court of Appeal of the Australian Capital Territory in Environment Protection Authority v Rashleigh [2005] ACTCA 42; 159 ACTR 8 at [25]. It may of course be forensically useful for an applicant to point to what he or she contends are errors in the decision under review, on the way to putting to the Tribunal what the applicant says is the correct or preferable decision on the material before the Tribunal. It is not for the Tribunal simply to state its agreement or disagreement with the decision under review.

9. Also, the Tribunal does not accept the applicant’s submission that the Tribunal should ask itself no more than whether the use by Australia First in its logo of a version of the Eureka flag is confusing. That would be to ignore or, at best, elide the terms of relevant provisions of the Act.

10. Further, although the applicant no longer relies on s 129A(b), the Tribunal regards it appropriate to consider that provision since it was initially raised by the applicant and because what we say may be useful in any future applications concerning the section.

11. There is some similarity between the terms of s 129A(c) and s 129(d), which was under consideration in Woollard and Australian Electoral Commission.  Both use the phrases “so nearly resembles” and “is likely to be confused with or mistaken for”.  Section 129 is concerned with the refusal of an application for the registration of a political party.  In general terms however it may be said that the purpose of both provisions includes “the integrity of the electoral process and, associated with that, the interests of electors in making choices unaffected by confusion or mistake…” See Woollard and Australian Electoral Commission at [20]. As that Tribunal later said, at [23], although it is the judgment of the elector preparing to vote by marking the ballot paper that is to be protected, that judgment does not take place in isolation from what is said and published prior to polling day, including the publication of how to vote cards outside the entrance to polling places.

12. However, s 129A was added by the Commonwealth Electoral Amendment Act 2016 (Cth), well after the decision in Woollard and Australian Electoral Commission.  The Tribunal was taken to the Revised Explanatory Memorandum, circulated by authority of the Minister for Finance and Special Minister of State and in particular to the statement that the Bill for that Act proposed to “reduce the confusion that may arise with political parties with similar names, by allowing party logos to be printed on ballot papers for both the House of Representatives and the Senate.” Later reference was made to the paragraph stating, amongst other things: “To provide confidence to voters that they can easily identify the party of their preference, the Bill proposes to allow for party logos to be printed on the Senate and House ballot papers.” The Tribunal takes these statements into account but notes that primacy must be given to the words enacted by the Parliament. Further, the Tribunal notes that the purpose so stated provides little assistance in construing or applying the words of exclusion in s 129A(c) of the Act.

13. Also relevant is what the Tribunal said in Woollard and Australian Electoral Commission at [23], as follows:

    It must be remembered also that the electors who are to be protected from the likelihood of confusion or mistake are the full range of electors.  The system of registration exists in the context of a system in which it is the duty of every elector to vote at each election (s 245(1)).  The range of people to be considered is the full spectrum of voters.  The likelihood of confusion or mistake is to be assessed with respect to all adults, involving a range of age, linguistic ability, literacy, intelligence, commitment and other factors…  The purpose of s 129(d) is to protect all voters in the selection of candidates from among those on ballot papers, on which will be printed the names of registered political parties.

14. Further, at [38], that Tribunal said:

    It would be too limited a view of the protection provided by par 129(d) to say that it operates only against relevant confusion or mistake which is more likely than not to occur if registration proceeds.  The term “likely”, in this setting, is a direction to the Commission to make an assessment of the risk that registration will have the consequences referred to.  That risk will not be remote or fanciful but, within the limits imposed by the language of the paragraph, will be relevant to the integrity of the voting process.  It may be a risk seen as affecting all electors or it may be seen as affecting a proportion of that population.  The assessment will have regard to the fact that not all electors are equally knowledgeable of political parties, nor equally intelligent in discriminating between different terms used on a ballot paper, nor equally literate in appreciating that terms do differ.  The task of assessment involves a practical judgment.

15. As to the term “confused with or mistaken for”, that Tribunal first identified the subject matter of the confusion or mistake and then, at [42]-[43], said:

    … The second limb of the collocation “mistaken for” is clear enough.  If there is a real risk that the elector will vote for one registered party because he or she mistakes its name for that of another, then that risk falls within the terms of the section and registration would have to be refused.…

    … To confuse one thing with another is in ordinary parlance – “to mix up in the mind, to fail to distinguish”.  It is reasonable, however, to assume that these words were intended to fulfil a function that differs from, although it may overlap with, the function performed by the words “mistaken for”.  They may properly be seen as applying to the case of a name which engenders a risk that the elector will fail to distinguish it from another registered name.  That is to say, rather than mistaking one for the other, he or she thinks both are the same.  It may also be accepted that one name is confused with another where, because of their similarity, the elector does not know or is uncertain about which is which. 

16. At [44], that Tribunal summarised the position as follows:

    In summary, the Commission, forming its opinion for the purposes of par 129(d), must determine:

    ·whether there is a resemblance between the proposed name, abbreviation or acronym and one already entered in the Register;

    ·if so, whether there is a real chance, flowing from that resemblance, that the proposed name, abbreviation or acronym will be mistaken for one already entered in the Register in the sense that an elector intending to vote for the political party with prior registration marks a vote for the newcomer because he or she thinks its name is the name of the party which is intended to receive the vote;

    ·alternatively, whether there is a real chance that the proposed name, abbreviation or acronym will cause electors to think that it is the same as the name of the pre-registered party or to be left in such uncertainty as to which name attaches to which organisation that no informed vote can be cast without some additional information.

17. The Tribunal finds that the logo is the logo reproduced at [9] above.

18. The Tribunal finds on the material before it that the Eureka flag was created for the Ballarat Reform League in 1854 and it was flown above the Eureka Stockade on 3 December 1854.

19. The Tribunal also finds that the Eureka flag, of itself, is the subject of a number of registered trade marks, annexed to the Commission’s statement dated 13 October 2017, but is not the registered logo of another entity.  (Those trade marks relate to goods and services in Classes 29, 30, 32 and 33 being, broadly, meat products, sugar, aerated beverages and alcohol for drinking.)

20. The Tribunal finds that the Eureka flag image is used widely and in many cultural and commercial contexts.  The Eureka flag is used commonly in Australia and by a variety of individuals and associations.  The Tribunal finds that there are numerous and diverse uses of the Eureka flag: its significance is as diverse as its uses.  It has not been used in an exclusionary way.  It has been used in the past by Australia First.

21. The Tribunal finds that the other logos in the material before it are visually and substantially different to the applicant’s logo, in that they do not contain the text in the applicant’s logo.

    Section 129A(b)

22. The Tribunal accepts that s 129A does not require a logo to be registered in order to be “the logo of any other person”. 

23. However, in the Tribunal’s opinion, the logo reproduced at [9] above is not the logo of any other person, including the owner of the trade marks referred to at [60] above.

24. The Tribunal does not accept the applicant’s original contention that the Eureka flag of itself is the logo of Australia First.

25. Further, and alternatively, the Tribunal does not accept the applicant’s original contention that the Eureka flag, considered by itself, is the property “of any other person” because, culturally, it is the property of Australians or because it is used by many other Australians.

26. The Tribunal has formed the opinion that the words “is the logo of” extend beyond issues of ownership and include use of the logo by any other person.  This appeared to the Tribunal to be common ground.

27. On the material before the Tribunal, the Tribunal finds there is no such ownership or use of the logo reproduced at [9] above.

28. The Tribunal does not accept the applicant’s original contention that in order to fall within s 129A(b) of the Act a logo must be distinctive. The correct question under that provision is whether the logo set out in an application by Australia First is, in the Tribunal’s opinion, the logo of any other person. The Tribunal has concluded that it is not.

    Section 129A(c)

29. Before considering the application of s 129A(c) of the Act in detail, the Tribunal observes that there is a risk that breaking up the provision into its constituent parts may, without more, lead to difficulty with and, indeed, distraction from, the statutory task. It is necessary to return always to the overall statutory expression, considered as a whole.

30. The operation of the provision involves the opinion of the Tribunal as to a factual issue.  This may be seen clearly in relation to s 129A(a), that is, the Tribunal’s opinion as to whether or not a logo is obscene.

31. The Tribunal notes the contrast between s 129A(c) and s 129A(d), in particular that the provision with which the Tribunal is concerned does not involve the Tribunal’s opinion as to whether the logo is one that “a reasonable person would think suggests” that a connection or relationship exists.

32. The approach the Tribunal takes to s 129A(c) is not to interpose a reasonable person or a hypothetical voter into the factual question but to form an opinion as to whether the logo of the applicant for registration so nearly resembles the logo of any other person that it is likely to be confused with or mistaken for the logo of any other person in the context, as suggested by Woollard and Australian Electoral Commission, of electors preparing to vote by marking the ballot paper: see [52] above.  It is in that context that the issue of resemblance and consequent likelihood of confusion or mistake of the two logos is to be assessed.  We agree that the electors who are to be protected from the likelihood of confusion or mistake are the full range of electors: see Woollard and Australian Electoral Commission at [23].

33. The Tribunal has already identified the logo set out in Australia First’s application. 

34. The next question is whether that logo resembles the logo of any other person.

35. The Tribunal finds that the logo does resemble “the logo of any other person”, being one, or more than one, of the entities which use the Eureka flag as part of their logo.

36. However, in the Tribunal’s opinion, the logo set out in Australia First’s application does not so nearly resemble the logo of any other person that it is likely to be confused with or mistaken for that logo.  The Tribunal has considered the uses of the Eureka flag in the material before the Tribunal.

37. A key point, as it emerged most clearly in oral submissions, was as noted at [29] above. The Tribunal does not accept that the use of the plural means that a melange of logos should be considered so that a combination of differential associations provides the statutory test. The Tribunal accepts that a logo may be a logo of more than one person but each such logo must be considered: otherwise, as was the tendency of the applicant’s submissions, the words “that logo” at the end of s 129A(c) are ignored. Further, otherwise the concepts of confusion or mistake would operate in the abstract, which the Tribunal does not accept.

38. We do not accept the contention that it is sufficient if there is no more than some connection between the applicant’s logo and the logo of any other person.  That is not the statutory test, which is one of near resemblance and consequent likelihood of confusion with or mistake for the logo of any other person.  In the Tribunal’s opinion, the statutory concept of “the logo of any other person”, extends to use of, as well as property rights in, the logo.  However, in the present case there is such a multiplicity and diversity of uses that the Tribunal finds that the Eureka flag is not the logo “of any other person”, even allowing for a number of persons in relation to whom or which the logo could be said to be the logo of each or all of them. 

39. To take the examples of the City of Ballarat or of the CFMEU given in the material before the Tribunal and in oral submissions, the Tribunal accepts that there is a recognised connection between the Eureka flag and the City of Ballarat and the CFMEU amongst many others, but is of the opinion that that is not enough to bring the matter within s 129A(c).

40. The Tribunal is not of the opinion that the logo in Australia First’s application so nearly resembles the logo of those entities such that the logo in Australia First’s application is likely to be confused with or mistaken for the logo of either of them. This is not so much because the logo in Australia First’s application contains the text saying “Australia First”, accepting, as the Tribunal does, the Commission’s submission that the logo is to be considered 'as a whole'.No single logo sufficiently resembles the Australia First logo so as to create a risk of confusion or mistake in the electorate as described in Woollard and Australian Electoral Commission: see [73] above.More important, in the Tribunal’s opinion, is the frequency and diversity of the uses and meanings of the Eureka flag which the Tribunal has found, and the disparate nature of those uses and meanings. This circumstance means that, in the Tribunal’s opinion, the ground in s 129A(c) is not established.

41. The Tribunal does not accept the applicant’s submission that the matter may be tested by reference to a voter who is aware of only one use, the examples given being a voter being who was a resident of the City of Ballarat or a member of the former BLF.  We are not of the view that taking into account the range of people to be considered as the full spectrum of voters involves taking one person, especially one hypothetical person, from within that range.

42. In the Tribunal’s opinion, no other use of the Eureka flag in the materials before the Tribunal rises to the level of the connection shown between the entities to which we have just referred and the Eureka flag.

43. Given the different statutory contexts, the Tribunal does not regard the law relating to trade marks as of itself useful in addressing the present statutory question nor the fact-finding necessary for the Tribunal to form its opinion as to likelihood of confusion or mistake with respect to the logo of any other person.  The Tribunal notes that the same view was taken in Woollard and Australian Electoral Commission at [36]. These views of the Tribunal do not appear yet to have been fully adopted by the Commission, given its emphasis on property rights: see also [70] above where we refer to the risk of breaking up the statutory provision into its constituent parts. We doubt therefore that the presence or absence of evidence of confusion will generally be important. There was no such evidence in the present case. Similarly, a trade mark used in an entirely commercial context, such as the trade marks referred to at [60] above, are not of significance in terms of the likelihood of mistake or confusion and the integrity of the electoral process to which we have referred and with which s 129A(c) is concerned.

44. Finally, the Tribunal turns to the applicant’s most recent submissions, in particular those summarised at [44]-[48] above.

45. The Tribunal does not accept the applicant’s submission that, of themselves, the wide range of objections received to the registration of Australia First’s logo should be taken into account.  In so far as those objections provide evidence or material relevant to the statutory questions, the Tribunal has taken them into account.

1. As to the applicant’s submission that a logo may still be likely to cause confusion even if that logo was widely used, the question for the Tribunal under s 129A(c) is whether, in its opinion, Australia First’s logo so nearly resembles the logo of any other person that it is likely to be confused with or mistaken for that logo. The Tribunal assumes that, in this provision, the singular would include the plural, see s 23(b) of the Acts Interpretation Act 1901 (Cth), but as we have said it remains necessary for the logo in question to be the logo of any other person or persons.

2. As to the applicant’s submission that, as the provision was designed to prevent confusion, every similar logo, using similar elements or symbols, should be accepted as having a resemblance and so it should be considered whether its use was likely to confuse or lead to mistake, the Tribunal’s approach is to adhere to the terms of the statutory provision.  It is not permissible to consider “every similar logo” unless such logo is the logo of any other person.  Only in that context do the issues of near resemblance and consequent likely confusion or likely mistake arise.

3. As to the applicant’s submission that the potential for confusion or mistake in an electoral context was greater where the competing use was “political in nature”, that may well be so but there is little or no material before the Tribunal to establish that the use was frequently “political in nature” in the case of the Eureka flag.  The applicant’s expression “political in nature” is inherently vague and finds no sure place in the statutory provision under consideration.

4. The applicant criticised a sentence from [40] of the Tribunal’s decision in Woollard and Australian Electoral Commission, that sentence stating that absent clear language to contrary effect, the disqualifying provision is not to be construed to lock up generic words as the property of any organisation when it comes to names that can be used on the ballot paper.  We read that as doing no more than stating unexceptionally a limit, founded on notions of the freedoms of association and political expression, as to the entrenchment of the claims of existing political parties.  The applicant did not criticise the following sentence in Woollard and Australian Electoral Commission, with which we agree, that it is significant that there is no registration requirement conditioning the wider use of party names, or, we would add, logos, outside the context of the polling booth.

5. Finally, the applicant submitted that the role of logos was intended to mitigate the confusion which arose from similar names. As indicated above, the Tribunal accepts that a purpose of the legislation was, according to the Explanatory Memorandum, to “reduce the confusion that may arise with political parties with similar names, by allowing party logos to be printed on ballot papers for both the House of Representatives and the Senate”. However the Tribunal does not accept that in relation to logos which include the Eureka flag, there is confusion as delineated in s 129A(c) such that the use of the symbol on ballot papers as part of the logo of any party should be refused registration. The Tribunal may not assume a potential for confusion or mistake in particular electorates or regions such as to justify precluding the use of Australia First’s symbol for electoral purposes. The Tribunal must, rather, form its opinion on the material before it whether or not Australia First’s logo so nearly resembles the logo of any other person that it is likely to be confused with or mistaken for that logo. The Tribunal may not proceed merely by reference to claimed historical or cultural significance of the quality on which the applicant relies.

6. For completeness, the Tribunal mentions the issue of discretion: see [14] above. The Tribunal concludes that s 129A contains a discretion, in contrast to s 129, but finds that in the present case the discretion has not been enlivened, and that is by reason of the Tribunal’s negative opinion as to the matters in s 129A(b) and s 129A(c).

   Conclusion and decision

7. The Tribunal affirms the decision under review, being the reviewable decision made by the Commission in May 2017.  As explained by the Commission, because the change to the Register in Australia First’s application has already been made, there is no need for any consequential order.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of the Tribunal

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

Associate

Dated: 4 February 2019

Date(s) of hearing:	19 December 2018 and 20 December 2018
Solicitor for the Applicant:	Mr Trevor Lloyd
Counsel for the Respondent:	Mr Stephen Rebikoff
Solicitors for the Respondent:	Ms Melissa Gangemi, Australian Government Solicitor
Advocate for the Other Party:	Dr James Saleam