Woollard and Australian Electoral Commission and Anor

[2001] AATA 166

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2001] AATA 166

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  W2000/169

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KEITH WOOLLARD

Applicant

And AUSTRALIAN ELECTORAL COMMISSION

First Respondent

LIBERAL PARTY OF

AUSTRALIA (WA DIVISION)

INC

Second Respondent

DECISION

Tribunal Justice PRA Gray, Presidential Member
Justice RS  French, Presidential Member
Justice RD Nicholson, Presidential Member

Date6 March 2001

PlacePerth

Decision
1.	The decision of the Australian Electoral Commission made on 26 April 2000 upholding a delegate’s decision of 29 March 2000 to reject the application by “liberals for forests” to be registered as a political party, be set aside.

2.In substitution for the decision set aside, the Tribunal decides that the political party “liberals for forests” should be registered as a political party for the purposes of the Commonwealth Electoral Act 1918.

.....(sgd Justice PRA Gray).....

Presidential Member

CATCHWORDS

ELECTIONS – political parties – registration – purpose – name, abbreviation or acronym – disqualification from registration – resemblance – “confused with or mistaken for” a name already registered – purpose of registration – printing of party name or abbreviation on ballot paper – freedom of association and expression – no monopoly in generic terms – role of Australian Electoral Commission on review by Tribunal – function of Tribunal – authority of Tribunal – “reviewable decision”.

Commonwealth Electoral Act 1918 – ss 124, 125, 129, 132(7), 141(5)
Administrative Appeals Tribunal Act 1975 – ss 3(3), 21(1AA), 30, 43(1), 43(5A), 43(5B), 43(6)

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Drake v Commissioner for Corporate Affairs, Supreme Court of Western Australia, 19 April 1999, CIV 2343 of 1997
Professional Liquor and Catering Enterprises Pty Ltd v Corporate Affairs Commission, Supreme Court of New South Wales, 9 July 1982, 678 of 1982
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331

REASONS FOR DECISION

GRAY, FRENCH AND  RD NICHOLSON JJ     

Introduction

1.On 6 August 1999, the Australian Electoral Commission received from Keith Woollard an Application to Register a Political Party for House of Representatives and Senate Elections.  The application was dated 26 July 1999.  It sought registration of the party name “liberals for forests” and the abbreviation “L 4 F”.  Dr Woollard was identified in the application as the President of the Party.  Nine other applicants were also named in their capacity as party members.  A copy of the constitution of the organisation identified its full name as “liberals for forests Incorporated”.  Its object was expressed in cl 3 of the constitution thus:

“The object of the Party is the preservation of Australia’s old growth and other high conservation value forests.  In furtherance of this object the Party will give preference to any candidate for election to the Parliament of the State or the Commonwealth who supports this object over any other candidate who does not support it.”

The constitution contemplates that the Party may endorse candidates for parliamentary elections at the State and Commonwealth levels.  The application was advertised by the Australian Electoral Commission and the public informed of their right to formally object to the proposed registration in writing to the Commission.  Various objections were received, including objections from the Liberal Party of Australia and the Liberal Party of Western Australia.  The Forest Industries Federation (WA) Inc also objected. The Register already included the following entries (relevant to the present case):

Name   Abbreviation
           Liberal Party of Australia   Liberal
           Liberal Party (WA Division) Inc  “
           Liberal Party of Australia (SA Division)           “
           Liberal Party of Australia (Victorian
           Division)  “
           Liberal Party of Australia - ACT Division        “
           Liberal Party of Australia - Queensland
           Division  “
           Liberal Party of Australia – Tasmanian
           Division  “
           Liberal Party of Australia, NSW Division        “

There are no other registered names using the word “Liberal”.

2.Nine objections were received opposing the application for registration.  These came from the Liberal Party of Australia and from its State divisions in Queensland, Tasmania, Victoria and Western Australia and its Australian Capital Territory Division.  An objection was also received from the Forest Industries Federation (WA) Inc.  Two objections were also received from individuals.  The Member of the House of Representatives for the electorate of Forrest, Mr Prosser MP, filed an objection but after the relevant deadline.  It is not necessary to set out the details of each of the objections.  The Liberal Party of Australia asserted that the use of the word “liberals” in the name of the applicant party would unquestionably cause confusion for the public with the established and registered Liberal Party of Australia.  There was said to be no relationship between the two organisations.  The title of the proposed party was “clearly an attempt to garner support for the proposed party from Liberal Party voters who may mistakenly believe that there is some association between the two”.  The word “liberal” was said to have been the cornerstone of both the name and philosophy of the Liberal Party of Australia since 1944 and to be strongly recognised by the community and associated with a defined set of principles and values.

3.Objections along similar lines were lodged by State Divisions of the Liberal Party.  The Western Australian Division of the Liberal Party of Australia alleged:

·The application should be refused because the Liberal Party uses the abbreviation “Liberals”.

·The use of the word “liberal” is aimed at gaining support and creating confusion with Liberal voters.

·There is potential for members of the public to be misled into a belief that liberals for forests is a group working within the Liberal Party and with the support of the Liberal Party; and

·liberals for forests are seeking to pass themselves off as Liberals and confuse and mislead Liberal voters.

4.The Forests Industry Federation (WA) Inc raised similar contentions and added that “liberals for forests” have no moral, ethical, historical or practical claim to the title “Liberals” and that it was their desire to build a vote by playing on voter confusion.  Mr Prosser MP alleged a confusion between “liberals for forests” and Liberal for Forrest.

5.The Commission took legal advice first from senior general counsel in the office of the Australian Government Solicitor on 23 December 1999 and second from Mr J R Sackar QC, which it received on 21 March 2000.  On 28 March 2000 the Electoral Commissioner, Mr A Becker, rejected the registration of liberals for forest as a political party under the provisions of Part XI of the Act.  The Commission wrote to Dr Woollard to advise of the rejection on 29 March. 

6.On 5 April 2000, Dr Woollard wrote to the Commissioner asking to have the decision reviewed by the Commission.  On 26 April 2000, the Commission resolution was recorded in the following terms:

“The Electoral Commission upheld the delegate’s decision of 29 March 2000, to reject the application by ‘liberals for forests’ to register as a political party.”

On 26 May 2000, Dr Woollard lodged an Application for Review of the Decision with the Administrative Appeals Tribunal. The application was out of time so an Application for Extension of Time was lodged concurrently. The Commission did not oppose the extension and on 2 June 2000 Deputy President Barnett directed that the time for making of an Application for Review of the Decision be extended to 26 May 2000. The Tribunal heard the application on 15 January 2001. In accordance with s 141(6) of the Commonwealth Electoral Act 1918, the Tribunal was constituted for this purpose by three presidential members of the Tribunal who are judges of the Federal Court of Australia. Each of the applicant, the Australian Electoral Commission and the Liberal Party of Australia (WA Division) Inc appeared by counsel. Counsel for each party tendered a written outline of submissions and made oral submissions. The Tribunal had before it the documents lodged with it pursuant to s 37(1)(b) of the Administrative Appeals Tribunal Act 1975.  The findings of fact in these reasons are based on those documents; no party sought to tender further evidence in the course of the hearing.

Statutory Framework – The Registration Of Political Parties

7. Part XI of the Commonwealth Electoral Act 1918 (ss 123-141), which deals with the registration of political parties, was introduced into the Act as Part IXA (ss 58A-58U) by the Commonwealth Electoral Legislation Amendment Act 1983.  It was part of a package of electoral law reform which followed upon the Report of a Joint Select Committee on Electoral Reform which was established in May 1983.  In its report the Committee made a number of recommendations relevant to the registration of political parties, which was not a feature of the Act at that time.

8.Under Part XI an eligible political party may be registered for the purposes of the Act (s 124).  An eligible party is a political party that:

“(a)     either:

(i)        is a Parliamentary party; or

(ii)       has at least 500 members; and

(b)is established on the basis of a written constitution (however described) that sets out the aims of the party.” (s 123)

The Commission is required to establish and maintain a Register of Political Parties (s 125). Applications for the registration of eligible political parties are made to the Commission (s 126). Registration must be refused by the Commission in certain circumstances which are set out in s 129:

“129  Parties with certain names not to be registered

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):

(a)       comprises more than 6 words;

(b)       is obscene;

(c)is the name, or is 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 Parliamentary party or a registered political party;

(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 Parliamentary party or a registered 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

(e)comprises the words “Independent Party” or comprises or contains the word “Independent” and:

(i)the name, or an abbreviation or acronym of the name, of a Parliamentary party or a registered political party; or

(ii)matter that so nearly resembles the name, or an abbreviation or acronym of the name, of a Parliamentary party or a registered political party that the matter is likely to be confused with or mistaken for that name or that abbreviation or acronym, as the case may be.”

9.The procedure for dealing with an application for registration of a political party is set out in s 132 and requires the Commission as soon as practicable after the application is lodged to publish a notice of the application. The notice must, inter alia, invite any persons who believe that the application does not relate to an eligible political party or is not in accord with s 126 or should be refused under s 129, to submit written particulars of the grounds for that belief to the Commission within one month after the date of publication of the notice in the Gazette. The particulars are required to be given to the person who is to be the registered officer of the party concerned, together with an invitation to submit a reply to them. The particulars and replies to them are to be made available for inspection by members of the public at the principal office of the Commission in Canberra. Section 132(7) provides:

“The Commission shall not register a political party unless:

(a)it has published notice of the application for registration in accordance with this section;

(b)a period of at least one month has elapsed after the date of publication of notice of the application in the Gazette;

(c)       where particulars have been submitted under paragraph (2)(b), either:

(i)        the time specified in a notice under subsection (5) has expired;

or

(ii)       a reply to the particulars has been received; and

(d)the Commission has considered those particulars (if any) and any reply to the particulars.”

10.Section 130 empowers the Commission to register an eligible political party notwithstanding that a political party that is related to it has been registered.  Where the Commission determines that a political party should be registered it registers the party by entering in the Register the name of the party and any abbreviation thereof and the name and address of the registered officer of the party (s 133).  The Act also provides for objection to the continued use of a name of one party registered after that of another where the name of the second party so nearly resembles the name of the first that it is likely to be confused with or mistaken for that name and where the parties are not related at the time of the objection (s 134A).  There is provision for voluntary deregistration (s 135).  A party may also be deregistered for failing to endorse candidates over a specified period or ceasing to be a Parliamentary party and having its membership fall below 500 (s 136).  Other grounds for deregistration are set out in s 137 but are not material for present purposes.

Statutory Framework – The Purposes of Registration

11.Registration is for the purposes of the Act (s 124).  Those purposes can be identified by consideration of the rights and obligations which attach to registration.  These are as follows:

·Registered political parties are entitled to copies of the electoral roll after each general election and any habitation index.  They may also receive rolls for States or Territories in which they are organised and current rolls and supplements as well as information on the gender of electors (s 91).

·A registered political party is entitled to have its name printed on ballot papers adjacent to the name or, in the case of a group endorsed for a Senate election, the group of its endorsed candidates (s 169 and s 214).

·Election funding is payable at the rate of $1.50 for each first preference vote cast for a candidate or group getting more than four per cent of the total number of eligible votes polled.  In the case of a candidate or group endorsed by a registered political party the money is payable to that party.

·There are general provisions for disclosure of electoral expenditure (ss 308-309) which do not apply to registered political parties (ss 309(1)).  The latter are subject to provisions requiring annual returns including audited annual accounts and setting out amounts received and expended during the financial year together with the details of persons or organisations donating more than $1,500 in the year (s 314AB and s 314AC).  There is also provision for returns by associated entities.

Statutory Framework – Review of Registration Decisions

12. The Act provides, in s 141, for the review of certain decisions under Part XI.  The term “reviewable decision” is defined in s 141(1) by reference to various classes of decision under that Part including a decision “to refuse an application for the registration of a political party under this Part”.  The term “decision” itself is defined as having “the same meaning as it has in the Administrative Appeals Tribunal Act 1975”.  There is provision for review by the Commission of a reviewable decision made by a delegate (s 141(2)).  Upon receipt of an application for review of a reviewable decision the Commission is to review it and may make a decision affirming or varying or setting aside the decision under review and making a decision in substitution for it (s 141(4)).  In s 141(5) it is provided:

“Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision made by the Commission or a decision under subsection (2) or (4).”

For the purpose of such a review, the Tribunal is to be constituted by three presidential members of the Tribunal who are Judges of the Federal Court of Australia (s 141(6)). 

13.The authority given to the Administrative Appeals Tribunal then attracts the general provisions of the Administrative Appeals Tribunal Act1975 (“AAT Act”). These include the broad definition of “decision” in s 3(3) thus:

“A reference in this Act to a decision includes a reference to:

(a)       making, suspending, revoking or refusing to make an order or determination;

(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)       imposing a condition or restriction;

(e)       making a declaration, demand or requirement;

(f)        retaining or refusing to deliver up, an article; or

(g)       doing or refusing to do any other act or thing.”

14.The term “proceeding” is defined in s 3 as including an application to the Tribunal for review of a decision.  In s 21(1AA)  it is provided:

“The Tribunal as constituted for the purposes of a proceeding must not include more than one presidential member who is a judge.”

This provision was inserted by amendment in 1995. It is not to be taken as an implied repeal of s 141(6) however. It is a general provision and absent any specific associated amendment of s 141(6) it must be taken that the legislature intended that the special provisions relevant to the review of decisions of the Australian Electoral Commission would continue in force notwithstanding.

15.The AAT Act generally provides that the authority of the Tribunal to review administrative decisions will be specified in Acts relating to those decisions (s 25).  The Tribunal is empowered to review any decision of which application is made to it under any enactment (s 25(4)). 

16.The primary powers of the Tribunal in reviewing a decision are set out in s 43:

“(1)  For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)       affirming the decision under review;

(b)       varying the decision under review; or

(c)       setting aside the decision under review and:

(i)        making a decision in substitution for the decision so set aside; or

(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

…

(5A)  Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.

(5B)  The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.

…

(6)  A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.”

The Role Of The Australian Electoral Commission On A Review

17.The parties to a proceeding before the Tribunal for review of a decision are the applicant for review (s 30(1(a)), the person who made the decision (s 30(1)(b)), the Attorney-General, if the Attorney-General intervenes under s 30A (s 30(1)(c)) and any other person who has been made a party on application under s 30(1A) (s 30(1)(d)).  Section 30(1A) provides:

“Where an application  has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.”

In the present case an order was made on 21 December 2000 that, pursuant to s 30(1A), the Liberal Party of Australia (WA Division) Inc be made a party to the proceeding.  There is therefore a contradictor to the application whose interests are directly affected, it being a registered political party under the Act.

18. Such a contradictor being available, the question arises what is the proper role of the Australian Electoral Commission?  The role of the Commission generally is to perform functions permitted or required to be performed by or under the Commonwealth Electoral Act (s 7(1)(a)).  There are specific functions of a promotional and educational nature and functions involving assistance to foreign countries which are not relevant for present purposes.  The composition of the Commission includes a chairperson.  That person shall be a person whose name is included in a list of the names of three eligible judges submitted to the Governor-General for the purpose of appointment by the Chief Justice of the Federal Court of Australia (s 6(4)).  The term “eligible judge” is defined as one who has been a judge of the Federal Court for at least three years or a former judge who was a judge for a period of at least three years.  The inclusion of the judicial member indicates the importance of the actual and perceived impartiality of the Commission.  The establishment of the Commission was a recommendation of the Joint Select Committee and as was remarked in the Second Reading Speech for the 1983 Bill:

“According to the Joint Select Committee, there is ‘great merit in the existence of an Australian Electoral Commission with a statutory basis and which is seen to operate independent of political influence’.  The Bill provides for the establishment of a truly independent Electoral Commission to be made up of a judge of the Federal Court of at least three years standing appointed by the Governor-General in Council from a panel of three nominated by the Chief Judge; The Electoral Commissioner, a position replacing the Australian Electoral Officer; and a permanent head of the Public Service or a person of equivalent status in a Commonwealth statutory authority.”

19.It is an objective of the independence of the Australian Electoral Commission that it be impartial and be seen to be such, particularly in the important and sensitive decisions it has to make about issues such as electoral redistribution and, relevant to the present case, the registration of political parties.

20.The disqualifications from registration for which s 129 provides should not be seen as intended to protect the interests of political parties which have already secured registration, although that may be a by-product of the refusal of registration under s 129(d). It is rather the integrity of the electoral process and, associated with that, the interests of electors in making choices unaffected by confusion or mistake that are protected. In this context the role of the Commission as a party to proceedings before the Tribunal is in theory wider than that of a registered political party which will be primarily concerned with its own interests and those of its candidates. The Commission, however, should be at pains not to compromise the reality and appearance of its impartiality in the role it takes in defending its own decision on a question of registration. Where a political party is joined in the proceedings it may well be that it takes the primary role of contradictor, with the Commission assisting the Tribunal as to the construction of the Act and considerations relating to the electoral process generally. Of course, if there is no other contradictor, then the Commission may be left in the position of having to put all arguments to the Tribunal that fairly bear upon the considerations relevant to the decision. It is of particular importance to note that pursuant to s 43, the Tribunal, even though comprising three judges of the Federal Court, is sitting as an administrative body in effect in the place of the Commission. Its task is to make the correct or preferable decision having regard to the provisions of the Act and the factual circumstances. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at 589 per Bowen CJ and Smithers J. In the present case, senior counsel appearing for the Commission had filed written submissions going to the merits of the decision. Nevertheless, he accepted that the Commission’s role in this case should be limited to addressing the Tribunal on questions of construction and any particular omission or difficulties arising out of the submissions put on behalf of the Liberal Party of WA.

The Policy Underlying Registration

21.As noted earlier, the enactment of what is now Part XI of the Commonwealth Electoral Act followed the recommendations of the report of a Joint Select Committee on Electoral Reform in September 1983.  In Chapter 12, par 12.1 of that Report it was stated:

“The Committee believes that in light of its recommendations with respect to the public funding of political parties for election campaigns, the printing of the political affiliation of candidates on ballot papers and the adoption of the list system for Senate elections, provision for the registration of political parties will be necessary.”

In par 12.6 criteria disqualifying the names of parties for registration were proposed.  These included disqualifications based on the use of the word “independent”, obscenity, and the use of the name, acronym or abbreviation of another party.  It was recommended that a name be disqualified if it:

“(e)  so nearly resembled the name or abbreviated name of a party represented in the Commonwealth or a State Parliament or the Legislative Assembly of the Northern Territory or the ACT House of Assembly, or the name or abbreviated name of a party already registered, as to be likely to be confused with, or mistaken for, that name or abbreviation.”

As can be seen, the terms of the recommendation in this respect are substantially replicated in s 129(d). There is no explanation of the terms of that recommendation in the Report. The Committee did observe however, at 12.8:

“The Committee is aware that the requirement for registration entrenches the claims of existing political parties, and may deprive individuals of the right to be registered in a name of their choosing.  However the Committee believes the requirement is not so restrictive as to preclude the evolution of a political party.”

22.It is difficult to see how the registration of similarly-named political parties could have significant adverse effects in relation to the receipt of free copies of electoral rolls or election funding, or to the issues of annual returns and information about donations.  Those matters are to be dealt with by officials of the Commission, who can be presumed to have sufficient knowledge of the state of the Register to obviate the risk of confusion.  In any event, it is difficult to see how the presence of similarly-named registered political parties could cause problems with respect to those issues. The ineligibility for registration of names closely resembling those of parliamentary or other registered parties must therefore be directed to the entitlement of a registered political party to have its name printed on ballot papers adjacent to the name of its candidate or group of candidates as the case may be.  It is only in relation to this consequence of registration that the question of confusion or mistake will arise.

23.The confusion or mistake that is relevant therefore is that of the elector preparing to vote by marking the ballot paper at an election. It is the judgment of the elector in that brief time in the polling booth that is to be protected. That is not to say that such judgment takes place in isolation from what is said and published prior to polling day and, indeed, up to and including the publication of how to vote cards outside the entrance to polling places. 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. Further, voters are required to express preferences for all candidates on a ballot paper, whether by numbering individual squares, or by selecting a group voting ticket in the case of Senate elections (s 239 and s 240). 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.

24.The objective of the disqualification from registration is to be borne in mind when construing the Act.

The Decision Under Review

25. The Australian Electoral Commission identified two elements of the decision-making process which it attributed to the Commission’s delegate. The first was the formation of the opinion that the term “liberals for forests” so nearly resembles “Liberal Party of Australia” or its abbreviation as to be likely to be confused with or mistaken for that name or its abbreviation. The formation of this opinion was said to be a decision in its own right under the definition of “decision” in s 3(3)(g) of the AAT Act. It was said to be a decision distinct from the decision to refuse registration. Section 141(1)(b) extends to the Tribunal, it was submitted, the power to review the ultimate or primary decision to refuse registration but not the essential preliminary decision. Accordingly, it was submitted, there is no power in the Administrative Appeals Tribunal to reconsider the delegate’s preliminary decision that the name “liberals for forests” so nearly resembles “Liberal Party of Australia” or its abbreviation as to be likely to be confused with or mistaken for Liberal Party of Australia or its abbreviation.

26.The decision under review in this case is the decision of the Commission.  The review process involves the Tribunal as part of the continuum of administrative decision-making exercising the powers of the Commission under s 141(4).  The fact that the Commission is chaired by a serving or retired Federal Court judge is no doubt the reason that the Tribunal to review it is required to comprise three presidential members who are judges of the Court.  The review by the Commission is administrative, not judicial in character.  It is administrative merits review.  So too is the review by the Tribunal of the Commission’s decision.

27.The ground for the refusal of registration under s 129 is the formation of an opinion by the Commission that mandates that refusal. To argue that the formation of the opinion is not reviewable by the Tribunal, is to argue that the review process is an empty formality. The submission should not be accepted. In exercising its powers to remake the decision under review, this Tribunal must itself necessarily reconsider the formation of the opinion required by s 129(d).

The Contentions Before the Tribunal

28. The applicant contends that s 129(d) requires that the similarity of the name of the proposed registrant and that of an existing registered political party be the cause of the likelihood of confusion or mistake. This proposition seeks to distinguish the criteria for disqualification from similar terms used in the Trade Marks Act 1995 and in the context of misleading or deceptive conduct and passing off.  Reference was made to the Business Names Act 1962 (WA) which, by a combination of its own terms in s 9(1) and a ministerial direction given under s 9 prohibits the Commissioner for Corporate Affairs from accepting for registration “names that are likely to be confused with or mistaken for a business name registered in Western Australia”. In Drake v Commissioner for Corporate Affairs, Supreme Court of Western Australia, 19 April 1999, CIV 2343 of 1997, Owen J (Kennedy and White JJ agreeing) held that the question was to be determined by reference only to the likelihood of confusion or mistake which is an objective test.   Evidence of actual confusion is to be taken into account but is not determinative.  The construction of the section in that case was not expounded in detail as the case turned largely on its own facts and was a judicial review case in which the court held no error had been demonstrated. 

29.The applicant submitted that the words “likely to be confused with or mistaken for” in s 129(d) required that there be a probability of confusion or mistake. He also submitted that the Act should be interpreted in the light of the political freedoms upon which parliamentary democracy is based. Political parties, it was said, are founded upon the basic freedom of political association. Existing political parties do not have proprietary rights to their names as do, for example, the owners of trade marks. Rather, it was said, there should be a presumption of the right of electors to form new political parties.

30.It was submitted that the likelihood of confusion or mistake is a question of fact, but that none of the objections provided any factual material upon which to base an assessment adverse to the applicant.  The applicant had supplied the only relevant factual material, that being the results of a survey carried out for liberals for forests in June 1999.  The poll was said to demonstrate that electors had no difficulty differentiating between liberals for forests and the Liberal Party.

31.It was submitted that it is a long accepted principle in trade mark cases that an applicant for registration of a trade mark in competition with a trade mark has the onus of proving that there is no reasonable likelihood of confusion. There is, however, it was said, no basis either in the statute or in principle for extending that approach to an application under s 129 of the CommonwealthElectoral Act. The statute gives no indication that that is intended. In principle, there is every reason for the presumption of an entitlement to registration of a political party. There is no proprietary right to protect. The name “liberals for forests” was said to be quite different from the name the “Liberal Party of Australia” and the abbreviation “Liberal”. It was said that the real objection to the registration of the name was that electors might think that liberals for forests is a subset of the Liberal Party or that there is some association between them. It is not the similarity of the name or the abbreviation, but simply the use of the word “liberal” which generates those concerns. The word “liberal” was said to be a descriptive word covering a political philosophy having a far broader coverage than that of the Liberal Party of Australia. The Liberal Party of Australia did not have a monopoly on liberalism. The choice of the Liberal Party to have the word “liberal” in its name should not grant to it a monopoly over the word or the philosophy. Furthermore s 129, it was said, requires that it is the resemblance of the name that must create the confusion or the mistake. But there is in fact, it was submitted, no similarity between the names.

32.The Commission on the other hand contended that the confusion and mistake to which s 129(d) relates is not limited as to time and place. It is not necessary that the delegate confine his consideration to the question of whether electors are likely to be confused or mistaken in the polling booth at the time votes are being cast. It is sufficient, it was said, that confusion or mistake be likely to arise at any time. It is not necessary that the delegate form an opinion of the majority of electors or a significant number thereof are likely to be confused or mistaken, but sufficient if only some are likely to be so affected. The notion of confusion is logically distinct from that of mistake. Confusion arises, it was submitted, at the point when an elector has cause to wonder and cannot ascertain whether “liberals for forests” is the same as or connected with the Liberty Party of Australia or its abbreviation “Liberal” or “Liberals”. There is evidence before the Tribunal that “Liberal” is a registered abbreviation of the Liberal Party of Australia and has been since registration commenced. In addition, the Australian Liberal Party also uses the abbreviation “Liberals”.

33.While the Act contemplates the conduct of ordinary or reasonable electors it was also said to be arguable that its proper interpretation should not be such as to restrict the class of persons in contemplation to the reasonable or prudent elector.  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.  The relevant confusion or mistake must be likely in relation to the name of a registered political party or an abbreviation thereof.  This could arise in a number of circumstances including:

·Where the confusion or mistake is that the one party is in fact the other party, or a part thereof.

·Where the confusion or mistake is that the one party is in some way connected to the other or a party thereof.

34.It was submitted that although the word “liberal” has a variety of meanings there could be little doubt that in a political context in Australia it has come to be associated with the Liberal Party of Australia, known more commonly by its abbreviations “Liberal” or “Liberals”.  The abbreviations and the name “liberals for forests” are likely to be confused or mistaken merely as names as well as in relation to the names.  The use of the lower case “l” in the title of the applicant’s party would not reduce the possibility of confusion or mistake because any difference of substance between “liberals” and “Liberals” is too subtle a basis for differentiation.  The suggestion arising from the word “liberals” in “liberals for forests” was said to be either overlapping membership between the parties or some other form of connection.

The Approach to Construction

35.The content of the opinion upon which refusal of registration under par 129(d) is mandated is that the name of the party applying for registration:

·Resembles the name of another political party that is a parliamentary party or registered political party or an abbreviation or acronym for that name.

·So nearly resembles that name, abbreviation or acronym that it is likely to be confused with or mistaken for it.

36.Although statutory analogues for the language of par 129(d) are to be found in the Trade Marks Act 1995 and its predecessor the Trade Marks Act 1955 and in State statutes dealing with the registration of business names, it is appropriate to take as a point of departure the ordinary meanings of the key words in the paragraph and to construe their combination in context and according to the purpose served by s 129. The statutory context in which par 129(d) appears and the unique purpose it serves distinguishes it from provisions considered in Drake.  For the same reason, the decision of the Supreme Court of New South Wales in Professional Liquor and Catering Enterprises Pty Ltd v Corporate Affairs Commission, Supreme Court of New South Wales, 9 July 1982, 678 of 1982, is of little assistance. That case dealt with a ministerial direction under s 9 of the Business Names Act 1962 (NSW) that was in terms similar to that considered in Drake.  Passing off cases were cited for the proposal that the relevant confusion is established if similarity of business names suggests a connection between the two businesses.  The context distinguishes the case from that which faces this Tribunal.

37.The first subject of consideration under par 129(d) is the question of resemblance. For one thing to “resemble” another does not require identity of appearance.  The relevant meaning from the Oxford English Dictionary is:

“1.  To be like, to have likeness or similarity to, to have some feature or property in common with (another person or thing).”

The other key elements are “confusion” and “mistake”. The relevant meanings of the word “confuse” are:

“2.  To discomfit in mind or feelings; to abash; to bewilder.

…

3.  To throw into disorder or confusion.

…

5.  To mix up in the mind, fail to distinguish.”

The literary example of the application of meaning number five is from Ruskin:

“We in reality confuse wealth with money…”

The word “mistake” as a verb is relevantly defined thus:

“1.  To take wrongfully, wrongfully or in error.

…

3.  To err in the choice of.

…

8.  To mistake (a person or thing) for (another): to suppose erroneously the former to    be the latter;

…

9. To take to be somebody or something else”.

The literary reference to the eighth meaning is from Addison:

“She [a hen] mistakes a Piece of Chalk for an Egg and sits upon it in the same manner.”

38.The resemblance to be determined is between the name, abbreviation or acronym of the party seeking registration and the name, abbreviation or acronym of a registered party.  If of the opinion that there is a relevant resemblance, the Commission must then consider whether it is “likely” to have either or both the disqualifying consequences set out in par 129(d).  In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 339, Bowen CJ said:

“The word “likely” is one which has various shades of meaning.  It may mean “probable” in the sense of “more probable than not” – “more than a fifty per cent chance”.  It may mean “material risk” as seen by a reasonable man “such as might happen”.  It may mean “some possibility” – more than a remote or bare chance.  Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.”

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.  It is the kind of judgment which courts are frequently called on to make and one which administrators with the appropriate expertise are also required to make from time to time.

39.This leads to the next and difficult question of construction of the term “confused with or mistaken for that name”.  In construing that collocation in the context of par 129(d) it is important to bear in mind the narrow scope of the purpose of registration to which that disqualification relates.  Registration is relevantly the mechanism by which a political party is entitled to have its name printed on ballot papers against its candidate or, in the case of a Senate election, against a group of its candidates.  It has no bearing upon the right of any political party to use its name in campaign advertising, media publicity or how to vote cards handed to persons as they approach the polling place on election day.  It may be noted in passing that there is a wide prohibition in the Act against the publication of “…any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote” (s 329(1)). 

40.The subject matter of mistake or confusion upon which par 129(d) operates is expressed in terms of the name, abbreviation or acronym of the registered political party.  The provision has the admitted consequence, as the Joint Committee observed, that it “entrenches the claims of existing political parties, and may deprive individuals of the right to be registered in a name of their choosing.”  So the registration of the Liberal Party of Australia will defeat a subsequent attempt to register that name in an unrelated party and is likely to defeat variants such as the “Australian Liberal Party”.  There is however a tension between the protective function of par 129(d) and the freedoms of association and political expression that are incidents of representative democracy.  Political parties in Australia use, and historically have used, in their names generic words such as “Australia”, “liberal”, “labour”, “democrat”, “national”, “christian”, “progressive”, “socialist” and the like.  Absent clear language to contrary effect, the disqualifying provision is not to be construed so as to lock up generic words as the property of any organisation when it comes to names that can be used on the ballot paper.  And it is significant that there is no registration requirement conditioning the wider use of party names outside the polling booth.  This suggests that the language of par 129(d) should be read according to the ordinary meaning of its words and not strained beyond them.

41.The subject of the apprehended confusion or mistake in terms is the name, abbreviation or acronym of the party seeking registration and the name, abbreviation or acronym of a previously registered party. The presence of s 130 suggests that the confusion contemplated by s 129(d) extends to confusion as to whether some relationship exists between two registered political parties the names of which appear on the ballot paper. Section 130 is not expressly worded so as to override s 129(d), but that must be its intended effect. It provides that the Commission may register an eligible political party notwithstanding that a political party that is related to it has been registered. Unless it were intended to authorise registration of similarly-named parties when a relationship exists between them, the section appears to have no function. This conclusion is reinforced by the presence of s 134A, which authorises the deregistration of the second-registered party when the relationship between them has been severed to the extent that the first-registered party objects to the continued use of the registered name of the second-registered party.

42.The subject matter of the confusion or mistake thus being identified, what does it mean for a name to be “confused with or mistaken for” another?  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.  An example of a name that might give rise to such a risk is the name “Australian Liberal Party”.  This could be mistaken in the ballot paper for “Liberal Party of Australia”.  So too, could “Liberals of Australia” and perhaps even “Liberals for Australia”.  They are not exhaustive examples, but demonstrate the practical operation of the risk of mistake.

43.The remaining issue of construction is the operation of the words “confused with”. On the dictionary definition it would seem there is very little difference between those words and the words “mistaken for”. 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. So it might be said that an elector confronted with the choice between “Liberal” and “Australian Liberal” may be left in a state of such uncertainty as to which is which that he or she could not make the informed choice intended. Being faced with the requirement to express a preference for each, the elector might simply make a guess. The result might be in accordance with the elector’s original voting intention (in which case it might be said that the elector had not mistaken one name for the other), but that would be the result of chance, rather than informed choice. Section 129(d) is intended to protect electors from the risk of such uncertainty, and from the possibility that electors, driven to rely on chance, might choose wrongly.

44.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.

Application of Paragraph 129(d) to the Present Case

45. The relevant resemblance in this case must be found between the proposed name “liberals for forests” and the name of the Liberal Party of Australia or any of its  State divisions or the registered abbreviation “Liberal”.  There is a resemblance deriving from the use of the word “liberals”.  This resemblance is limited.  It is entirely related to the generic term “liberal” used in each party’s name and, in the case of the Liberal Party of Australia, and its State Divisions, in their registered abbreviations.

46.The term “liberals for forests” is a combination of words emphasising a specific issue and describing a party by a name different from that of the Liberal Party of Australia or any of its State divisions.  It may be that some persons will draw the inference that members of “liberals for forests” are former members or have some affiliation with the Liberal Party of Australia or one of its State divisions.  It is unlikely that any elector, seeing the two names on a ballot paper, will draw the conclusion that “liberals for forests” is a political party related to the Liberal Party of Australia or any of its State divisions. In this case, the possibility that the name “liberals for forests” could be mistaken for the registered name “Liberal Party of Australia (WA Division) or the abbreviation “Liberal” is, in the opinion of the Tribunal, not such as is “likely” to occur in the sense explained earlier, namely that there is a real chance that it will occur.  Similarly, the possibility that an elector confronted with the two names on a ballot paper would be in a state of uncertainty as to whether one was the other is not such as to amount to a likelihood.  It is not accepted that there is any real risk that the name “liberals for forests” will be confused with or mistaken for the name “Liberal Party of Australia” or the name “Liberal”.

Conclusion

47. In the circumstances, the Tribunal will set aside the decision of the Commission and substitute for that decision a decision that “liberals for forests” should be registered as a political party under the provisions of the Act.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Gray, French and RD Nicholson JJ.

Signed:

............................(sgd S Rebikoff).............................
Associate

Date of Hearing:  15 January 2001
Date of Decision:  6 March 2001

Counsel for the Applicant:  Mr P Kyle

Solicitors for the Applicant:  Kyle & Company

Counsel for the First Respondent:           Mr S Owen-Conway QC   with  Mr A Jenshel

Solicitors for the First Respondent:          Australian Government Solicitor

Counsel for the Second Respondent:     Mr J Gilmour QC with Mr A Carr

Solicitors for the Second Respondent:     Freehills