As the dust settles on last Saturday’s Federal election, one of the more interesting outcomes to emerge is the likely election of six new Senators from five ‘micro’ parties – the Palmer United Party, the Family First party, the Australian Motor Enthusiast Party, the Australian Sports Party and the Liberal Democrats. One of the incoming Senators is Mr David Leyonhjelm of the Liberal Democrats. Although his party obtained less than 9% of the primary vote in NSW, off the back of preference deals, a lucky ballot paper position and a potentially confusing party name, from next year Mr Leyonhjelm will find himself in Canberra as one of NSW’s Senate representatives.

Although preference flows, ballot paper position and party name may have all contributed to Mr Leyonhjelm’s election, this post examines the last of these factors – the possibility that voters in NSW may have mistakenly voted for the Liberal Democrats, thinking they were voting for the Liberal Party. The differences between both parties mean the consequences of any mistaken votes are real: a ‘libertarian’ party that advocates less government control, the Liberal Democrats policies include repealing John Howard’s gun control laws, legalising marijuana and reducing the income tax rate to 20%.

As Mr Leyonhjelm explained in last Monday’s AFR, “I wish it was our policies but I suspect some people may have voted for us by mistake and some of them voted for us because we were first on the ballot paper.” And on ABC News last Monday, Mr Leyonhjelm had this to say: “there are some people who mistook us for the Liberals, probably the Liberals, but they could also have mistaken us for the Christian Democrats or even the ordinary Democrats.

For those of us who spend our days writing letters to businesses demanding that they discontinue using our clients’ trade marks, stop passing off their businesses as our clients’ and stop engaging in activities likely to mislead and deceive consumers, this makes us wonder how the politicians can get away with such behaviour?

Our interest piqued, it wasn’t long before we were trawling through the Commonwealth Electoral Act. This Act allows political parties to apply for registration with the Australian Electoral Commission (AEC). Registration confers various benefits on the registered party, including the right to have their party’s name appear on the ballot paper next to a candidate’s name. The Act explains that a political party’s name will be ineligible for registration if it:

  • so nearly resembles the name of another political party that is a recognised political party that it is likely to be confused with or mistaken for that name, or
  • the name is one that a reasonable person would think suggests that a connection or relationship exists between the party and a registered party if that connection or relationship does not in fact exist.

(Paragraphs 129(1)(d) and (da), respectively, of the Commonwealth Electoral Act 1918 (Cwlth))

On the face of these provisions, how did the Liberal Democrats obtain registration of their party’s name? The answer lies in a 2001 decision of the Administrative Appeals Tribunal, Woollard and Australian Electoral Commission and Anor [2001] AATA 166, where the Tribunal held, in construing paragraph 129(1)(d), that it is common practice for political parties in Australia to use generic words in their name, including the words “liberal” and “democrat”, and that the use of such words should not be prohibited. (The Tribunal also thought the words “Australian”, “labour”, “national”, “Christian”, “progressive” and “socialist” were generic.) The Tribunal stated:

There is … 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.

In reaching this conclusion the Tribunal rejected a consideration of similar provisions under the Trade Marks Act, business names legislation and passing off cases, explaining that the statutory context in which section 129 appears can be distinguished from these other situations.

Paragraph 129(1)(da) was subsequently inserted into the Act in 2004 following the Woollard decision.

In 2007, when the Liberal Democrats sought registration under the party name ‘Liberal Democratic Party’ (and the abbreviated name ‘Liberal Democrats’), the AEC objected under section 129 and the party agreed to change its name to the ‘Liberal and Democracy Party’, which, in the AEC’s view, did not breach section 129 (the AEC’s decision can be found here).

In 2008, following on from the 2007 Federal election, the Liberal Democrats made an application to change their party’s name to the ‘Liberal Democratic Party’ (and the abbreviated name ‘Liberal Democrats’). Understandably, this irked the Liberal Party and it objected to the application, along with the Australian Democrats. These challenges were unsuccessful and, although the AEC voiced its disapproval of some aspects of the Tribunal’s reasoning in Woollard, it ultimately found in the Liberal Democrats favour. Crucially, in relation to paragraph 129(1)(da), the AEC thought that the reasonable person would not mistakenly think a connection or relationship existed, this person being “credited with an awareness that political appellations of a general kind such as “liberal”, “labor” and “democratic” are commonly used by different political parties.

A search of the AEC’s Current Register of Political Parties reveals a number of parties with similar names:

  • Parties with the word “liberal” in their name include the Liberal Party of Australia, the Country Liberals (Northern Territory) and the Liberal Democratic Party.
  • Parties with the word “democratic” in their name include the Australian Democrats, the Christian Democratic Party (Fred Nile Group), the Democratic Labour Party and the Liberal Democratic Party.
  • Parties with the word “labour” in their name include the Australian Labor Party and the Democratic Labour Party.

It’s all very confusing! In Woollard, the Tribunal thought that:

The confusion or mistake that is relevant … is that of the elector preparing to vote by marking the ballot paper at an election. It is the 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.

Given the events of the recent election, it seems to us that something needs be done to remove the danger of confusion when an elector steps into the polling booth to elect their representatives. While the argument could be made that the elector should have done their research and know their candidates, we suspect this is an unrealistic expectation.

The Liberal Democrats find themselves therefore in an advantageous position – the Liberal Party does not hold any registered trade marks (in fact, the only political party that appears to have registered a trade mark is the Progressive Labour Party, which holds Registered Trade Mark No. 837476 for PROGRESSIVE LABOUR PARTY for “[s]ervices of a political party namely policy research services, demographic research services, political research services and political information services”), and its unlikely the provisions of the Australian Consumer Law, sections 18 and 19 in particular, could apply, since it would be difficult to characterise the Liberal Democrats’ conduct as conduct “in trade or commerce”.

For how much longer the Liberal Democrats will be able to maintain this advantageous position is unclear. Given the evidence of the recent election, and Mr Leyonhjelm’s own admissions that people may have mistakenly voted for him, in our opinion, it’s difficult to see how the Liberal Democrat’s name can be maintained in light of paragraph 129(1)(da).