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Electoral Legislation Amendment (Party Registration Integrity) Bill 2021

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2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

ELECTORAL LEGISLATION AMENDMENT (PARTY REGISTRATION INTEGRITY) BILL 2021

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Assistant Minister for Electoral Matters,

the Hon Ben Morton MP)

 



 

The following abbreviations and acronyms are used throughout this Explanatory Memorandum:

Abbreviation

Definition

Bill

Electoral Legislation Amendment (Party Registration Integrity) Bill 2021

Electoral Act

Commonwealth Electoral Act 1918

Item

Refers to an Item in the Bill

ICCPR

 

International Covenant on Civil and Political Rights

JSCEM

Joint Standing Committee on Electoral Matters

Non-Parliamentary party

A political party that is not a ‘Parliamentary party’ as defined in section 123 of the Commonwealth Electoral Act 1918

 



 

ELECTORAL LEGISLATION AMENDMENT (PARTY REGISTRATION INTEGRITY) BILL 2021

GENERAL OUTLINE

The Bill amends the registration eligibility requirements for a federal non-Parliamentary party. These amendments increase the minimum membership requirements for registration from 500 to 1500 unique members. A unique member is a person who counts towards the membership requirement of only one registered political party.

The Bill also amends the prohibitions regarding registrable names, abbreviations, and logos. Where a political party applies to register a name or abbreviation or logo that replicates a key word or words in the registered name or abbreviation of a registered political party without consent, the Electoral Commission must refuse the registration.

FINANCIAL IMPACT STATEMENT

In the context of the AEC’s constitutional and legal obligations to undertake elections, it is not possible to accurately estimate the total cost of any election in advance. Once true costs are known the AEC will be in a position to work with the Department of Finance to finalise the financial implications of the measures in the Bill.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in the Bill. The amendments in the Bill have been assessed as compatible with Australia’s human rights obligations.



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Electoral Legislation Amendment (Party Registration Integrity) Bill 2021

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Human rights implications

The impact of the Bill on the following rights from the ICCPR has been considered:

·          the right to freedom of expression under Article 19;

·          the right to association with others under Article 22; and

·          the right to political participation under Article 25.

Article 19 — Freedom of Expression

1.       The Bill engages the right to freedom of expression under Article 19 of the ICCPR because of the restriction it places on key words able to be used in the names, abbreviations, and logos of registered political parties.

2.       The right to freedom of expression may be subject to permissible limitations, where these limitations are provided by law and necessary for public order or respect of the rights or reputations of others. Limitations must also have a legitimate objective, be reasonable and necessary to achieve the desired purpose, and be proportionate to the need on which the limitation is predicated.

3.       The provision serves the legitimate end of safeguarding against voter confusion, allowing Parliament to be represented by members that are directly chosen by the free and informed choice of the electorate.

4.       The amendments prevent specific key words from being used in a party name where that word replicates another word used in an existing registered party name. The amendment contains reasonable exceptions to avoid unnecessarily preventing the use of generic words that are unlikely to cause confusion to voters, such as the collective nouns ‘Party’ and ‘Group’, geographical places and function words. The amendments also provide a mechanism for a party to agree or consent to the use of a word in their name by another party. This is intended to allow parties which mutually agree they are related to utilise the same name.

5.       The provision to prevent inappropriate replication or imitation of key words in party names is reasonable and necessary to enable voters to appropriately distinguish between political parties during an election, and promotes the free and effective exercise of their franchise.

6.       The proposed limitation on the right to freedom of expression is therefore proportionate to the legitimate end sought and is reasonable and necessary in the circumstances and consistent with Article 19 of the ICCPR.

 

Article 22 —F reedom of Association

7.       The Bill engages the rights of citizens to freedom of association with others under Article 22 of the ICCPR because of the increased membership requirement to be satisfied before a non-Parliamentary political party can be registered for Australian federal elections. Although the amendment does not restrict the formation of political parties or their activities outside the Australian federal electoral process, the inability of

non-Parliamentary parties with fewer than 1,500 unique members to be registered federally could be interpreted in the context of Article 22 as limiting the statutory privileges that can be gained by a small association.

8.       The limitation on the right of citizens to freedom of association in the context of the status accorded to smaller political associations is proportionate to the legitimate end sought and is reasonable and necessary in the circumstances. The amendment is intended to ensure that any political party on the federal Register of Political Parties has a genuine foundation of national community support. These reforms do not preclude members of smaller associations from standing as independent candidates for federal elections with organisational endorsement.

9.       Preventing the federal registration of political parties with fewer than 1,500 unique members (and no member of Australian Parliament) is proportionate given that there are over 16 million persons on the Commonwealth Electoral Roll who can be a member of a political party for the purposes of registration. This threshold is also proportionally less restrictive than equivalent thresholds under State electoral laws, for example in

New South Wales (750 members) and Western Australia (500 members), given the significantly lower population size of those States’ electorates in comparison to the Australian federal electorate. The amendments also do not prevent candidates from an unregistered party from standing for election as independent candidates.

10.   The limitation of the right is therefore consistent with Article 22 of the ICCPR.

Article 25 — Political Participation

11.   The Bill engages the rights of citizens to take part in the conduct of public affairs, directly or through freely chosen representatives, under Article 25 of the ICCPR because of the restriction on the key words a political party can use in its registered name, abbreviation, or logo if those key words are already in use by a previously registered political party.

12.   In its General Comment 25, the United Nations Human Rights Committee stated that any conditions applying to exercise of rights protected by Article 25 should be based on objective and reasonable criteria, and may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable .

13.   The amendment, which is provided by law and sets out objective criteria, is intended to protect voters from being confused or misled. In particular, it is intended to address confusion caused by a ballot paper having similar party names, abbreviations, or logos. Such similarities have likely caused confusion as to whether parties are affiliated or related, resulting in voters mistakenly voting for a party that was not reflective of their intended choice. This does not inhibit the registration of new parties, it merely ensures unrelated registered political parties are distinguished from previously registered parties by precluding overlapping use of key words, and encouraging original party names.

14.   Where overlap of names causes voters to mistake one party for another, it can distort their choices, in some cases by attracting a voter mistakenly to a party they did not intend to support and in other cases deterring them from supporting a party that they might otherwise give consideration to.

15.   The limitation on the right of citizens to take part in the conduct of public affairs, directly or through freely-chosen representatives, is proportionate to the legitimate end sought and is reasonable and necessary in the circumstances. This is because the limitation concurrently supports the same right, by ensuring voters can more easily make an informed choice for representation.

16.   The limitation of the right is therefore consistent with Article 25 of the ICCPR.

Conclusion

17.   The Bill is compatible with human rights because, to the extent it may limit human rights, those limitations are reasonable, necessary, and proportionate.



 

ELECTORAL LEGISLATION AMENDMENT (PARTY REGISTRATION INTEGRITY) BILL 2021

NOTES ON CLAUSES

Clause 1 - Short title

1.              Clause 1 is a formal provision specifying the title of the Bill when enacted will be the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (the Act).

Clause 2 - Commencement

2.              Subclause 2(1) provides that the provisions in column 1 of the Commencement table commence at the time set out in column 2.

3.              Item 1 in the Commencement table provides that the whole Act commences the day after the Act receives the Royal Assent.

4.              A note is inserted below the Commencement table stating that the table relates only to the provisions of the Act as originally enacted and that the table will not be amended to deal with any later amendments of the Act.

5.              Subclause 2(2) provides that information in column 3 of the Commencement table is not part of the Act. Information may be inserted into column 3, or information in column 3 may be edited, in any published version of the Act.

Clause 3 - Schedules

6.              This clause provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.



 

Schedule 1 - Amendments

Commonwealth Electoral Act 1918

1.              Part XI of the Electoral Act provides for the registration of political parties on the Register of Political Parties.

2.              Item 1 amends the definition of “eligible political party” in subsection 123(1).

This amendment increases the minimum membership requirements for a

non-Parliamentary party to 1,500 unique members to ensure that registered political parties have a genuine foundation of national community support, and addresses recommendation 4 from the JSCEM Interim report on the inquiry into the conduct of the 2013 Federal Election and Recommendation 4 from the JSCEM Report on the conduct of the 2016 federal election and matters related thereto.

3.              Item 2 inserts new section 123A to prevent an individual member being relied upon by two or more parties for the purposes of registration. Under this amendment, the individual must make a selection, and nominate which party they choose to be relied upon for the purposes of satisfying the membership requirements under the Electoral Act. Where the individual has not nominated a party after 30 days, none of the parties may rely on that individual to satisfy the membership requirement.

4.              Item 3 amends paragraph 126(2)(ca) to omit “include a list of the names of the 500” and substitute it with “for an eligible political party that is not a Parliamentary party—include a list of the names of the 1,500”. This is a consequential amendment to Item 1 , and clarifies that an application for registration of a Parliamentary party does not need to include a membership list.

5.              Item 4 repeals subsection 126(2A). This is a consequential amendment, as the function of preventing a member to be relied upon by two or more parties is served by new section 123A.

6.              Item 5 inserts the subheading “ Names not to be registered ” before subsection 129(1), to clarify the function of this subsection.

7.              Item 6 inserts “,frivolous or vexatious” after “obscene” in existing paragraph 129(1)(b). These terms are to be given their ordinary meaning, and are intended to include party names or abbreviations that are nonsensical or are malicious in their application. This would include, for example, an applicant seeking to register ‘Australian Electoral Commission’, or ‘Australian Government’ as a political party.

8.              Item 7 inserts a new subsection 129(3) to require the Electoral Commission to refuse an application for the registration of a political party if both of the following are satisfied:

·          the applicant party’s name or proposed abbreviation contains a word that is in the registered name or abbreviation of a registered political party; and

·          the applicant party’s application for registration is not accompanied by written consent from the registered officer of that previously registered political party to the applicant party using the word in the applicant party’s name or abbreviation for the purposes of registration.

9.              If there is more than one registered political party with the word in its

currently-registered name or abbreviation, new subparagraph 129(3)(b)(ii) provides that the written consent needs only to be from the party who was first to register the relevant name or abbreviation.

10.          This ‘first-in-time’ consent principle does not include previous registrations of a name or abbreviation. Therefore, the consenting party must be the party with the longest continuous registration of that name or abbreviation.

11.          Item 7 also inserts new subsection 129(4) to clarify that, in the situation where a federal branch and a related federally-registered State or Territory branch register a name on the same day, and are both ‘first-in-time’ for the purposes of new subparagraph 129(3)(b)(ii), only the registered officer of the federal branch can provide consent to another party using that word.

12.          Item 7 also inserts new subsection 129(5), which provides that new subsections 129(3), 129A(2), and new subparagraph 134A(1)(a)(iii) do not apply to a function word, a collective noun for people, the word “country”, the name of a country or recognised geographical place in Australia, or the word “democratic”. This reflects the intention of new subsection 129(3) to prevent the registration of party names and abbreviations that risk causing voter confusion with existing registered names and abbreviations.

13.          The phrases “a function word”, “a collective noun for people”, and “the name of a country”, and word “country” in new subsection 129(4) are to be given their ordinary meaning.

14.          The Macquarie Dictionary of Australia defines a ‘function word’ to mean “a word, like  the  or  of , which may add meaning to, or show relationships between, content words in a given sentence but does not refer the mind to any entity outside the sentence”.

15.          ‘Collective noun for people’ is intended to include words including, but not limited to ‘Party’, ‘Group’ , ‘Alliance’, ‘Network’ and ‘Team’.

16.          ‘Recognised geographical place’ is intended to include the name of Australian towns, cities, states and territories, as recognised by State, Territory and Commonwealth authorities, for example, a place listed in the Gazetteer of Australia. Words specified under paragraph 129(5)(c) are also intended to include the terms that denote inhabitation of these places, for example the geographical place of “Victoria” is intended to include the word “Victorian”, and the country of “Australia” is intended to include the word “Australian”.

17.          Item 7 also inserts new subsection 129(6), which provides that the application of new subsections 129(3), 129(5), and 129A(2) and new subparagraph 134A(1)(a)(iii) to a word includes other grammatical forms and commonly accepted variants (including abbreviations, contractions, and alternative forms) of that word. This is intended to cover pluralisation and commonly accepted spelling variants of a word, for example, “color” and “colours”.

18.          The word “democratic” is treated as an exception, because it has a unique position as both being of widespread historical use in political party naming conventions, and being directly related to the intrinsic function of all Australian political organisations. The word can also be used to distinguish a political organisation from other forms of voluntary associations or professional groups that share a key word in its name.

19.          The amendments in Item 7 are intended to minimise the risk that a voter might be confused or potentially misled in the exercise of their choice at an election due to a political party having a registered name or abbreviation similar to that of an unrelated registered political party. The amendments respond to Recommendation 23 from the JSCEM Report on the conduct of the 2019 federal election and matters thereto . The principle of the change is to ensure registered political parties are sufficiently distinct in name, while also providing appropriate exceptions for non-key words. The Macquarie Dictionary of Australia currently recognises over 138,000 distinctive headwords and phrases, almost all of which can be used for party names and allow parties to communicate their distinctive characteristics to the public.

20.          Item 8 amends section 129A to insert “(1)” before “The”. This is a consequential amendment to reflect the insertion of new subsection 129A(2) at Item 9 .

21.          Item 9 inserts new subsection 129A(2), which provides that the Electoral Commission must refuse to register the proposed logo of an applicant party if both of the following are satisfied:

·          the logo contains a word that is in the registered name or abbreviation of a registered political party; and

·          the applicant party’s application for registration is not accompanied by written consent from the registered officer of that registered political party to the applicant party using the word in the logo for the purposes of registration.

22.          If there is more than one registered political party with the word in its currently-registered name or abbreviation, new subparagraph129A(2)(b)(ii) provides that the written consent needs only to be from the party who was first to register the name or abbreviation, being the party with the longest continuous registration of that name or abbreviation.

23.          Item 9 also inserts new subsection 129A(3) to clarify where a federal branch and a related federally-registered State or Territory branch are both ‘first-in-time’ for the purposes of new subparagraph 129A(2)(b)(ii), only the registered officer of the federal branch can provide consent to another party using that word.

24.          The intention of Item 9 is similar to that of Item 7 , in that the amendment in Item 9 is intended to minimise the risk that a voter might be confused or potentially misled in the exercise of their choice at an election due to a political party having a registered logo similar to the registered name or abbreviation of another registered political party. The amendment responds to Recommendation 23 from the JSCEM Report on the conduct of the 2019 federal election and matters thereto and expands it to party logos.

25.          Item 9 also inserts a note at the end of subsection 129A(2) to alert the reader that new subsection 129A(2) is subject to new subsections 129(5) and (6).

26.          Item 10 amends subparagraph 134A(1)(a)(ii) to omit “exist; and”, and substitute it with “exist; or”. This is a consequential amendment to reflect the insertion of new subparagraph 134A(1)(a)(iii).

27.          Item 11 inserts new subparagraph 134A(1)(a)(iii) to provide an additional ground for the operation of the existing section 134A. This additional ground reflects the amendments in Items 7 and 9 .

28.          Item 12 repeals second paragraph 134A(1)(aa), to ensure consistency in the application of the measures in this Bill with the existing objection process in the Electoral Act.  

29.          Item 13 inserts a note at the end of subsection 134A(1) to alert the reader that new subparagraph 134A(1)(a)(iii) is subject to new subsections 129(5) and (6).

30.          Item 14 inserts new subsection 134A(1A). This new subsection provides that, if there is more than one parent party to which subparagraph 134A(1)(a)(iii) applies in relation to a word, the parent party is the party that was first (not including previous registrations) to register its currently-registered name or abbreviation in question. This is intended to provide the same ‘first-in-time’ principle as that in new paragraphs 129(3)(b) and 129A(2)(b).

31.          Item 14 also inserts new subsection 134A(1B) to clarify that, in the situation where a federal branch and a federally-registered State or Territory branch are related and are both ‘first-in-time’ for the purposes of new subsection 134A(1A), it is only the registered officer of the federal branch who may lodge the objection.      

32.          Item 15 removes “ or ceasing to be a Parliamentary party ” from the heading of section 136. This is a consequential amendment to reflect the repeal of paragraph 136(1)(b) at Item 17 .

33.          Item 16 amends paragraph 136(1)(a) to replace “candidate; or” with “candidate.”. This is a consequential amendment to reflect the repeal of paragraph 136(1)(b).

34.          Item 17 repeals paragraph 136(1)(b). This is a minor and technical amendment to streamline and clarify the grounds for deregistering a party for failing to meet the membership requirements in the Electoral Act.

35.          Item 18 omits “has ceased to have at least 500” and substitutes it with “does not have at least 1,500”. This is a consequential amendment to reflect the increased membership requirements.

36.          Item 19 inserts a note at the end of paragraph 137(1)(b) to clarify the effect of new section 123A in determining whether a party has at least 1,500 members.

37.          Subitem (1) of Item 20 provides that the amendments made by Items 1 and 3 and Item 2 (so far as the amendment made by Item 2 relates to the amendments made by Items 1 and 3 ) apply, after Item 20 commences, in relation to a political party other than a registered political party. 

38.          Subitem (2) of Item 20 clarifies that Subitem (1) of Item 20 has effect whether or not an application to register the party has been made under Part XI of the Electoral Act, and whether or not any such application for registration was made before or after Item 20 commences. 

39.          Subitem (3) of Item 20 provides that the amendments made by Items 16 and 17 and Item 2 (so far as the amendment made by Item 2 relates to the amendments made by Items 16 and 17 ) apply from the start of the day after the end of the period of 3 months beginning on the day the Act receives the Royal Assent. This is intended to provide non-Parliamentary parties that are registered political parties at the Royal Assent with 3 months in which to become compliant with the increased membership requirements to remain registered.

40.          Subitem (4) of Item 20 is an application provision that provides that the amendments in the Act to sections 129 and 129A apply in relation to applications for registration made after the commencement of Item 20 .

41.          Subitem (5) of Item 20 is an application provision that provides that the amendments in the Act to section 134A apply, in relation to a registered name, abbreviation, or logo of a registered political party, from the day Item 20 commences, in relation to all political parties, regardless of their date of registration.