The Trolls That Got There First: Proposed New Party Registration Laws

 A raft of electoral reform legislation hit parliament this week.  Included in the collection of Bills introduced by Assistant Minister for Electoral Affairs Ben Morton are:

* The Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Bill 2021 which, if passed, allows the AEC to commence sorting prepoll votes at 4 pm, sets the prepoll period before polling day at 12 days, increases the number of scrutineers allowed for Senate elections and makes various changes to postal vote procedures.

* The Electoral Legislation Amendment (Political Campaigners) Bill 2021 which, if passed, alters requirements for disclosure by political campaigners, bringing them more into line with those for parties.

* The Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021 which, if passed, firstly allows for a voter to be required to cast a declaration vote in future if they are a suspected multiple voter.  Secondly it clarifies that offences against electoral liberty may include "Violence, obscene or discriminatory abuse, property damage and harassment or stalking" in connection with an election and increases the penalties for breaches, including up to three years' jail.

(See more on these three from Antony Green.)

* And the subject of this article, the Electoral Legislation Amendment (Party Registration Integrity) Bill 2021 which, if passed, increases the threshhold for party membership for a registered party without any sitting federal MP from 500 members to 1500 members, requires that a person can only be counted as a member of one party for registration purposes, requires that parties cannot replicate key words in the names of pre-existing parties, and disallows "frivolous or vexatious" party names.

Should the latter legislation be passed in its current form, the existing non-parliamentary parties would have three months from it taking effect to demonstrate that they had 1500 members.  The parliamentary parties (currently the Coalition parties, Labor, Greens, Katter's Australian Party, Centre Alliance, One Nation, Rex Patrick Team and Jacqui Lambie Network) would not be affected.  

I currently don't support the proposed party name changes, and I only support the party membership changes if changes are also made to the treatment of grouped independents on Senate ballot papers.

Origins of the Bill

There is some perception on social media that the Party Registration Integrity bill specifically targets the recently registered New Liberals, an anti-Liberal, left-wing and somewhat populist party that intends to run in Coalition seats and preference the Coalition last on its how-to-vote cards.  The Bill does massively affect the New Liberals and their presence may have influenced the wording, but the party names proposal arises from broader concern about misleading party names, and proposals to increase registration requirements have also been around for a while.  In December 2020 the Joint Standing Committee on Electoral Matters (JSCEM) noted that:

"7.41 Analysis of election results frequently includes commentary about how the Labor vote is impaired in some seats where the Democratic Labor Party is listed higher [sic] on the ballot paper, while the Liberal vote can be similarly depressed where the Liberal Democratic Party is listed higher [sic].

7.42 Accordingly, the random draw of candidate name order for a ballot paper can make a few percentage points difference to the result in a seat, because voters have been misled.

7.43 The Committee considers that voter choices and election outcomes should not be distorted by duplicative names appearing on the register of political parties. Indeed the two instances referred above involve minor parties copying names of major parties, presumably for purposes of appealing to part of the same voter base.

7.44 There is enough variety in the English language, to warrant party name registrations being distinguishable. It can be misleading and – some would even argue a form of ‘freeloading’ – for a party to replicate the public branding of another party rather than seek to build recognition and credibility in its own right."

The committee hence recommended:

"The Committee recommends that section 129 of the Commonwealth Electoral Act 1918 should be amended to permit the Electoral Commissioner to remove a name or a part of a name from an existing or proposed party that replicates a key word or words in the name of another recognised party that was first established at an earlier time."

I'm doubtful that 7.43 really does justice to the reasons for the DLP's original name choice in 1957.  Regarding 7.41 the issue is more apparent on large Senate and similar ballots when the confusingly named party appears to the left of the larger major party.

At the time of the JSCEM recommendations being released, the New Liberals were a known thing, but only as an unregistered proto-party that had run an independent candidate for the Eden-Monaro by-election.  Over the years the Liberal Party especially has sought to prevent confusingly named parties like "liberals for forests", "Liberal Democrats" and more recently "Liberals for Climate" and "The New Liberals" without success.  

In theory the current legislation addresses confusing party names by prohibiting names that

* "so nearly resemble 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) that is a recognised political party that it is likely to be confused with or mistaken for that name or that abbreviation or acronym" (S 129 (d)) or:

* are such that "a reasonable person would think suggests a connection or relationship exists between the Party and a registered party". (S 129 (d)(a)).

Unfortunately one of the most important test cases for such laws, Woollard and Australian Electoral Commission and Anor [2001] AATA 166 (6 March 2001) took a purely theoretical approach to the question of whether voters would be potentially confused by similar party names.  Even after finding that "The range of people to be considered is the full spectrum of voters." Woollard still somehow found that "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."  

The evidence since has been that many voters across the full spectrum, when seeing one party name on the ballot that resembles a major party's name, will draw the conclusion that it is the major party and vote for it before they have even seen the other party's name - and given the size of some Senate ballot papers this is hardly surprising.  The most famous case was the 2013 election of David Leyonhjelm (Liberal Democrats) as a Senator for NSW courtesy of drawing Column A on a ballot paper so massive that magnifying glasses were needed and issued to read it, with the Liberals buried way over in Column Y.  However there has also been the systematic evidence re the ballot paper placements of the LDP and DLP and how that impacts on their votes.

Despite this the spirit of Woollard and subsequent similar cases persisted in the AEC's recent ruling accepting the New Liberals' registration (a decision that is still subject potentially to internal review and appeal to the Administrative Appeals Tribunal).  A paragraph in the New Liberals decision that would alone have caused me to challenge it if in the National Party's position is this one:

"That said, I assume that in the UK the name ‘Labour’ and ‘New Labour’ did not both appear on a ballot paper, whereas in an Australian election it is very likely that a voter would have a choice between candidates for The New Liberals and the Liberal Party of Australia (which in itself suggests a difference between the two parties)." [61]

The problem with that is that in most Nationals divisions the Liberal Party does not appear on the House of Representatives ballot paper so the New Liberals will be the only "Liberal" party on the House of Representatives ballot and the voters will not have that choice.  This was exactly the problem with liberals for forests in the 2004 contest for the division of Richmond.  The Nationals lost Richmond by 301 votes, with 1417 liberals for forests votes breaking 805-612 in their favour.  The liberals for forests vote was strongest in strong Nationals booths, not Greens and Labor booths.  A how to vote card handed out for liberals for forests was Liberal-like in appearance, but preferenced Labor.  If 151 of the 612 LFF voters preferencing Labor were confused by this card, believed they were voting Liberal and would otherwise have voted for or preferenced the Nationals, then that was enough to change the result.  

(The Liberal submission also mentioned Parramatta 2004 as a supposedly relevant case, but there Labor needed only 45 of 985 LFF preferences to win and would clearly have won anyway.)

There is much of interest in the whole New Liberals registration debate and I refer interested readers to the Liberal Party objection (very slow download via Wayback) and New Liberal response.  Of interest regarding polling, the former included a lavish 35-page C|T Group polling report including a four-way simulated ballot trial that reported extensive evidence that voters would be confused by the New Liberal name.  The New Liberals response, while containing an incorrect claim that Dr Michael Turner's qualifications had not been included and a range of other cheap shots against the polling, nonetheless correctly argued that "the provenance of the subjects of the survey are [sic] not identified.  All we are told is that they are sourced from an online panel".  The AEC agreed that there was not enough detail to determine the representativeness of the sample and also said there was not enough detail about the survey methods and the exact questionnaire design.  (To the New Liberals' suggestion that the sample may be unrepresentative because only those interested in the subject would have opted in, I would respond that if this is really how confused those who are interested in the subject are, imagine what happens with everyone else!)

Getting There First

The approach taken by this Bill, as recommended by JSCEM, is to allow the oldest party containing a specific word in its name (with exceptions - eg "Australian", "country", "Victorian", "the", "Democratic", "Alliance", "people", "party", "group") to effectively reserve that word such that neither it nor anything extremely similar can be used by another party without permission.  Thus the Liberal Party would be able to veto a name containing "Liberals", Labor could veto names containing "Labour" and so on.  

Where this will rankle for many people is the continuing lack of any possible obligation on parties using a particular word to show that their ideology in fact matches it.  The Liberal Party is often attacked on the grounds that there are so many senses of the word "liberal" that it fails to conform to, whether that's the economic concept of classical liberalism or the social concepts underlining the use of "liberal" in the USA and Europe.  There are senses in which the Liberal Party traditionally takes a more economically libertarian approach than Labor but the lines are blurred, especially right now.  According to this Bill and the JSCEM recommendation underlying it, anyone coming along trying to use a word that another party is using is a freeloader, but what if the original party was freeloading on the concept it purports to represent in the first place?   

Unfortunately there is no way to objectively test whether parties really represent the labels in their names (it is a subjective matter, precisely because there are so many definitions) and it is best to allow voters to make these decisions.  The question is whether this proposal grants too much power to hog a particular name and whether the issue might be better addressed by fixing ballot paper confusion in other ways, such as reserving prominent places on the ballot paper for parties with a track record of good electoral performance.  

It reminds me of an old internet joke that as a forum moderator I'm partial to, which says us mods were just the "trolls who got there first".  If you have the power of preoccupancy, you get to decide who else is just a troll who you can ban.  

Very obscure parties, if they can just find 1500 members, might get a mortgage on hotly contested words thereby removing them from the pool of available names, and this might even be done deliberately.  For instance, "Climate" has been recently used by "Climate Action! Immigration Action! Accountable Politicians!" (an extremely unpopular direct democracy party) and now there's "Climate Emergency Action Alliance: Vote Planet" of which I had never before heard.  There is also the possibility that the word "Independents" - which for some reason I have never understood is still allowed in party names - could be hogged.  Vexatious hogging of names that are not in themselves vexatious (by people with views opposite to what the party name suggests) is another risk.

Is the Bill retrospective?

There has been confusion about whether the Bill applies to existing party names.  Jason Falinski has been reported as saying that it doesn't.  My current reading is that it does.  

Clause (20)(4) of the Bill states that:

"The amendments of sections 129 and 129A of the Act made by this Schedule apply in relation to an application for the registration of a political party made after this item commences."

However Clause (20)(5) states:

"The amendments of section 134A of the Act made by this Schedule apply, from the day this item commences, in relation to all political parties, regardless of their date of registration."

Section 134A is the existing section that allows parties to object to other already (but later) registered parties with names considered confusing under the existing laws.  The Bill adds "the name or logo of the second party contains a word that is in the name, or abbreviation of the name, of the parent party;" to the grounds for objection under 134A.  It also removes "Paragraph 134A(1)(aa) (second occurring)" which is the bit that makes 134A conditional on "the second party was registered after the commencement of this section".  

If the Bill is retrospective then the provisions of the Bill could have unintended consequences for some other parties.  On the current party register both Animal Justice Party and Derryn Hinch's Justice Party employ the word "Justice", but there is no confusion between these two parties and it would be absurd and hardly well adapted to make either's use of the word depend on the consent of the other.  There are three different "socialist" parties, one of which could get "socialist" as its exclusive property even though the three combined get about 0.15% of the national vote at the moment.  There are two "Christian" parties (Christian Democrats and Australian Christians).

The retrospective (or not) nature of the Bill is very significant for the Liberal Democrats, New Liberals and Democratic Labour Party.  If the Bill is passed and the names provisions are not retrospective, then whether these parties manage to get 1500 members in time may determine whether or not they become subject to the Bill.

There has been some speculation that the DLP might avoid consideration by arguing that "Labor" and "Labour" are distinct concepts and not variants of the same word, or the New Liberals might escape by arguing that "liberals" (noun) is not a plural of "Liberal" (adjective).  (The example given in the explanatory memorandum is "color" vs "colours").  However it appears the intent of the legislation is to cover both NLP and DLP under the rubric of "other grammatical forms".  The latter issue would also arise with "greens" vs "Green".  I am assuming all three parties would be affected.  

Other aspects of the Bill

Although the numbers of parties running for the Senate have declined slightly following the demise of Group Ticket Voting, Australia still has too many federal parties, many of which are very similar to other parties and serve little purpose.  At the last Senate election 35 party groups ran in New South Wales, 25 of which polled less than 1%.  Uncompetitive parties have little power to influence election outcomes through Senate preferences either, since virtually nobody follows their how to vote cards.  By running in such vast numbers, micro parties deprive each other of attention or a sizeable following and doom each other.   I had hoped they would realise this following the passage of Senate reform, but it seems some parties are either too deluded to understand they have no chance, or else are just running for fun or because they cannot work with others.  Micro-parties should be encouraged to form broader alliances that will be more competitive.  See Antony Green's defence of increasing the membership requirement.

However, there's a problem.  Given that many parties will presumably fail to find 1500 members (especially in three months, which I think is too steep a deadline) and therefore be deregistered, it is likely that some deregistered parties will instead run state-based grouped-independent non-party tickets.  Such tickets were prominently run in 2019 by Anthony Pesec (ACT), Craig Garland (Tas) and Hetty Johnston (Qld).  When these tickets run, they appear with an unmarked above the line box with no party name and no logo.  As noted in my 2019 JSCEM submission, there is overwhelming evidence that these blank above the line boxes cause severe voter confusion and cause many voters to vote in ways that do not truly reflect their views.  This matter was completely ignored in the JSCEM report.  If there is an increase in such groups there will be more confusion.

The Explanatory Memorandum in its human rights review mentions that there is nothing to stop deregistered parties nominating independent groups in this way.  However the evidence from 2019 was that it is very hard for such groups to compete effectively because of ballot paper design confusion.

Finally, there is the somewhat obscure proposal to limit "frivolous or vexatious" party names.   The Explanatory Memorandum says:

"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.

Clearly both these examples involve a party name that seeks to mimic a government institution so such names could be prevented by having a restriction to that effect.  Beyond that, one person's nonsense might be another person's serious statement, and indeed Australia once had a well-known joke party that was called the Deadly Serious Party.  More clarification on the scope of "frivolous or vexatious" would be useful here.  

See also

Graeme Orr: "But one thing is clear to a lawyer: as drafted, the bill is cooked. It overreaches and is not well drafted."

Spectator, but mainly for the headline.