I Threw It All Away: The United Australia Party Self-Deregisters!

I keep an almost daily watch on the AEC's party registration page, but it's been a pretty boring vigil lately.  So imagine my surprise when a newly minted Twitter account alerted me today to the news that the United Australia Party had up and jumped into the billabong of voluntary deregistration for the second time.  As a result, the UAP is not now a registered party for the purpose of contesting federal elections.

This has a precedent.  The original Palmer United Party was registered in the leadup to the 2013 election and voluntarily deregistered on  5 May 2017.  The United Australia Party was then registered in December 2018.  However, the PUP had flopped miserably in the 2016 Senate election (polling below 1% in every state in the absence of a big-spending campaign), unlike the 2022 election at which it polled much better and won a Senate seat.

The deregistration came as a surprise to the UAP's Senator Ralph Babet.  When contacted by the SMH's Lisa Visentin today, he initially didn't remember what it was about, then said he had forgotten because of the death of the Queen, and produced such lines as:

"This has actually happened before. We do it in between the elections to save on the administration, the party is not going anywhere. It’s staying right where it is. The UAP is here forever,”

and

"Of course, myself being a parliamentary leader of [the] United Australia Party, we own the trademark, we will be immediately re-registered next time.”

More similar quotes from the Guardian here.  On my reading at least, it aint so straightforward, and the UAP may have just limited its naming options for the next election (not that Babet will contest it, unless it's a seemingly very unlikely double dissolution.)

The party is independently applying for registration to run in the Victorian state election, where its best hope of winning would be via Group Ticket Voting preference harvesting in the upper house.  Its Victorian application is not affected by the federal action, and also does not affect it.

Is Babet an independent? Not at this stage

There has been a widespread response that since Babet no longer belongs to a registered political party, he becomes an independent.  In fact running as an independent and sitting as an independent are two different concepts - the former is determined by the endorsement of a recognised party at an election, the latter by self-identification as mediated (where needed) by the will of the Senate.  The fact that the UAP is now deregistered will not prevent Babet continuing to call himself a UAP Senator, or the Senate calling him such.  This is noted in Practice: 

"A senator's statement in the Senate that the senator is a member, a leader or office-holder of a political party is accepted for the purposes of recognition under the procedures. A senator who changes party membership or who becomes a leader of a party usually makes a statement to that effect to the Senate at the earliest opportunity."

Of course, it's possible to imagine an edge case that might disrupt this - say, a member claims to represent a party despite both the party at large and the parliamentary party expelling that member.  But this isn't such a case - at this stage he'll stay a UAP Senator via uncontested self-identification even while the UAP isn't registered.  This isn't the only such case; for instance the Senate has recognised David Pocock as an independent despite David Pocock also being the member relied upon for recognition of the party "David Pocock" as a parliamentary party exempt from the 1500 members rule.

Can the UAP just pop back up again?

As a sitting Senator, Ralph Babet can create a new parliamentary party for registration purposes any time he likes, provided that its name is permitted under the Electoral Act.  Alternatively, even if he did not do this, Clive Palmer and/or others working with him could register a party through the non-parliamentary route.  So there's no problem with a Palmer-based party being registered in time for the next election expected in 2025.  The issue is what it will be called.

For the 2019 election, registering the party under a substantially new name was convenient for Palmer.  He had long wanted to use the name United Australia Party, in order to market his party as a continuation of the historic party led by Joseph Lyons, Sir Robert Menzies and (as Opposition Leader) Billy Hughes - in spite of the complete lack of a two-way connection between these parties (the original UAP in fact joined the Liberal Party).  However, there had earlier been a stumbling block in that the name was effectively preoccupied by an obscure micro-party called the Uniting Australia Party, which was deregistered for insufficient membership in 2015.  That is why he had earlier registered Palmer United.

Whether it would be desired to call the party anything other than United Australia Party now is another question.  But those involved may have no choice.  The first reason is Section 135(3) of the Commonwealth Electoral Act.  Referring to section 135 (1), which deals with voluntary deregistration, Section 135(3) says:

"  (3)  Where a political party is deregistered under subsection (1), that party, or a party that has a name that so nearly resembles the name of the deregistered party that it is likely to be confused with or mistaken for that name, is ineligible for registration under this Part until after the general election next following the deregistration."

This wording goes back to the creation of the party registration system in the Hawke government's 1983 amendments, though it was originally section 58(N)(3). The drafting here seems a little bit odd.  Taken literally it would appear to prevent an existing party from reapplying under a completely different name, but if "that party" was interpreted in that way it would imply that another party could register exactly the same name but not a name that was extremely similar, which would be silly.  Also, the AEC has no obvious legislative test it can apply as to whether two parties with completely different names are the same - the PUP that folded in 2017 and UAP that was created in 2018 are different parties for party registration purposes.  So the intent of the legislation is to prevent the same name from being reused, or a name that is confusingly similar to the same name.  

One advantage of this would be to stop a party continually deregistering and reregistering the same name to be vexatious, and another would be that if a party had just been deregistered another unrelated party could not spring up and confusingly claim to be the same thing.  But neither of these is the original reason for the provision.  It isn't mentioned in the explanatory memorandum either, and there's a reason for that - it was a Senate amendment by the Australian Democrats.  Senator Macklin's reasoning (Hansard 1 Dec 1983) was that a party might call itself "Social Democrats" and sit on that name without ever running candidates.  Every four years it could voluntarily deregister and immediately reapply, thus perpetually squatting on a desirable and slightly confusing name without actually running for election.  

It's a funny thing to be a potential problem for the UAP given their completely different context, and I wonder if they might be able to find a way out of it.  One promising way would be to register a longer version as the official party name and "United Australia Party" as the ballot paper abbreviation.  But if S 135 (3) does apply as stated it could go further than just forbidding the party registering the official party names of "United Australia Party", "Uniting Australia Party", "United Australia Paarty" and so on.  The reason for this is that the AEC's recent review in the case of The New Liberals broadened the scope of what the AEC considers to be a confusingly similar name.  If "The New Liberals" is not allowed (despite having the word "New" in it) then the range of UAP-like names that might be disallowed because they were confusingly similar to "United Australia Party" and indeed intended to sound similar to that name could be pretty broad.

The second issue for the UAP is that the word "United" is now on the open market for new parties to register.  Under S 135 (3) those parties can't register a name that is confusingly similar to the UAP's, but registering an otherwise unrelated name that includes "United" would result in the new party owning the word "United" and being able to prevent the UAP re-using it.  The fact that the same people as would be seeking to re-register the UAP name were trying to recover their old name is irrelevant under the legislation, which is only interested in whether an existing registered party is using the word.  The commercial trademarks that the UAP has registered are irrelevant, and would not extend to protecting the word "United" anyway.  From a party names perspective, the UAP had a trademark and has thrown it away, surrendering a range of rights to its current name in the process.

Babet could patch the second issue himself by registering a parliamentary party with the name "United" in it but no resemblance to the UAP name otherwise just in order to protect the word "United" (and provided no other parliamentary party changed their name to snaffle "United" first.)  

What if Babet quits the Senate?

There has been quite a deal of Twitter speculation re what happens now if Babet resigns his seat at some time in the term and while not belonging to a registered parliamentary party.  The answer is it is irrelevant that the UAP is not registered.  Provided that the UAP could still be recognised as an unregistered entity (perhaps by some extremely simple method like "ask Clive"), the UAP would choose his casual vacancy replacement nominee for rubber-stamping by the Victorian Parliament.  The reason for this is that the Senate amendment determining casual vacancies predates the creation of the party registration system, and is in the Constitution which mere legislation does not overwrite.

(I note in passing that on 12 May 2022 Clive Palmer ceased to be the registered officer of the UAP and his place was taken by Nui Harris, who is managing director of Waratah Coal (a subsidiary of Mineralogy) and was UAP candidate for Condamine in 2020.)

So why did they do it?

Senator Babet refers to the process of keeping a party registered as being “very time intensive”, but for a parliamentary party which is under no compulsion to demonstrate membership numbers, this isn't the case.  It's more likely that if there is indeed an administrative reason for the deregistration, it is either the effort or the disclosure involved in consequences of being registered, especially in the area of donation disclosures.  However, this is a developing story, and there may be much more to it.  Any relevant information will be added, as will any further information about the legislation issues discussed above. 

Update: Clive Palmer also cites administrative ease (though it remains unclear in what way) and says the decision was made by the party's management committee, and refers to "additional expense" of being registered (there isn't any, and in fact deregistering and reregistering costs money while staying registered does not.)

(Thanks to Graeme Orr and various anonymous tweeters for links used in this article.)