The New South Wales Council for Civil Liberties (NSWCCL) is concerned that the two major parties have joined together to limit the ability of smaller political parties to register under electoral laws. In a healthy democracy, established major parties should encourage the registration of smaller parties within reasonable and proportionate limits to enhance the contest of ideas, not seek to maintain their duopoly.
What has happened?
On 12 August 2021, the government introduced, with Labor’s support, the Electoral Legislation Amendment (Party Registration Integrity) Bill 2021. Relevantly, the Bill would amend the Commonwealth Electoral Act 1918 to:
- increase, from 500 to 1500, the minimum number of unique members required by a political party in order for it to be registered for federal elections; and
- provide that the Electoral Commission must refuse an application for the registration of a political party if the applicant’s name contains a word that is in the name, or the abbreviation of a name, of a registered political party, or the proposed name of a party has those characteristics, and the application is not accompanied by written consent to use the word from the party already registered, or where there are multiple parties, the officer of the first party to be so registered.
The Bill contains exceptions to the party name provision that would allow parties to use function words, collective nouns for people, the name of a country or recognised geographic place in Australia, or the word democratic.
On Tuesday 24 August, Labor decided to support passage of the reforms through the Senate. The Bill was opposed by the crossbench and minor parties.
Why do we object?
Both aspects of the Bill mentioned above are problematic from a civil liberties point of view, and appear to disproportionately and unnecessarily interfere with the rights to freedom of association and political participation.
A lift in the minimum number of members required of a political party before registration has the effect of limiting the right to freedom of association, because a key aspect of the freedom is that the State cannot unreasonably or disproportionately impose procedures for formal recognition that effectively preclude or discourage people from forming an association for the purpose of achieving a common goal, here being the goal of forming a political party that can contest elections. While it is fine in principle to increase the minimum requirements for registration, this must be accompanied by some rationale elucidating the necessity and proportionality of the change. This does not appear to have been done here; the number appears at best arbitrary, and at worst chosen deliberately to exclude certain minor parties.
More concerning is the requirement that existing political parties consent to the use of words in the name of the existing registered party by new parties. While the identified goal of reducing voter confusion is legitimate, it is unfair and unduly restrictive to prevent a party using broad ideological terms such as ‘liberal’ or ‘socialist' or ‘green’ without the consent of existing parties. As Bill Browne of the Australia Institute has said, “Australia has a long history of splinter parties, like the Democratic Labour party and the Liberal Movement, whose names represent their background and concerns.”
Moreover, there is no good reason to create a mandatory obligation on the Electoral Commission to refuse to register parties using words already present in existing party names. NSWCCL suggests that, at the least, the Bill should be amended to allow the Electoral Commission a discretion to refuse to register parties. The Commission could then refuse to register if the party name is being used to deliberately mislead or confuse voters, but has the flexibility to register nevertheless if the party name is a bona fide attempt to reflect the ideological substance of the party’s platform.