Dear Mr Courtney, A/g First Assistant Commissioner of the Australian Electoral Commission,
A The AEC should decline to register the logo sought by Australia First ...... 1 B Section 129A ...... 1 1 The Eureka flag design ‘is the logo of any other person’ ...... 2 2 The Eureka flag design ‘so nearly resembles the logo of any other person’ ...... 9 3 The Eureka flag design ‘suggests a connection with a registered political party’ ...... 13 4 Registration of the logo is not in the public interest ...... 22 C Conclusion ...... 24
A The AEC should decline to register the logo sought by Australia First
I note your advertisement in The West Australian on 19 April 2016 newspaper regarding applications made to register various political logos under the new provisions of the Commonwealth Electoral Act 1918 (hereafter ‘the Electoral Act’). It advises that people may lodge an objection to any of those application on the basis that a logo should not be registered. The grounds on which such an objection can be made include, infra, that the Electoral Commission should refuse the logo under section 129A of the Electoral Act.
I write to object to application one; the Australia First Party (NSW) Incorporated’s (hereafter ‘Australia First’) attempt to register a logo comprising a black-and-white image of the Eureka flag above the words ‘AUSTRALIA FIRST’. I object on the basis that the Electoral Commission ought to refuse to register the logo because of the operation of s129A of the Electoral Act.
B Section 129A
As you are aware, the Electoral Act provides as follows:
129A Certain party logos not to be entered in the Register
The Electoral Commission may refuse to enter in the Register a logo of a political party (the applicant), set out in an application to register the applicant, if, in its opinion, the applicant’s logo: (a) is obscene; or
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(b) is the logo of any other person; or (c) so nearly resembles the logo of any other person that it is likely to be confused with or mistaken for that logo; or (d) is one that a reasonable person would think suggests that a connection or relationship exists between the applicant and a registered political party if that connection or relationship does not in fact exist; or (e) comprises the words “Independent Party” or comprises or contains the word “Independent” and: (i) the name, or an abbreviation or acronym of the name, of a recognised political party (within the meaning of subsection 129(2)); or (ii) matter that so nearly resembles the name, or an abbreviation or acronym of the name, of a recognised political party (within the meaning of subsection 129(2)) that the matter is likely to be confused with or mistaken for that name or that abbreviation or acronym, as the case may be.
In my view, the application should be rejected because it falls foul of one of ss129A (b), (c) or (d). I propose to address my reasons in three parts. Firstly, I argue that the applicant’s proposed logo is (1) or nearly resembles (2) the logo of any other person. Alternatively, I consider that a reasonable person might think the logo suggests a connection with a registered political party (3). Finally I will contend that allowing this registration is not in the public interest, generally (4).
1 The Eureka flag design is ‘the logo of any other person’
The Electoral Act does not contain a specific definition of logo for the purposes of s129A. The ordinary rules of statutory interpretation require us to understand the words in a statute in their ordinary sense and in context.1 The context of the statute implies that the word ‘logo’ is used in more than one sense. The first sense in which the word logo is used is to mean a party logo for the purposes of the Electoral Act. This is the sense in which that word is being used in the first paragraph of s129A, which provides;
The Electoral Commission may refuse to enter in the Register a logo of a political party (the applicant), set out in an application to register the applicant, if…
1 Grey v Pearson(1857) 6 HLC 106 2
Secondly, the word logo is used to refer to a more generic mark which in some sense signifies a ‘person’. This is the sense in which that word is being used in subparagraph (b) which provides that the commission may refuse to register a logo where it;
(b) is the logo of any other person;
It may be contended that the word logo is not being used in more than one sense. That is, one might suggest that the word logo used in this section always refers to ‘a logo registered or applied for under the Electoral Act’. Such a reading would be deeply problematic. It would permit a political party from registering, as a logo, any mark which was not currently used as a political logo. A party might, for example, attempt to register a well-known brand as their logo. If the grounds on which objection can be raised under section 129A are read narrowly, there would be no capacity for the owner of that trademark to object to its registration under the Electoral Act, since that logo would not be registered under the Electoral Act. This seems absurd.
Further, the phrase ‘any other person’ must be given some work to do. Restricting the interpretation of the word logo to only ‘party logo for the purposes of the Act’ would render that phrase purposeless. The plain meaning of ‘any other person’ implies precisely what it says; that any person, and not just a person with a registered political logo, might have a logo which would entitle them to object to the registration of a particular political logo under the Electoral Act.
Consequently, it is necessary to consider what is meant by the ‘logo’ of ‘any other person’. Helpfully, the Acts Interpretation Act 1901 (Cth) assists in this regard. Sub-section 2C(1) of that act notes;
In any Act, expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual.
Thus, for the purposes of the Electoral Act, the logo may be a logo of a person, body politic or body corporate. This also implies that the word logo used in this part of the section is not restricted to political bodies – who are usually incorporated bodies. Rather, it should be understood more broadly.
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The word logo is not a legal term of art. For the purposes of s 129A (b) there is no specific definition of the word logo. By contrast, s134A (3) does contain a definition of the word logo for that particular section. It notes:
In this section: logo of a registered political party means the logo of the party that is entered in the Register.
Had the legislature intended to restrict the word logo to ‘political logo for the purposes of the act’, then they could have done so. Indeed, they did do so in s134A. This implies an intention to not restrict the meaning of the word. Consequently we should read the word logo in s129A (b) in keeping with its ordinary meaning.
The ordinary use of the word logo denotes a symbol or graphical representation that identifies an organisation or person. In this respect, logos are akin to trademarks, though they are not identical. The specific legal definition of trademark and the protections offered thereto will no doubt differ from logos more generally.2 Nevertheless, it is an apposite comparison.
Examination of the Acts Interpretation Act 1901 (Cth) and the plain English use of the word logo discloses the preferable construction of the first part of s 129A(b). It suggests that the commission should refuse to register a political logo by reason of s 129A(b) where the logo sought to be registered is a symbol or graphical representation which identifies an organisation or person. This objection should be sustained even if the symbol or graphical representation does not necessarily identify a political entity.
This construction makes sense in practice. For example, a trademark holder might reasonably expect to be able to prevent registration of one of their graphical trademarks by a political party under the Act. They would have this reasonable expectation notwithstanding that the Trademarks Act 1995 (Cth) contains no such prohibition on the registration of another’s trademark for the purposes of the Electoral Act in this way.
2 A treatment of the distinction courts have drawn between political names and trademarks will be covered in section B 1 (ii). Suffice it to say at this point that differences between a word and a logo mean that court’s prior assessment of the relevance of trade mark jurisprudence to registration under the Electoral Act may need to be revisited. 4
Conversely, a political entity could not have a reasonable expectation that they are entitled to register as a political logo a graphical representation which is another person’s trademark. To take an extreme example, no one could reasonably expect to register as a political logo the infamous ‘Nike Swoosh’.
These practical consequences strongly suggest that a narrow interpretation of s 129A(b) is to be rejected. A narrow interpretation of that section would permit such absurdities. This is obviously not a true reflection of the intention of the legislature.
The intention of the legislature is expressed in the Explanatory Memorandum which accompanied the Bill which inserted s129A into the Act. That Explanatory memorandum noted;
The criteria for refusal are similar to those that are currently applied by the Electoral Commission in respect of party names and abbreviations, and are mainly intended to avoid creating confusion for voters.3
The intention of the legislature was ‘to avoid creating confusion for voters’ generally. This is entirely consistent with the interpretation of the Act I have urged above.
(i) Interpretation of s129
Since the Explanatory Memorandum evinces an intention to apply criteria for refusal of a logo ‘similar to those that are currently applied in respect of party names’, it is worth noting how courts and tribunals have dealt with section 129 of the Act. In Re Fishing Party and Australian Electoral Commission and Another (2009) 110 ALD 172, the Administrative Appeals Tribunal affirmed that Tribunal’s earlier judgement in Re Woollard and Australian Electoral Commission4 [2001] AATA 166, which noted at [23];
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 judgement of the elector in that brief time in the polling booth that is to be protected.
3 ‘Explanatory Memorandum, Commonwealth Electoral Amendment Bill 2016 (Cth)’ 16. 4 [2001] AATA 166. 5
Re Woollard dealt with the registration of the name ‘Liberals for Forests’. It held that registration of a name could be refused under s129(d) where the similarity between an existing registered name and the name sought to be registered could cause confusion to a reasonable person. Specifically, that case found that the name ‘Liberals for Forests’ should not be refused on the basis that it could cause such confusion. The tribunal held that the word ‘liberal’ had a generic political meaning which was not restricted to one particular political party. Thus, despite being generally similar to the name of another registered political party – that is the Liberal Party of Australia – it was not confusing.
Two points should be noted here. Firstly, unlike words logos rarely have a generic meaning. Their ‘meaning’ is their use. That is, the logo of a company or group is their logo not because of any inherent characteristics of the device, but because of its being used as a logo. Again, there is nothing inherent in the ‘Nike swoosh’ that links it to that company. The device has no inherent meaning. This distinction between graphical devices and words should be kept in mind when applying the reasoning in Re Woollard.
Secondly, the Electoral Act has been altered since Re Woollard. On one view it was altered specifically to account for the ‘problem’ that case raised. This matter will be discussed in more depth in part B 3 of this letter.
(ii) The Eureka flag as a trade mark
To return to the issue at hand, designs strikingly similar to the logo which Australia First is attempting to register are protected trademarks. Specifically both TM 459582 and TM 1655143 are graphical representations of the Eureka flag. It seems that, prima facie, the registration of the Eureka flag as a political logo by Australia First should fail for this reason. That is, because those marks are registered trademarks, they are the ‘logo’ of ‘any other person’, and thus the Commission could refuse to allow the registration of the logo by operation of s 129A(b).
As noted above, logo and trademark are not synonymous. It may be that a ‘logo’ is something different from a trademark, such that mere registration of a mark will not prohibit the registration of a similar graphical representation under the Electoral Act. This, however, strengthens the conclusion that Australia First’s attempts to register the Eureka flag as a
6 political logo should be rejected. This is because there are already other organisations which use the Eureka flag as a logo, albeit not trademark. Even if we distinguish between a logo and a trademark, the prior use of the Eureka flag as a logo more broadly by various organisations should preclude the registration sought by Australia First.
(iii) Other organisations which use the Eureka flag as a logo
Considering the word logo more broadly than merely a registered trade mark, we can see that various organisations already use they Eureka flag as their ‘logo’. The most obvious example is the link between the Eureka flag and the Construction, Forestry, Mining and Energy Union (hereafter ‘the CFMEU’). The CFMEU has long used, and been associated with, the Eureka flag.
Additionally, in the 1970s the Builder’s Labourers Federation adopted the use of the Eureka flag as the principal part of their logo.5 Use of that logo continued by the ‘Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees’, or ‘Queensland BLF’. In 2013 the Queensland BLF formally merged with the CFMEU. In this way, the Eureka flag, which has been variously used by many Australian trade unions, could be properly described as a logo of Queensland BLF and the CFMEU.
5 ‘Eureka Flag’
Indeed, a Google search for ‘CFMEU logo’ immediately discloses a number of depictions of the Eureka flag in various styles.6
The link between the CFMEU and the Eureka flag has also been established by the determination of a federal commission. Former Commissioner of the Australian Building Construction Commission (ABCC) John Lloyd confirmed that, on a number of occasions and in various states, the ABCC ordered the removal of the Eureka flag from building sites. They did so because, as ABCC staff member Carol Hage wrote on 5 July 2007;7
6 See Appendix 1 for further details. 7 ‘Eureka Flag Forces Workers to Union, Says Watchdog’ The Age (online), 17 August 2007
The [Eureka] flag represents the union and gives the impression that to work on the site you need to be a union member. This is therefore a breach of freedom of association.
The link between the Eureka flag and organisations including the CFMEU and the Queensland BLF is well established. It is recognised popularly and politically. It is fair to say that the Eureka flag is used by these trade unions as a logo, in the general sense and use of the word. It follows that such a use of the Eureka flag constitutes a use as a ‘logo’ by ‘any other person’, for the purposes of s129A(b) of the Electoral Act.
For the reasons outlined above, a broad interpretation of s129A(b) is the best reflection of the legislature’s intention. Consequently the commission should reject Australia First’s attempt to register the Eureka Flag as a political logo on that basis.
2 The Eureka flag design ‘So nearly resembles the logo of any other person’
In addition to being objectionable on the grounds that it is the logo of another person, the registration of the Eureka flag logo is objectionable under s129A (c).
(i) Construction of s129A (c)
Australia First may contend that the graphic the seek to register is not identical to the Eureka flag variously used as a trademark, or as a logo by trade unions. However, s129A(c) provides that an objection may be upheld where the graphical representation sought to be registered:
so nearly resembles the logo of any other person that it is likely to be confused with or mistaken for that logo
The wording in s129A (c) is derived from s10 of the Trademarks Act 1995 (Cth), which provides;
For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.
The appropriateness of reference to trade mark jurisprudence in determinations under the Electoral Act was considered by the AAT in Re Woollard and Australian Electoral
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Commission and Another.8 In that case, the court cautioned against the application of the legal principles of trademark to the Electoral Act. However, as this letter has noted in Part B 1 (i), that case dealt with a word, rather than a graphic. This distinction is important. Generally, a graphic does have a commonly understood meaning or use in language in the way a word does. A graphic suggests a connection between itself and a group or organisation by virtue of repeated use in relation to that group. Graphics are rarely descriptive in the way a word like ‘liberal’ describes a particular political philosophy.
Because of this, the straightforward application of the principles in Re Woollard to the instant matter is not possible. Unlike that case, it is not possible to identify a generic meaning of the Eureka flag in the way the tribunal identified the meaning of the word ‘liberal’. Since any ‘meaning’ attributable to the Eureka flag exists only because of its repeated use by or in relation to certain groups, any discussion of ‘confusion’ must be cognisant of those uses.
Discussing graphical trademarks, courts have held that when mark ‘so nearly resembles’ another ‘that it is likely to deceive or cause confusion’, is not a question of straightforward comparison. Rather the courts have consistently indicated that the determination involves consideration of, ‘suggestion, connotation, impression and recollection’.9
In the seminal case of Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641, the High Court noted;
In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. The effect of spoken description must be considered. If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, then similarities both of sound and of meaning may play an important part. The usual manner
8 [2001] AATA 166. 9 Australian Chinese Newspapers Pty Ltd v Chinese Press Pty Ltd (No 2) [2001] FCA 651 at [12]
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in which ordinary people behave must be the test of what confusion or deception may be expected.
The courts have also addressed what constitutes being ‘likely to deceive or cause confusion’. While a ‘mere possibility’ of confusion is insufficient courts have consistently noted that, ‘it is enough that the ordinary person entertains a reasonable doubt.’10
Of course, political logos differ from trademarks in certain ways. Nevertheless, it is reasonable to presume that a court will interpret the language of s 129A in light of the cases on s10 of the Trade Marks Act 1995 (Cth). This is particularly so given the similarity of the subject matter and the similar wording of the legislative provisions.
In Re Woollard the relevant confusion to be considered was that of the voter as they go to mark the ballot. Thus, the question for the electoral commission is whether the logo Australia First is attempting to register - by its ‘suggestion, connotation impression and recollection’ - might cause an ordinary voter to entertain a reasonable doubt as to a connection between Australia First and some other person or organisation at the time they mark the ballot.
In my view, confusion is likely. This is for two main reasons; the overall similarity of the logos and the political space which the logos exist within.
(ii) Overall similarity
While not identical, the mark sought to be registered by Australia First is objectively similar to various logos used by the CFMEU, Queensland BLF and other trade unions. Both are depictions of the Eureka flag. While they might be variously stylised they are nevertheless instantly recognisable as representations of the same source material.
Here, the extracted passage from Australian Woollen Mills assists. The logo sought to be registered by Australia first is likely to be described as ‘the Eureka flag’, precisely because that is what it is. Similarly, ‘the Eureka flag’ is a fair and apt descriptor of the various logos
10 NEC Corporation v Punch Video (S) Pte Limited (2005) 67 IPR 17, affirming Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365, see also Southern Cross Refrigerating Co v Toowoomba Foundary Pty Ltd [1959] 71 CLR 592 11 used by trade unions. Thus, confusion is likely to arise when the logo is described verbally. Using the sentence ‘That organisation with the Eureka flag logo’, would - if this registration is allowed - occasion genuine confusion in a reasonable person as to whether Australia First or an Australian trade union such as the CFMEU is being described. Even more specific descriptions of the logo are unlikely to allay this confusion, since they are all properly described as ‘stylised Eureka flags’.
(iii) The Political space
The likelihood of confusion is compounded by the fact that the organisations who presently use variations on the Eureka flag as their logos are political in nature. A cursory examination of the political history of Australia will disclose that trade unions are central to that history. In particular, the CFMEU looms large in Australian contemporary political life. Particularly since the report delivered by the Royal commission into Trade Union Governance and Corruption11 (hereafter TURC), public identification of the CFMEU in Australia’s political life has been consistent and overt. Volume 3 of the TURC Final Report is dedicated to the CFMEU alone. Similarly, Volume 4 of that report considers both the CFMEU and the AWU.
Thus, while not political parties, various trade unions generally, and the CFMEU particularly, are well-established parts of Australia’s political landscape. Indeed, the CFMEU is consistently singled out by Prime Minister Turnbull for discussion, for example in the context of his recent unsuccessful attempt to introduce bills which would re-establish the ABCC.12
Australia First is attempting to register the Eureka flag logo for use in an explicitly political context; the Senate ballot paper. Thus, the context of the use of the logo - use in the political space - exacerbates the likelihood of confusion. The CFMEU are well known to be political actors, both on their own and through their affiliation with the Australian Labor Party (hereafter ALP). It is reasonable to think that an ordinary person would link the CFMEU with the use of the Eureka flag logo, particularly in a political context. This well-established mental link between a well-known political actor and a graphical representation which is
11 Commonwealth of Australia, ‘Royal Commission into Trade Union Governance and Corruption Final Report’ (December 2015)
So, even if the Electoral Commission determines that the design which Australia First is attempting to register is not, strictly speaking, the logo of another person per s 129A(b), it should find that the design ‘so nearly resembles’ the logo of any other person that it is likely to be confused with or mistaken for that logo’. Consequently, the attempt by Australia First to register that design should be rejected on the basis of s129A (c).
3 The Eureka flag design ‘suggests a connection with a registered political party’
If the Electoral Commission determines that the logo Australia First is attempting to register is not objectionable on the grounds of ss129A (b) or (c), it may still find that the logo should not be registered because it suggests a connection with a registered political party. I suggest that the Electoral Commission should refuse registration of the logo on this basis.
(i) Construction of s129A (d)
Section 129A provides that the Electoral Commission may refuse to register a logo where the logo;
(d) is one that a reasonable person would think suggests that a connection or relationship exists between the applicant and a registered political party if that connection or relationship does not in fact exist
As noted above, the intention of the legislature in enacting this section was to provide for objections to the use of a logo ‘similar to those that are currently applied by the Electoral Commission in respect of party names and abbreviations, and are mainly intended to avoid creating confusion for voters.’13
13 ‘Explanatory Memorandum, Commonwealth Electoral Amendment Bill 2016 (Cth)’, above n 3, 16. 13
The criteria for refusal with respect to names is found in s129:
Parties with certain names not to be registered
(1) The Electoral Commission shall refuse an application for the registration of a political party if, in its opinion, the name of the party or the abbreviation of its name that it wishes to be able to use for the purposes of this Act (if any): (a) comprises more than 6 words; (b) is obscene; (c) is the name, or is an abbreviation or acronym of the name, of another political party (not being a political party that is related to the party to which the application relates) that is a recognised political party; (d) so nearly resembles 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 to which the application relates) that is a recognised political party that it is likely to be confused with or mistaken for that name or that abbreviation or acronym, as the case may be; or (da) 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; or (e) comprises the words “Independent Party” or comprises or contains the word “Independent” and: (i) the name, or an abbreviation or acronym of the name, of a recognised political party; or (ii) matter that so nearly resembles the name, or an abbreviation or acronym of the name, of a recognised political party that the matter is likely to be confused with or mistaken for that name or that abbreviation or acronym, as the case may be.
Section 129 was originally incorporated into the Act by the Commonwealth Electoral Legislation Amendment Act 1983 (Cth) as the old s58G, which read;
The Commission shall refuse an application for the registration of a political party if, in its opinion, the name of the party or the abbreviation of its name that it wishes to be able to use for the purposes of this Act (if any)- (a) comprises more than 6 words;
(b) is obscene;
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(c) is the name, or is an abbreviation or acronym of the name, of another political party (not being a political party that is related to the party to which the application relates) that is a Parliamentary party or a registered political party;
(d) so nearly resembles 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 to which the application relates) that is a Parliamentary party or a registered political party that it is likely to be confused with or mistaken for that name or that abbreviation or acronym, as the case may be; or
(e) comprises the words 'Independent Party' or comprises or contains the word 'Independent' and-
(i) the name, or an abbreviation or acronym of the name, of a Parliamentary party or a registered political party; or
(ii) matter that so nearly resembles the name, or an abbreviation or acronym of the name, of a Parliamentary party or a registered political party that the matter is likely to be confused with or mistaken for that name or that abbreviation or acronym, as the case may be.
In 2000, that section was amended to instead reference ‘recognised’ political parties.14 In 2004 paragraph (da) was added.15 The Explanatory Memorandum to the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004 (Cth) notes at [8]-[9]:
These items insert a new test in sections 129 and 134A of the Electoral Act to prevent the registration of political parties, and, in certain cases, continued registration of political parties when their names are similar to those of registered political parties.
Section 129 of the Electoral Act contains a number of tests a party’s name must pass before the party can be registered. Item 58 will amend section 129 to require that a party cannot be registered if its name suggests to a reasonable person a relationship or connection with a registered political party that does not exist.
Notably, this amendment was a Government amendment, not one recommended by the Joint Standing Committee on Electoral Matters, whose report, User Friendly, Not Abuser Friendly was the driving force behind the Bill.16 No explicit mention is made of the new s 129(1)(da) in the second reading speech accompanying that bill.17
This recitation of the drafting history of the section serves to clarify the section’s purpose. It is a section, specifically entered by the Government, with the intention of avoiding confusion
14 Commonwealth Electoral Amendment Act (No. 1) 2000. 15 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004. 16 Parliament and Joint Standing Committee on Electoral Matters, ‘User Friendly, Not Abuser Friendly: Report of the Inquiry into the Integrity of the Electoral Roll’ (The Committee, 2001). 17 Commonwealth, Parliamentary Debates, Senate, 1 April 2004, 27931–2 (Peter Slipper MP). 15 for voters. The drafting history and explanatory memorandum and second reading speech do not suggest an intention to limit the operation of this section on technical grounds. That is, the section intends to address confusion broadly and not only confusion about which party has registered which logos. The purpose of the section can only be met by considering ordinary voter and asking whether registration of a logo would cause confusion because it suggests a connection or relationship where none exists.
(ii) The decision in Re Woollard
Further, it should be noted that the addition of subsection (da) occurred after the judgement of the AATA in Re Woollard. The timing is important, insofar as it points to an intention, by the legislature, of extending the criteria for objection to party names beyond that in the section as it existed before the insertion of subsection (da). This, even if the Electoral Commission takes the view that the registration of the logo is not misleading following the reasoning in Re Woollard, it should be cognisant of the fact that the new provisions are a deliberate extension of the grounds for refusal of registration. A restrictive reading of the subsections 129(1)(da)’s parallel in s129A(d) would defeat that intention. Thus, again, an expansive reading of s 129A(d) is to be preferred.
Indeed, the wording of sections 129(1)(da) and 129A(d) both reflect the judgement of the AATA in Re Woollard. That is, the tribunal in that case noted at [31] that;
It was said that the real objection to the registration of the name was that electors might think that liberals for forests is a subset of the Liberal Party or that there is some association between them.
The Applicant was successful in Re Woollard, and consequently the Tribunal substituted a decision that the name ‘liberals for forests’ was entitled to be registered. This was largely because the tribunal took the view that the proper construction of s 129(1)(d) required that the confusion arise as a result of the resemblance between the name sought to be registered and the existing registered name. The Tribunal found that there was little evidence of confusion in fact. Further the Tribunal was cognisant of,18
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
18 Re Woollard and Australian Electoral Commission and Another [2001] AATA 166, [40]. 16
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 the present application before the Commission, two distinguishing features should be borne in mind. Firstly, the tension between s129A(d) and ‘the freedoms of association and political expression’ incidental to democracy are not present in the instant factual scenario. Unlike the word ‘liberal’, which has a generic descriptive meaning in political discourse, the Eureka flag is not a generic shorthand for a particular ideology. It has been used by various trade unions, however a mental association between trade unions and the Eureka Flag occurs because the flag – in the parlance of trade mark law – has been used by those associations. In the language of trademark jurisprudence it is ‘adapted to distinguish’, rather than inherently ‘descriptive’ of the union movement.19
(iii) The Eureka flag suggests a connection or relationship with the CFMEU or the trade union movement generally
As noted above, the logo sought to be registered by Australia First is, or very nearly resembles common depictions of the Eureka flag. Those depictions of the Eureka flag are commonly used by trade unions, particularly the CFMEU and the BLF Queensland. It is very likely that an ordinary voter would link the Eureka flag logo with the trade union movement generally and the CFMEU or other unions specifically. This is evidenced by the fact that a google search for ‘CFMEU logo’ immediately, and on the first page, returns a number of variations on the Eureka Flag adopted by the CFMEU.20
Section 129A(d) is not directed at confusion about the link between a logo and persons or organisations generally. Rather, it is directed to confusion about the link between a logo and a registered political organisation. Thus it is limited to political parties registered under part XI of the Act. This significantly restricts the application of s129A(d). Consequently, there is no need to take a restrictive reading of that section to avoid unduly restricting the kinds of graphical marks which may be registered. As the section is already internally restricted, only a very small class of graphical marks – those presently taken to be connected with a particular
19 See generally Global Brand Marketing Inc v YD Pty Ltd (2008) 76 IPR 161. 20 See the attached Appendix 1 for various searches that evidence a link between the Eureka flag and the Australian trade union movement generally and particular trade unions specifically. 17 registered political organisation – will be unable to be registered. As there is no broad restriction on the kinds of marks that can be registered, hence there is no need to read s129A(d) narrowly on policy grounds.
It is in this context that we must consider what constitutes a ‘connection or relationship’ which might ‘[exist] between the applicant and a registered political party’. Since the pool of registered political parties is, by definition, quite limited the scope for objection to a logo on the basis of such a connection or relationship is itself small. Thus, there is no practical reason to read down the test for whether a ‘connection or relationship’ is suggested. Since that test will only apply to a small defined pool of entities there is no risk that a broad reading of that test will lead to the exclusion of a large number of logos.
Similarly, a broad reading of what constitutes a ‘connection or relationship’ best achieves the legislature’s stated intention; that is to avoid confusion among voters generally. A restricted reading of what constitutes a ‘connection or relationship’ risks permitting the registration of logos that may cause confusion. This is not in keeping with the intention of the legislature in drafting this section.
Further, as the Queensland Supreme Court recognised in McLindon and Another v Electoral Commission (QLD), ‘There is … a public interest in ensuring that in casting a vote at an election the elector is not misled’.21 While that case specifically considered the operation of the Electoral Act 1992 (Qld), it did so in the context of considering the extent to which the Queensland act was ousted by the operation of the Commonwealth Electoral Act 1918. Thus, it considered a general public interested – recognised at common law – in ensuring an elector is not misled. In favour of this proposition, the court cited Evans v Crichton-Browne (1981) 147 CLR 169, in which the Court affirmed the general principle laid out by Isaacs J in Smith v Oldham, that;22 The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances.
21 (2012) 291 ALR 169, 170. 22 (1912) 15 CLR 355, 362. 18
Thus, in any event, the statute should be read in keeping with the recognised public interest in ensuring that an elector is not misled. While this principle may be counter-balanced by other considerations – as it was in Evans v Crichton-Browne – where such countervailing public policy reasons do not apply, the principle should he upheld.
(iv) Because of the connection with the CFMEU or the trade union movement, the Eureka flag logo also suggests a connection with the ALP
The next question is whether the use of the Eureka flag logo suggests a connection or relationship might exist between Australia First and another registered political party. The conclusion that it does seems inescapable. This is because of the very well understood relationship between various Australian trade unions and the ALP. The existence of this relationship means that confusion about a link between the Eureka flag logo and the trade union movement generally will similarly occasion confusion about the existence of a relationship between Australia First and the ALP.
The ALP is a registered political party.23 The AEC recognises the Federal ALP, eight State and Territory branches of the ALP and the Country Labor Party. By contrast, no Australian trade union is a registered political party. Rather, a group of trade unions are formally ‘affiliated’ with one of the State or Territory branches of the ALP. This group, known as the affiliated trade unions have formal political links to the branches of the ALP. The Victorian Labor website24 describes the situation as follows;
Many – though not all – Australian unions are formally affiliated to the ALP.
The basis of affiliation with the ALP is in accord with the objectives of the trade union movement that aim to improve the standard of living for their members. By affiliating to the ALP, trade unions make use of political action as well as industrial action to achieve outcomes for their members.
Affiliation to the ALP is at the state level – state branches of the unions are affiliated to state branches of the ALP. Affiliated unions give financial support to the ALP, and have voting rights at State Conference, where they are represented by 50% of delegates to the conference.
An association with a political party allows an industrial organisation the avenue of pursuing its aims for the benefit of its members along more than one path. The ALP aims to support trade unions in pursuit of their industrial goals and many unions support the ALP in pursuit of its political goals.
23 Australian Electoral Commission, Current Register of Political Parties Australian Electoral Commission
Thus, despite being technically separate organisations trade unions and their divisions are specifically and formally linked to the political operations of the various branches of the ALP.
Among the many affiliated unions are various divisions of the CFMEU and the BLF Queensland.25 Thus, there is a clear, formal and recognised ‘connection or relationship’ between the trade union movement generally, the CFMEU and BLF Queensland specifically and the ALP.
This connection and formal relationship is well understood. It is a well-recognised feature of Australian political life. Particularly in recent years, this connection has been emphasised in various ways. For example, the appearance of Leader of the Opposition Bill Shorten26 and former Prime Minister Julia Gillard27 at TURC served to emphasise the link between the trade union movement and ALP. Members of politics on both sides also refer consistently and publicly to a link between the ALP and the trade union movement generally and the CFMEU particularly.
Under section 129A(d) where the use of the logo suggests a connection between the applicant and a registered political party that does not exist, the AEC may reject an application to register that logo. It is not contentious that there is no link between the ALP and Australia First. Thus, if the use of the logo Australia First seeks to register suggests a connection between it and the ALP, the attempt to register that logo should be rejected.
It must also be borne in mind that the test under section 129A(d) is a broader test than that found in ss129A(b) and (c). This is because, as noted above, the organisations to which a connection must be suggested is much smaller and the intention of the drafters was to construct a section which would be read so as to prevent confusion generally.
25 ‘Links’
So, the question is whether the clear link between the Eureka flag and the trade union movement generally or CFMEU specifically also gives rise to a risk that a voter might be confused that a political party who uses that logo might have a connection with the ALP. That is, does the use of the Eureka flag ‘suggest’ a connection or relationship with the ALP?
Since the Eureka flag is not a logo used by the ALP, one might be tempted to conclude that its use does not suggest such a connection. However, this reasoning does not grapple with the central issue posed by the section. Section 129A(d) does not require that the use of a logo confuse people about the nature of the party using the logo. Nor does it require that people might mistakenly believe that the user of the logo is the ALP. A risk that one might misidentify a political party is not required to fall within the terms of s 129A(d). Rather, all that is required is that the logo suggests a connection. It should be borne in mind that the legislature intended to broaden the test beyond that applied in Re Woollard. Consequently, the reference to ‘a connection’ should be read broadly. The Electoral Commission might find that a connection is suggested even where it does not find that a voter is confused about the identity of the parties. Such a finding would be in keeping with the intention of the legislature.
Further, the risk of misidentification cannot be the purpose of s 129A(d). This is because on any ballot there is likely to be both the name and logo of the applicant and the name and logo of the other political party which it purports to risk misidentification with. In those circumstances the reasonable voter could always simply look at all the party names and logos. Having done so, they are unlikely to misidentify the parties, unless the names or logos are so similar that confusion arises. That situation is captured by ss129A(b) and (c). Any name or logo so similar to another political party’s that confusion arises even when the logos are presented side-by-side would be objectionable under those sections. Thus, restricting s129A(d) to operation in these situations would give it no work to do in practice.
Since is preferable to construct the terms of the statute in a manner that do give them work to do, we must conclude that s129A(d) operates in a manner broader than mere misidentification. Again, this is consistent with the rationale for a wide reading of s129A(d) urged above.
21
Once we properly construct the scope of the test to be applied for the purposes of s129A(d), the conclusion that the use of the Eureka flag suggests a connection or relationship with an existing political party, namely the ALP, becomes irresistible. Since a link between the Eureka flag and the trade union movement generally is very well established it follows axiomatically that suggesting a connection with the trade union movement in a political sphere will ‘suggest a connection or relationship’ with the ALP.
This conclusion is strengthened when we consider the particular trade unions that frequently utilise the Eureka flag in their logos. Again, the CFMEU is instructive in this case. It is an affiliated union with formal political links to the ALP. It is clearly a body which has a ‘connection or relationship’ with the ALP. Thus, to the extent that the Eureka flag causes the real possibility of confusion about links to the CFMEU by its use, it will similarly create a real and serious risk that voters will believe that it denotes a ‘connection or relationship’ with the ALP.
4 Registration of the logo is not in the public interest
There is no general public interest rationale for objecting to the registration of a particular logo. The closest the act comes to such a provision is s129A (a), which prohibits the registration of logos which are obscene. Thus, it is not possible to object to the registration of the logo merely on board public interest grounds. This is perhaps a matter that should be reconsidered by the legislature, though of course this is not a matter to which the AEC can address itself.
Nevertheless, whether the registration of a logo is in the public interest should fall for consideration. This is because the operation of s129A gives the commission the discretion to refuse to register a logo. Thus, notwithstanding that a logo falls foul of one of the reasons for objection under s129A, it appears on the face of the act that the commission may nevertheless accept the registration of the logo. I contended that the broader question of public interest should be relevant when considering whether to exercise that discretion. Thus, to the extent that registration of the logo is demonstrably not in the public interest it should weigh in favour of the conclusion that the commission should utilise its discretion to refuse registration of the logo.
22
It would be undesirable to allow new political parties to co-opt the goodwill which exists in certain symbols. Such an outcome would risk devaluing important cultural icons. Further, it would – as in this case – give rise to genuine confusion among voters.
In trademark law, the risks associated with allowing the registration of old trademarks which retain a residual goodwill is well understood.28 IP Australia is entitled to refuse to register a mark in those circumstances. I suggest that the risks associated with registration of cultural icons by political parties are much greater than those that exist with respect to trademarks. Consequently, the Electoral Commission should be wary of encouraging such political free- riding.
Additionally, the Eureka flag is an important cultural symbol. Indeed, it is a National Treasure.29 Allowing its registration as a political logo would invite considerable practical problems in the future. Political parties may seek to register other important cultural symbols. It would be undesirable for a political party to register, for example, a particular design of a banumbirr (Morning Star Pole). Similar issues relating to the co-option of Indigenous designs have already received considerable judicial attention.30 Given the reference to the logo ‘of another person’ in s129 (a), it is not clear that such important cultural designs could be protected by the operation of that section. This speaks to the desirability of amending this section, though of course such considerations are outside the scope of this objection.
It is regrettable that the Act does not contain provisions which anticipate this issue. It is a matter that the legislature might consider revisiting. Nevertheless, it is a policy matter that speaks in favour of a broad interpretation of ss129A (a) and (b). Further, it is a ground upon which the Electoral Commission ought to decline to exercise any discretion they retain under s129A to register a logo notwithstanding the existence of grounds for objection under s129A.
28 See generally Chris Kendall, Tomas Fitzgerald, ‘Gone But Not Forgotten – Fame and Abandonment under Section 92(4)(b) of the Trade Marks Act’ (2008) 73 Intellectual Property Forum 42 29 Australia’s Heritage: National Treasures - Eureka Flag
Signature redacted
Address redacted
Postcode redacted APPENDIX 1
This appendix shows the results of various searches of ‘Google Image’.1 These results were obtained by typing the noted search string into the search engine. The first page of results was captured as a ‘screenshot’. A ‘screenshot’ saves a picture of everything that is presented on a computer monitor at a given point in time as an image file. That file may then be ‘pasted’ into an image editing program – in this case Microsoft Paint.
The relevant portion of the image, showing the results of the first page visible on ‘Google Images’ after entering the search string, was then ‘cut’ from the ‘screenshot’. No other alteration was made, aside from this cropping of the image.
All of the relevant image searches were conducted on 27/04/16. ‘Safe search’ – an algorithm that detects and removes results from some ‘offensive’ websites automatically – was turned off. Consequently, there was no filtering of results aside from the Google’s proprietary search algorithms. Tests with ‘Safe search’ on – which may be the default setting for searches conducted in schools, for example – disclosed no significant difference in results, beyond the occasional re-ordering of images.
The following results were obtained for the given search strings:
1 images.google.com Search string: Australian trade union flag Results:
As is obvious, the Eureka flag – and variants thereof – was returned for the first 5 results, and results 6 – 10.
Search string: Australian trade unions Results:
Depictions of the Eureka flag are visible on the first page of results for this search string. In particular, result 10, the 3rd picture of a group of trade union members features the Eureka flag being carried prominently by that members of that group.
Search string: CFMEU Results:
A search for just ‘CFMEU’, absent any other words discloses multiple depictions of the Eureka flag. Indeed, ‘Google Images’ suggests additional qualifiers to the search, such as ‘flag’ – example results from that suggested search display the Eureka flag prominently. Again, as in the example above, many of the pictures depict persons – presumably members of the CFMEU – carrying the Eureka flag prominently.
Search string: CFMEU Flag Results:
Following the suggestion of ‘Google Images’, a search for ‘CFMEU Flag’ returns the Eureka flag as its first result. It also discloses many other depictions of the Eureka flag, including being flown prominently at gatherings of union (presumably CFMEU) members. It also returns the BLF Queensland logo – whose prominent design feature is a depiction of the Eureka flag – in the first page of results., reflecting the connection between those two unions.
Search string: Australian Workers Union Results:
Indicating the link to the union movement more broadly, a search for ‘Australian Workers Union’ returns an image of the Eureka flag on its first page. Notably, it also returns pictures of the former National Secretary of the AWU, Bill Shorten. Mr Shorten is currently the Leader of the Opposition – the Australian Labor Party. These results evidence both the use of the Eureka flag by the Australian trade union movement generally, but also the specific link between the trade unions and the Australian Labor Party.
Search string: May Day Australia Results:
Again, a search for ‘May Day Australia’ discloses on its first page multiple pictures which show a gathering of trade union members or supporters marching, presumably at May Day rallies. These pictures show those people carrying the Eureka flag prominently. This is further evidence of the clear link between the Eureka flag and the trade union movement in Australia generally, and particular unions specifically.