Australia First Party P.O. Box 593 Rockdale 2216
August 18 2016
Mr. Tom Roberts Commissioner Australian Electoral Commission P.O. Box 6172 Kingston 2604
Re: Application for logo / objection Australia First Party (NSW) Incorporated Australian Electoral Act Section 129 / Tomas Fitzgerald
This very lengthy objection is the product of an academic noted for his knowledge of intellectual property rights and related law. We thank him for his intervention.
Nonetheless, there is an old bar-room saying that ‘bullshit baffles brains’. I would suggest that this objection is the perfect converse example of brains being hired to argue bullshit. Consequently, it needs some careful attention lest direction is lost.
Mr. Fitzgerald states the law Section 129 and the power of the AEC to decline to register a logo.
I intend to reply as I see and understand Mr. Fitzgerald’s objections.
1. Our position on this application reduces to a simple argument: Australia First Party does not seek to register the logo or the trademark of any other person as Mr. Fitzgerald would have it.
A logo can be a composite thing or a simple thing, whatsoever the logo maker would design it to be.
Mr. Fitzgerald says:
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. Nevertheless, it is an apposite comparison. (p.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’. (p5)
I would have to say that this is probably a fair statement.
A logo or a trademark may involve any number of images, letters, numbers and words and in toto be identified or be fairly claimed to be identified with a person or organisation (whether incorporated or unincorporated). However, many logos bear similarities one to another – colours, company titles, graphics, but are held to be different.
So it must be argued in this case.
2. Confusion in the voters is an issue, but Mr. Fitzgerald may state the case too broadly. He says:
“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.” (p.5)
Certainly, voter confusion cannot be permitted. However, in today’s Federal legislature we have a Liberal Democratic Party which cannot be said to confuse voters into thinking it is the Liberal Party although there are suggestions this did happen in the NSW Senate poll in 2013. Yet the registration of that party has not been challenged by the Liberal Party nor been reviewed by the AEC. In a State parliament, we have the Democratic Labour Party which cannot be said to confuse voters that it is the Labor Party. We had that party recently in the Federal Parliament too. At all times, the legislation assumes that the voter, while he could become confused, is reasonable and can read words and discern differences between parties which may share a word in their title.
An extreme hypothetical of that party-name-confusion might be if the Communist Party of Australia should seek to register again – but the Communist Party of Australia (Marxist-Leninist) did too. Each would be a historical party and their registrations could not be denied.
As it is, only one organisation has applied to have the Eureka Flag included within its logo. If there is any confusion at all, then reasonably (and Mr. Fitzgerald goes on to argue this) it would have to be with organisations outside of the electoral process.
Mr. Fitzgerald continues:
“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 Commission[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.’”
When the voter votes, again it would have to be the argument that he is being confused into believing Australia First Party is something else to what it purports to be, something he identifies from some other experience and supports or dislikes it for that reason - and votes accordingly. However, common sense is applied in the judgements of the Administrative Appeals Tribunal. The cases cited by Mr. Fitzgerald do not invalidate our claim to our logo. The voter may recognise the Eureka Flag, but whether he identifies it with some other organisation or logo or historical circumstance is obviated by the sheer scale of its use. The Flag is a ubiquitous image, perhaps less so than our National Flag, but its interpretation is in the mind of the beholder.
In any case, various unions have launched campaigns against this registration application. The members of these unions would be reasonably aware of the debate. We would reason that those unionists who vote for us do so because they know why we use the Flag and who we are politically. The same would apply to those who do not – which would certainly include these union leaderships.
3. Mr. Fitzgerald claims that the Australia First Party is trying to register a protected trademark. We reject that absolutely. Mr. Fitzgerald says:
“To return to the issue at hand, design is 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 trade marks, 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) (p 6)
The use of the Eureka Flag as part of someone else’s logo does not give him lawful ownership of the Flag, nor some monopoly over where the Flag may appear. That would operate in the field of trademarks in business or other human endeavours generally, or in other places and for various purposes. Of course, we are debating here the Electoral Act, but it is Mr. Fitzgerald who has referred to the uses of the Flag that he says are protected. Indeed, our logo is bland and the words ‘Australia First’ prominent and clear and these words could not be confused with any other body.
It is significant that those whom he says have some proprietary interest in the Flag have not attempted to enforce their supposed ‘right’ against other organisations and individuals. That may be more than instructive. We have no information about cases brought against the University of Ballarat or the Royal Australian Navy in respect of HMAS Ballarat and so forth by any of the unions for whom Mr. Fitzgerald speaks in this objection.
Australia First Party is trying to register a particular logo, unique to itself and one which is not for the purpose here in the traditional colour of the Flag.
4. The Eureka Flag has certainly appeared in other places and as a political symbol. Mr. Fitzgerald argues:
“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.” (p 7)
In fact, the predecessors of the Australia First Party and organisations otherwise friendly to it, in the past and in the contemporary present, have also used the Eureka Flag. The author of this reply has played a not inconsequential role in the spread of the use of the Flag by organisations we might label as ‘nationalist’. This occurred at various points when some of the groups named by Mr. Fitzgerald (the Builders’ Labourers’ Federation – BLF) were also employing the Flag.
To my knowledge, no organisation had tried to ‘trademark’ the Flag (indeed, it would be my suggestion that any such application would fail so I use this expression loosely) , at least until recent decades, when it was incorporated into logos. Certainly, no one has tried to register an electoral logo that includes the Flag.
None of this excludes Australia First Party from having a logo which features the Flag. The National Flag finds representations of it used in common political discourse and logos. Of course, the National Flag is regulated and it must be employed in certain ways. The Eureka Flag has no regulation applied to it.
Mr. Fitzgerald makes an argument that the Eureka Flag is in some way a logo of the trades union movement and is its essential property. That argument is wrong in law. No right to an unfettered use of the Flag is granted by common usage. Mr. Fitzgerald says:
“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”. (p 9)
The use of the Flag by such bodies does not make it a logo as such which cannot be registered as part of a logo, any more than the use by nationalist organisations like Australia First Party gives our party some necessary right of itself to register it. It is not the Flag we seek to register, but a logo which incorporates it, like the various CFMEU designs in use as provided by Mr. Fitzgerald (p 8 of his submission). It is not a matter of the use the Flag has had – because there is no property in the Flag.
The argument here by Mr. Fitzgerald is some sort of squatters’ rights claim. It has usage but there is no ownership.
The Eureka Flag design may be used by organisations as part of a logo outside of the trades union movement - and it is.
Mr. Fitzgerald concludes:
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). (p.9)
I submit that this is sophistry. Trademarks are one thing. Logos another. It is conceded there is some sort of vague overlap and in this point, that is where the mischief lies. Mr. Fitzgerald must be hung on the point of “the design”. There is simply no property in the design of the Eureka Flag. The Flag is not a logo other than in the broadest sense that a welter of community groups can and do use it in an unregulated way. It is because it is so diffuse in its use, so ultimately ubiquitous in Australian life, that anyone is free to do with it as he would choose. Certainly, this seems to be the tenor of the many complaints received on our application to register a logo featuring the Flag (which Mr. Fitzgerald is reasonably aware of).
5. Mr. Fitzgerald makes a de facto concession which we rely upon. He said:
“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 (p 9)
The logos are distinct. That is the point. Our logo features the words Australia First. The logo can only appear similar because all logos discussed use the Flag. Of course, the colours are different. However, there is no property in the Flag in the first instance whether or not any union employs a logo featuring the Flag and whether or not that logo has been registered as a trademark. Any use by any union gave no ownership over the Eureka Flag. That would be so regarding any other usage.
6. Mr. Fitzgerald considers that the case law on trademarks favours his position. He says:
“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 Act Commission and Another. 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 ….
In the seminal case of Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641, …. (the High Court compared trademarks and how people could recall one mark against another).
The argument for Australia First Party is that our logo and the logo of any other group are not the same and would not be seen or remembered as the same.
The law puts forward a test and that test must be that of a reasonable person buying a product. It would not be unreasonable that a single citizen might assume the logo implies some support for or by a union and either vote for or against Australia First Party on that basis, but whether a number would - must be discounted. Confusion as a principle could not operate if but a few citizens were confused. It would have to be a general confusion. It is a fact that some citizens are confused by our preferential voting system – but that does not invalidate it. The fact is some citizens may be confused in that this system does not operate in some State electoral systems, but that does not invalidate them. And so on. Some party names may appear similar and so forth, but they have still been registered.
The voter is likely not to take Mr. Fitzgerald’s path of thinking there was some resemblance and therefore linkage, but rather to simply note that the Flag is used by yet another organisation.
7. Mr. Fitzgerald also tries another ruse. He would reason that the logo of Australia First Party is recognisable as similar to that of other unions because it is the Eureka Flag. It is our view that these unions usurped the Australian people’s flag, but they are – sadly – entitled to use it as they like. As noted, this writer has played a role in diffusing images of the Eureka Flag in association with nationalist messages. In fact, I have done this for thirty nine (39) years this month. It would my argument that their logos are similar to our (unregistered) use of the Eureka Flag as a logo. If there is any confusion, it is universal. However, that comes of the very nature of the Flag itself, that there is no property in it and that persons and organisations are free to employ it as they like. Mr. Fitzgerald says:
“(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. (p 11)”
Australia First Party says there is no confusion. We have employed Eureka Flags on how to vote cards for years and to my knowledge, no complaint has ever been made. To my knowledge, no person has ever expressed any confusion at the polling booth. In my role in Australia First Party, I have never received a complaint from any trade union.
The source material is derived of Australian history. Other than official things established by law, Australian historical matter as a motif, is the property of all citizens to be employed as they see fit.
8. Mr. Fitzgerald asserts an intrinsic connection between the Eureka Flag and the CFMEU. He says:
“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 considered to be their logo creates an irresistible presumption that confusion will arise.
If there is a real possibility that a voter who is about to mark their ballot paper may be confused into considering a link between Australia First and the CFMEU, this registration should be refused (p.12)”
The Eureka Flag could be thought in the abstract by a reasonable person as a symbol employed by a university, a warship, a skinhead association, various political parties registered (the Liberal Democratic Party) and unregistered (the Communist Party of Australia Marxist-Leninist) and occasionally - anarchists. It is unreasonable that any person associated with any of these bodies would consider that they are using the symbol of the CFMEU, nor would any citizen necessarily make that linkage as one of proprietary right. No reasonable citizen would imagine that there is a connection or association amongst any of them. Consequently, no number of ordinary voters would assume that in order to allow the invoking of the objection
The CFMEU has no inherent right to the Eureka Flag. It may have a logo with it employed therein and it may use the Eureka Flag at particular meetings and so forth, but it does not own it. Nor can it be argued that the general public would associate the Flag that way. Its logo does not protect (sic) the Eureka Flag from other usage.
Mr. Fitzgerald said that a Court recognised that the union flew the Flag on building sites and this was duly noted. Another court in Brisbane in 2016 convicted and imprisoned a CFMEU organizer, Luke Collier, on a charge of assault against a member of Australia First Party. During an assault in South Brisbane, Collier stole a Eureka Flag which he considered ‘belonged’ to the union. Neither case establishes ownership of the Flag.
9. Mr. Fitzgerald argues for a generic linkage between trade unions and the Eureka Flag as sufficient to deny registration of our logo. He says:
“In the present application before the Commission, two distinguishing features should be borne in mind. Firstly, the tension between s129 A (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 of the union movement (p 17)
The Eureka Flag is in our view indeed a shorthand to a particular ideology and it is not the multiculturalist globalist rubbish of the traitor union bosses who are anti Australian worker and who serve the Labor Party globalists. However, that may not be the community view which may see the Eureka Flag in all sorts of ways. These union leaderships may see it totally differently again. It is irrelevant whether the union leaderships have registered logos which feature the Flag because neither they, nor we, own the Flag. In making this objection against us, Mr. Fitzgerald seeks to restrict the meaning of the Flag to the meaning offered by the union bureaucracy. These logos distinguish the unions from other associations and bodies which use the Flag. So does our logo.
When these unions opted to use the Eureka Flag, progressively after the decline of the former BLF operated by Norm Gallagher, they did not have any concern that they were maybe denying other organisations their rights in relation to the usage of the Flag.
We await Mr. Fitzgerald’s assistance to these unions to deny the use of the trademark (sic) to other community associations. He may say that he is only dealing with the present matter which is an Electoral Act matter. I note that the other unions who have objected to our application did not express their objections in his terms, but were more general. That may also be significant. They have not protested others either. They only protest us. The matter of freedom of expression is clearly not one of their aims any more than it is Mr. Fitzgerald’s.
Mr. Fitzgerald continues:
(iii) The Eureka flag suggests a connection or relationship with the CFMEU or the trade union movement generally (p 17)
The repetition of this argument does not sustain it. If that was true, then the CFMEU is connected with or has a relationship with HMAS Ballarat. No reasonable person would make that connection, or if a few persons did, positively or negatively, it does not sustain the argument against registration.
10. Mr. Fitzgerald then draws the longest bow of all. After linking to his satisfaction, the Eureka Flag with the CFMEU, he says:
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. (p19)”
These affiliated unions may use the Eureka Flag, but the ALP does not. This tendentious, even vicarious linkage, between the Flag and the present Australian Labor Party, cannot really sustain an argument that we are to be confused with an already registered party.
Mr. Fitzgerald recognises his difficulty, He says:
“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 (p 21)”
The very material issued by Australia First Party would argue that it has inherited the perspectives of Australian nationalism, the co-operative Commonwealth and identitarian politics from the original Labor Party and that the present ALP is renegade from those principles and a party of capitalist globalism. In that way, in so far as our ideological material has power or resonance in the community, no one would confuse the parties.
Whether any confusion could exist in voters thinking the Eureka Flag identified us with the present ALP chiefly through us appearing to have some kinship to the CFMEU,, and because some other of its affiliated unions might use it, would have to be counted as the province of a few asserting it. We would say that this argument should be dismissed out of hand. Certainly, the Australian Labor Party, the ultimate arbiter of its own interests, has not made this complaint.
11. Mr. Fitzgerald objects that the registration of the logo is not in the public interest. He concedes:
“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.”
However, he then goes on to argue it:
“t would be undesirable to allow new political parties to coopt 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.”
I might say the same about the criminal clique at the centre of the CFMEU. All parties employ the National Flag in various ways, use its colours on their logos and other representations. And our national Flag is the ultimate symbol of goodwill. Mr. Fitzgerald’s argument is simply dishonest.
Mr. Fitzgerald continues:
“Additionally, the Eureka flag is an important cultural symbol. Indeed, it is a National Treasure. 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.”
This is not a matter for consideration by the AEC.
The argument also reeks of hypocrisy. If according to Mr. Fitzgerald, the Flag is already the property of certain unions and through that the de facto property of the ALP whereby “confusion” could register in the voters – then the damage is already done.
There is no ground for objection here.
12. I have dealt with the objections in the body of this reply. I can see no grounds upon which the Australian Electoral Commission can lawfully object to the proposed logo and I request the matter be determined in our favour at your discretion and at the earliest moment.
Yours sincerely, Dr. Jim Saleam