Response from Dr Jim Saleam to the Objections Raised to the Australia

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.

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