Decision of the Australian Electoral Commission
Application for Registration of Help End Marijuana Prohibition (HEMP) Party under Part XI of the Commonwealth Electoral Act 1918
The Determination of the Delegate to Refuse Application for Party Registration is Affirmed by the Australian Electoral Commission
File reference: Reg3145 2007/622
Following a request for review of the delegate’s decision of 14 May 2008 not to register the Help End Marijuana Prohibition (HEMP) Party under Part XI of the Commonwealth Electoral Act 1918, the Australian Electoral Commission has decided to affirm the decision of the delegate.
The Australian Electoral Commission (the Commission) is established as a statutory authority of the Commonwealth of Australia under section 6 of the Commonwealth Electoral Act 1918 (the Electoral Act). The Commission as presently constituted consists of the following persons – Chairperson, the Hon James Burchett QC, the Electoral Commissioner, Mr Ed Killesteyn and the non-judicial member, Mr Brian Pink. The functions and powers of the Commission are set out in section 7 of the Electoral Act and include “to perform functions that are permitted or required to be performed by or under this Act”.
Section 126 of the Electoral Act sets out the requirements for the making of an application for registration as a political party. Subsection 126(3) of the Electoral Act states that when an application for registration as a political party is received by the Commission, it shall be dealt with in accordance with Part XI and the Commission shall “determine whether the party can be registered”. One of the requirements contained in section 126 of the Electoral Act is that an application may only be made by an “eligible political party”. The term “eligible political party” is defined in subsection 123(1) of the Electoral Act and in the case of a political party that is not a Parliamentary party, it must have “at least 500 members”. Paragraph 126(2)(ca) of the Electoral Act requires that when making a written application for registration, the intended registered officer of the eligible political party shall “include a list of the 500 members of the party to be relied on for the purposes of registration”.
The Party application
In an application received by the AEC on 16 April 2007 the person who is the intended registered officer of the Help End Marijuana Party (HEMP) Party (the Party), Mr Graham Askey, lodged a written application with the Commission for the registration of the Party as a non-parliamentary party under Part XI of the Electoral Act. In that application, it was indicated that the Party would seek to receive election funding.
After an initial consideration of the written application lodged by the intended registered officer, a Delegate of the Commission wrote to Mr Askey on 21 August 2007 issuing a notice pursuant to section 131 of the Electoral Act. Section 131 enables the Commission to issue a notice in certain circumstances inviting the applicant to vary the application where “after initial consideration of an application for the registration of a political party, the Commission is of the opinion that it is required to refuse the application….”. In the Delegate’s letter, the Delegate advised Mr Askey that staff of the Commission had completed a random sample check of the Party’s membership list on 8 August 2007 and, based on the results of that check, the Delegate was of the opinion that he could not be satisfied that the Party had the required 500 members. Mr Askey was advised that this random sample check of 20 persons claimed to be members of the Party had resulted in 6 persons confirming membership, while one person denied membership and 13 persons failed to respond to both telephone calls and subsequent letters from the AEC. Mr Askey was invited to submit a fresh membership list and to advise whether he wished the application to proceed.
In a letter dated 3 October 2007 addressed to the then Electoral Commissioner, Mr Ian Campbell, Mr Askey responded to the Delegate of the Commission stating that the membership sampling undertaken by the Commission was “fundamentally flawed” as it was, inter alia, “a test of, party resources, fear or laxity of members, residential mobility or whether the person has a telephone listed in their name”. Various other concerns were raised about the delays in undertaking the membership checks and whether those checks complied with the requirements of the Electoral Act. Specific reference was made to the NSW Supreme Court decision in Save Our Suburbs (SOS) NSW v Electoral Commissioner of NSW  NSWSC 785. Mr Askey asserted that the membership forms “should be accepted at face value” by the Commission. Mr Askey did not provide any further membership details, requesting “that the application go ahead as is …..”.
The November 2007 general election and the by-elections in Gippsland, Mayo and Lyne brought section 127 of the Electoral Act into operation which prevented any further action being taken in relation to the application of the Party during the periods specified in that section.
The initial decision
On 14 May 2008, the Deputy Electoral Commissioner as delegate of the Commission refused the Party’s application under section 126 and provided a statement of reasons for the decision as required by subsection 133(3). Commission staff advised Mr Askey by letter dated 15 May 2008 and included a copy of the Delegate’s statement of reasons for the decision. Those reasons concluded that the Delegate was not satisfied that the Party had the necessary 500 members to be eligible for registration under sections 123, 124 and 126 of the Electoral Act. The Delegate relied on the check of the sample of 20 persons named as members that was completed in August 2007 as the reason for concluding that he was not satisfied that the requirements of Part XI had been met because “ the results of the test indicated a significant probability that there were not 500 members”.
The application for review
In a letter dated 22 May 2008, Mr Askey wrote to the then Electoral Commissioner in relation to the decision of the Delegate to refuse the registration of the Party under Part XI of the Electoral Act. In the opening paragraph of this letter Mr Askey sought a review of the Delegate’s decision by the Commission, for which provision is made by section 141 of the Electoral Act. In that letter Mr Askey challenged the sampling test used by the staff of the Commission to ascertain whether the Party had 500 members, arguing that the sampling was inconsistent with the requirements of the Electoral Act. Mr Askey raised further points about the sampling methodology used by the Commission staff and the ability of members to resign from the Party. Mr Askey also adopted the earlier submissions made by his letter of 5 October 2007 [which appears to duplicate his letter of 3 October 2007].
Relevant legal provisions
Political parties may apply for registration for the purposes of federal elections in accordance with the requirements of Part XI of the Electoral Act. The Act requires the Commission to maintain a ‘Register of Political Parties’.
Applications to register political parties are determined under section 126 of the Electoral generally by a delegate of the Commission.
Section 141 of the Electoral Act permits persons affected by a decision made by the delegate of the Commission to make a written application to the Commission to review the delegate’s decision.
Applications are required to:
• be in writing;
• specify the address of the applicant;
• set out the reasons for the application; and
• be made within 28 days of the applicant becoming aware of the decision, or within such further period allowed by the Commission.
Reasons for the application
The Party’s application for review lodged by Mr Askey claimed that the random sample membership test applied by Commission staff and the results of which were relied upon by the Delegate of the Commission to parties seeking registration was an invalid exercise of the power to undertake membership checks to establish whether the Party had “at least 500 members” .
The membership test
Subsection 123(1) of the Electoral Act defines an “eligible political party” as a political party that is either a Parliamentary party or has at least 500 members.
Subsection 123(3) indicates that a member of a political party means a person who is both a member of a political party and is entitled to enrolment under the Electoral Act (see Part VII for the enrolment requirements).
Subsection 126(2) requires that an application to register a political party that is not a Parliamentary party be accompanied by a list of the names of 500 members to be relied on for the purposes of registration.
In considering the application, the staff of the Commission conduct a series of tests to assist the Commission or its delegate to determine whether the Commission may be satisfied that an applicant party has at least 500 members, including:
• removing from the list members under 17 years of age;
• removing any duplicate memberships from the list;
• removing the names of people who have already been used by another party to establish its eligibility for registration; and
• conducting a random sample test for membership to verify if there are at least 500 members as required by the Electoral Act.
The random sample test of membership involves contacting a random sample of 20 people from the membership list by phone and by mail if necessary. Where more than one of the randomly selected people from the membership list cannot be confirmed as a member, then the membership test has been failed.
The membership tests are intended to allow the delegate of the Commission (and on review the Commission itself) to be satisfied that an applicant Party has the required 500 members.
Consideration of the review
The application for review of the decision of the Delegate to reject the application to register the Party was considered at the Commission meeting of 5 November 2008.
At that meeting, the Commission requested that staff of the Commission undertake further investigation involving the conduct of another random sample membership check against the list of 500 members provided by the Party using a test to be supplied by the Australian Statistician.
The test required a responding sample of 40 people selected randomly from the membership list. If five or more of the people contacted denied being members of the Party, then it is statistically probable that the number of actual members in the membership list is less than 500.
The staff of the Commission wrote to the 40 randomly selected persons on the Party membership list on 24 November 2008 to seek their cooperation to confirm whether or not they were members of the Party. Further letters were despatched by Commission staff on 4 December 2008 by registered post with two additional persons being randomly selected as replacements for two randomly selected members who had failed to include telephone contact details. The letters from the Commission staff enclosed replied paid and addressed envelopes to facilitate replies.
As at 13 January 2009, staff of the Commission had the following results for the 42 persons who were attempted to be contacted from the Party membership list:
• 14 confirmations of membership;
• 11 denials of membership;
• 14 Australia Post delivery receipts returned with no contact;
• 2 registered letters returned unclaimed;
• 1 registered letter returned with no Australia Post advice.
The random sample membership check did not disclose any cross-party or internal duplicates and no members under 17 years of age.
On 19 February 2009 the Commission met to consider whether further sampling should be undertaken or whether sufficient evidence was available, based on the 11 denials of membership, to enable a decision to be made. The Commission determined that sufficient evidence was available to enable it to proceed to make a decision without any further sampling.
In all of the circumstances, including the results of the further random sample membership check requested by the Commission on 5 November 2008, the applicant for registration has failed to satisfy the Commission that the applicant party can be registered. In particular, the Commission is not satisfied that the applicant Party has 500 members as required by sections 123 and 126 of the Electoral Act, given that the list submitted under paragraph 126(2)(ca) of the Electoral Act (which the Party refused to vary despite being afforded the opportunity by the section 131 notice) contained no more than 538 alleged members and the results of the test of those 42 persons claimed to be members indicate a significant statistical probability that there are not at least 500 members, as 11 out of the 42 denied that they were members.
Accordingly, the Commission, pursuant to subsection 141(4) of the Electoral Act, affirms the decision under review.
J C S Burchett E Killesteyn B Pink
Chairman Electoral Commissioner Commissioner