Electoral Legislation Amendment (Party Registration Integrity) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 200 (1 September 2021)

• Electoral Legislation Amendment (Party Registration Integrity) Bill 2021
• Administrative power not defined with sufficient precision4

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Electoral Legislation Amendment (Party Registration Integrity) Bill 2021

Purpose	This bill seeks to amend the registration eligibility requirements for a federal non-Parliamentary party. These amendments increase the minimum membership requirements for registration from 500 to 1500 unique members. The bill also amends the prohibitions regarding registrable names, abbreviations, and logos.
Portfolio	Finance
Introduced	House of Representatives on 12 August 2021
Bill status	Passed both Houses

Administrative power not defined with sufficient precision^[4]

2.6 In Scrutiny Digest 13 of 2021 the committee requested the assistant minister's advice as to whether the bill can be amended to:

• replace 'frivolous or vexatious' with alternate terms, such as 'nonsensical', 'malicious' or 'misleading', which more appropriately define the scope of the power at section 129; or

• alternatively, whether the bill can be amended to:

• include examples of frivolous or vexatious party names; or

• include an inclusive definition of the phrase 'frivolous or vexatious'; or

• set out matters that the Electoral Commission may consider in determining whether a party name or abbreviation is frivolous or vexatious.^[5]

Assistant Minister's response^[6]

2.7 The assistant minister advised:

In relation to proposed amendment of section 129(1)(b) of the Electoral Act, I note the Committee's comments with regards to provision to allow the Electoral Commission to refuse an application for the registration of a political party if, in its opinion, the party name or the abbreviation of the party name of the applicant is frivolous or vexatious.
I note the explanatory memorandum to the Bill provides that the terms frivolous and vexatious "are to be given their ordinary meaning, and are intended to include party names or abbreviations that are nonsensical or are malicious in their application. This would include, for example, an applicant seeking to register 'Australian Electoral Commission', or 'Australian Government' as a political party."
The Electoral Act already provides that a refusal of an application for the registration of a political party, including for the reasons relating to proposed amendment of section 129(1)(b) is a 'reviewable decision' as defined in section 141.
I am satisfied this provides sufficient guidance as to the appropriate exercise of the proposed measure to allow the Electoral Commission to refuse an application for the registration of a political party if, in its opinion, the party name or the abbreviation of the party name of the applicant is frivolous or vexatious.

Committee comment

2.8 The committee thanks the assistant minister for this response and for providing it to the committee in a timely manner. The committee notes the assistant minister's advice that sufficient guidance as to the appropriate exercise of the power to refuse an application for the registration of a political party on the basis that the party name or abbreviation is 'frivolous or vexatious' is set out in the explanatory memorandum. The assistant minister also advised that a refusal of an application for the registration of a political party is a 'reviewable decision' under section 141 of the Commonwealth Electoral Act 1918 (the Electoral Act).

2.9 While the committee acknowledges this advice, the committee reiterates that 'frivolous' and 'vexatious' are imprecise terms which, as a result, may confer a broad discretion on the Electoral Commission to refuse or approve applications to register a party name.

2.10 From a scrutiny perspective, the committee remains of the view that relying solely on the ordinary meaning of 'frivolous or vexatious' means that the scope of the power afforded by proposed paragraph 129(1)(b) is not defined with sufficient precision. In this context, the committee notes that insufficiently defined administrative powers may be exercised arbitrarily or inconsistently and may impact on the predictability and guidance capacity of the law, undermining fundamental rule of law principles.

2.11 In addition, the committee notes that 'frivolous or vexatious' is a well-established concept within the common law in relation to legal claims which are groundless or instituted to achieve a wrongful purpose. This meaning of the term is used elsewhere in Commonwealth legislation, including within the Electoral Act at sections 72 and 116, but the context in which the term is used in these instances appears to be incongruent with the use of the term in the proposed amendment to paragraph 129(1)(b).

2.12 The committee remains of the view that it would be appropriate to further define the power provided to the Electoral Commission under proposed paragraph 129(1)(b) by providing additional guidance as to when the power should be appropriately used.

2.13 The committee therefore suggests that when amendments to the Electoral Act are being proposed in the future, consideration should be given to amending the Electoral Act to replace 'frivolous or vexatious' with alternate terms, such as 'nonsensical', 'malicious' or 'misleading', which more appropriately define the scope of the power at section 129.

2.14 If such an amendment is not considered appropriate, at a minimum, consideration should be given to amending the Electoral Act to:

• include examples of frivolous or vexatious party names; or

• include an inclusive definition of the phrase 'frivolous or vexatious'; or

• set out matters that the Electoral Commission may consider in determining whether a party name or abbreviation is frivolous or vexatious.

2.15 In light of the fact that this bill has already passed both Houses of the Parliament the committee makes no further comment on this matter.

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[4] Schedule 1, item 6, paragraph 129(1)(b). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2021, pp. 10-11.

[6] The minister responded to the committee's comments in a letter dated 26 August 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 14 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.