Smaller political parties might try to mimic major parties’ logos on the ballot paper in order to siphon votes and game the electoral changes announced by the federal government yesterday.

As the government flags the possibility of a double-dissolution election in the second half of this year, legislation released yesterday (explained in today’s Crikey by William Bowe) would make it harder for many of the micro-party senators swept into the Senate in 2013 to be returned should that occur.

In addition to allowing above-the-line votes for up to six boxes and then allowing preferences to be exhausted, the government also intends to allow political parties to include their logos on the Senate ballot paper to ensure voters are sure of who they are voting for. Liberal Democratic Senator David Leyonhjelm scored the top slot in the Senate ballot paper in the 2013 election, and some suggested he was elected because voters confused his party with the Liberal Party.

The logos would need to be kept on a register with the Australian Electoral Commission, and there would be strict guidelines for what logos can be accepted on the register. They can’t be obscene, so swear words and nude art is probably out. They could not use someone else’s logo, or a logo that “so nearly resembles the logo of any other person that it is likely to be confused or mistaken for that logo”. Candidates would also not be able to use a logo that contained the words “independent” or “independent party”.

But solicitor Sean McManis, principal of Shelston IP, tells Crikey that the restrictions are not too dissimilar to the registration of regular trademarks. Whether one party’s logo is too similar to another’s is subjective.

“Often it comes down to a matter of perception, as to whether someone thinks something is confusingly similar to something else, because ultimately it is going to be a person who makes the decision and different people can have different views on what they think is confusing.”

He says some smaller parties may attempt to disguise their logos to attract a few extra votes, but McManis suggests that the major parties would keep an eagle eye on any party attempting to pass itself off as one of the big ones.

“I suspect the major parties will be relatively aggressive in terms of keeping smaller parties away from what their logo looks like.”

If the political party seeks to register its logo as a trademark, IP Australia would also assess it to make sure it is neither “deceptively similar” or “substantially identical” to another party’s logo. A political party could also seek to enforce its trademark rights under the existing trademarks law.

“Trademark registration provides the owner with the right to legally enforce their trademark, and it is in the interests of each trademark owner to enforce their own trademark if they believe another entity has a similar trademark,” a spokesperson for IP Australia told Crikey.

There is nothing to stop senators from outside the major parties coming up with innovative ways to promote themselves on the ballot paper, though. McManis suggests well-known candidates use pictures of their own faces as logos.

“I guess the purpose of the logo is to identify and distinguish one party and one person from other people, and using a person’s face is a pretty good way to distinguish them from somebody else. I guess it is what they think will attract voters and attract people to vote for them,” McManis said.

One of the most obvious candidates to use his face as his logo is beloved South Australian Senator Nick Xenophon, leading the Nick Xenophon Team at this election. But Xenophon has indicated he wants to change the name of his party after the next election, and the logo for the party is likely to stick with the “NXT” logo found on the party’s website.

Tasmanian Senator Jacqui Lambie also has her “Jacqui Lambie Network”. That party’s colour scheme is similar to Xenophon’s but consists of a map of Tasmania, a Southern Cross and the “JLN” initialism. The Glenn Lazarus Team logo is a football-shaped logo in Queensland colours and the “GLT” initialism.

The government’s legislation has the support of the Greens and Xenophon, but Labor — which was once in favour of the changes — has now announced its intention to vote against it. Understandably, the crossbench senators who stand to lose their senate seats are also opposed to the changes.

Peter Fray

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