POLITICAL NAMES PROPOSAL TO PROTECT USE OF POLITICAL NAMES : PROPOSAL TO PROHIBIT USE OF NAME ‘AUSTRALIAN LABOR PARTY’ AND ASSOCIATED NAMES : COPYRIGHT : TRADE MARKS : POWER TO LEGISLATE WITH RESPECT TO ELECTIONS : INCIDENTAL POWER
COPYRIGHT ACT 1905 : TRADE MARKS ACT 1905
With reference to your request that I should give consideration to the possibility of amending the Electoral Act, the Copyright Act or the Trade Marks Act to protect the Australian Labor Party by prohibiting the use, otherwise than by the Australian Labor Party, of the titles ‘Australian Labor Party’, ‘ALP’, or ‘Labor’.
Dealing first with the Trade Marks Act, a trademark is a mark distinguishing the goods of the owner of the mark from those of other persons. The name of a political party is clearly not such a mark. Any legislation providing for the registration of such a name as a trade mark would, in my opinion, meet the same fate as met the legislation made some thirty-five years ago to provide for the registration of Union labels, that is to say, the legislation would be declared by the High Court to be invalid.
With respect to the Copyright Act, it is established law that copyright cannot exist in a name or title. In my view, any legislation to establish copyright in the name of a political party would not be legislation with respect to ‘copyright’ as that word is used in the Constitution and would therefore be invalid.
The further question arises as to whether legislation of the kind under consideration could be supported as incidental to the power to legislate with respect to elections. In my opinion it might be possible to frame valid legislation with respect to the use of the names of political parties in connexion with an election or the promotion of political parties and their organisation so far as they are directed towards Commonwealth objectives. Such legislation should be general in character and protect against misuse the names not only of the Labor Party but of all political parties and groups.1
1See Part xi of the Commonwealth Electoral Act 1918, ‘Registration of Political Parties’, originally introduced into this Act by the Commonwealth Electoral Legislative Amendment Act 1983.
[Vol. 36, p. 54]