SOCIAL libertarian Fiona Patten and social conservative Rachel Carling-Jenkins demonstrate the diversity of the Victorian Legislative Council in the wake of last November’s state election. And one of them poses a threat to the Liberal Party, theoretically at least.

Patten won the fifth and final seat in the Northern Metropolitan region for the Australian Sex Party with 2.87 per cent of the primary vote. Her constituency essentially covers Melbourne’s leftist inner-city sandal-wearing belt including Brunswick, Melbourne, Northcote and Richmond.

Carling-Jenkins won the fifth and final seat in the Western Metropolitan region for the Democratic Labor Party with 2.57 per cent of the primary vote. Her constituency covers essentially Melbourne’s middle-class western suburbs including Essendon, Sunbury and Werribee. The original DLP, which existed from the mid-1950s to the mid-1970s, was formally wound up in 1978. The revived party took the name DLP, which was adopted by the original party’s founders who were expelled from the Australian Labor Party at the time of the Labor split.

When the DLP was first named it was an appropriate indication of its stance. The party grew out of the labour movement and contained numerous trade union members. So it was entitled to call itself “Labor”. But its first name, “Democratic”, differentiated it from the ALP. The evidence demonstrates that the electorate, in Victoria and the other states, understood this.

Interviewed by the Financial Review last December, the articulate Patten set out a broad agenda beyond sex and added, “I had always thought that once we were successful in getting someone elected, we would seriously consider renaming ourselves … I’d like to call ourselves the Liberal Party.”

And therein lies the potential problem for the Liberal Party of Australia. For, on its current record, the Australian Electoral Commission and the Administrative Appeals Tribunal might just allow Patten to change her party’s name to the “Liberal Sex Party” or, perhaps, the “Liberal Libertarian Party”. After all, there is a precedent.

In February 2010 the three members who comprise the AEC accepted an application by the Liberty and Democracy Party to change its registered name under the Commonwealth Electoral Act 1918 and take the name Liberal Democratic Party (LDP).

In June 2013 the AEC further decided to approve the party’s application to change its registered abbreviation to Liberal Democrats. The Liberal Party of Australia appealed this decision and the matter is yet to be determined. The AEC’s original decision was opposed by both the Liberal Party of Australia and the Australian Democrats (which had Senate representation up until mid-2008). The organisational leadership of both parties believed that its name was being improperly appropriated. They had a strong point.

Today Senator David Leyonhjelm is the best known member of the Liberal Democrats. He was formerly a member of the Shooters Party who moved to the Liberty and Democracy Party and was involved in getting AEC approval to change the party’s name to Liberal Democratic Party or Liberal Democrats. The Liberal Democrats’ name takes its first appellation from the Liberal Party of Australia and its second from the preferred title of the Australian Democrats.

This, with one exception, was the first occasion that the AEC had permitted a new party to use as its first name an existing party’s first name. Previously the AEC had accepted such titles as Christian Democratic Party, Curtin Labor Alliance and Rex Connor Labor Party. The exception occurred when the AEC and the AAT decided in 2001 that an environment advocacy group could call itself “Liberals for Forests”.

So far, the Liberal Party of Australia has paid the penalty for the AEC’s decisions to allow new parties to acquire the first name of one of Australia’s traditional political organisations. But the Australian Labor Party is also vulnerable. If the AEC reckons that the name Liberal Democrats is OK, then why not Labor Democrats, or perhaps the Labor United Party? Even the Greens, whose approved title is The Australian Greens, could also be affected. If Liberal Democrats is OK by the AEC, why not “Green Labor”, “Green Liberals” or “Green Democrats”?

The AEC’s defence turns on the argument that many political terms are generic. So they are. It’s reasonable that such words as “Australia”, “liberal”, “labor”, “labour”, “democrat”, “national”, “Christian”, “progressive”, “social”, “socialist”, “united” and the like can be shared around. But it’s not reasonable that a new entity should be allowed to acquire the first name and, consequently, some of the good will of a known existing party.

In any event, the tactic has worked brilliantly for the Liberal Democrats, especially in Senate elections where the party has had the good fortune to appear on the top left-hand side of a complicated ballot paper ahead of the Liberal Party of Australia.

This was the situation in NSW in September 2013 when Leyonhjelm received a favourable ballot draw on the left of the ballot paper, well ahead of the LPA candidate. He scored 9.5 per cent of the primary vote, far beyond what his party had received previously.

A similar situation occurred in Tasmania. The Liberal Democrats did not win a Senate seat but the “above-the-line” preference distribution of its surprisingly high vote made it possible for Jacqui Lambie to win the final Senate vacancy ahead of the LPA’s Sally Chandler.

When the Liberal Democrats were placed ahead of the LPA on the complicated Legislative Council ballot paper in the 2014 Victorian election, the party received around twice the vote compared with when it was placed behind the LPA candidate. The evidence suggests that some LPA voters were confused by the name similarity and unintentionally gave their vote to the Liberal Democrats.

Clearly, in certain circumstances, the name identity confusion created by the AEC has assisted the Liberal Democrats to the disadvantage of the LPA. Leyonhjelm’s colleagues have also obtained a financial windfall, since public funding is awarded to a party’s organisation for every vote gained.