Hard up upon the deadline for legal challenges to results from the May 18 federal election, three petitions were lodged in the Court of Disputed Returns on Wednesday: two against Josh Frydenberg in Kooyong, and one against Liberal colleague Gladys Liu in the neighbouring seat of Chisholm. Both Frydenberg and Liu face claims arising from section 329 of the Commonwealth Electoral Act, concerning the misleading of electors in relation to the casting of their votes. On top of that, Frydenberg faces a claim he is ineligible to sit in parliament under the citizenship requirements of Section 44.
The Section 44 action is based on the now familiar claim that Frydenberg is entitled to Hungarian citizenship. Since such a claim would be derived through a mother who fled that country in 1943 to escape the Holocaust, most have reckoned Frydenberg to be well at the undeserving end of those entangled in actual or potential complications under the section. The matter was widely canvassed amid the broader Section 44 furore last year, so voters in Kooyong were fully appraised of it when they re-elected him. Nonetheless, this is the only one of the two complaints that could plausibly lead to the seat being vacated, since the fact that Frydenberg won by a comfortable margin is not relevant to his qualification to be a member of parliament.
The petitioner, local constituent Michael Staindl, is candid about being motivated by a feeling of being “consistently betrayed” by Frydenberg on climate policy, a matter unrelated to the substance of the complaint. Liberal MP Michael Sukkar used parliamentary privilege yesterday to all but accuse those challenging Frydenberg of anti-Semitism, without regard to whether they were involved in the Section 44 action or the quite separate one concerning the propriety of the Liberal Party’s election day advertising.
The section 329 complaints relate to Chinese language election day posters in Kooyong and Chisholm that mimicked the colour scheme of the AEC, the content of which is translated thus in Yates’s petition and earlier letter of demand to the AEC:
The correct voting method – note down number 1 besides the Liberal Party on the green ballot paper and then the number from small to large in the rest of the squares.
Since Frydenberg’s winning margin in Kooyong was 11,289 votes (over Greens candidate Julian Burnside, who has endorsed both challenges), there seems no prospect of the court deciding the signs were decisive, as is usually required where the issue does not involve the winner’s qualification for the office. However, the action could potentially lead to a salutary declaration of illegal conduct being issued. There could potentially be more to it than that in Chisholm, where Liu’s winning margin over Labor’s Jennifer Yang was 1090 votes.
In response to a complaint on the day, the AEC advised Yates that it could not stop its colour scheme being used, and that the sign did not in any case relate to “the process of casting a vote rather than the formation of the political judgment”. A narrow reading of section 329 has been the norm since the ruling of Evans v Crichton-Browne after the 1980 election, which adjudicated a number of familiar-sounding complaints that the Liberal Party had deceptively claimed Labor had policies to target the family home with a wealth tax. In dismissing the claims, the court emphasised that section 329 was to be understood as very specifically applying to “the way a ballot paper was marked”.
Armed with this precedent, there have been a number of occasions where the AEC has given short shrift to complaints involving false campaign claims and promises. However, the present complaints do seem very much to involve directions on filling out ballot papers. The same could be said of a complaint in Peter Dutton’s seat of Dickson that a Liberal National Party enthusiast had disseminated how-to-vote material for the benefit of those wishing to vote for “a minor party or independent”. This went through the available options and in each case advocated a vote for Dutton ahead of Labor’s Ali France, in some cases contrary to those candidates’ actual recommendations. This too was promptly rejected on the day by the AEC.
It may be thought that the AEC has a strong motivation to rule that such complaints are outside its brief, which circumvents the potential for it to become embroiled in partisan controversies. The AEC also faces the difficulty that there is not much it can practically achieve if it upholds them, since it is empowered only to seek injunctions, which can’t be readily obtained in good time on the day. However, this may be leading it to apply dubious reasoning. It’s hard to see how a sign that instructs voters in the “correct voting method” relates to “the formulation of the political judgement” as distinct from “the process of casting a vote”, as the AEC argued in rejecting Yates’s complaint.
If that pillar falls away, it will be left for the court to decide if the communication was indeed misleading. I imagine a defence would be that Chinese voters understand as much as anyone that elections are a process of choice, so the sign would be implicitly understood as guidance for those who had decided to vote Liberal. However, the Yates letter of demand points to a recent finding by the Victorian Court of Appeal that the standard must be the impact on “any gullible or naïve elector, rather than a sophisticated voter who is informed about current affairs”.
These issues and others like them have stimulated debate as to whether some manner of truth-in-advertising regime might be in order for election campaigning. Broadly speaking, two recent pieces in Inside Story advance the case for and against, the former by Mike Steketee, the latter by Michael Maley. Legal academic Graeme Orr (who, I note, has published a second edition of his indispensable The Law of Politics) also offers his view on the Kooyong and Chisholm petitions in The Conversation, concluding thus:
From this vantage, the court may well find the Liberal Party breached the law and therefore must bear most of its own costs. But there is no way Frydenberg’s win in Kooyong will be imperilled, and it would take an intuitive leap to find that Liu’s majority in Chisholm is unsafe.