Yesterday’s Court of Disputed Returns rulings on the May federal election results in Chisholm and Kooyong have disappointed the by-election enthusiasts among us by declining to void the results. However, the judgement delivers a rebuke to the Liberal Party in finding it effectively engaged in “interference with the casting of the vote”, as prohibited by section 329 of the Commonwealth Electoral Act. Its then acting state director, Simon Frost, has been asked to explain to the court why he shouldn’t be referred to the High Court for an offence under the Electoral Act. However, the court has ruled there was no real chance the infractions changed the results – always a foregone conclusion in Kooyong, but less so in finely balanced Chisholm.
Section 329, relating to “misleading or deceptive publications etc.”, prohibits conduct “likely to mislead or deceive an elector in relation to the casting of a vote”. The part in italics entails a distinction between “the formation of the political or voting judgment of the elector, and its recording or expression”. In the latter case, section 329 may be activated; in the former, voter beware. Complaints about false claims in political advertising reliably fall foul of this distinction, but this time it was deemed that Chinese-language exhortations of the “correct way to vote” were in no way “concerned with political choice”.
However, it was also deemed that this would only apply if the signs were exhibited in close proximity of actual Australian Electoral Commission material. Absent that context, the average voter would not recognise the commonality between the signs’ white-and-purple design and AEC branding. Since this was only known to have happened in a limited number of places, the court ruled that only a “very small group of people” had been misled in the meaning of section 329, and that a handful of these at most would have been silly enough to have imagined that the sign constituted a formal instruction they had no choice but to act upon. It was thereby ruled that the issue did not clear the threshold of section 362, by which the result should only have been voided if “the result of the election was likely to be affected”.