Slap on the writs

Challenge against Liberal federal election wins in Chisholm and Kooyong rejected, but questions to answer for the party’s former state director.

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”.

Author: William Bowe

William Bowe is a Perth-based election analyst and occasional teacher of political science. His blog, The Poll Bludger, has existed in one form or another since 2004, and is one of the most heavily trafficked websites on Australian politics.

17 comments on “Slap on the writs”

  1. The main danger is in doing nothing for the AEC – It would be interesting to see how elasticized and tested this rule would become.

    Surely electoral act amendments to outlaw the use of Pantone* Medium Purple U and the “correct” Font will follow.

  2. Interesting conclusion from the Court.

    In summary tbey believe that the AEC design and branding is not recognised by tbe general populus (the AEC will be pleased about that!) and that only a handful (?) of people would have been influenced by the “fake” posters.

    How did they reach and test this conclusion, and that the number “misled” would not likely have changed the result in Chisholm? Did they survey Chinese voters or just make an assumption.

    Surely the Libs must not have thought it money wasted otherwise tbey would not have done it.

  3. So the court has ruled that the Liberal Party acted illegally, but this illegal act did not influence enough voters to change the result.
    As PaulTu says above, “How did they reach this conclusion, …..?”
    And will we see headlines stating ‘Liberal Party acts illegally in election!’ … ‘AEC should have acted to have signs removed’
    It’s Christmas time.
    It will sink without a trace.

  4. So did the Libs get any extra electoral funding (calculated per vote) by this deception? Maybe all electoral funding for these seats should be returned.

  5. It is interesting that the court could rule that it was all right to cheat because you were going to win anyway. This is a very Australian interpretation of fairness.

  6. It seems to me the most important part of this judgment is what appears to be clarification of “likely to mislead or deceive an elector in relation to the casting of a vote. This last phrase embodies the distinction drawn in Crichton-Browne”.

    It appears that the reason the AEC were so wishy-washy about taking action on the day was a very broad interpretation of the Crichton-Browne ruling – to my mind an interpretation so broad as to render the intent of s329(1) basically unenforceable. The Federal Court went to a fair amount of effort to spell out that this interpretation was incorrect in this case – I assume if they hadn’t wanted to do this they could simply have ruled (as they did anyway) that it was not reasonable to think that the number of possibly affected votes was large enough to change the outcome, and that therefore if they had not wanted to address this they didn’t even need to consider whether the signs fell foul of s329(1).

    But they did, and the judgment explicitly sets out to clarify the Evans v Crichton-Browne ruling in terms of principles to decide whether ‘misleading or deceptive’ applied to the political debate (ok) or to the process of casting a vote (not ok), and that appearing to be instructions from the AEC falls in the latter category.

    This is a very good thing and hopefully means that the AEC has a solid legal basis and understanding to unambiguously tackle any similar attempts in future, on the day. And knowing that the AEC has the power and (hopefully) will to do this should head off political parties from playing silly buggers like this again.

    And, of course, holding the person who puts their name on this kind of thing actually responsible is important as well … if the Simon Frosts of the world have to think for a second before just authorizing any old shit I think that can only be a good thing.

  7. In my view, the AEC a few times through this whole saga (not just in its twitter feed but in aspects of its submissions) tried to maintain that the law was what they wanted it to be, although that position was always overconfident at best. Perfectly normal for any common garden litigant trying it on before the judge but not a good look for the AEC to effectively have been found not to understand an aspect of electoral law.

  8. Yes, I have to say the AEC’s actions and statements in this case from beginning to end have severely compromised my faith in their expertise and independence.

  9. I suspect that impersonating AEC signs is now deservedly likely off the political table with the AEC now having a ruling to enforce on the matter.

    The Chisholm result surviving is a mixed bag for the government. It means no potential for the replacement election to result in a loss for the Government, potentially making it chose between a new non-Government Speaker and potentially loosing some votes (if the Speaker sticks to the conventions of speaker neutrality).

    Now for the controversial challenge to Frydenberg`s election of section 44i grounds. I suspect it may end up the same way as the Canavan case, not ruled ineligible because the law is not clear, or law clearly ruling out citizenship but we shall have to wait and see. If it succeeds it will be world news and pressure for section 44i reform will go up dramatically.

  10. Now there is a court ruling, the AEC can`t wash their hands of it any more and will have to order such signs taken down as soon as noticed/notified.

  11. The High Court has effectively given a green light to cheating elections by setting an absurdly high bar. The AEC’s decisions on the day, like their decision on the election day, will be more important than ever, after they have absolutely disgraced themselves and can’t be trusted to be impartial. And of all the institutions of our dying democracy why would the AEC be the only one that hasn’t been politicized?

    Sad day for the High Court, sad day from Australia, another nail in the coffin of democracy in late capitalist Australia.

  12. I suspect that impersonating AEC signs is now deservedly likely off the political table with the AEC now having a ruling to enforce on the matter.

    If they want, and if the Libs don’t fudge the facts, just enough to get a green light to cheat in a different way. Terrible, terrible ruling. I’d like to think the HC was just hungover from the Christmas party and didn’t think any of the implications through, but they are way to smart for that, this isn’t ill-considered, it is just terrible.

  13. This was a Federal Court Decision, not a High Court Decision.

    The proximity part of the ruling is certainly inconvenient for discouraging of AEC impersonation.

    However, this is a ruling on Legislation, not the Constitution, so it can be tightened to ban impersonating the AEC. Hopefully there is enough embarrassment in this to get a specific ban on AEC impersonation government support.

  14. There must always be a tough test for overturning an election result. The misleading behaviour in Chisholm was pretty severe in my book, but then I’m not the judge who has to decide the matter. Will this be one of those rare instances where the High Court gets to actually try a person? Or will they flick it back to the Federal Court?

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