The Chisholm and Kooyong Signs Challenges

Update Feb 20: The Federal Court has decided not to report anything to the High Court regarding alleged violations of the Electoral Act.  It has decided that it did not have before it such material as would allow it to decide that "the relevant fault element" was satisfied to be sure that an offence had been committed.  At [28], the Court holds: "We think the better view is that the Court is obliged to comply with s 363 when it is persuaded that there is material from which it can be concluded that a person not only was responsible for the physical elements of a contravention of s 329(1), but also that the relevant fault element was satisfied."

The function of a Disputed Returns hearing is to decide whether a seat needs to be vacated and it is not surprising that the Court did not turn over all the rocks that might have been needed to fully explore the question of whether an offence was committed.  That question was ultimately irrelevant to the outcome of the challenges.  This does however raise the question of what recourse there is over the misleading signs, if any.  Normally these matters would be pursued through the AEC (not necessarily to prosecution, perhaps a warning), but the AEC initially submitted that there was no offence anyway.  It might not be all that interested in trying to now establish whether there was a fault element involved in the production of an illegal sign that it did not consider illegal in the first place.  Especially, it is unclear who would be in a position to demonstrate that fault element in a complaint.   I am not sure therefore whether the matter will go any further.

Again, it is my view that these sorts of signs should be banned.  The above outcome of the case only further highlights why the existing law does not adequately address misleading and deceptive signs that pretend to be official electoral signs.

The only other action of interest today was the costs order.  The AEC is to bear its own costs.  The Court is considering ordering that the Commonwealth bear the costs of the successful defendants Liu and Frydenberg, the unsuccessful challenger (Garbett) in Chisholm (because of public interest) but not the unsuccessful challenger (Yates) in Kooyong (because of a it being a duplicate case that was obviously unrealistic given Frydenberg's margin.) The Court will determine these matters later on further papers from the parties.

Update Dec 24: As expected both petitions have been dismissed. However the Court has asked Simon Frost to show cause why an apparent violation of the Electoral Act by him and possibly others should not be reported, suggesting that it has provisionally found the signs were illegal but has found that the outcome should not be altered as there is insufficient evidence that they changed the results in those seats.  The judgement is available here.

The Guardian has an excerpt:

"“In our view, the corflutes are properly read, not as encouragement to vote 1 Liberal, but as a statement first, that to vote correctly (that is validly), one must vote 1 Liberal and, secondly, that there was an official instruction of the AEC that electors must cast their votes as indicated,” the court said."

The court has found that the signs did have the capacity to mislead electors (albeit naive, gullible or uninformed ones) in relation to the casting of their votes but that at most a handful of voters could have been so misled, nowhere near sufficient to overturn the result.  The court has found the signs only had capacity to mislead where they were placed next to an AEC sign.  Simon Frost has been given a chance to argue that he should not be the subject of a declaration of illegality because he was not represented while giving evidence in court.

Update Dec 21: Judgement in these cases will be handed down at 2:15 pm December 24.

Updates Nov 6-8

The case, before three judges, is now on, and expected to run for three days, after which the court may well reserve its judgement.  Tweeted coverage is being provided by Josh Taylor of the Guardian and I will link here to other reports of interest that I see.  If anything of special interest comes up I may discuss it at length here.

Nov 6 12:30: Of some interest today is discussion about the signs having said something different to what was intended (as touched on below) - Frost says that he provided an intended meaning but the actual signs when translated said something different.  According to Taylor "Frost said he made no inquiries on election day to make sure the corflutes said what he authorised them to say. Frydenberg and Liu didn't contact him to ask about them on election day" and "Frost says he doesn't know if anyone who proof-read the corflutes before election day speak/read Chinese." (It may be significant here that Liu could read the signs for herself.) However later in his evidence Frost said that the Hotham Liberal candidate, George Hua, checked the signs.  According to Taylor, Frost has also admitted that the corflute was intended to convey the impression that it was an AEC sign.

Under Section 329 (5) "it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the matter or thing was likely to mislead an elector in relation to the casting of a vote." however "Note: A defendant bears a legal burden in relation to the defence in subsection (5) (see section 13.4 of the Criminal Code )." It should be kept in mind that Simon Frost is not on trial for breaching Section 329 at present.