Best v Electoral Commissioner of New South Wales

[2007] NSWSC 269

CITATION:	Best v Electoral Commissioner of New South Wales [2007] NSWSC 269
HEARING DATE(S):	20/3/07
JUDGMENT DATE :	20 March 2007
JUDGMENT OF:	Bell J at 1
DECISION:	Summons is dismissed; The plaintiff is to pay the costs.
CATCHWORDS:	Judicial review - decision of Electoral Commissioner to refuse to register election material containing offensive words
LEGISLATION CITED:	Local Government Act 1989 (Vic) Parliamentary Electorates and Elections Act 1912 Workplace Relations Act (1996) (Cth)
CASES CITED:	Associated Provincial Picture House v Wednesbury Corp (1948) 1 KB 223 Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Australian Postal Corporation [1998] 85 FCR 526 Patrick v Cobain [1993] 1 VR 290
PARTIES:	Gregory Paul Best (Plaintiff) Electoral Commissioner of New South Wales (Defendant)
FILE NUMBER(S):	SC 30020/07
COUNSEL:	L. Byrne (Plaintiff) B.K. Baker (Defendant)
SOLICITORS:	Douglas Eaton Solicitor (Plaintiff) Electoral Commissioner of NSW (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

BELL J

TUESDAY 20 MARCH 2007

30020/07 - GREGORY PAUL BEST v ELECTORAL COMMISSIONER OF NEW SOUTH WALES

JUDGMENT

1 HER HONOUR: This is an application for judicial review of the decision of the Electoral Commissioner of New South Wales ("the Commissioner") not to register two how-to-vote cards, both bearing the words "we're screwed".

2 The plaintiff, Gregory Paul Best, is an independent candidate for the district of Wyong in the New South Wales State election scheduled for polling on Saturday, 24 March 2007. On 12 March 2007 the plaintiff signed an application applying for six how-to-vote cards that were marked one to six to be registered pursuant to s 51G of the Parliamentary Electorates and Elections Act 1912 (the Act). Card number one and card four contained the words "we're screwed". Cards numbered three and six contained the words "we're screwed" and "dickheads and wankers rule". The remaining two cards, numbered two and five, (Exhibit 1) did not contain either of those expressions.

3 The Commissioner accepted cards two and five for registration and rejected cards one, three, four and six. The plaintiff accepted the Commissioner's ruling in relation to cards three and six but asked the Commissioner to review the determination to reject cards one and four.

4 By letter dated 14 March 2007 the Commissioner responded to the request for review affirming his determination not to register cards one and four. He set out his reasons for decision:

"s 151G(7A)(c) requires that I must not register the electoral material (how-to-vote card) if it appears to the commissioner that the material contains words that are obscene or offensive. In my view the phrase ‘we’re screwed’ is offensive within the context of the environment in which these how-to-vote cards would be presented to electors. Voting is compulsory and people of all ages with diverse views and perspectives must attend a polling place to vote. They do not have a choice whether to go into a polling place or not. The law requires them to do so. How-to-vote material is thrust into electors’ hands as they make their way to enter the polling place to cast their vote. Attending a polling place is, as I have said, a civic obligation. There is no element of choice for the elector. It is a different environment from the theatre, a cinema or performance places where the community has a choice to attend. In my view the standards that apply to electoral material to be distributed on election day must meet the broadest community expectations of not causing offence to the broadest range of electors from young residents to older citizens of different views, beliefs and perspectives."

5 By his summons which was filed on 19 March 2007 the plaintiff claims the following relief:

(1) A declaration that it was not reasonably open to the third defendant to find that the term "we're screwed" is obscene or offensive within the meaning of s 151G(7A)(c) of the Parliamentary Electorates and Elections Act 1912;
(2) An order that the defendant register the plaintiff's how-to-vote cards numbered one and four and forthwith issue a certificate of registration pursuant to the provisions of s 151G of the Parliamentary Electorates and Elections Act 1912;
(3) In the alternative an order in the nature of certiorari quashing the decision of the defendant to not register the plaintiff' s how-to-vote cards number one and four; and
(4) An order in the nature of mandamus requiring the defendant to remake his decision under s 151G according to law."

6 The plaintiff's case is put in two ways. It is contended that the Commissioner's decision not to register how-to-vote cards one and four was unreasonable in the Wednesbury sense. That is, that the Commissioner's decision was so unreasonable that no reasonable decision maker could have so decided. In the alternative, the plaintiff submits that in making his decision the Commissioner applied the wrong test and misdirected himself such as to constitute an error of law (WS par 5).

7 The declaration sought in prayer one of the plaintiff’s summons refers to the Commissioner's finding that the phrase "we're screwed" is obscene or offensive and within the meaning of subs (7A)(c). The matter has been argued upon an acceptance that the Commissioner’s decision was that the words were “offensive” for the purposes of s 151G(7A)(c).

8 Before turning to the submissions advanced on the plaintiff's behalf it is convenient to set out certain of the provisions of the Act. Section 151F, relevantly, provides:

"(1) A person shall not in a public place distribute any electoral material on the polling day for an election and on all days to which the polling is adjourned unless the material has been registered under s 151G for the election. Maximum penalty 10 penalty units or imprisonment for six months.
…….
(3) In this section electoral material means a ‘ how-to-vote’ card on the bill, pamphlet or notice containing (a) electoral material as defined in s 151B or (b) without limiting paragraph (a) and express or implicit reference to or comment on (i) the election or referendum or (ii) the government, the opposition, a previous government or a previous opposition of the state or (iii) the government, the opposition, a previous government or a previous opposition of the Commonwealth or any other State or a Territory or (iv) a member or a former member of Parliament or the Parliament of the Commonwealth or any other State or Territory or (v) a political party, a branch or division of a political party or a candidate in the election or (vi) an issue submitted to or otherwise before the electors in connection with the election or referendum.”

9 Section 151G deals with the registration of electoral material. Relevantly, it provides as follows:

(1) For the purposes of s 151F an application may be made in accordance with regulations to the Electoral Commissioner for the registration of electoral material for a particular election and for a particular district or districts.
….
(3) And application must contain draft or sample of the electoral material.
….

(6) The Electoral Commissioner shall register the electoral material if satisfied that registration is not prohibited by this section.

(7A) The Electoral Commissioner must not register the electoral material if it appears to the Commissioner (a) that the material does not include in legible characters (i) the name and address of the person on whose instructions the material was printed and (ii) the name of the printer and address at which it was printed or (b) that the material could result in an elector casting an informal vote or (c) that the material contains words that are obscene or offensive.”

10 In the plaintiff's submission in the context in which it appears – on a how-to-vote card - the phrase "we're screwed" which is to be taken as conveying a political comment, is not capable of bearing any offensive connotation. In the plaintiff’s counsel’s submission, the expression would be understood by a reasonable person as conveying a meaning such as "we’re in trouble". Counsel referred to the definition of the word "screw" in the Macquarie Dictionary, (3rd edition at 36) where the words "screw up" are noted as carrying the colloquial sense of "we’ve messed up”.

11 Both the plaintiff and the Commissioner placed reliance on the definition in the Macquarie dictionary of the words “screw" and “offensive". Relevantly, “screw" is defined as including (as a colloquial use) "an act of sexual intercourse". Other colloquial uses include to “treat unfairly” or “to cause distress”, to “swindle” or “cheat”, and, as I have indicated, "screw up" is defined to include the colloquial "to make a mess of”, “impair”, “frustrate". “Offensive" is defined in these terms:

"1. Causing offence or displeasure; irritating; highly annoying;
2. Disagreeable to the sense: offensive odour;
3. Repugnant to the moral sense, good taste or the like; insulting”.

12 In the Commissioner's submission the word "screw" in common parlance connotes sexual intercourse. The Commissioner acknowledges that it is a word with many connotations including those to which I have referred; “cheat”, “swindle” or “to make a mess of”. The Commissioner contends that the phrase " we're screwed" has greater force than phrases such as "we have been messed up", "we have been treated unfairly" or the like because of the sexual innuendo. In the Commissioner's submission it is an expression calculated to produce an emotional response.

13 Counsel for the plaintiff submits that it is necessary to consider the phrase "we're screwed" and not the word “screwed” in isolation. In her submission no person would draw a sexual connotation from the use of the phrase because, as I understand the submission, it is unlikely to convey a literal meaning of that character. To my mind the submission involves an overly literal approach to the words. The phrase "we're screwed” carries in common parlance a sexual connotation and this gives colour to it, including when used in a context in which it is sought to convey the sense of "we’re in trouble”, or the like.

14 Counsel for the Commissioner informed the Court that she was not aware of any authority dealing with the meaning of "offensive" for the purposes of s 151G(7A)(c) of the Act. In her submission some assistance is to be found in the judgment of Gobbo J in Patrick v Cobain [1993] 1 VR 290. That case involved consideration of cl 2(3) of sch 5 of the Local Government Act 1989 (Vic) which provided that at a local government election “the returning officer must refuse to register a form or sample of how-to-vote card which the returning officer is satisfied is likely to mislead or decide a voter in relation to the casting of a vote of the voter or contains offensive or obscene material". The appellant, who was not a candidate in the election, submitted a draft how-to-vote card which contained comment highly critical of a named individual who had served on the Council. The returning officer refused to register the how-to-vote card. This determination was the subject of an unsuccessful appeal to the Administrative Appeals Tribunal. His Honour's judgment was the determination of an appeal from the Administrative Appeals Tribunal. His Honour upheld the decision of the returning officer, holding that the how-to-vote card contained material that was offensive within the meaning of the Local Government Act.

15 As counsel for the commissioner noted, Cobain is to be distinguished from the present not only by reason of the different statutory context but also because in that case the consideration was of the content of the material and not whether, to use the language of subs (7A)(c), the material contains words that are offensive. Nonetheless, in counsel's submission his Honour's discussion of the test is of assistance:

"By its very nature the provision as it appears is directed toward material capable of giving offence to those persons likely to read it."

16 His Honour went on to note:

"It is plain that the nature of the clause contemplates that the returning officer has to make a judgment as to whether it is capable of giving offence and not proceed upon a factual finding that it has in fact offended anyone."

17 His Honour went on to consider the dictionary meaning of the word "offensive" and to express the opinion that the test is not one to be taken from the criminal law with its higher burden of proof and "its connotation of gravity and seriousness".

18 It is also appropriate to note, in light of one submission advanced by the plaintiff, that his Honour said:

"There remains the general resort to public interest and public policy. They share the general recourse to principles of free speech and strong accountability of councils and councillors.
But we are here concerned with a how-to-vote card not with electoral material at large. This restriction about offensive material does not apply to electoral material. As I have already pointed out it applies to how-to-vote cards. The limitations on Mr Patrick and others in his situation are not such as to preclude him from canvassing all of these matters in a whole variety of ways for many days before the election and right up to within a certain geographical distance of the polling booth on the day in question. They simply relate to a how-to-vote card.”

These observations are pertinent to the present case.

19 In the Commissioner’s submission Cobain provides support for the view that it is appropriate to have regard to the dictionary definition of the word “offensive”. In particular, the defendant submits that the cases touching on offensive language and offensive behaviour for the purposes of the criminal law are not determinative of the words that may be “offensive” for the purposes of the Act.

20 The Commissioner also relies on the judgment of Wilcox J in Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Australian Postal Corporation [1998] 85 FCR 526 at 534-535. In the context of dealing with the question of whether a notice was an “offensive notice” displayed on a union noticeboard for the purposes of the Workplace Relations Act (1996) (Cth), his Honour said:

I do not think the criminal cases directly provide the answer to the question now under consideration. There may be a significant difference between the degree of objectionableness that warrants the application of criminal sanctions to particular behaviour and that which warrants removal of a notice from a noticeboard. Nonetheless I think the criminal cases provide some insight into the general concept of offensiveness. In particular they emphasise two points that were accepted also by Gobbo J in the civil case of Patrick v Cobain . First, whatever its dictionary meaning in this type of context the word ‘offensive’ means more than merely hurtful. Secondly, not all criticisms can be properly targeted as being offensive. I approach the matter upon the basis that the content of words that are offensive for the purposes of the Act may embrace a broader range than when the Court is considering offensive words within a criminal context. I see no reason not to give the word its dictionary meaning in the context of the act.

21 Counsel for the plaintiff accepted that the criminal cases did not answer the question of the content to be given to words that are offensive to the purposes of the Act. She placed reliance on the same passage from the judgment of Wilcox J, emphasising his Honour's caution that in the context of the legislation with which he was dealing, and accepting that “offensive” may not have the degree of objectionableness warranting the application of criminal sanction, it was nonetheless to be taken to be meaning as more than merely hurtful. His Honour's remarks in CEPU v Australian Postal Corporation, like those of Gobbo J in Cobain, addressed the concept of offensiveness as it may apply to the content of material containing robust criticism. It is in this context that I read his Honour's remarks at p 535.

22 Returning to the first basis upon which the plaintiff puts his case and taking into account the definition of “offensive” I have set out above, I am not of the view that the Commissioner's decision - not to register cards one and four because the words "we're screwed" are offensive - was so unreasonable that no reasonable decision maker could have so concluded: Associated Provincial Picture House v Wednesbury Corp (1948) 1 KB 223 at 229-230.

23 The alternative basis of the plaintiff's case is that the Commissioner approached the determination by applying the wrong test. The plaintiff submitted that the Commissioner applied a test directed to the question of whether the material was such that no person could be offended by it, as distinct from whether the words would be offensive to a reasonable person applying current community standards.

24 The Commissioner accepts that the test is objective, but submits that in applying the test it was appropriate to take account of the context, namely, the distribution of how-to-vote cards to members of the public on polling day. In applying the objective test posed by subs 7A(c) the Commissioner submits that it is appropriate that he take into account the audience for the material. In support of this submission counsel, again, placed reliance on the judgment of Gobbo J in Cobain at p 293 lines 31 and 32. In arriving at his determination the Commissioner took into account the circumstance that how-to-vote cards are distributed to electors attending polling booths, and that this is a different environment to the theatre, the cinema or performance spaces where members of the community have a choice to attend or not to attend. The audience includes persons of differing ages, backgrounds and attitudes.

25 I do not understand the Commissioner to have applied a test of “the lowest common denominator”, as counsel put it. That is to say, I do not understand the Commissioner to have taken the stance that material should be rejected under subs 7A(c) as containing words that are “offensive” if any member of the public might be offended by it. Rather, I understand that the Commissioner considered the content of “offensive” for the purposes of the Act by taking into account the broad potential audience for electoral material. I do not consider that the Commissioner erred in approaching the matter in this way. I respectfully agree with the observations of Gobbo J that I have set out at [15] above. I accept the submission advanced on the Commissioner's behalf that it was open to him to take into account the audience to whom the material was potentially addressed.

26 For these reasons I make the following order: (i) the summons is dismissed; (ii) the plaintiff is to pay the costs.

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