Burston v Cosh - [2000] NSWADT 163

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CITATION: Burston -v- Cosh & ors [2000] NSWADT 163

DIVISION: General Division

PARTIES:
APPLICANT
Brian Burston
FIRST RESPONDENT
Claire Cosh
SECOND RESPONDENT
Catherine Parsons
THIRD RESPONDENT
Jeff Maybury
FOURTH RESPONDENT
State Electoral Commissioner

FILE NUMBER: 993282; 003006; 003007

HEARING DATES: 17/07/2000

SUBMISSIONS CLOSED: 07/17/2000

DATE OF DECISION:
11/15/2000

BEFORE: Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member

APPLICATION: Dismissal from civic office

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Local Government Act 1993

CASES CITED: Burston -v- Cosh & Ors [2000] NSWADT 91
R -v- Grey ; Ex parte Marsh (1985) 157 CLR 351
Bourne -v- Murphy (1996) 92 LGERA 329
Sansom -v- Hudson (1997) 94 LGERA 292
Evans -v- Crichton-Browne (1981) 147 CLR 169

REPRESENTATION:
APPLICANT
In person
FIRST, SECOND & THIRD RESPONDENTS
In person
FOURTH RESPONDENT
M Tregurtha, solicitor

ORDERS: That the application be dismissed.

1 The applicant, Brian Burston seeks an order pursuant to s329 of the Local Government Act1993 (the Act) that Claire Cosh, Catherine Parsons and Jeff Maybury, respectively, the first, second and third respondents in these proceedings, be dismissed from their office as councillors of the City of Cessnock Council (the Council).

2 Mr Burston, was an unsuccessful candidate in the local government election held in September 1999 for Ward C of the Council (the election). Mr Burston’s application, filed with the Tribunal on 17 December 1999, claims that there was an irregularity or irregularities in the manner the respondent councillors were elected. Consequently, asserts Mr Burston, the Tribunal is obliged to dismiss the three respondent councillors from office.

3 In a decision dated 5 July 2000, Burston -v- Cosh & Ors [2000] NSWADT 91, the Tribunal, as presently constituted, ordered that the State Electoral Commissioner be joined as a party to these proceedings, pursuant to the Administrative Decisions Tribunal Act1997 (the ADT Act) s 67(4).

Background

4 The election, the subject of this application was conducted under the Act and the Local Government (Elections) Regulation 1998 (the Regulation). The Act and Regulation prescribe in detail the way in which local council elections are to be conducted.

5 In September 1999, an election was conducted for the City of Cessnock Council; three councillors were to be elected from Ward C. Eleven candidates stood for this Ward; all nominated to have their names included in a group on the ballot paper in accordance with the provisions of s308A of the Act. Three candidates stood on the ALP ticket; two with the Reform Group; three with the Greens Party (the Greens) and three with the Burston Alliance. Mr Maybury and Ms Parsons were nominated by the ALP; Ms Cosh was a candidate for the Greens; Mr Burston was a candidate for the Burston Alliance.

Summary of Complaint

6 Mr Burston made various allegations of irregularities in relation to the conduct of the election which can be summarised as follows: First, failure to comply with the authorisation requirements of the Local Government (Elections) Regulation 1998, regulation 111. The applicant claims that the Reform Group and the Greens produced and distributed election material that did not comply with the authorisation provisions of regulation 111. Specifically, he alleges that the election posters for the Reform Group and the Greens were displayed alongside unauthorised ‘Anti Sydney Dump’ posters. Further, he maintains that these unauthorised posters, were carried by candidates and supporters of the Greens and Reform Group, at a well-attended community event held prior to the election, the Budfest festival.

7 Second, the Independent, a local fortnightly newspaper, carried an advertisement placed by the Greens which failed to carry the requisite regulation 111 authorisation

8 Third, the Reform Group placed an advertisement in the Independent which made reference to travel rort allegations concerning serving councillors. By inference, argues Mr Burston, he was the target of this allegation. According to the applicant, this reference was untrue and incorrect, and thus, an offence pursuant to Part 10 of the Regulation which prohibits the printing of false information in relation to certain election material. In addition he claims, that various (unnamed) campaign workers for the Reform Group, advised voters that Mr Burston had been involved in the travel rorts.

9 The application filed with the Tribunal on 17 December 1999, contained various allegations concerning the conduct of the Returning Officer, appointed pursuant to s296(2) of the Act, by the fourth respondent, the Electoral Commissioner. These claims were withdrawn by the applicant on the day of the hearing.

Issues

10 The issues for the Tribunal to determine in this inquiry are:

Meaning of 'Irregularity'

11 Section 329 of the Act is headed ‘Can the holder of a civic office be dismissed?’ and relevantly provides:

12 While not defined in the Act, the word 'irregularity' has been the subject of considerable judicial attention. In R -v- Grey ; Ex parte Marsh (1985) 157 CLR 351 Gibbs CJ, in discussing the meaning of 'irregularity' in relation to an election for officer bearers for a union said at 367-368:

The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election.

13 This approach has been adopted by Cole and Beazley JJA in the Court of Appeal decision of Bourne -v- Murphy (1996) 92 LGERA 329 and in the more recent decision of the Supreme Court of NSW in Sansom -v- Hudson (1997) 94 LGERA 292 per Grove J at 292 to 295.

14 Beazley JA at 358 makes clear that to amount to an irregularity within the meaning of s329 of the Act the irregularity must effect the outcome of the election:

However I am of the opinion that it is not any irregularity which suffices for the purpose of s329. Rather it must be an irregularity such that the result of the election is thereby uncertain.

Relevant legislation

15 Part 10 of the Regulation is headed ‘Offences’ and prohibits certain acts in relation to elections.

16 Regulation 109 prohibits the printing of false information and relevantly provides:

(b) print, publish or distribute a “how to vote'' card, electoral advertisement, notice, handbill, pamphlet, or card, containing an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote,

17 Regulation 111 requires prescribed electoral material to carry details identifying the person who caused it to be printed and published.

‘Electoral matter’ is defined in the Parliamentary Electorates and Elections Act 1912 as:

Electoral matter

Evidence
Unauthorised Posters

19 It is not in dispute that in 1997 a public campaign was launched by members of the Cessnock community opposed to a proposal to establish a garbage dump in their local area for rubbish transported from Sydney. A community group, Cessnock Anti-Sydney Tip (CAST) was formed representing a broad coalition of interests from across the political spectrum. Nor is it in issue that CAST was not formally aligned with any political party either at the time of its launch or around the time of the September 1999 election. Mr Burston was not a member of CAST.

20 The proposal to locate the dump in Cessnock was formally rejected by a meeting of Cessnock City Council about four months prior to the September 1999 election.

21 Throughout CAST’s two year campaign, close to seven hundred posters (the CAST posters) were prominently displayed throughout the Cessnock area. These read: ‘NO SYDNEY GARBAGE DUMP No Trucks No Trains No Way Not Ever’. The posters remained on display throughout the September 1999 council election.

22 Mr Burston gave evidence, corroborated by his brother Graham Burston, that during the 1999 election campaign, posters for the mayoral candidates endorsed by the Reform Group and the Greens were displayed alongside CAST posters. Mr Maybury and Ms Cosh gave evidence that the CAST posters were ‘everywhere’; while they were adjacent to the election material of the Greens and the Reform Group, CAST posters were also in evidence next to the electoral material of other candidates. Ms Cosh said in evidence that the Greens did not produce a mayoral poster for the 1999 election.

23 It is not in dispute that the CAST posters were carried by a number of participants (including members of the Greens) in the 1999 Budfest parade; the parade organisers had specifically directed that election material not be carried in the parade.

24 Ms Cosh tendered in evidence a statement prepared by Ms Oliver. Ms Oliver, an unsuccessful mayoral candidate in the election, was the Chairperson and Spokesperson of CAST. She stated that CAST was not aligned with any political party and was ‘suspended’ in February 1999. According to Ms Oliver, ‘no political party had ownership of the CAST ‘No Sydney Dump’ signs’. Ms Oliver’s statement was corroborated by Ms Cosh and Mr Maybury and was not challenged by the applicant.

Greens’ Advertisement in the Independent

25 On September 7 1999 the Independent, a fortnightly newspaper circulated broadly within the Cessnock City Council area, carried a paid advertisement, placed by the Greens, calling for voters to ‘Vote 1 for Claire Cosh (Ward C) and James Ryan (Ward D)’. A reproduction of the ‘No Sydney Dump’ poster, appeared at the foot of this advertisement.

26 This advertisement did not contain the name and address of the person on whose instructions the matter was printed. Ms Cosh gave evidence that as the campaign manager for the Greens she had instructed the editor of the Independent to include this information in the advertisement. She said she did not have the opportunity to proof read the advertisement prior to publication; she only become aware that the advertisement did not carry the requisite authorisation after publication.

27 The September 7 advertisement was one of four advertisements placed by the Greens appearing in the Independent. Ms Cosh claimed that it was the only advertisement appearing in the Independent that did not contain the requisite authorisation. Mr Burston disputed this and claimed there were other examples; he was unable to produce copies of these to the Tribunal or nominate relevant dates. According to Ms Cosh, all advertisements placed by the Greens in other newspapers carried the requisite authorisation.

Travel Rort Allegations

28 In April 1999 Mr Graham Burston alleged at a meeting of Cessnock City Council that two serving councillors had improperly used their Council-issued travel allowances. An article appearing in the Newcastle Herald on June 5, 1999, quoted Mr G Burston extensively. He was also interviewed on various radio programs. The alleged perpetrators of the fraud were not named in these interviews.

29 These allegations were referred by the Council to the ICAC. Mr Burston claims that the ICAC investigation found the evidence of alleged travel rorts to be inconclusive.

30 Mr Brian Burston gave evidence that his electoral prospects were damaged as many within the community believed he was involved in the travel rorts. He gave evidence that a number of electors had told him of instances of Reform Group campaign workers advising electors of Mr Burston’s alleged involvement with the travel rorts. Mr G Burston gave evidence that he had been asked by a number of people in the lead up to polling day whether it was his brother who was under investigation by ICAC.

31 Mr B Burston claimed in evidence that Mr McKenzie, a prominent member of the Reform Group and a candidate in the election, had been publicising the rorts in the course of the campaign. As Mr McKenzie directed preferences to the ALP, and not the Burston Alliance, it follows, claimed Mr G Burston, that these allegations were orchestrated to damage the Alliance, specifically his brother.

32 Mr Maybury disputed that the Reform Group had directed preferences to the ALP. In his opinion, based on feedback from voters, all serving Councillors had been under suspicion.

33 Ms Cosh gave evidence that she considered that the travel rort allegation had been of little interest to the electorate prior to the election.

34 An advertisement for a public meeting placed by the Reform Group appeared in the Independent on 10 August 1999. The advertisement included the words ‘unresolved travel rort allegations against serving councillors’. No reference was made to any particular Councillor. Mr B Burton gave evidence that in his opinion, Mr McKenzie had abused his position as local chamber magistrate by expressly referring to the travel rorts.

Findings and Conclusions

35 The applicant argues that the three matters of which he complains, constitute irregularities within the meaning of s 329 of the Act and but for these alleged irregularities, he would have been elected. The applicant submits that the only plausible explanation for his defeat in the September 1999 election is that these alleged irregularities swayed some voters, who would otherwise have cast their vote in his favour. In support of this contention the applicant relies on the results of previous Cessnock City Council elections, in particular the election immediately preceding the 1999 election, where he was elected to office.

36 The Tribunal takes judicial notice of the fact that there are many reasons why candidates who have previously enjoyed electoral support are unsuccessful in a particular election. But in any case, it is unnecessary for the applicant to establish that but for the alleged irregularity he or she would have been elected to office. An application made under s329 may be made by any person, there is no need to establish that the applicant’s electoral interests have been adversely affected or indeed that the applicant has any interest in the particular election.

37 We understand the applicant to argue that the conduct of which he complains constitutes offences under the relevant provisions of Part 10 of the Regulation and consequently an ‘irregularity’ within the meaning of s 329. The Tribunal notes that it has no jurisdiction in relation to the prosecution of Part 10 offences and that the alleged offenders have not been prosecuted.

38 However, we will proceed to determine whether the evidence supports the applicant’s contention that the alleged unlawful acts represent a breach of Part 10 of the Regulation, and if so, whether it follows that there has been an irregularity within the meaning of s329(2)(a) of the Act.

39 In relation to the allegation that the CAST posters did not carry the requisite authorisation, the threshold issue for us to determine is whether these posters constitute ‘electoral matter’ as defined by the Parliamentary Electorates and Elections Act 1912. It is evident that the CAST posters do not fall within the second paragraph of the definition of ‘electoral matter’ as these posters contained no reference to any candidate or any other of the references described in this paragraph.

40 However ‘Electoral matter’ is broadly defined and includes any matter which is intended or calculated to affect the result of an election or influence a voter in relation to an election. It is not in issue that the posters were produced some two years prior to the election, as part of a successful community campaign. Nor is it in dispute that some months prior to the election the Council resolved not to proceed with the project. It is evident that at the time the posters were produced, they were not intended or calculated to influence the 1999 election.

41 Could it be said however, that the failure to remove the posters following the date the returning officer called for nominations for candidates was ‘intended or calculated or likely to affect or capable of affecting the result of the election or influencing an elector in relation to the casting of his or her vote’.

42 The Tribunal has no direct evidence before it to explain why the posters remained in place despite the fact that following the Council decision they were redundant. From the evidence it would appear that the CAST posters were a source of some community pride, a continued reminder of a successful public campaign. No doubt the logistics of removing some 750 posters also played a part. However, whatever the reason for CAST’s failure to remove the posters, we fail to see how printed material, which makes no reference, however oblique, to the election, any candidate, or party could be said to be likely to affect or capable of affecting the result of any election or influencing an elector.

43 We further understand Mr Burston to argue that the placement of the election material of the Reform Group and the Greens next to the unauthorised CAST posters constitutes a breach of sub-regulation 111(1)(a).

44 While broad in scope, in our view, the wording of this provision does not support the applicant’s contention that it extends to prohibiting ‘electoral matter’ being associated with or placed in close proximity to, non-electoral matter which does not carry the requisite authorisation. It is therefore unnecessary for us to make any findings on whether the election material of the Reform Group and the Greens was, as alleged by the applicant, in fact paired with CAST posters as part of a deliberate campaign strategy.

45 Accordingly, the Tribunal finds that there has been no breach of sub-regulation 111(1)(a), either in relation to the CAST posters or any electoral material that may have been positioned in close proximity to these posters.

46 Having found that the CAST posters do not constitute ‘electoral matter’ it is not necessary for us to consider whether their display during the Budfest parade constitutes a breach of sub-regulation 111(1)(a).

47 It is clear from the evidence that the Greens’ advertisement that appeared in the Independent did not comply with regulation 111. We will return to consider whether this breach constitutes an ‘irregularity’ for the purposes of s 329 of the Act.

48 We understand Mr Burston to argue that the reference to ‘unresolved travel rort allegations’ in the Reform Group advertisement appearing in the Independent on 10 August 1999 constitutes the printing of ‘false information’ within the meaning of sub-regulation 109(1)(b).

49 The first element of sub regulation 109(1)(b) is that a ‘how to vote’ card, electoral advertisement, notice, handbill, pamphlet or card must be printed, published or distributed. The Reform Group’s public meeting notice constitutes an electoral advertisement or notice.

50 The second element is that the relevant printed matter must be intended to mislead or likely to mislead any voter in relation to the casting of his or her vote.

51 The meaning of the words ‘in relation to the casting of his or her vote’ was considered by the High Court in Evans -v- Crichton-Browne (1981) 147 CLR 169. In that case, the Court said at 204 that these words, in the context of s 161(e) of the Commonwealth Electoral Act 1918 (which is materially identical to sub-regulation 109(1)(b)) mean:

‘intended or likely to affect an elector when he seeks to record and give effect to the judgment which he has formed as to the candidate for whom he intends to vote, rather than with statements which might affect the formation of that judgment.’

52 Therefore for an offence to be proved under sub-regulation 109(1)(b) it must be established that the Reform Group notice, published more than a month in advance of the election ‘was intended or likely to affect an elector when he seeks to record and give effect to the judgment which he has formed as to the candidate.’ Put simply, the evidence would need to establish that the Reform Group notice was intended or likely to influence an elector after s/he had formed a formal judgment as to how s/he would cast their vote.

53 Before dealing with this issue, we will examine the third element of sub-regulation 109(1)(b), that is, whether the statement appearing in the notice was untrue or incorrect.

54 The statement of which the applicant complains appeared in the context of a notice advertising a public meeting organised by the Reform Group. Relevantly this advertisement does not identify those serving Councillors against whom the allegation is raised. It is apparent that the words ‘unresolved travel rort allegations against serving councillors’ are not of themselves untrue or incorrect; there were allegations made against serving councillors and at the time the advertisement was published, they were unresolved.

55 We understand Mr Burston to argue that the offending statement cannot be seen in isolation from the alleged rumour campaign orchestrated by the Reform Group. The applicant’s evidence was that it was ‘public knowledge’ that he was one of the Councillors accused of abusing Council travel privileges. While the applicant’s claim was consistent with that of his brother, no other evidence was presented to the Tribunal to corroborate this claim.

56 The applicant’s evidence conflicts with that of the respondent councillors who claimed that all serving Councillors were subjected to a level of public suspicion as a result of the travel rort allegations. It would appear to us that while the applicant may have genuinely believed that these allegations were directed at him, the evidence does not support this contention.

57 But in any event we are not persuaded that a determination of whether there has been a breach of sub-regulation 109(1) permits a broader enquiry of the context in which the alleged untrue statements appears.

58 Since the offending statement is neither incorrect nor untrue it is not necessary for us to determine whether it was ‘intended or likely to mislead or improperly interfere with an elector’. Accordingly we find that there has been no breach of sub-regulation 109(1)(b).

59 It remains now to consider whether the publication of the Greens’ advertisement in the Independent, absent the identification required by sub-regulation 111(1)(a) constitutes an irregularity in the manner in which the respondent councillors were elected.

60 The applicant does not claim that the advertisement was misleading or intended to mislead or contained false information. It is simply claimed that the advertisement did not carry the requisite authorisation. While the publication of this advertisement constitutes a breach of sub-regulation 111 we are not persuaded that this defect constitutes an irregularity in the manner in which the respondent councillors had been elected.

61 Sub-section s329(2)(a) is directed at irregularities in the manner in which a person has been elected ; it does not embrace any irregularity in relation to an election. If the later were the case, failure to comply with (say) the size restrictions imposed on electoral posters, as set out in regulation 151B, may constitute a ground for dismissal under s 329.

62 We are of the view that the dictum of Beazley JA in Bourne -v- Murphy at 358, provides useful guidance as to how the Tribunal should interpret s329(2) (a):' it must be an irregularity such that the result of the election is therefore uncertain.' There is no evidence capable of supporting a finding that in this case, the breach of sub-regulation 111(1)(a) influenced the outcome of the election, let alone made it uncertain. This is not a case of electors being deceived by a misleading ‘how to vote’ card produced in the hope of influencing the outcome of an election. Rather it is a case of an innocent technical breach of a regulation.

63 We are not satisfied that the failure of the Greens’ advertisement to comply with the requirements of sub-regulation 111(1)(a), constitutes an irregularity within the meaning of s329(2)(a) such to justify an exercise of the Tribunal’s discretion to dismiss the respondent councillors.

Orders

64 Accordingly this application is dismissed.

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Citations

Burston v Cosh [2000] NSWADT 163

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CITATION:	Burston -v- Cosh & ors [2000] NSWADT 163
DIVISION:	General Division
PARTIES:	APPLICANT Brian Burston FIRST RESPONDENT Claire Cosh SECOND RESPONDENT Catherine Parsons THIRD RESPONDENT Jeff Maybury FOURTH RESPONDENT State Electoral Commissioner
FILE NUMBER:	993282; 003006; 003007
HEARING DATES:	17/07/2000
SUBMISSIONS CLOSED:	07/17/2000
DATE OF DECISION:	11/15/2000
BEFORE:	Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member
APPLICATION:	Dismissal from civic office
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:	Burston -v- Cosh & Ors [2000] NSWADT 91 R -v- Grey ; Ex parte Marsh (1985) 157 CLR 351 Bourne -v- Murphy (1996) 92 LGERA 329 Sansom -v- Hudson (1997) 94 LGERA 292 Evans -v- Crichton-Browne (1981) 147 CLR 169
REPRESENTATION:	APPLICANT In person FIRST, SECOND & THIRD RESPONDENTS In person FOURTH RESPONDENT M Tregurtha, solicitor
ORDERS:	That the application be dismissed.