Featherston v Tully (No 2) No. Scciv-02-481

FEATHERSTON v TULLY (N0. 2)
[2002] SASC 338

Court of Disputed Returns
Bleby J
1. Introduction

On 9 February 2002 there was a general election in the State of South Australia for the House of Assembly and for one-half of the Legislative Council. Ivan Peter Lewis was returned as the member for the House of Assembly electoral district of Hammond. He had first been elected as the member for Mallee in September 1979. Since then there had been a number of electoral boundary redistributions, but the core of his electoral district had always been an area known as the Murray Mallee, being a rural area, generally east of the River Murray and extending to the Victorian border. Until October 2000 Mr Lewis had been a member of the Liberal Party of Australia and had been the endorsed candidate for that Party in all previous elections. In October 2000 he resigned from the Liberal Party and contested the 2002 election as an independent. However, he was endorsed by a newly formed political party known as the Community Leadership Independence Coalition Party (“CLIC”).
The Petitioner, Mr Featherston, was the endorsed Liberal Party candidate for the electoral district of Hammond for the 2002 general election. After the distribution of preferences, Mr Featherston lost the seat to Mr Lewis by 822 votes. He has lodged a petition pursuant to s 102 of the Electoral Act 1985 (“the Act”) seeking a declaration that the election of Mr Lewis is void, and requiring a new election to be held.
Mr Featherston seeks such a declaration on several grounds. Paragraphs 12 – 18 inclusive of the petition allege that certain electoral advertisements authorised by Mr Lewis contained statements that were inaccurate and misleading to a material extent and contravened the provisions of s 113 of the Act. In paragraphs 18A – 18C of the Petition he alleges that other statements of Mr Lewis published in various media outlets during the week preceding the election were inaccurate and misleading to a material extent, although as they do not constitute electoral advertisements, he does not allege that they constituted a breach of s 113 of the Act. Nevertheless they are said to have had the same effect. These paragraphs were added by way of amendment to the petition, but they give rise to no stated claim for relief. I think this is an oversight, as the case was conducted on the footing that these statements are in the same category as electoral advertisements and were said to have the same effect at common law of voiding the election.
It is further alleged in paragraph 19 of the petition that Mr Lewis was engaged in misconduct in connection with the election in that certain
advertisements and public statements of Mr Lewis were calculated to induce electors to vote for him in the belief and expectation that if they merely voted “1” for him in accordance with the procedure provided for in s 93 of the Act, they would be directing their second preference vote to the petitioner in the event of a distribution of votes cast for Mr Lewis, whereas in fact voters marking their ballot papers in that manner would have been effectively casting a second preference vote for the Labor Party candidate in accordance with a voting ticket registered by CLIC pursuant to s 63 of the Act.
Paragraphs 20 – 22 inclusive of the petition allege that in a radio advertisement, in two of the electoral advertisements mentioned above published in newspapers circulating the electoral district and on the back of a how-to-vote card distributed in the electoral district, Mr Lewis defamed Mr Featherston. By virtue of s 107(4) of the Act that is a ground for declaring the election void if the Court is satisfied, on the balance of probabilities, that the result of the election was affected by the defamation.
The declaration was also sought on one other ground alleged in the petition, but the Full Court of the Supreme Court has ruled that the Court of Disputed Returns does not have jurisdiction to determine those issues: see Featherston v Tully [2002] SASC 243, answer to question 2(d).
Before the hearing of the petition took place I referred by way of case stated four questions of law arising out of the petition and Mr Lewis’ contentions in relation to them to the Full Court of the Supreme Court. Those questions were answered in Featherston v Tully (supra). The costs of the case stated were reserved to the Court of Disputed Returns. It will be necessary in due course to refer to the reasons given by the Full Court, as they have some bearing on the approach that this Court must now take in relation to the matters raised by the petition.
2. The Electoral System for the House of Assembly
2.1 Preferential voting
The Act provides for a preferential system of voting for candidates in a House of Assembly election. Section 76(2) of the Act requires voters to mark their ballot paper with consecutive numbers, indicating an order of preference for all candidates.
After the closure of each polling place, the ballot papers are counted in accordance with the provisions of s 96. After the exclusion of ballot papers which are considered to be informal (under the criteria specified in s 94), the remaining formal first preference votes are counted. If any candidate receives an absolute majority of first preference formal votes (more than 50 per cent) then that candidate is declared elected.
If no candidate has an absolute majority, then the candidate with the fewest first preference votes is excluded from the count, and his or her second preference votes are transferred to candidates remaining in the count.
If, after this procedure, no candidate has an absolute majority, then the procedure is repeated. Of the candidates remaining in the count, the candidate with the fewest first preference votes is again excluded from the count, and his or her next-preference votes are transferred to candidates remaining in the count. The procedure continues, if necessary, until there are only two candidates remaining, and one necessarily will have a majority of votes.
2.2 Voting tickets
As mentioned above, voters are required to number all candidates in order of their preference: s 76(2). However, ballot papers which are marked merely with the numeral ‘1’, or with a tick or a cross beside one candidate’s name, are not excluded as informal under s 94 if that candidate has earlier taken the precaution of registering with the Electoral Commissioner, or returning officer a voting ticket. Voting tickets, to be registered under s 63, must be submitted within 72 hours after the close of nominations.
A registered voting ticket expresses the candidate’s own “order of preference for all candidates in the election” (s 63(4)(a)). A registered voting ticket has the effect of saving what would otherwise be informal votes. Under s 94(4), any ballot paper marked with merely a first preference, and no other preference, will not be excluded as informal but will be counted as if the voter had expressed the same order of preference for the other candidates as the candidate has expressed in his or her registered ticket.
Despite this provision to save what would otherwise be informal votes, voters are still required under s 76(2) to number all candidates in order of preference, and it is an offence under s 126 of the Act to advocate marking a ballot paper with only a first preference. Therefore, registered voting tickets are relied upon to save relatively few ballot papers marked in this way.
2.3 How-to-Vote cards
Under s 66 of the Act, the Electoral Commissioner is required to display in polling booths, posters “formed from the how-to-vote cards submitted by the candidates in the election.” The posters are to be displayed in each voting compartment. Candidates are not obliged to submit how-to-vote cards to the Commissioner, but if a candidate wishes to have his or her how-to-vote card displayed on the Commissioner’s posters, then the card must be submitted within four days of the day of the close of nominations.
A how-to-vote card submitted for this purpose does not supplant or affect in any way a voting ticket registered under s 63. Nor is there any requirement in the
Act that a how-to-vote card submitted for the purpose of s 66 must display the same order of preferences as a registered voting ticket.
Of course, it is common practice for political parties, candidates and their supporters to distribute how-to-vote cards or leaflets in other ways; for example at polling booths on election day. These widely-distributed how-to-vote cards may be consistent with, or identical to a how-to-vote card submitted to the Commissioner for the purposes of s 66, or with a voting ticket registered under s 63, but there is no requirement in the Act that this be so.
Whether they are included in a s 66 poster, or distributed in other ways, how-to-vote cards contain what are, in effect, merely suggestions to voters as to the order in which their preferences ought to be distributed as between candidates in the election. In contrast to registered tickets, how-to-vote cards play no role in the counting of ballot papers after the polls have closed.
3. The Voting System as applied in the Election for Hammond
When nominations closed for the election, there were five candidates for the electoral district of Hammond. In the order in which they appeared on the ballot paper, together with the political party they represented, they were as follows:
J M Arnold        –      Pauline Hanson’s One Nation Party
H G McLaren    –      Australian Labor Party
I P Lewis           –      Community Leadership Independence Coalition Party
B J Featherston –      Liberal Party
A K Webster      –      Australian Democrats
The number of formal first preference votes given to each candidate at the election was as follows:
Arnold                  811
McLaren            3,368
Lewis                 6,233
Featherston        8,072
Webster             1,104
No candidate received an absolute majority. Arnold’s preferences were distributed resulting in the following votes for the remaining candidates:
McLaren            3,556
         Lewis                 6,626
         Featherston        8,188
         Webster             1,218
Still no candidate had received an absolute majority, and Webster’s preferences were therefore distributed, resulting in the following votes for the remaining candidates:
McLaren            4,029
         Lewis                 7,016
         Featherston        8,543
Still no candidate had received an absolute majority, and so McLaren’s preferences were distributed between the remaining two candidates, resulting in the following votes:
Lewis 10,205
Featherston 9,383
Lewis then having an absolute majority, was declared elected.
It will be noted that Mr Lewis’ preferences were not distributed. Of his 6,233 primary votes, only 186 voters recorded their preferences in a manner that required the application of the CLIC How-to-Vote registered ticket under s 93 of Act. The remainder all completed the ballot paper according to their own preferences.
4. The State-wide Result
There are 47 members in the State House of Assembly. The final result of the election was that the Australian Labor Party won 23 seats, the Liberal Party won 20 seats and there were four Independents, of whom Mr Lewis was one. The other Independents were Dr Such in the metropolitan district of Fisher, Mr McEwen in the district of Mount Gambier and Ms Maywald in the rural district of Chaffey. All four were sitting members at the time of the election. Dr Such had previously been elected as a member of the Liberal Party, but had resigned from that party in October 2000 and retained his seat as an Independent in 2002. Mr McEwen had been elected as an Independent to what was then the seat of Gordon in 1997, having earlier failed to gain Liberal Party endorsement for that election. Ms Maywald had been elected in 1997 for a State based party known as “The Nationals”, not affiliated with any of the major political parties.
In addition, there were two other sitting Members contesting the election without the endorsement of major political parties. Mr Clarke had been elected as an Australian Labor Party Member in the seat of Ross Smith in 1997 but was not re-endorsed by that Party for the 2002 election. An electoral boundaries redistribution substantially altered the area of the district of Ross Smith, part of which formed the new district of Enfield. Mr Clarke stood as an Independent Labor candidate for Enfield, but was defeated. Mr DeLaine, the previous Australian Labor Party Member for Price, had failed to gain endorsement and stood in the same district, re-named Cheltenham, as an Independent in 2002. He was not elected.
Predictions as to the outcome of the election for the House of Assembly were complicated by the six sitting members contesting the election as independents, by a significant number of marginal seats and by the effects of electoral boundary redistributions. For several days after the election it was quite uncertain which of the major political parties would be able to form a government. In circumstances to which I shall refer in more detail, on 13 February 2002 Mr Lewis announced that he would support the formation of a Labor Government. That eventually came to pass. Mr Lewis was elected Speaker by the members of the House of Assembly.
5. Mr Lewis – Background, History and Initial Campaign Platform
Mr Lewis has always had a rural background. His early childhood was spent in the Adelaide Hills as a member of a large family. He first studied agricultural science at Urrbrae Agricultural High School, from which he matriculated in 1958. In 1962 he obtained a Diploma of Agriculture in horticulture from the Roseworthy Agricultural College.
Apart from a short period in shearing, he then spent three years as a quarantine officer in the Department of Primary Industry, Department of Agriculture. He participated in the early years of the Australian Volunteers Abroad programme and began a market gardening venture with one of his brothers. In the course of that venture he undertook research and development into fertiliser and irrigation systems for development of the strawberry market overseas. He successfully developed a means of extending the shelf life of strawberries from four days to three and half weeks, thus enabling the development of markets in Singapore, North America and Europe, as well as on the eastern seaboard of Australia.
In the early 1970’s, a combination of a natural disaster and a serious arm injury caused him to liquidate the business he had built up with his brother. He became a marketing and management consultant, particularly in areas of primary production.
His interest in improved irrigation practices has led to an encouragement of more efficient water use in traditional irrigation areas. He has also assisted in the introduction of good irrigation practices in the development of horticulture ventures in traditional dry land faming areas. He has advocated novel but not always immediately popular charging systems for water use.
Mr Lewis joined the Liberal Party in 1965, and as mentioned, was first elected to the then electoral district of Mallee as a Liberal Party candidate in 1979. Since then he has lived at Tailem Bend, and more recently, at Murray Bridge. He has joined and participated in a great many community organisations in the region since then and has become well known throughout the electoral district.
I think it is fair to say that he has been passionate about reform of irrigation practices and water use and the maintenance of the quality of water entering South Australia through the Murray Darling system. He was involved in the formation of the Murray Valley League and later, the formation of the Murray Darling Association.
He has also campaigned vigorously for more effective control of Branched Broomrape, an exotic weed causing much devastation in agricultural areas since its discovery in this State approximately ten years ago.
Since the 1970’s Mr Lewis has also been concerned with various aspects of the operation of the Parliament. He has advocated parliamentary reform including reduction in the number of members, removal of ministers from the Upper House and other reforms designed, in his view, to enable greater understanding of and participation in the legislative process by members of the public, including a process known as Community Initiated Referenda. Mr Lewis claims that advocacy of his reform programmes is in part responsible for his expulsion from the Liberal Party room in the Parliament on 5 July 2000, leading to his ultimate resignation from the Liberal Party in October 2000. Following his resignation he opposed Liberal government moves for the privatisation of state instrumentalities because he claimed that the model used by the government was flawed.
In early campaigning for the 2002 election, Mr Lewis relied largely on his record of involvement with and attention to community concerns, the health of the Murray and its irrigation systems, his record of fearless independence, that he was a local of long standing, the eradication of Branched Broomrape and the capping of the number of poker machines. One of his major platforms was parliamentary reform and what he claimed was a commitment to the needs of the electorate, rather than the needs of a political party, whilst at the same time identifying alleged failings in Liberal Party policies.
His campaign focused on encouraging first preference votes for himself rather than who he would support by way of second and subsequent preferences. He never really believed that his second and subsequent preferences would be counted. For reasons which will become apparent, there was some justification for that view.
6. Mr Featherston – Background, History and Initial Campaign Platform
Mr Featherston too had a country upbringing. He completed a Bachelor of Science degree in mathematics at the University of Adelaide, and studied politics at Flinders University. In about 1976 or 1977, having completed university studies, he bought a house with his first wife in Mt Barker and worked at the Australian Bureau of Statistics. In 1982 he became a freelance journalist with the Advertiser newspaper and the ABC at Renmark, during which time he reported on a variety of rural matters and had occasion to be aware of and to visit what is now the northern part of the electoral district of Hammond. In 1992-93 he returned to Adelaide and became a presenter on ABC Radio for the State Country Hour, and in October 1995 became an adviser to the Minister for Primary Industry. For most of that time the Minister was Mr Kerin who became Premier towards the end of 2001.
Upon his return to Adelaide, Mr Featherston was living at Glen Osmond with his second wife in a house owned by her. Late in 1998 he and his wife purchased a property of some 55 - 57 acres near Langhorne Creek in the electorate of Hammond. It was planted to almonds and contained a substantial house of four bedrooms with an outdoor swimming pool and implement sheds. Shortly after the purchase, his wife’s son and his family moved onto the property, the son acting as manager of the property. However, Mr Featherston and his wife assisted in the first harvest of almonds in 1999 and visited the property regularly.
Mr Featherston and his wife both had responsible and demanding jobs in the city of Adelaide, and I have no doubt that at this time their principal place of residence remained at Glen Osmond, with occasional visits to the Langhorne Creek property of varying frequency.
In October 2000 Mr Featherston was pre-selected by the Liberal Party as the next candidate for the electoral district of Hammond. He had been a member of the party for some four to five years beforehand, having been at various times a member at large, a member of the Willunga branch and then finally of the Angas Bremer branch.

Mr Featherston’s stepson and his family moved out of the Langhorne Creek property in April or May 2001 and were not replaced. Following that, Mr Featherston and his wife undertook the painting of the house and gradually moved some of their own furniture into it. I find that this was a gradual process which took place in the second half of 2001, during which time they began spending more time at Langhorne Creek and commuting to Adelaide for their employment. It would appear that Mr Featherston’s attention to the property and to the affairs of the electoral district increased after his endorsement as a candidate and, to a greater extent, when he and his wife were able to move into the house. His wife has retained the Glen Osmond house, but by the end of 2001 it had ceased to be their principal residence.
Mr Featherston was enrolled in the electoral district of Hammond shortly before the federal election in November 2001. He claims that by then he had been a permanent resident of Langhorne Creek for some time. It is not possible to make a finding as to precisely when this change occurred. He had an undoubted interest in the Langhorne Creek property and conducted activities there from early in 1999. That property becoming his principal place of residence was, I think, a gradual change which took place during the second half of 2001.
Mr Featherston’s election campaign for the 2002 election concentrated very much on the re-election of a Liberal government, extolling the record of the Liberal Party in government and of the merits of Mr Kerin, the recently appointed Premier. His election material stressed that he was a team member of the Kerin-led Liberal Party, and stressed the need to vote for him in order to have Mr Kerin elected to form a government.
In so far as his campaign material referred to his personal qualities, he was described as the “fresh new Liberal voice for Hammond”, and the material extolled his rural knowledge and experience, his knowledge gained from insights into government policy, his local associations, including the property at Langhorne Creek, and made reference to a variety of intended local initiatives, including rehabilitation of the Lower Murray irrigation area and redevelopment of the Murray Bridge hospital.
Not surprisingly, the volume of Liberal Party campaign material and the extent of its distribution far exceeded that of Mr Lewis whose resources were, no doubt, much more limited.
7. The Electoral District of Hammond
The electoral district of Hammond is predominantly rural in character. Its main population centre is the city of Murray Bridge, which contains about half the total population of Hammond. Other significant centres are Strathalbyn, Langhorne Creek, Milang, Wellington, Mypolonga, Tailem Bend, Lameroo, Pinnaroo, Karoonda, Purnong and Nildottie. It shares an eastern border with several Mount Lofty ranges electoral districts. To its north are the electoral districts of Schubert west of the River Murray, and Chaffey, which includes significant Riverland towns.
The district extends from Strathalbyn in the west, to the Victorian border in the east. Hammond takes in a portion of the Dukes Highway, the main highway to Melbourne, but not much further south than Ki Ki. Most of the area of the electorate could be described as the Murray Mallee region, including the settlements of Karoonda, Mindarie, Wanbi, Copeville and Mantung. The north-eastern border of the district is formed by a stretch of the River Murray, extending both north and south of Nildottie.
The major land use is dry land farming although a significant proportion of the income generated in Hammond comes from horticulture, including irrigated crops.
As noted earlier, Mr Lewis has represented this general area in the South Australian Parliament since 1979, when he was elected as the Member for Mallee. At that time, Mallee included coastal regions as far south as Millicent. Later the name and boundaries of the electorate changed. Southern parts of the electorate were incrementally excised and were included into what was once known as the electoral district of Victoria (now MacKillop).
In 1983 the electoral district Mr Lewis represented changed its name from ‘Mallee’ to ‘Murray-Mallee’ although its borders did not alter substantially. The district at that time included the area east of Murray Bridge to the Victorian border. However for the election of 1985 the city of Murray Bridge was included in Murray-Mallee. At the same time, the towns of towns of Strathalbyn, Langhorne Creek, Milang and Clayton, which had been part of the district for the 1979 and 1983 elections, were removed from the district of Murray-Mallee.
In 1991 the electoral boundaries were altered again, to exclude from the district the town of Keith, and to include the whole of the Mannum and Murray Bridge local government areas. At this time, the name of the district was changed to Ridley.
In 1994, the name was again changed, this time to Hammond, and the towns of Strathalbyn, Langhorne Creek, Milang and Clayton were brought back into the district. Further changes made to the electoral district of Hammond in the 1998 redistribution were quite minor.
Over the 23 years in which Mr Lewis has been a member of parliament, throughout the various name and boundary changes, certain parts of the electorate he has represented have not changed. His own uncontested evidence was that the towns of Wellington and Tailem Bend, and the communities of Pinnaroo, Lameroo, Peake and Geranium, along the Mallee Highway, have remained in the same electorate for all of the past 23 years.
Because various non-television media publications feature in this case it is relevant to mention the principal media outlets, other than television, which are available in the district.
There are two commonly owned radio stations based at Murray Bridge, namely 5MU and Power-FM which broadcast to a potential audience of 73,390 although this total includes large areas of population outside the electoral district of Hammond. The broadcasting signals of 5MU and Power FM, though strong in Murray Bridge, Mount Barker and the Barossa Valley, are not received strongly towards the eastern part of Hammond. There is also a radio station based at Murrayville in Victoria, 3MBR-FM, which, according to Mr Lewis’ evidence can be heard throughout Hammond. In addition, the Australian Broadcasting Corporation’s Adelaide metropolitan radio station, 891 Adelaide, (formerly 5AN) can be heard clearly throughout most of Hammond
There are three regional newspapers circulated in Hammond The Murray Valley Standard is based in Murray Bridge and is published bi-weekly on Tuesdays and Thursdays. Its circulation approaching 3,500 is principally within the district, concentrating on Murray Bridge, Tailem Bend and Western Mallee areas. The Border Times is based in Pinnaroo and is published weekly on Wednesdays. It has a circulation in the district of about 950, mainly in the Eastern Mallee. The Southern Argus is based in Strathalbyn and is published weekly on Thursdays. It has a circulation of about 3,000, approximately half of which is in the district, confined to the towns of Strathalbyn, Langhorne Creek and Milang and surrounding areas. Between them, these three regional newspapers cover most of the electoral district, but they are not distributed free and must be purchased. In addition, The Advertiser, printed daily in Adelaide, also circulates widely in Hammond.
Mr Lewis represented the Liberal Party at each election from 1979 to 1998. In 2002, as I have already observed, he stood and was successful as an independent. The electoral district of Hammond and its predecessors therefore, have been consistent in recent decades in returning a candidate from the conservative side of politics. To put that another way, the Australian Labor Party has consistently polled relatively poorly in this area.
At the 1997 election, the Labor Party candidate for Hammond received only 20.5% of valid first preference votes. At the 2002 election, Mr McLaren as the Labor candidate received only 17.2% of first preference votes in Hammond. In past elections, on a two party preferred basis (that is after the distribution of preferences from other candidates) Mr Lewis (as the endorsed Liberal Party candidate) secured:
·78.9% in the 1979 election,
·77.6% in 1982,
·68.6% in 1985
·72.6% in 1989
·75.1% in 1993, and
·64.8% in 1997.
In this period, the only part of the electoral district which regularly attracted a majority vote for the Labor Party was the town of Tailem Bend. However in 2002, the two party preferred vote for the Labor Party, even at its best polling booth, Tailem Bend, slipped to 44.6%.
It is clear, therefore, that the vast majority of voters in the electorate of Hammond have consistently, over many years, preferred the Liberal Party to the Labor Party.
8. Other Independent Members of the House of Assembly
Notwithstanding this preference in recent decades, there has also been strong support in the eastern rural parts of South Australia (including what is now the electoral district of Hammond) for conservative independent candidates.
For 35 years, up to and including the 1970’s the electoral district of Ridley was represented by Mr Tom Stott, a conservative independent who for some time, served as Speaker of the House of Assembly. The district of Ridley during Mr Stott’s incumbency was quite different to the period in 1991-1994 when Murray-Mallee had its name changed to Ridley. The pre-1970 Ridley had its largest population centre at Loxton in the Riverland. Nevertheless, some parts of the older ‘Ridley’ are today incorporated within what is now known as Hammond. In the mid-1960’s, Ridley incorporated the towns of Lameroo and Pinnaroo which are today part of Hammond. In the late 1960’s Ridley was changed to exclude those towns but instead incorporated the area around Karoonda, which is today included in Hammond. Therefore there is a long history in some parts of Hammond of electing and being represented by a conservative independent member of Parliament.
More recently, conservative independents have been successful in contesting other electoral districts in the eastern rural parts of South Australia. As I have pointed out, in 1997 Ms Maywald, representing ‘The Nationals’ was successful in the Riverland electoral district of Chaffey, which borders Hammond to the north. Ms Maywald succeeded again in the 2002 election, with an increased majority of votes. In 1997, a former Liberal Party member turned independent, Mr Williams, successfully contested the district of Victoria (now McKillop) which borders Hammond to the south. Mr Williams rejoined the Liberal Party in 2000, and retained the district in 2002 as the endorsed Liberal Party candidate. Finally, as I have also pointed out, in 1997 the electoral district of Gordon, (now Mt Gambier) was won by Mr McEwen as an independent. He retained the district in 2002 with an increased majority. Thus, in the two most recent general elections, all four districts east of the Murray have returned independents at least once, and in two of the districts, twice.
9. Undisputed Pre-election Events
9.1 The Brechin Interview
Nominations for all House of Assembly seats closed on 25 January 2002. On 18 January, well after the election had been announced and it was known that Mr Lewis would be a candidate for election for the district of Hammond, Mr Lewis participated in a live radio interview (“the Brechin interview”) with Mr Rob Brechin on ABC Radio 639. That is a regional radio station transmitting from the mid-north of the State and having relatively minor penetration in the seat of Hammond. At the outset of the interview Mr Lewis was critical of the Liberal Party, and gave examples of when he had voted against the Liberal Party in the Parliament. An early stage of the interview proceeded as follows:
“BRECHIN:If it was in your power would you save the Liberals from losing Government if it came down to your vote?
LEWIS:Of course. Yes that’s not in question. I just won’t belong to a group of people who don’t have any principles or if they do they don’t commit to them and they change them when it suits them.
BRECHIN:So what role do you think you play in South Australian politics?
LEWIS:A very constructive and productive role…. Now the Liberal Party where as before under their leadership, either or both of them had no chance of winning this election. Now the Liberal Party has a very strong prospect of winning.”
Mr Lewis was there referring to the fact that there had been a recent change in leadership of the Liberal Party when Mr Kerin had replaced Mr Olsen as Premier. The interview continued:
“BRECHIN:What sort of relationship could you form with the Labor Government should they be elected?
LEWIS:I don’t believe that its likely that I’ll be even contemplating that but it comes to me as something out of the blue. I guess if the Labor Party were prepared to commit to parliamentary reform, if the Labor Party were prepared to cap poker machines, if they were prepared to do the other things that I’ve tried to get done during this last 4 years as their highest priority on the agenda then I’d be quite happy, I guess, to sit in the job as Speaker to ensure that they did proceed with that legislative program and when they’d completed it if they were otherwise acting responsibly in administering affairs then I’d consider the position but I don’t foresee that, that’s ever likely to happen. I don’t rule it out.”
Later in the interview the following exchange took place:
“BRECHIN:Back to the election Peter. How much influence will Independents have in forming the next Government?
LEWIS:I think they’ll have an outstanding, indeed total influence. Whoever forms the next Government will have to rely upon the Independent Members of Parliament. I can’t see that the Independent Members of Parliament, so called now, will be in any sense decimated. I see the numbers growing and that any group in the Parliament that forms the Government, that is a majority, will need to incorporate Independents in that group, and after all for a large part of the time that Sir Thomas Playford governed this State and put it on its feet he did so in coalition with Independent Members of Parliament…..
BRECHIN:Finally Peter, would it be healthy to have a hung Parliament with Independents holding the balance of power.
LEWIS:A dam sight healthier than having either a Liberal majority or a Labor majority. In my experience anytime in the last 30 years that’s often been the reason why we’ve got ourselves into the mess that we’ve found ourselves in because they, as I said earlier on in this discussion, they, Labor and Liberal, kowtow to the power groups that finance them and drive them, not to the people who put ballot papers in the ballot box on election day. We are elected to represent people not the corporations and organizations and as Members of Parliament we ought to remember that. I’m sure the community understands it.”
There seems to have been no immediate reaction to this interview, certainly within the electoral district of Hammond. Perhaps that is not surprising, given the location of the transmitter.
9.2 Other events prior to 28 January 2002
Nominations for the elections closed on 25 January. At various times prior to 28 January voters in the electoral district of Hammond were asking Mr Lewis or his staff how they should complete their preferences if voting for him. His instructions, both oral and in writing, were to vote “1” for him and then to complete the numbers 2 to 5 in order from the top of the card.
On 27 January Mr Lewis had a telephone conversation with Ms Kim Wheatley, a political reporter from The Advertiser. What was said by Mr Lewis during the course of this interview is a matter of some contention, and I will need to return to it. There seems to be little doubt, however, that Ms Wheatley had been asked to interview Mr Lewis because of what he had said in the Brechin interview. She had not heard the interview and had not seen the transcript of it. She understood that he had suggested on radio that he might support the Labor Party in certain circumstances. It was that which she wished to explore in the interview.
9.3 The first Advertiser article
As a result of the interview, on Monday 28 January The Advertiser published on page 14 in a single column article (“the first Advertiser article”) the following:

I’ll back Labor on reforms, says maverick

OUTSPOKEN conservative independent MP Peter Lewis would support a Labor Government if its major priority was parliamentary reform.

Mr Lewis’ shock announcement has thrown the election result wide open because most Liberals had assumed they had his support in the case of a hung Parliament.

‘I would support any government that will commit to a program of parliamentary reform as a first priority – and that includes Labor,’ Mr Lewis said yesterday.

‘I have no qualms whatever about anything so long as it’s a commitment to parliamentary reform.’ Asked what would happen if it came down to his vote, Mr Lewis said: ‘If it does, well and good. SA will have a much better future with much less likelihood of corruption and cover-ups.’

Mr Lewis said he had been interested in becoming an independent Speaker but he had made no deals.

He has constantly pushed for widespread reform, including reducing the number of MP’s and making the Government more accountable to Parliament. ‘The State Bank mess came from that because the executive government wouldn’t be accountable to the Parliament,’ Mr Lewis said.

Mr Lewis holds the Murray Mallee seat of Hammond by a 14.7 percent margin.

There is no dispute that Mr Lewis said the words which he is reported to have said in direct speech.
9.4 Lodgment of the voting ticket
Also on 28 January at 11.48 am there was lodged with the Electoral Commissioner on behalf of CLIC voting tickets for their candidates, including Mr Lewis. They were the voting tickets lodged pursuant to s 63 of the Act. The voting ticket lodged on behalf of Mr Lewis specified the following order:
2 ARNOLD
3 McLAREN
1 LEWIS
4 FEATHERSTON
5 WEBSTER
As previously explained, that had the effect that if a person completed a ballot paper merely by putting the No. 1 opposite Mr Lewis, the voter’s preferences would have followed that order, and would have put the Labor Party candidate, Mr McLaren, ahead of Mr Featherston. The order on that voting ticket was, however, consistent with what Mr Lewis and his staff had been telling voters who enquired how they should complete their ballot paper.
9.5 Lodgment of How-to-Vote cards
At or about that time Mr Lewis also caused to be lodged with the Electoral Commissioner pursuant to s 66 of the Act the required number of sample how-to-vote cards indicating the same order of preference as on the voting ticket. The purpose of lodging the sample how-to-vote card was to enable the Electoral Commissioner to prepare posters for display in each polling booth of the how-to-vote card for those who wished to have them displayed.
9.6 The preparation of Advertisements by Mr Lewis
During the week that followed the publication of the first Advertiser article, Mr Lewis claims that he became aware of what he described as a “whispering campaign” against him. There is some dispute as to whether he believed that that campaign was to the effect that he would support a Labor government in Parliament or had done some sort of “deal” with the Labor Party, or whether, by

allocating his preferences to Mr McLaren ahead of Mr Featherston, Mr McLaren might be elected, and the State could end up with a Labor government. I will return to Mr Lewis’ evidence on that topic.
In the event, on or about Friday 1 February Mr Lewis decided to place additional advertisements in the regional newspapers designed to answer what he considered to be the whispering campaign. The closing date for booking advertising space with the Border Times and the Southern Argus was on that Friday, even though it was possible for arrangements to be made to finalize the copy later. Monday was the closing date for advertising copy for the Murray Valley Standard for the edition produced on the following Tuesday.

Advertisements were sent to the Murray Valley Standard, the Border Times and the Southern Argus on Friday for publication in the following week. As will be seen, some of them contained instructions on how to vote for Mr Lewis and the suggested order of preference for the other candidates. However, from the printing, advertising and electioneering material produced from Mr Lewis’ file it is apparent that the actual order of preference was not completed at that time. Further instructions were sent to those newspapers after 2.30 pm on Saturday 2 February, probably sometime on Sunday 3 February, as to the actual preference order to be inserted. That was certainly the case with the Murray Valley Standard, and it was also on the Sunday that Mr Lewis caused to be delivered to the printer who was contracted to print his how-to-vote cards a handwritten letter containing an amended how-to-vote card with an amended preference order.
Although Mr Lewis decided on the Friday to embark on the additional advertising campaign, it appears that it was not until Sunday 3 February that he decided on the final preference order for his how-to-vote instructions – an order different from that which appeared on his voting ticket lodged with the Electoral Commissioner.
The significance of all that is that Mr Lewis had decided to change the preference order on his how-to-vote card and had decided to take additional advertising space in the regional newspapers before he was aware of the publication of a pamphlet widely distributed by the Liberal Party entitled “You might like Peter Lewis but you might not like who he could support as Premier”. I shall refer to that as the “Liberal Party Lewis pamphlet”. Mr Lewis first became aware of that pamphlet on the afternoon of Tuesday 5 February.
9.7 The revised How-to-Vote card
The order of preference indicated in the instructions to the several newspapers and to the printer, and which became the order in how-to-vote cards distributed during that week and at polling booths on the election day was:
4     ARNOLD
5           McLAREN
1           LEWIS
2           FEATHERSTON
3           WEBSTER
9.8    The Lewis media advertisements
Although they appeared after the publication of the Liberal Party Lewis pamphlet referred to below, I mention these advertisements now because it is clear that they were prepared before Mr Lewis was aware of the Liberal Party Lewis pamphlet.
In the Murray Valley Standard of Tuesday 5 February, there was an advertisement (“the first Murray Valley Standard advertisement”) in a single column of approximately 11 cm wide and about 7 cm long. It was accompanied by a head and shoulders photograph of Mr Lewis, and bore the following text:
Peter Lewis puts it straight – No Deals!
Reports that I am thinking of joining the Labor Party (or any other party) or supporting the Labor Party are quite wrong. I have had no discussions with the State Branch Secretary of the Labor Party, the Parliamentary Leader or any other member or representative of the Labor party about such proposals. I have been too busy in this Election campaign to have had time for discussions of this nature.
Any such comment by anyone is political furphy and a red herring trying to distract people from determining whether they want a truly local representative in Hammond who will stand up for them (in Parliament or in dealing with Departments) or a Party hack who will do what’s best for their political advancement or career advancement.
On page 7 of the same edition there was another advertisement (“the breakfast advertisement”) advertising a breakfast with Mr Lewis on Wednesday 6 February which included the essence of Mr Lewis’ revised how-to-vote card.
That edition of the paper also carried other advertisements for Mr Lewis and for Mr Featherston.
The following advertisement appeared in the Border Times published on Wednesday 6 February and in the Southern Argus published on Thursday 7 February. The advertisement in the Border Times (“the Border Times advertisement”) appeared on page 3 as a single 7 cm column advertisement, approximately 19 cm long. That in the Southern Argus (“the Southern Argus advertisement”) also appeared on page 3 and was of similar size. Both were accompanied by a small head and shoulders photograph of Mr Lewis. The text of the advertisements was as follows:
Peter Lewis puts it straight – No Deals!
Reports that I am thinking about joining the Labor Party (or joining or rejoining any other party for that matter) or supporting the Labor Party are quite wrong, wrong, wrong! I have had no discussions with the State Branch Secretary of the Labor Party, the Parliamentary Leader or any other members or representatives of the Labor Party, or the Liberals or any other party about such proposals. I am a member of the Independence Coalition (CLIC).
I have been too busy recently, just getting the job done to have had time for thoughts of this nature.
Although I think the electors in Hammond know me better than to entertain such ideas, any such comment by anyone is a political furphy and a red herring. My opponents’ supporters who are saying these things must be trying to distract people from the central decision of this election. In Hammond we have to decided if we want someone who will stand up fearlessly for us in Parliament (or in dealing with departments or other organsiations, corporations and institutions) without looking over his shoulder to a party machine to see what the party hacks want.
I’ve always put my electors first (I guess that’s why I’m not listed as a political hot-shot).
I’ve been here for well over 20 years. You should know that another candidate with real designs on this seat has only just got their name on the Electoral Roll here about 3 months ago – in time for the Federal election. I know, I personally signed a letter welcoming him to Hammond.
HOW TO VOTE FOR PETER
4           ARNOLD, J.
5           McLAREN, H.
1           LEWIS, Peter MP
2           FEATHERSTON, B.
3           WEBSTER, K.
Authorised by Peter Lewis, 64 Adelaide Road, Murray Bridge
9.9    The Liberal Party Lewis pamphlet
On Friday 1 February there was lodged with Australia Post for delivery in the electoral district of Hammond a large number of pamphlets prepared on behalf of the Liberal Party for distribution to every household in the electoral district. It would appear that distribution to letter boxes, post office boxes and mail collection centres took place on Tuesday 5 February. Mr Lewis became aware of the existence of the pamphlet that afternoon.
The pamphlet was a single 22.5 cm square sheet folded once. The entire front cover was black, on which was superimposed in white the words “YOU MIGHT LIKE PETER LEWIS”, and in red “BUT YOU MIGHT NOT LIKE WHO HE COULD SUPPORT AS PREMIER”.
The inside had a white background. It contained, in black, a banner heading “YOU HAVE AN IMPORTANT DECISION”. Below that on the left-hand side of the sheet was a head and shoulders photograph of Mr Featherston adjacent to the heading “Barry Featherston Liberal”. Below that in a boxed section was the following text:
Premier Rob Kerin is getting on with the job – keeping South Australia moving forward.
By working hard, Rob Kerin is delivering certainty.
By voting for your local Liberal candidate, you’ll be supporting Rob Kerin’s team.
Below that was a photograph of the Premier, Mr Kerin adjacent to the words “A vote for the Liberals Barry Featherston supports Rob Kerin’s team”. All printing and photographs on that side were black on white.
On the right-hand side of the inside of the sheet, in layout to balance that of the left-hand side was the heading printed in red “PETER LEWIS INDEPENDENT” adjacent to a head and shoulders photograph of Mr Lewis. In the corresponding boxed panel was the following text, printed on a pink background:
A vote for Peter Lewis could mean you’ll end up with Mike Rann as Premier.
Peter Lewis said a few days ago he has ‘no qualms whatever’ about supporting a Labor government (‘Advertiser’, 28/1/2002).
In addition, Peter Lewis’s official How to Vote ticket lodged with the Electoral office actually preferences the Labor Party above the Liberals.
Below that was a reproduction in black and white, of the following portion of the first Advertiser article:
“I would support any government that will commit to a program of Parliamentary reform as a first priority – and that includes Labor,” Mr Lewis said yesterday.
“I have no qualms whatever about anything …….
The balance of the article was obscured. Adjacent to that extract was a head and shoulders photograph of Mr Rann with a red question mark superimposed over his face.
On the back page of the pamphlet, printed in black was a headline “VOTE FOR A FAIR DINKUM LIBERAL”, below which was a photograph and the name of Mr Featherson, together with the Liberal Party insignia.
In the Border Times published the next day, besides the Border Times advertisement, there was a substantial advertisement by the Liberal Party in which the sting of the Liberal Party Lewis pamphlet was repeated.
9.10 The 6 February radio broadcasts
Mr Lewis said he was angry when he saw the Liberal Party Lewis pamphlet. At about 6.45 am on Wednesday 6 February he recorded the following advertisement (“the first radio advertisement”) which was broadcast on Radio 5MU on 14 occasions between 7.27 am and 1.24 pm, and on Power FM on six occasions between 8.57 am and 12.04 pm:
Gday, it’s Peter Lewis – your local independent MP for Hammond speaking.
The Liberal Party machine pamphlet, saying a vote for me could make Mr Rann Premier is a sleazy nonsense and smears my name.
The how to vote card you get from my supporters on Saturday will expose the Liberal lie, and show it up for the dirty trick it is.
My number 2 is for the Liberals, but it’s your choice.
If you want honest representation, integrity and proper accountability to check on government waste – I’ll need your number 1 vote.
Spoken by Peter Lewis, Adelaide Rd Murray Bridge.
The station apparently received a number of complaints and declined to broadcast it further. At about 4.15 pm Mr Lewis recorded a second advertisement (“the second radio advertisement”) which was broadcast twice on Radio 5MU, at 4.30 pm and 5.24 pm and four times on Power FM between 5.04 pm and 5.59 pm:
G’day this is Peter Lewis – your local member for Hammond speaking.
The Liberal Party machine is getting pretty desperate at this stage in the campaign. The Liberals pamphlet, claiming that a vote for me, could mean that you’ll end up with Mike Rann as Premier, is a total nonsense.
The Liberal Party has twisted and distorted my commitment to parliamentary reform, in what I feel, is a disgusting attack against my conservative values.
They have a lot of gawl (sic) to attack me in this way. Given my voting record over the past 23 years. Ask yourself why they didn’t include the full quote?
The how to vote card you get from my supporters on Saturday will show that my number 2 is for the Liberals, but it’s your choice?
If you want honest representation, integrity and proper accountability to check on government waste, along with a cut in the number of MP’s – I’ll need your number 1 vote on Saturday.
Spoken by Peter Lewis, Adelaide Road, Murray Bridge.
From midnight on Wednesday there was an electronic media blackout which prevented electoral advertisements by electronic media until after the close of the polls.
9.11 Media publications – 7 February 2002
In the Murray Valley Standard of Thursday 7 February, an article (“the Murray Valley Standard article”) under the headline “War of Words” included the following:
The Liberal Party is advertising that a vote for Mr Lewis could result in Labor leader Mike Rann becoming Premier, quoting Mr Lewis as having ‘no qualms whatever’ about supporting a Labor government.
Mr Lewis has launched a counter-attack claiming he is not being quoted fully or in the right context.
‘The Liberal Party machine is desperate and has stooped to an all-time low by claiming in their most recent pamphlet that a vote for me could mean that you’ll end up with Mike Rann as Premier’, Mr Lewis said.
How dare they. That is a complete nonsense.
‘The Liberal Party has twisted and distorted my commitment to parliamentary reform in a grubby and disgusting attack against my conservative values.
They have a lot of gall to attack me in this way, given my voting record over the past 23 years’.
Mr Lewis said voters should question why the Liberal Party had not quoted him in full in the advertisements.
‘Why is it you only got half the story about parliamentary reform?’ he said.
“Is the Liberal Party terrified of parliamentary reform?”
“Can’t they commit to slashing the number of pollies?”
Mr Lewis, now an Independent aligned with the Community Leadership Independence Coalition, has placed Liberal candidate for Hammond Barry Featherston as number two on his ‘how-to-vote’ flyers.
Liberal Party State director, Graham Jaeschke said he believed the Electoral Commission’s ‘how-to-vote’ booklet for Hammond, which would be available in polling booths on Saturday, had a how-to-vote card for Mr Lewis.
“I understand that this card preferences the ALP ahead of Liberal,” Mr Jaeschke said.
“While the local member, Mr Lewis, tries to attack the Liberal party, he makes no effort to refute a few facts.”
Mr Jaeschke said Mr Lewis was quoted in The Advertiser on January 28 saying “I will support any government…. And that includes Labor”.
The official voting ticket count card submitted by Mr Lewis to the State Electoral office has Mr Lewis preferencing the Labor Party before the Liberals.
The Labor Party are putting Mr Lewis number two on their how to vote card.
In the same edition, there was a paid advertisement for Mr Lewis which did not mention the alleged Liberal Party attack on him. There were also at least four paid advertisements for the Liberal Party, one of which repeated the sting of the Liberal Party Lewis pamphlet, and one of which was in the form of an article entitled “FORMER PREMIER WARNS OF THE DANGER OF INDEPENDENTS,” an advertisement plainly directed against Mr Lewis and in favour of Mr Featherston.
On the same day in the Southern Argus, as well as the Southern Argus advertisement, there appeared on page 7 a biography of Mr Lewis and the following article (“the Southern Argus article”):
“I AM BEING SMEARED”
- Peter LEWIS
The Liberal Party machine is desperate and has stooped to an all time low by claiming in their most recent pamphlet that a vote for me could mean that you’ll end up with Mike Rann as Premier.
How dare they! That is a complete nonsense.
The Liberal Party has twisted and distorted my commitment to parliamentary reform in a grubby and disgusting attack against my conservative values. They have a lot of gall to attack me in this way given my voting record over the past 23 years.
Ask yourself why the Liberal Party didn’t include the full quote.
Why is it you only got half the story about parliamentary reform. Is the Liberal Party terrified of parliamentary reform? Can’t they commit to slashing the number of pollies?
What is ‘local’ Mr Featherston? Admit it, you only enrolled in Hammond in time for the Federal Election a couple of months before Christmas.
And when it comes to being ‘fair dinkum’ about honesty and decency in public life I’ll let the people of Hammond be the judge this Saturday, because I trust the Electorate the way it has trusted me for the last 23 years.
The same edition also contained other advertisements for Mr Lewis and a number of advertisements for the Liberal Party, including the two mentioned above which appeared in the Murray Valley Standard of the same day.
9.12 The second Advertiser article
On 7 February Ms Wheatley conducted another telephone interview with Mr Lewis, as a result of which a second article (“the second Advertiser article”) appeared in the Advertiser of Friday 8 February on page 14 in a single column:

Lewis swings support back to Liberals

IN an act of political survival, independent MP Peter Lewis has changed his preferences so they now favour his old party, the Liberals.

His official preference card previously lodged with the Electoral Commission lists Labor ahead of the party he was forced to quit.

But tomorrow, Mr Lewis will hand out how-to-vote cards promoting Barry Featherston, the endorsed Liberal candidate and former adviser to Premier Rob Kerin, to No. 2 in the Murray Mallee seat of Hammond. Central to the change of heart is a Liberal leaflet claiming a vote for Mr Lewis, in the conservative stronghold, is a vote for Labor.

Mr Lewis labelled the leaflet yesterday as a “dirty-tricks” tactic while Mr Featherston said the pamphlet was “only informing people what he’s doing”.

On January 28, Mr Lewis told The Advertiser he would support any government that would commit to a program of parliamentary reform, including Labor.

But yesterday Mr Lewis denied his statement meant he would help Labor form government. “You can quote me: That is bulls ----,” he said.

“Clear, unequivocal, hot, green, sloppy, fresh bulls----. I’m not into forming government with Labor.”

Mr Featherston said Mr Lewis changed his mind after he “picked up the backlash in the community.”

9.13 Lewis How-to-Vote cards

On the Wednesday, Thursday and Friday preceding the election Mr Lewis had authorised the photocopying in his Murray Bridge electorate office of several hundred how-to-vote cards (“the photocopied how-to-vote cards”) which contained the following message printed on the back:
“I AM BEING SMEARED”
– Peter LEWIS
The Liberal Party machine is desperate and has stooped to an all time low by claiming in their most recent pamphlet that a vote for me could mean that you will end up with Mike Rann as Premier.
How dare they! That is sleazy, total nonsense.
The Liberal Party has twisted and distorted my commitment to parliamentary reform in a grubby and disgusting attack against my conservative values. They have a lot of gall to attack me in this way, given my voting record over the past 23 years.
It is obvious they are getting desperate to resort to these tactics so late in the campaign.
Ask yourself why the Liberal Party didn’t include the full quote, Why is it you only got half the story about parliamentary reform in the Liberal Party machine’s pamphlet? Is the Liberal Party terrified of Parliamentary reform? Can’t they commit to slashing the number of pollies?
And by the way Mr Featherston, come clean! “People in glass houses shouldn’t throw stones.”
What is ‘local’ Mr Featherston? Admit it, you only enrolled in Hammond in time for the Federal Election a couple of months before Christmas.
And when it comes to being ‘fair dinkum’ about honesty and decency in public life I’ll let the people of Hammond be the judge this Saturday, because I trust the Electorate the way it has trusted me for the last 23 years.
Some of those were given out at mobile polling booths on days preceding the election. Others were distributed in some letter boxes around the Fraser Park area to the west of Murray Bridge high school. Some were put on cars parked in the main street car parks and around the major shopping centre in Murray Bridge. Some were similarly distributed in Strathalbyn. None of them were distributed at polling booths on the day of the election, although they may have been taken to polling booths by voters, as Mr Featherston found one there in a rubbish bin.
9.14 Electoral Commission material
The Electoral Commissioner’s office prepared how-to-vote posters containing copies of all how-to-vote cards which had been lodged with the Commissioner. The posters prepared for polling booths in the district of Hammond included a copy of Mr Lewis’ how-to-vote card lodged with the Commissioner. The Commissioner also made up a booklet containing the how-to-vote cards lodged by all candidates contesting elections for the House of Assembly and Legislative Council. That booklet was prepared for use in declared institutions and pre-poll centres within South Australia and interstate. A copy of the booklet was also provided to each polling booth. That booklet also included a copy of Mr Lewis’ how-to-vote card lodged with the Commissioner.
10. The Petitioner’s Claims

The petitioner alleges that each of the Murray Valley Standard advertisement, the Border Times advertisement, the Southern Argus advertisement, the first and second radio broadcasts, the Southern Argus article and the reverse of the photocopied how-to-vote card were all advertisements which offended s 113 of the Act. In the case of the three newspaper advertisements, it is alleged that Mr Lewis represented as a fact that he had no intention of supporting the Australian Labor Party to form a government, that he was not contemplating supporting the Australian Labor Party to form a government and that he was not prepared to contemplate supporting the Australian Labor Party to form a government. In the case of the two radio advertisements, the Southern Argus article and the reverse of the photocopied how-to-vote card, it is further alleged that he represented that there was no possibility that he would support the Australian Labor Party to form a government. It is further alleged that at all material times prior to the election the contrary of each of those representations was true.
In the case of the Murray Valley Standard article, the second Advertiser article and the reverse of the photocopied how-to-vote card, although not alleging breaches of s 113 of the Act (because they were not advertisements), the same representations are alleged and that they were again untrue.
The electoral misconduct pleaded by the petitioner relates to the lodgement of the voting ticket by Mr Lewis and alleges that the effect of the two radio advertisements, the breakfast advertisement, the Border Times advertisements, the Southern Argus advertisement, the second Advertiser article and the how-to-vote cards distributed on behalf of Mr Lewis on polling day was calculated to induce electors to vote for Mr Lewis by marking their ballot paper with the No. 1 in the square opposite his name, and with no other marking, in the belief and expectation that they were directing their second preference vote to Mr Featherston in the event of a distribution of votes cast for Mr Lewis, whereas in fact if they did that, they would have been effectively casting a second preference vote for Mr McLaren.
The defamation of Mr Featherston is alleged to have occurred in the first radio advertisement, the Border Times advertisement, the Southern Argus advertisement and on the reverse of the photocopied how-to-vote cards.
11. Undisputed Post Election Events
By the close of counting on the Saturday evening, Mr Lewis was satisfied that he had won Hammond. It also appeared to him that Dr Such, Mr McEwen and Ms Maywald had also been elected. The Parliament would therefore contain at least four independents. He considered that it was unlikely that Mr DeLaine and Mr Clarke would win the seats they contested. There were four seats, namely Adelaide, Norwood, Hartley and Stuart which were in doubt. He was aware that if each of the major parties won two of those seats, the Labor Party would have 23 seats, the Liberal Party 20, that the three other Independents were more likely to support the Liberal Party, and he would therefore have the balance of power. However, other combinations were still possible.
Mr Lewis participated in a television interview on the Stateline programme conducted by Mr Ian Henschke, recorded at about 5.00 pm on the afternoon of Sunday 10 February 2002. Dr Such was the other participant. So far as is relevant the interview proceeded as follows:
……..
HENSCHKE:     Now this means that you could be offered anything between now and the next week. What have you been offered so far?
LEWIS:I’ve been talking to people. I’m not interested in what they’re offering, I’m interested in what they’ll do.
………….
HENSCHKE:     Peter, if you were offered the Speaker’s role, it’s as very important role in Parliament, would you take it?
LEWIS:It’s a good job to do, but that’s not what I’m on about right now. I’m on about getting what I know will be the way of securing people’s confidence in the Parliament in the future. I don’t want to see that lost as an institution in South Australia.
HENSCHKE:     You want parliamentary reform and you want it quickly?
LEWIS:Yes.
HENSCHKE:     You want it now?
LEWIS:Right now.
HENSCHKE:     So how are you going to get that? Because you said last year that you could not work with John Olsen as Premier, and yet Rob Kerin supported him right to the end. So can you work with Rob Kerin?
LEWIS:Time’s moved on since then. Yes.
HENSCHKE:     You can work with Rob Kerin?
LEWIS:I’m pretty sure I can.
HENSCHKE:     What about Mike Rann?
LEWIS:I guess I could work with Mike Rann if I had to, yes.
HENSCHKE:     If you had to?
LEWIS:Yes.
He was asked, if the two party preferred vote was in favour of the Liberal Party, whether he would support a Liberal government. His answer was:
“Then… no I don’t. I don’t go with that. I’m open-minded about that, because as it stands, on the other side of it, the Labor Party’s got more seats in its own right [interjection by Henschke], and I don’t know which party will have the highest level of support in the primary votes, and all of that is fairly much in the minutiae. To me the way to secure the better future for South Australia of any of the options open to us, is to reform the Parliament – not only the way it’s structured but the way it works.”
It was known that there was an impending visit to the State of Her Majesty the Queen. Mr Lewis was aware that because of that it was important to know as soon as possible who would be Premier and whose name would appear on invitations and in other protocol documents. On the morning of Monday 11 February he telephoned the protocol office of the Department of Premier and Cabinet to find out the latest time by which it would have to be known, from their point of view, who the new Premier was. He was told that it would have to be known by the end of Wednesday 13 February.
Mr Lewis has the habit of waking early in the morning between 3.00 am and 5.00 am. On the morning of Monday 11 February he awoke and was clearly contemplating alternative possibilities. At that time he worked out two decision trees to assist in clarifying his thinking about what might happen.
During the day, in consultation with others, he began drafting a possible Compact incorporating demands for parliamentary reform to put to the major parties in return for supporting them in guaranteeing supply and support on any no confidence motion. He had some discussions with representatives of both parties that day, but the position was still very uncertain. Which party might be able to govern and with whose support was, of course, a matter of great public interest and intense media speculation over this and the next few days. Mr Lewis was and continued to be a continuing target of great media interest.
In various statements to the media before the afternoon of Wednesday 13 February, Mr Lewis made it clear that who he would support would depend on who agreed to his demands for parliamentary reform. In the Advertiser of Tuesday 12 February, for example he was quoted as saying:
“I am not in the least bit fussed about who provides it (reform) as long as we get it.”
By Tuesday 12 February the four doubtful seats were still not resolved, but a two all split was becoming more likely. Mr Lewis had more detailed discussions with Mr Rann, the leader of the opposition, and Mr Brown, Deputy Premier, to clarify what was achievable in what he was wanting from either party.
During the course of Wednesday 13 February Mr Lewis produced a final version of a document entitled “Peter Lewis’ Compact for good Government” which recited his own independent status and that he would “not become a formal part of any government”, but that upon conditions set out in the document he would vote with “the government” on appropriation and supply bills and all motions of no confidence “unless there is evidence of fraud, mismanagement, misuse of public finance, misappropriation, illegal activities or breach of or non-performance of any of the other terms and provisions of this Compact”. The document then set out a number of principles about which he sought undertakings relating to promoting open and accountable government, improving the democratic operation of Parliament by measures consistent with those which he had previously advocated, and establishing “clear plans, strategies and targets to address the urgent needs of rural South Australia”. The document said nothing about his being appointed Speaker. Some of these principles were elaborated in what was described as an annexure to the Compact, which included a number of specific demands in respect of the electorate of Hammond, including a programme of fumigation to eradicate Branched Broomrape wherever it is discovered in South Australia. Both parties were sent a copy of the Compact.
Mr Rann signed the document as leader of the opposition “on behalf of the Parliamentary Labor Party” and returned it to Mr Lewis. He also sent Mr Lewis a letter dated 13 February. It is not clear whether that was sent before, after or at the same time as the signed Compact. In it he said:
“I want to place in writing central commitments made to you yesterday afternoon in my office.
I am committed, as are my Labor colleagues, to supporting you as Speaker of the House of Assembly for the full term of this Parliament”. (Emphasis in original).
The letter also pointed out that the Labor Party had serious concerns about apparent irregularities in the poll in the electoral division of Stuart which they were considering referring to a Court of Disputed Returns if the Liberal candidate (Mr Gunn) was elected.
The copy of the Compact sent to the Liberal Party was returned to Mr Lewis with some alterations initialled by the Premier and Deputy Premier. Mr Lewis seems to have regarded those variations as immaterial, and as an acknowledgement of his Compact conditions. However, they also sent to him a document entitled “A Working Agreement to support South Australian Government” which was much shorter and did not contain all the material contained in Mr Lewis’ Compact. Mr Lewis made some alterations to that document and signed it, and it was also signed by the Premier and the Deputy Premier. How any differences might be resolved between that document and the version of the Compact returned to Mr Lewis from the Liberal Party was never explained.
Continuing speculation as to which party Mr Lewis might support came to an end with a public announcement late on the afternoon of Wednesday 13 February. Mr Lewis had prepared a five page speech for presentation at a media conference, the last section of which read:
“In all the circumstances, considering the majority of first preference votes, the numbers of people who didn’t vote at all or who voted for a so-called minor party in the first instance; and the likelihood of who will win which of the seats yet undecided compel me to focus upon what I said I would do during the election campaign and that is deliver certainty in so far as it is possible; deliver reform of the institution of Parliament through an inclusive process and deliver it quickly and to do all these things in keeping with my philosophical values and understanding of society and most importantly, knowing that I have the responsibility as well as the power to exercise it in controlling what will happen in South Australia during the next four years.
Against its philosophical beliefs and some of its practices of the last few years, I nonetheless give my support to the Labor Party because it will have to deliver on the agreement it has signed or the Liberal Party will take its place in government without the need for a further election.”
In a television interview on the ABC’s 7.30 Report that evening Mr Lewis was asked why he had put the Labor Party in power he said:
“Because with the Labor Party I can deliver certainty to the business in South Australia, the investors, and the people that will create the real jobs, which are referred to in the compact that I’ve signed not only with the Labor Party but with the Liberal Party. It was then, since they both were willing to sign, my responsibility to choose. The compact spells out the way ahead for the next four years. It’s caused the Labor Party to have to shift ground on a number of things, and the Liberal Party likewise, the most important of which has been essential reform for the institution of Parliament.
……. I can’t get certainty by going with the Liberal Party. I can if I put the Labor Party in office. And the business community in South Australia has been telling me for three days ‘Whatever you do, for God’s sake, your sake, our sake, and the rest of South Australia’s sake, give us certainty’”.
During the course of the interview he made other statements to similar effect, that the only way in which he considered he could deliver certainty was “to give Labor the responsibility of delivering on its commitments in the compact”. He repeated the substance of those assertions in subsequent radio interviews broadcast in South Australia the next day.
There was no suggestion in any media report or in any other evidence led that his support for the Labor Party to form a government was contingent upon his being appointed Speaker of the House of Assembly. That was an appointment which he maintained publicly was to be the decision of the Parliament when it met. In an interview on ABC 891 Radio on 14 February Mr Lewis specifically denied that it was a condition. The only suggestion that it was a condition was made by Mr Brown, the Deputy Premier, in the same interview, but Mr Brown was not called to give evidence.
12. Inaccurate and Misleading Statements
12.1 Matters to be proved
Those paragraphs of the petition which allege a breach of s 113 of the Act and those to the same effect which do not can conveniently be considered together. Whether an offence was committed by Mr Lewis by making inaccurate and misleading statements (if they were such) because they happened to be contained in electoral advertisements and therefore subject to proscription by s 113, is immaterial: Featherston v Tully (supra) at [147] Principle no. 5.
What is material is whether the statements were such that it can be said that the electors of Hammond did not in fact have a fair and free opportunity of electing the candidate which the majority might prefer, or that the making of the statements was the type of event by which the Court could be satisfied that there is reasonable ground to believe that a majority of electors may have been prevented from electing the candidate they preferred: Featherston v Tully (supra) at [147] Principles 2 and 3. I will return to consider the application of those common law tests to the facts of this case.
There are two elements of the petitioner’s case that must be proved before the application of the common law tests can arise. The first element is that, properly construed, the statements complained of mean that, at the time of making them, Mr Lewis had no intention of, that he was not contemplating, was not prepared to contemplate and in some cases that there was no possibility of his supporting the Labor Party to form a government after the election. The allegation does not go as far as to suggest that Mr Lewis was denying that he would support the Labor Party on some of its proposals in Parliament. It alleges that he denied any intention etc of supporting the Labor Party to form a government after the election. That is an important qualification.
The second element of the petitioner’s case is that, as a matter of fact, at the time of making the statements, Mr Lewis did have an intention of, did contemplate, was prepared to contemplate and knew that there was a possibility of his supporting the Labor Party to form a government after the election.
12.2 The first element
In the Murray Valley Standard article, Mr Lewis denied that he was thinking of joining the Labor Party or “supporting the Labor Party”. However, the latter was said in a context of a headline which proclaimed “No Deals”, and a further explanation which denied any discussions with Labor Party officials. In that context, I consider that the reasonable elector would understand Mr Lewis’ denial of support for the Labor Party not merely to mean a denial of support for some of its proposals in Parliament, but to mean a denial of any arrangement with the Labor Party, which might include coalition or support in the formation of a government. The implication from the advertisement is that he had no present intention of so supporting the Labor Party in that sense, that he was not contemplating such support and was not prepared to contemplate such support.
The same can be said of the similar words used in the Border Times advertisement and the Southern Argus advertisement.
In the two radio advertisements Mr Lewis describes as a “sleazy nonsense” or a “total nonsense” the content of the Liberal Party Lewis pamphlet in so far as he understands it to mean “a vote for me could mean that you will end up with Mike Rann as Premier”. He also describes it as “the Liberal lie” and a “dirty trick”, at least in the first radio advertisement. In the second radio advertisement he described it as a “disgusting attack against my conservative values”.
I consider that, to the reasonable listener, that means that Mr Lewis neither has the present intention, is not contemplating and is not prepared to contemplate any action that would ensure that Mr Rann becomes Premier. That would include supporting the Labor Party to form a government. I would be prepared to accept that the declamatory language in both advertisements suggests that, in Mr Lewis’ mind, there was no possibility of his supporting the Labor Party to form a government.
The same can be said of the language used in the Southern Argus article and on the reverse of the photocopied how-to-vote cards.
12.3 The second element
This requires a careful analysis of what Mr Lewis’ actual intention was at the time of making the respective statements. In his evidence Mr Lewis denied that, at the relevant time, he had any different intention from that stated in or to be inferred from the several statements. Whether he is believed depends on whether I accept him as a witness of truth. His credit was attacked at many points by the petitioner. I will need to consider whether that attack succeeds in rendering unreliable his evidence as to his state of mind at the time.
However, important as Mr Lewis’ evidence is in determining what his state of mind was, equally important in inferring his state of mind at the time is what he said and did at the time.
13. Mr Lewis’ Credibility
13.1 The process of resolving the attack on credibility
Numerous attacks were made on Mr Lewis’ credibility. I will deal with those in turn. Crucial to the petitioner’s case is proof of Mr Lewis’ intention during the period preceding the election, namely that he intended, contemplated, or was prepared to contemplate supporting, or that it was possible that he would support the Labor Party to form a government, whilst at the same time telling his electors otherwise. At no stage did Mr Lewis admit of any such intention.
Whether he is to be believed will depend on whether, on that crucial issue, I accept Mr Lewis as a witness of truth. That in turn will depend on my impression of him as a witness and whether his evidence as to his state of mind is consistent with what he said and did during the relevant period. A person’s state of mind, especially his then intention, can generally be inferred from what he said and did at the relevant time. In Mr Lewis’ case, some of that is disputed. Some has been recorded and is not in dispute. Resolving disputed questions of what he said and did will depend in turn on other circumstantial evidence, if I am prepared to accept it, and whether that circumstantial evidence renders it more probable than not that he said or did what he claims. Inferences can then be drawn as to his state of mind, and an assessment made as to whether his evidence supports those inferences.
13.2 Mr Lewis’ character and background

I accept that explanation. There is nothing in his words or conduct at that time from which any malice in the relevant sense or dishonest belief in the content of the publications could be inferred. His remarks were not directed in any malicious sense to Mr Featherston but by way of emphatic protection of his own position, albeit with the motive of causing political damage to his opponent. Accordingly, Mr Lewis succeeds on the defence of qualified privilege. The statements complained of on this topic did not constitute defamation of Mr Featherston.
17.7 The newcomer complaints – Newspaper advertisements
The petitioner complains that the newcomer complaints, by way of innuendo, meant and were understood to mean that Mr Featherston was opportunistically seeking election in an electorate to which, or in which he had no genuine commitment or involvement, and that he was in some way misleading the electorate by describing himself as “local”.
The only relevant statement published in the Border Times advertisement and the Southern Argus advertisement was that “another candidate with real designs on this seat has only just got their name on the Electoral Roll here about 3 months ago! – in time for the Federal election”. That was the statement made immediately following a statement that Mr Lewis had “been here for well over 20 years”. I am prepared to accept that the only other candidate who could have had “real designs” on the seat of Hammond was Mr Featherston, and that he was therefore sufficiently identified as the person concerned.
The statement which follows is true. There is no reference to Mr Featherston not being a “local” candidate. There is no special knowledge of which I am aware which would give rise to any particular innuendo, and certainly not the innuendo alleged in the petition, namely that Mr Featherston had perpetrated a deliberate untruth in allowing himself to be described as “local” and a “local Liberal candidate”. One of two possible imputations could be drawn from the statement. One is that Mr Featherston had been a resident of the district for some time but that, in breach of s 32 of the Act and s 101 of of the Commonwealth Electoral Act 1918, he had failed to enrol within 21 days of becoming entitled to be enrolled, namely after having his principal residence at an address in the district for a period of one month. The other possible imputation is that he had only shortly before that time become qualified to be enrolled in the electoral district by changing his principal residence to an address within the district. However, there is nothing to suggest that Mr Featherston was other than a law abiding citizen and that he would not comply with his legal obligation to enrol in the district within 21 days of his becoming entitled to do so. The most likely imputation, therefore, is that he had only recently become entitled to be enrolled.
As I have found that Mr Featherston’s change of principal residence took place during the second half of 2001, the imputation that he had only recently changed his principal place of residence to an address in the district was also true. However, justification is not pleaded by Mr Lewis. If the finding is not open or is wrong, the occasion of publication was clearly one of qualified privilege of the type previously discussed. The evidence indicates that it was to Mr Lewis’ political advantage and within the bounds of that privilege to draw attention attention to the fact which might suggest only a recent commitment to the electoral district on the part of his main opponent. There is no evidence of malice. Accordingly, I find that the allegations of defamation contained in the Border Times advertisement and the Southern Argus advertisement are not made out.
17.8 The newcomer complaints – How-to-vote cards
The statement on the reverse of the photocopied how-to-vote cards is different. The relevant statement was:
“And by the way Mr Featherston, come clean! People in glass houses shouldn’t throw stones.
What is ‘local’ Mr Featherston? Admit it, you only enrolled in Hammond in time for the Federal Election a couple of months before Christmas.”
The question in that quotation clearly related to the description in the Liberal Party Lewis pamphlet of Mr Featherston as being “your local Liberal candidate”. I accept that in that context the words in their natural and ordinary meaning, meant and were understood to mean that Mr Featherston had no genuine commitment to or involvement in the electoral district and that he was opportunistically seeking election in a district with which he had had only a very recent connection. In fact, although his permanent residence might have been relatively recent, he had owned property and had conducted a business in the electoral district since late in 1998. He had become involved in various organizations in the district at least since his pre-selection by the Liberal Party in October 2000, if not before. In those circumstances, I find that the words used were defamatory of Mr Featherston.
For reasons which I have previously mentioned, publication of the photocopied how-to-vote cards was also an occasion of qualified privilege. The evidence before me suggests that, particularly in rural electorates, the length of association with and involvement in the district can be a significant influence in the way some electors cast their votes. All other things being equal, a non-resident or a relative newcomer will be at a disadvantage compared with a person who has lived in the district for a long time and who is perceived as knowing the needs of the electorate. I have no doubt that it was to Mr Lewis’ political advantage to denigrate Mr Featherston’s claims to being a “local” candidate, especially when compared with his own. In the circumstances of a hard fought election campaign, such criticism cannot be regarded as improper. There is no other evidence to suggest that it was malicious in such a sense as to destroy the qualified privilege which attached to the making of the statement. I find that this allegation of defamation is not made out either.
17.9 The alleged defamation – Conclusion
It is not necessary to consider whether, if there was defamation of Mr Featherston, it affected the result of the election. I merely note that that element would have presented some difficulty to the petitioner, given especially that Mr Lewis’ margin was 822 votes out of a total of 19,588 valid votes cast. The two political analysts called were unable to say that the alleged defamations, if they were such, would have effected the result. There was no other evidence to suggest that that was the case.
The petitioner has failed to prove that he has been the subject of an actionable defamation, and accordingly paragraphs 20 – 22 of the petition are not made out.
18. Application of the Common Law Test
It is not just misleading and inaccurate or defamatory statements by a candidate that may be grounds for avoiding an election. Any material published of a candidate, whether with or without his or her approval, may suffice in appropriate circumstances to avoid an election if the common law test can be met, namely that by reason of the material, whatever it is, and in the circumstances in which it is published, it can be shown that the electors did not in fact have a fair and free opportunity of electing the candidate which the majority might prefer, or if a majority of electors may have been effectively prevented from voting by reason of the material: see Featherston v Tully (supra) and the cases discussed therein. It is therefore necessary to examine the material actually published about Mr Lewis’ position, whether true or false, and his statements about Mr Featherston and the Liberal Party, whether defamatory or otherwise, to ascertain whether the common law test can be met by the petitioner.
A feature of the common law test and of the cases decided on the application of those principles is that in no case is it necessary to inquire whether the election result would have been different if the avoiding event had not occurred. The Court does not conduct an inquiry to ascertain how those persons who were unable to vote or whose vote was irregularly cast would have voted if they had been able to exercise their vote without restraint. What the result would have been is irrelevant. All that matters to avoid the election is a sufficient number was prevented in the relevant sense from freely casting a vote.
Reference to the candidate that the majority might prefer does not mean that the Court must in some way devine which of two more candidates the electors would in fact have preferred if they had not been so prevented. It does not require the Court to determine, if the relevant circumstances had not occurred, how the electors would have voted and whether the majority would have preferred the candidate declared elected or someone else. In most cases, that will be an impossible exercise without asking sufficient people affected to breach the secrecy of the ballot box – a problem to which Williams J referred in Featherston v Tully (supra) at [17] – [18]. What the test does require, if the election is to be declared void, is satisfaction on the part of the Court that sufficient electors were in fact prevented or that there are reasonable grounds to believe that a majority may have been prevented from expressing their preference, whatever it might be. The principle expressed in the common law in the case of (say) an advertised polling booth not being open so that a group of electors were unable to vote does not require the Court to inquire how those disenfranchised electors would have voted if they had the opportunity, and then to decide whether the candidate declared elected should have been.
There must be something inherent in the disqualifying event itself from which it can be said that electors were prevented from voting or that their will was in someway overborne. It is sufficient to declare the election void that they were not able to vote at all and that they are of sufficient number that the Court can say that the majority of electors was deprived of the opportunity to elect the candidate of their choice.
The same may be said whenever batches of votes are not counted or the contents of ballot boxes are destroyed by corrupt officials or by misadventure. The cases make it clear that the same result will ensue where a sufficient number of electors has been intimidated or bribed to vote in a particular way. In those cases their will has been overborne or bought so that they have not had the opportunity to vote freely for their preferred candidate. No inquiry is necessary as to how they would have voted had they been free to do so, or whether the result would have been different.
However, where the offending event is such that the will of the voter is not overborne in that sense, where the voters still have and can be seen to have had the opportunity to exercise a genuine choice between candidates – in this case whether they express a first or subsequent preference for a candidate endorsed by a political party or for an independent candidate – then the Court will not declare the election void at common law.
There may be a fine line to be drawn between, on the one hand, conduct which overbears the exercise of freewill to such a degree that, regardless of what the genuine choice of the voter may be, the vote, and hence possibly the election, will be considered to be invalid and, on the other hand, conduct which may affect the political judgment of the voter, but which does not so overbear the will of the voter but which leaves him or her with a free if misguided choice. The law is no stranger to drawing such lines. Undue influence sufficient to set aside a contract or disposition of property is one example. Unconscionability and duress are others. In Bridge v Bowen (1916) 21 CLR 582 at 618, Isaacs J by reference to Woodward v Sarsons (1875) LR 10 CP 733 identified another example of how a line might have to be drawn in cases of official errors. He said:
“If the error was a departure, however small, from a rigid mandatory enactment, so that the vote could not be counted, there would have been a prevention as to the votes affected; but if the departure is from a rule which requires only substantial and not strict compliance, and there is no substantial compliance, there is no prevention.”
In cases of undue influence, unconscionability, duress and the like, the Court does not inquire whether, absent to the vitiating factor, the person would nevertheless have proceeded with the transaction. So it is with the standard of conduct necessary to vitiate an election at common law. It will not be necessary to inquire into what the outcome would have been if the vitiating conduct did not occur.
At this point it is useful to contrast the common law position with the present statutory requirement contained in s 107(3) of the Act and the one statutory ground for avoiding an election contained in s 107(4). Those sub-sections provide:
“(3)   An election will not be declared void on the ground of –
(a)    a defect in a roll or certified list of electors; or
(b)    an irregularity in, or affecting, the conduct of the election,
unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the defect or irregularity.
(4)An election may be declared void on the ground of the defamation of a candidate but only if the Court of Disputed Returns is satisfied, on the balance of probabilities, that the result of the election was affected by the defamation.”
These sub-sections require proof, on the balance of probabilities, that the result of the election was affected by the irregularity or the defamation as the case may be. That does require some assessment of how voters would have voted in the absence of the offending irregularity or defamation. However, that is not the common law. As we have seen, it was not necessary to address the question in respect of the alleged defamations in this case.
The question in this case is whether, either individually or taken together, the statements published of Mr Lewis and of Mr Featherston and the Liberal Party were such as to prevent the required number of electors from exercising their opportunity to vote freely for the candidate of their choice.
It cannot be said that inaccurate, misleading or defamatory statements, if such they were, of the type in evidence in this case and in the circumstances in which they were published, were such as to overbear the will of the electorate in the relevant sense, such as to require the election to be declared void. Reduced to its essentials, the argument of the petitioner must be that because of the misleading, inaccurate and defamatory statements, a relevant majority were prevented from freely exercising their vote. They all completed ballot papers. All the ballot papers, unless informal, were counted. In order to succeed, the petitioner has to say, as he attempted to say in this case, that without that influence, on the balance of probabilities, the result would have been different. For reasons I have explained, that is not a relevant inquiry.
If it is not a relevant inquiry, how can it be said that the election was corrupted by electors being unable to vote or unable properly to express their preference? There was no question about their ability to vote in the sense of their being able to complete and lodge a formal ballot paper. There was no question of their being able to vote for the candidate of their choice. If they wanted to ensure the return of the endorsed Liberal Party candidate, they were able to vote No. 1 for Mr Featherston. If they wanted to vote for another candidate and, in the event that their preferred candidate was excluded, to give their second preference to Mr Featherston, they were free to do so. If they wanted to vote for an independent because he was an independent who said that he would not support the formation of a Labor government or because they believed his disparaging remarks about his opponent, and because they trusted in what he said, they were able to do that and to choose not to vote for or to give preference to Mr Featherston. The fact that their trust in Mr Lewis may have been misplaced does not avoid the election. If Mr Lewis did abuse the confidence that the electors had in him, he will no doubt reap the reward if he is a candidate at the next election.
There are sound policy reasons also for the view I have taken of the application of the common law to this type of allegedly misleading statement. If the position were otherwise, it would open up the possibility of endless challenges and the continuing uncertainty in any election where the winning margin was close and where some allegedly misleading statement, however insignificant, had been made by one of the candidates. If that occurred in a number of seats in the context of a close general election, the system of government would be paralysed while various challenges to the accuracy of what an aspiring politician had said were mounted, and the effect of such statements on the electorate were analysed.
It does not follow, as counsel for the petitioner submitted, that the conclusion I have reached has been precluded by what the Full Court said in Featherston v Tully (supra). The only questions relevant to this topic answered by the Full Court related to the jurisdiction of the Court to determine the issues raised in the relevant paragraphs. It did so in such a way as to present what I would have thought was a substantial obstacle to the petitioner’s case. It did not foreclose the petitioner’s case. It was only concerned with the jurisdiction of the Court. The high standard of proof required by the common law was identified as being the appropriate standard because the Court was not prepared to accept the primary submissions of either party based on what was said to be the proper interpretation of the Act.
It does follow, however, that the extensive evidence called by both the petitioner and the intervener from political commentators - Associate Professor Mackerras for the petitioner and Mr Green for the intervener – was largely irrelevant, save in the sense of interpreting past voting trends, in providing evidence of what had happened in certain types of analytical situations and in providing useful background material against which the issues in the case fell to be determined.
In any event, I found Professor Mackerras’ evidence most unsatisfactory for three reasons. First, he did not display that degree of independence and detachment that is essential in an expert witness if his opinions are to be respected and accepted by the Court. He had been made aware of the relevant parts of one of the relevant Practice Directions of the Supreme Court regarding his duty to the Court not to be an advocate for a party, and that his paramount duty is to the Court and not to the person retaining him. Yet in his written report and his oral evidence he was making his own observations as to Mr Lewis’ veracity and what he considered to be Mr Lewis’ true political allegiance, referring to such matters as “the misunderstanding by electors as to the true political allegiances of Peter Lewis”. All such comments were volunteered before he was asked to make certain assumptions by those instructing him. I found his evidence to be partisan and for that reason unreliable.
Secondly, Professor Mackerras’ thesis was based largely on historical twoparty preferred voting statistics published after elections by the Electoral Commissioner and on Professor Mackerras’ assumption that all voters in Hammond were voting for a government of one particular persuasion or another and not for an individual. His two party preferred analysis could offer little assistance as to voters’ intentions where once there was introduced the significant factor of an independent who had represented the electoral district for 23 years and who obviously commanded substantial personal support. The assumptions behind the two party preferred model, namely that every voter in that district expressed an ultimate preference for one or other of the major parties as a preferred government, and that Mr Lewis must be effectively portrayed as a Labor candidate, cease to be valid when that element is introduced.

Finally, and this comment applies also to Mr Green, the expert called for the intervener, on the points which then appeared to matter, namely the effect on the electorate of the various published statements of Mr Lewis, Professor Mackerras was not shown to have any relevant expertise to qualify him to express an expert opinion. The views expressed on quite crucial issues were ultimately matters of instinct. Professor Mackerras was forced to concede that he did not know how many voters had voted for Mr Lewis for a particular reason. His opinion became even more unreliable when it could not be known how many electors had heard or seen any of the replies to the Liberal Party Lewis pamphlet or even how many had seen the first Advertiser article or indeed anything that might have qualified it. Therefore, the ability to be able to say that voters voted in a particular way because of those statements, given all the other competing influences commanding the voters’ attention and the complexity of different factors influencing their ultimate decision, was not shown to have any acceptable foundation.
19. Conclusion
For these reasons I decline to grant any of the relief sought by the petitioner. The petition is dismissed. I will hear counsel as to the costs of the petition including the costs of the case stated.

[2002] SASC 338

10 October 2002