Garbett v Liu

Case [2019] FCAFC 241

FEDERAL COURT OF AUSTRALIA

SITTING AS THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 354(1) OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH).

Garbett v Liu [2019] FCAFC 241

File numbers: VID 1018 of 2019
VID 1019 of 2019
Judges: ALLSOP CJ, GREENWOOD AND BESANKO JJ
Date of judgment: 24 December 2019
Catchwords:

COURT OF DISPUTED RETURNS – electoral petitions filed – s 329(1) of the Commonwealth Electoral Act 1918 (Cth) – whether corflutes used likely to mislead or deceive an elector in relation to the casting of a vote – s 362(3) of the Commonwealth Electoral Act 1918 (Cth) – whether Court satisfied that the result of the election was likely to be affected

STATUTORY INTERPRETATION – meaning of “likely to mislead or deceive” – “an elector” – “in relation to the casting of a vote” – “cause, permit or authorize” – “the result of the election was likely to be affected”
Legislation:

Commonwealth Electoral Act 1902 (Cth), ss 173, 197, 200

Commonwealth Electoral Act 1905 (Cth), ss 197, 198A, 200

Commonwealth Electoral Act 1911 (Cth), ss 180, 182, 197, 198A, 200

Commonwealth Electoral Act 1918 (Cth) as made, ss 161, 170, 189, 191, 194

Commonwealth Electoral Act 1918 (Cth) as in force, ss 329, 353, 354, 357, 358, 360, 362, 363, 363A, 364, 365

Commonwealth Electoral Act 1922 (Cth), ss 161, 170, 189, 191, 194

Commonwealth Electoral Legislation Amendment Act 1983 (Cth)

Electoral and Referendum Amendment Act1984 (Cth)

Trade Practices Act 1974 (Cth)
Cases cited:

Adelaide Corporation v Australian Performing Right Association Ltd (1928) 40 CLR 481

Australian Electoral Commission v Johnston [2014] HCA 5; 251 CLR 463

Australian Electoral Commission v Lalara (1994) 53 FCR 156

Australian Electoral Commission v Towney (1994) 51 FCR 250

Australian Securities and Investments Commission v Whitebox Trading Pty Ltd (2017) 251 FCR 448

Blatch v Archer (1774) 1 Cowp 63; 98 ER 963

Blundell v Vardon (1907) 4 CLR 1463

Bridge v Bowen (1916) 21 CLR 582

Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; 202 CLR 45

Chanter v Blackwood (1904) 1 CLR 39

Chanter v Blackwood (No 2) (1904) 1 CLR 121

Crafter v Webster (No 2) (1980) 23 SASR 321

Crouch v Ozanne [1910] HCA 49; 12 CLR 539

Evans v Crichton-Browne (1981) 147 CLR 169

Faulkner v Elliot [2010] FCA 884; 188 FCR 373

Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82

Goss v Swan [1994] 1 Qd R 40

Green v Bradbury [2011] FCA 71; 191 FCR 417

Hirsch v Phillips (1904) 1 CLR 132

Hudson v Lee (1993) 115 ALR 343

Jones v Dunkel (1959) 101 CLR 298

Kean v Kerby (1920) 27 CLR 449

Kelly v Campbell [2002] FCA 1125

Liberal Party of Australia (Victorian Division) v Rae [2019] VSCA 13

Minnikin v Chrisholm [2015] QSC 18

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191

Peebles v Burke [2010] FCA 838; 216 FCR 387

Scott-Irving…

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Details
AGLC
Garbett v Liu [2019] FCAFC 241
Case
[2019] FCAFC 241
Decision Date

CaseChat Overview and Summary

In Garbett v Liu, the Court of Disputed Returns considered a petition challenging the validity of the election results of two members of the House of Representatives. The petitioners, Mr. and Mrs. Garbett, alleged that the election of Ms. Liu and Mr. Frydenberg was affected by illegal practices, specifically the use of corflutes that may have misled Chinese-speaking voters in the electorates of Chisholm and Kooyong. The central legal issue was whether the corflutes, which purported to be issued by the Australian Electoral Commission, were likely to mislead or deceive an elector in relation to the casting of a vote, and if the result of the election was likely to be affected by such conduct.

The Court examined the meaning of the phrase "likely to mislead or deceive" within the context of Section 329(1) of the Commonwealth Electoral Act 1918 (Cth). The Court held that the provision was concerned with the recording or expression of an elector's political judgment rather than the formation of that judgment. This interpretation was consistent with the importance of protecting the expression of choice by electors. The Court concluded that while the corflutes were likely to have misled some voters, particularly those who could read Chinese and were influenced by their proximity to AEC signage, the number of affected voters was likely to be very small. Consequently, the Court found that the election results for Ms. Liu and Mr. Frydenberg were not likely to be affected by the illegal practices.

The Court dismissed the petition but allowed Mr. Simon Frost, who was involved in the distribution of the corflutes, to file submissions regarding the notification of the High Court about the illegal practices. Additionally, the Court directed the parties to submit written costs submissions.

Orders

Orders of the court

1. Subject to orders 2 and 3 below, the petition be dismissed.

2. Mr Simon Frost have leave to file and serve on or before 7 February 2020 any submissions as to why the Court should not direct the Chief Executive and Principal Registrar of the Federal Court of Australia to inform the Chief Executive and Principal Registrar of the High Court of Australia of the finding of the committal of an illegal practice under s 329(1) of the Commonwealth Electoral Act 1918 (Cth) by Mr Frost at least in respect of the characterisation of the corflutes as discussed in [153] in the reasons published today in order that there be compliance with s 363 of the Commonwealth Electoral Act.

3. On or before 7 February 2020, the parties file written submissions on costs of no more than 3 pages.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

1. Subject to orders 2 and 3 below, the petition be dismissed.

2. Mr Simon Frost have leave to file and serve on or before 7 February 2020 any submissions as to why the Court should not direct the Chief Executive and Principal Registrar of the Federal Court of Australia to inform the Chief Executive and Principal Registrar of the High Court of Australia of the finding of the committal of an illegal practice under s 329(1) of the Commonwealth Electoral Act 1918 (Cth) by Mr Frost at least in respect of the characterisation of the corflutes as discussed in [153] in the reasons published today in order that there be compliance with s 363 of the Commonwealth Electoral Act.

3. On or before 7 February 2020, the parties file written submissions on costs of no more than 3 pages.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The distinction was further explained at 147 CLR 207-208, as follows:With all respect to the arguments presented on behalf of the petitioners, we can see nothing in the context provided by the Act as a whole, or in the general considerations of policy upon which the petitioners relied, which warrants a departure from the natural meaning of the words of par. (e), which, we hold, refer to the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment. It would no doubt be too narrow to regard the casting of the vote as the mere act of putting the paper in the ballot-box the words would appear to refer to the whole process of obtaining and marking the paper and depositing it in the ballotbox. However, the words clearly do not refer to the whole conduct of the election, which begins before and ends after the votes are cast.(Emphasis added.) That distinction has been recognised consistently as applicable in the context of s 329: Webster v Deahm (1993) 116 ALR 223 at 227-228; 67 ALJR 781 at 784; Peebles v Burke [2010] FCA 838; 216 FCR 387 at 390 [10]; and Faulkner v Elliot [2010] FCA 884; 188 FCR 373 at 375-377 [13]-[15]. The application of that distinction to the facts here may not be self-evident, but in our view is ultimately clear. The distinction is one between the formation of the political or voting judgment of the elector, and its recording or expression. As shall be seen below in discussing the terms of the petitions and the evidence (see in particular [144], [152] and [153] below), the petitioners seek to fall within the purview of the provision by focusing on what they say was the misleading statement that the only way to cast or record a valid vote was to vote for the Liberal Party or that the official instruction of the AEC was to cast or record a vote for the Liberal Party. Each of these ways of putting the case may be seen not to be a complaint about the formation of any political or voting judgment by the elector, but about directing electors in a misleading way as to how to cast their votes. As will be seen in the discussion of the history of the forerunners to s 329(1), this kind of misrepresentation was described in 1911 in Parliament (correctly in our view) as “palpable” (see [77] below), and directed to the casting of the vote.Section 329(1): “likely to mislead or deceive” The constraining effect of the phrase “in relation to the casting of a vote” is relevant to the meaning of the whole provision. The meaning of “likely to mislead or deceive” is to be taken from the whole section, its place in the Act and from the enactment and re-enactment history, and the wider context of that. Relevant to the approach of the Court in Crichton-Browne was the necessity for robust, free and uninhibited debate in the political sphere. It is a large step (although it was briefly taken in 1983 for one year: see [89] below) to constrain political discourse and argumentation by prohibiting misleading statements or conduct in that discourse. That step was taken in trade and commerce. But the field of contest in politics is broader and more apt to a width of debate where differences of views as to what is misleading or deceptive, in particular among political partisans or between opponents, may move into questions that are scarcely justiciable: cf the point made in argument by Mr Gleeson QC in Crichton-Browne 147 CLR at 197. The protection of the casting of the vote, however, is the protection of the expression or recording of the political judgment of the elector. Such can be seen as of great importance: Smith v Oldham (1912) 15 CLR 355 at 362. This distinction and the importance of the protection of the expression of choice of the elector tends in favour of the proposition that the word “likely” in s 329(1) is not limited to what is more probable than not.

Ratio Decidendi

Legal Principle Established

There is also no basis to find either Ms Liu or Mr Frydenberg were accessorially liable for Mr Frost’s conduct, a submission briefly made by the applicant in their written submissions but not pursued at the hearing.The operation of s 362(3) Our conclusions concerning the contravention of s 329(1) by Mr Frost engage the power under s 360, including the power to declare a person who was returned as elected was not duly elected or declare an election void. Section 362(3) can be seen as regulating or confining that power: Hudson v Lee 115 ALR at 345, or as regulating or constraining the exercise of the power. The answer to the question whether the election of Ms Liu or Mr Frydenberg was likely to be affected begins with the margin of victory of each. Ms Liu won the two candidate preferred result by a margin of 1090 votes. Thus, for the result to have been affected in Chisholm it would need to be found that at least 546 electors who voted 1 for Ms Liu would not have so voted but would have voted 1 for Ms Yang or for another candidate and directed their preference to Ms Yang. Mr Frydenberg’s margin was 11,287 over Mr Burnside. Thus for the result to have been affected, a conclusion would be required that 5,644 electors voted for Mr Frydenberg who would not have so voted but would have voted for Mr Burnside or for another candidate and directed their preferences to Mr Burnside. What must be assessed is not what would have happened but whether the result was likely to be affected, that is that it has been shown that there was a real chance that the result was affected. The parties’ submissions pored over statistics from the census and from the counts of formal votes, including the formal Liberal Party first preferences cast at the booths in Chisholm and Kooyong. Any accurate assessment as to voting and the possible influence of the corflutes would require, as a first step, comprehensive evidence of the display of the corflutes in all relevant polling places. We have earlier made such findings as can be made in this regard (see [127]-[136]: that two versions were sent to each polling place in both Chisholm and Kooyong); and that they were displayed adjacent to AEC signage in at least 16 and probably more polling places in Chisholm and in at least 11 and probably more polling places in Kooyong. It is fruitless to attempt to be too precise. It is sufficient to find that there were a not insignificant number of electors who could read Chinese, that there were polling places where the context of the placement of the corflutes made them misleading, and that some people may well have felt that they should follow the direction on the corflute. But in our view, even if the display of the corflutes next to the AEC signage was far more widespread in both electorates than the evidence reveals, it could only have been a very small group of people who would have felt that they should follow the direction on the corflute. A number of factors lead us to that conclusion. First, away from the proximity to an AEC banner there was nothing misleading or deceptive. Secondly, electors are (subject to s 93(1)(b)(ii)) citizens, and over 18. It is very difficult (which is to understate the matter) to see Australians, whether of Chinese heritage or not, feeling compelled to vote for a candidate because they were instructed or encouraged to do so by the AEC. That said, the deliberateness of the attempt to make the sign look like an AEC sign by someone in Mr Frost’s position bespeaks a view of someone with experience in political campaigning that there was some advantage in doing so. The submissions of the first respondent that no one would have placed weight on the message as sourced from the AEC and that it would have been “scandalous and bizarre” for the AEC actually to have displayed the corflute, must contend with Mr Frost’s actual intention to make the corflute look like an AEC sign. The submission may assist if understood as one that few, if any, people would have been persuaded or felt directed to vote in a particular way by the corflute. The answer may be (though it does little credit to Mr Frost) that even a tiny handful of votes of the gullible or naïve or unintelligent might been important if it were to be a close election.