Hanna v Sibbons - [2010] SASC 291

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Electoral Petition)
HANNA v SIBBONS & ANOR
[2010] SASC 291
Judgment of The Honourable Justice Vanstone
15 October 2010
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - ELECTORAL ADVERTISING
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS - PETITION
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - GENERAL MATTERS - PRIVILEGES - PRIVILEGE OF PARLIAMENTARY DEBATES AND PROCEEDINGS - STATES
Petitioner unsuccessful candidate for the House of Assembly District of Mitchell - challenged validity of election - whether certain leaflets constituted misleading advertising within the meaning of s 107(5) of the Electoral Act - whether leaflets and poster were defamatory of the petitioner - whether common law or statutory defences to defamation available - whether the result of the election was affected by misleading advertising or defamation - consideration of parliamentary privilege - petition dismissed.
Constitution Act 1934 (SA) s 9, s 38; Defamation Act 2005 (SA) s 28, s 29(1), s 29(4), s 29(5); Electoral Act 1985 (SA) s 105, s 107(4), s 107(5), s 113, s 113(2); Parliamentary Privileges Act 1987 (Cth) s 16(3); Trade Practices Act 1974 (Cth) s 52; Bill of Rights 1689 (UK) Art 9, referred to.
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; Featherston v Tully (No 2) (2002) 83 SASR 347; Roberts v Bass (2002) 212 CLR 1; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Wright and Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416; R v Murphy (1986) 5 NSWLR 18; Prebble v Television New Zealand Ltd [1995] 1 AC 321; Rann v Olsen (2000) 76 SASR 450, discussed.
Sim v Stretch [1936] 2 All ER 1237; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Braddock v Bevins [1948] 1 KB 580; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; Lucas Box v News Group Newspapers Ltd [1986] 1 WLR 147; Polly Peck (Holding) Plc v Trelford [1986] QB 1000, considered.

HANNA v SIBBONS & ANOR
[2010] SASC 291
Court of Disputed Returns

VANSTONE J: The petitioner, Kris Hanna, was a candidate at the South Australian parliamentary election held on 20 March 2010. He stood for the seat of Mitchell. The election was called by writ issued on 20 February 2010. The writ was returnable by 30 April 2010.
There were five candidates for election as Member of the House of Assembly for Mitchell. They were Peta McCance, Jeremy Miller, Colin Gibson, Alan Sibbons (the first respondent) and Kris Hanna (the petitioner). Prior to the issue of the writ the petitioner had been the Member for Mitchell. Indeed he had held that seat since 1997, most recently as an independent. The first respondent is the candidate endorsed by the Australian Labor Party, who was successful in winning the seat.
A total of 22,244 formal votes were processed. No candidate received an absolute majority of first preference votes. After the distribution of preferences to the point of three candidates remaining, Mr Sibbons (Labor) had 8,275 votes, Ms McCance (Liberal) had 7,091 votes, and Mr Hanna had 6,878 votes. Thus he was eliminated, having 213 fewer votes than Ms McCance. Two hundred and thirteen votes represented 0.00957 of the voters, or just under one per cent. Material from the Electoral Commissioner shows that had Mr Hanna survived at that point, he would have gone on to win the seat, as Liberal preferences sharply favoured him. In that event, he would have finished with 56.2 per cent of the vote.
The petition is issued pursuant to Part 12, Division 2 of the Electoral Act 1985 (SA) (the Act). Pursuant to s 105 of the Act, the respondents to a petition are the Electoral Commissioner and the successful candidate. The Electoral Commissioner, Ms Mousley, was represented before me by Ms Seal of the Crown Solicitor’s Office. Ms Seal also appeared to make submissions in relation to the issue of parliamentary privilege on behalf of the Speaker of the House of Assembly, who was granted leave to intervene for that purpose. The successful candidate, Mr Sibbons, was represented by Mr Stanley QC and Mr Doyle. The petitioner was initially represented by Mr Walsh QC with Mr Ower, but later, only by Mr Ower.
The petitioner claims relief in the form of:
1.A declaration that the First Respondent was not duly elected as a Member of the House of Assembly for the electoral district of Mitchell.
2.A declaration that the election for the Member of the House of Assembly for the electoral district of Mitchell held on 20 March 2010 was void.
3.An order that a new election for the Member of the House of Assembly for the electoral district of Mitchell be held.
The petitioner asserts that the result of the election for the seat of Mitchell was affected by four leaflets (referred to as leaflets A, B, C and D), which were distributed within the electorate prior to the election, and by a large poster displayed on the day of the election at all but one of the polling booths in the electorate. Each of the four leaflets is said to have constituted misleading advertising, and the leaflets and the poster are said to have been defamatory of the petitioner. Evidence before me indicates that each of leaflets A and B were distributed to approximately 13,000 households during periods within the six weeks or so leading up to the election. Leaflet C was sent to approximately 4,000 households three days prior to the election. Leaflet D was sent to 13,000 households in the five days leading up to the election, and leaflet A was sent on a second occasion, the day before the election, to approximately 16,000 households.
In general terms, it was asserted in the leaflets that the petitioner had “failed on” or that his record was “soft on” crime, hoons and drugs. The leaflets quoted parts of sentences from parliamentary speeches made by the petitioner in support of these assertions. The leaflets tended to contrast the tenor of statements made by the petitioner with a longstanding Labor government pitch of being “tough on crime”.
The leaflets
The leaflets read as follows:
Leaflet A
KRIS HANNA HAS FAILED ON CRIME
KRIS HANNA’S RECORD IS SOFT ON CRIME
ÎKris Hanna opposed laws to increase prison terms for violent offences
He said the law was ‘objectionable’ and ‘… that appeal to the uninformed gut reactions of people in the community is odious’ Statutes Amendment and Repeal (Aggravated Offences) Bill Hansard 3 May 2004
ÎKris Hanna criticised the Rann Government’s refusal to release notorious killers on parole
He said doing so was to ‘rip all that paperwork up and make an arbitrary decision’ against the recommendations of the Parole Board Address in Reply Hansard 24 September 2008
ÎKris Hanna criticised laws to increase penalties for serial young offenders
In Parliament he said the Government’s approach was ‘just plain stupid’ Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Bill Hansard 10 September 2009
ÎKris Hanna slammed a law to prevent criminals profiting from selling their story
In Parliament he called it ‘odious’ and ‘shameful’ Criminal Assets Confiscation (Serious Offences) Amendment Bill Hansard 6 June 2007
ÎKris Hanna opposed a new law allowing police to confiscate the assets of criminals
On TV he defended one man who had around 80 marijuana plants: ‘… these people aren’t drug lords … they’re mums and dads in a suburban setting …’ Stateline ABC TV 18 September 2009
Î Kris Hanna attacked laws to outlaw carrying knives near pubs and clubs as a ‘stunt’ Summary Offences (Offensive Weapons) Amendment BillHansard 23 Sep 2003
SAY NO TO BEING SOFT ON CRIME – SAY NO TO KRIS HANNA
Leaflet B
INDEPENDENT MP KRIS HANNA HAS FAILED ON CRIME
KRIS HANNA’S RECORD IS SOFT ON CRIME
ÎKris Hanna opposed laws to increase prison terms for violent offences
He said the law was ‘objectionable’ and ‘… that appeal to the uninformed gut reactions of people in the community is odious’
Statutes Amendment and Repeal (Aggravated Offences) Bill Hansard 3 May 2004
ÎKris Hanna criticised the Rann Government’s refusal to release notorious killers on parole
He said doing so was to ‘rip all that paperwork up and make an arbitrary decision’ against the recommendations of the Parole Board
Address in Reply Hansard 24 September 2008
ÎKris Hanna slammed a law to prevent criminals profiting from selling their story
In Parliament he called it ‘odious’ and ‘shameful’
Criminal Assets Confiscation (Serious Offences) Amendment Bill Hansard 6 June 2007
Do we want an MP who says
‘…that appeal to the uninformed gut reactions
of people in the community is odious’?
Statutes Amendment and Repeal (Aggravated Offences) Bill Hansard 3 May 2004
WE NEED AN MP THAT LISTENS
TO PEOPLE IN THE COMMUNITY
- THAT’S THEIR JOB
SAY NO TO BEING SOFT ON CRIME
SAY NO TO KRIS HANNA
Leaflet C
INDEPENDENT MP KRIS HANNA HAS FAILED ON HOONS
KRIS HANNA’S RECORD IS SOFT ON HOONS
The Rann Labor Government supported new laws to give police the power to seize hoon drivers’ cars.
Kris Hanna slammed these laws and said cars should not be seized on the ‘say-so’ of a police officer.
He wanted the police to have to go to Court first.
How long would that take?
How much hooning might a car be used for while the police wait on the Courts?
Source: Statutes Amendment (Misuse of Motor Vehicles) Bill
House of Assembly Hansard 27 October 2004
SAY NO TO BEING SOFT ON HOONS
SAY NO TO KRIS HANNA
Leaflet D
INDEPENDENT MP KRIS HANNA HAS FAILED ON DRUGS
KRIS HANNA’S RECORD IS SOFT ON DRUGS
ÎKris Hanna said users would need to be able to grow more than one cannabis plant to meet their needs
Legislative Review Committee Report on the Controlled Substances Act 1984 Minority Report 18 February 2004
ÎKris Hanna criticised laws giving police more powers to combat illegal use of hydroponic equipment
The law restricts who can sell hydroponic gear and allows police to enter retail premises to search and obtain records
Hydroponic Industry Control Bill Hansard 23 September 2009
ÎKris Hanna tried to water down laws to ban drug paraphernalia
He moved to amend the law to reduce the types of pipes to be banned
Summary Offences (Drug Paraphernalia) Amendment Bill
Hansard 5 March 2008
SAY NO TO BEING SOFT ON DRUGS
SAY NO TO KRIS HANNA
The poster
The poster simply reads:
KRIS HANNA HAS FAILED ON CRIME
The Petition
The petition runs to some 14 pages. It commences with some general assertions about the election, which are not matters of dispute. Then, each leaflet (labelled for convenience A, B, C and D) is dealt with.
In relation to leaflet A the petition asserted as follows:
9.The leaflet marked “A” represented as a fact, and meant and was understood to mean by the voters in the district, that:
9.1    In Parliament, the Petitioner did not support a proposed law to increase prison terms for violent offences for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.2    In Parliament, the Petitioner stated that he did not support a proposed law to increase prison terms for violent offences for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.3    In Parliament, the Petitioner stated that a proposed law to increase prison terms for violent offences “was objectionable” for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.4    In Parliament, the Petitioner stated, in relation to a proposed law to increase prison terms for violent offences, “that appeal to the uninformed gut reactions of people in the community is odious”.
9.5    In Parliament, the Petitioner criticised the Government’s “refusal to release notorious killers on parole” for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.6    In Parliament, the Petitioner criticised a proposed law to increase penalties for serial young offenders for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.7    In Parliament, the Petitioner described a proposed law to increase penalties for serial young offenders as “just plain stupid” for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.8    In Parliament, the Petitioner did not support a proposed law to prevent criminals profiting from selling their story for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.9    In Parliament, the Petitioner stated that he did not support a proposed law to prevent criminals profiting from selling their story for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.10 In Parliament, the Petitioner described a proposed law to prevent criminals profiting from selling their story as “odious” and “shameful” for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.11 In Parliament, the Petitioner did not support a proposed law allowing police to confiscate the assets of criminals for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.12 In a television interview, the Petitioner defended a person who possessed 80 marijuana plants in respect of the confiscation of his assets.
9.13 In a television interview, the Petitioner defended a person who possessed 80 marijuana plants in respect of the confiscation of his assets for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
9.14 In Parliament, the Petitioner described a proposed law to outlaw carrying knives near pubs and clubs as a “stunt” for reasons that were “soft on crime” (i.e. excessively lenient towards crime or the punishment of crime).
Then the petition put what was asserted to be the actual stated position of the petitioner on these issues, under the heading “Misleading Advertising”:
10. The leaflet marked “A” was misleading, in that:
10.1 In Parliament, the Petitioner stated that he did not support the Statute Amendment and Repeal (Aggravated Offences) Bill and that it was “objectionable” because the law would not have any substantial impact on the crime rate and was being put forward by the Government for political purposes. The Petitioner relies upon his entire statement in Parliament, read in context, in respect of what he said (Hansard, 3 May 2004, pg. 1954).
10.2 In Parliament, the Petitioner stated, in relation to the Statute Amendment and Repeal (Aggravated Offences) Bill, “that part of the bill which increases sentences as a result of that cynical reasoning – that appeal to the uninformed gut reactions of people in the community – is odious”. (Hansard, 3 May 2004, pg. 1954).
10.3 In Parliament, the Petitioner made comments, in relation to the Government’s “refusal to release notorious killers on parole”, to the effect that the Government’s approach to the issue was arbitrary and undertaken by the Government for political purposes. The Petitioner relies upon his entire statement in Parliament, read in context, in respect of what he said (Hansard, 24 September 2008, pg. 210).
10.4 In Parliament, the Petitioner stated that he did not support the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Bill because, in addition to appropriate and strict punishments for repeat offenders, there was a need for rehabilitation services, which the bill did not provide. The Petitioner relies upon his entire statement in Parliament, read in context, in respect of what he said (Hansard, 10 September 2009, pg. 3695).
10.5 In Parliament, the Petitioner stated that he did not support the Criminal Assets Confiscation (Serious Offences) Bill for the reason that it was legislation that was made to target one particular person in circumstances where that person had committed no offence against the laws of South Australia. The Petitioner relies upon his entire statement in Parliament, read in context, in respect of what he said (Hansard, 6 June 2007, pg. 340).
10.6 In the television interview, the Petitioner made the comments in the context of the position of the person’s wife, who had not been convicted of an offence.
10.7 In Parliament, the Petitioner agreed with another member’s description of the Summary Offences (Offensive Weapons) Amendment Bill as a stunt that was not genuinely about crime reduction. The Petitioner relies upon his entire statement in Parliament, read in context, in respect of what he said (Hansard, 23 September 2003, pg. 250).
11.Alternatively, by reason of the matters set out in the subparagraphs to paragraph 10 above, the representations in the leaflet marked “A” set out in paragraph 9 above were statements purporting to be statements of fact that were inaccurate and misleading to a material extent and thereby contravened s 113 of the Electoral Act.
12.By reason of the matters set out in paragraph 10 above, or alternatively the matters set out in paragraph 11 above, the publication of the leaflet marked “A” constituted misleading advertising within the meaning of subs. 107(5) of the Electoral Act.
Next it was asserted in the petition that leaflet A was defamatory.
13.The meanings in the leaflet marked “A” set out in paragraph 9 above were defamatory of the Petitioner.
14.In the premises, the leaflet marked “A” constituted defamation of a candidate within the meaning of subs. 107(4) of the Electoral Act.
The balance of the petition followed a similar format with respect to leaflets B, C and D. It is not necessary to reproduce the rest of the petition.
Having dealt with the four leaflets, the poster, and with the distribution of votes and preferences and declaration of the result, it was pleaded that, but for the alleged misleading advertising, and, in the alternative, the alleged defamation, the petitioner would have been elected.
The petitioner then sought relief in the form of the declarations set out earlier.
Matters to be proved by the petitioner
In order to obtain the relief sought the petitioner was required to satisfy me of the following matters:
1. that one or more of the leaflets (or part of a leaflet) or the poster amounted to misleading advertising within the meaning of s 107(5) of the Act; or
2. that one or more of the leaflets (or part of a leaflet) or the poster was defamatory of the petitioner: s 107(4) of the Act;
and in either case;
3. that the result of the election was affected by the misleading advertising or defamation.
I plan to deal with each of these issues in turn.
Misleading advertising
I take the view that the expression “misleading advertising” in s 107(5) of the Act comprehends material which is misleading as to a question of fact, as opposed to a matter of opinion.
In the succeeding part of the Act appears s 113, which creates the offence of misleading advertising: s 113(2). The offences there created relate to statements of fact only. That is hardly surprising, because it is hard to see how an expression of opinion could mislead. The petitioner did not advance a contrary argument, although he did contend that decisions relating to s 52 of the Trade Practices Act 1974 (Cth) could inform the understanding of the expression “misleading advertising” in s 107(5) of the Act. I do not think it is necessary to go beyond the Act and the plain meaning of words that are in everyday use. I make the further observation that while the Parliament has a clear interest in preventing publication of false statements of fact in electoral advertising, there is no corresponding interest in passing legislation which would in any way inhibit free and vigorous debate about political matters and persons holding, or aspiring to hold, political office.

I turn then to the question “What is claimed by the petitioner to have been misleading?”
It is not suggested that the words attributed to the petitioner, taken from Hansard, were not said by him. Nor is it disputed that he took a particular stance on an issue. What is disputed by the petitioner is the conclusion drawn in the leaflets from his statements and from his stance on certain issues. The leaflets invite the reader to conclude that because he said and did the things set out in the leaflets he is “soft on crime”, hoons or drugs, or that he has “failed on crime”. The petitioner contends that the conclusion asserted in the leaflets is not justified. He says that to correctly interpret what he said and did the whole of, or at least more of, what he said on each occasion needs to be considered.
The respondent suggests that the ordinary and natural characterisation of the leaflet is, in fact, one conveying an opinion or comment branding the petitioner’s reported position as “soft on crime”, hoons or drugs.
In my view this submission has much force. The thrust of each leaflet is the label applied to the petitioner. The reader could think that the words quoted justified the label, or might suspect that the words lacked their proper context. Even provided with the whole of each relevant passage, the reader might not depart from whatever opinion he had formed on the basis of the excerpt. This serves to demonstrate that what the leaflets convey is, in fact, comment or opinion, accompanied by what might be called flimsy support.
In Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 the High Court addressed the common law defence of fair comment. In the context of an action for defamation taken by a forensic pathologist, a television station had broadcast a promotional item for a program which raised questions about a notorious criminal case in which the pathologist had given evidence. The presenter said:
The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.
A picture of the plaintiff was displayed while these words were read. While obviously made in a different context, the Court made some helpful observations about the difference between statements of fact and statements of opinion. Gleeson CJ, who concurred in the result, made this observation about what he called “the conventional case of fair comment” at [4]:
So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else’s opinion (or inference, or evaluation, or judgment). The relationship between the two conditions mentioned in the previous sentence is that a statement is more likely to be recognisable as a statement of opinion if the facts on which it is based are identified or identifiable.
In their judgment, Gummow, Hayne and Heydon JJ made this observation at [35]:
A “discussion or comment” is to be distinguished from “the statement of a fact”. “It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated”. As the passages quoted from Bingham LJ and Jordan CJ above illustrate, the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of “comment” as “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc.”
(footnotes omitted)
The distinction drawn in the judgments between fact and opinion is helpful here. In my view the proper characterisation of the leaflets is as representations or assertions of opinion; a qualitative analysis of the stance of the petitioner with respect to a number of different pieces of legislation or proposed legislation as (arguably) demonstrated by what he said. The way the petition has been drafted tends to obscure but cannot alter that fact.
It will be recalled that the poster simply reads “Kris Hanna has failed on crime”. Here of course no text was presented as justifying the statement. In my view, whether the statement is one of fact or opinion must be determined by reference to the words alone. I think it is clear that the words convey a matter of opinion. Failing on crime cannot be equated to failing an exam or failing to finish a race, both of which intrinsically involve a standard against which performance can be measured. I do not consider that it could be thought to be misleading.
Defamation
With respect to the plea of defamation the petitioner also alleges that the leaflets and the poster convey imputations that the petitioner is “soft on crime”; that he has “failed on crime”; and that he opposed certain pieces of legislation and made certain comments in and out of Parliament for reasons that were “soft on crime”. It is alleged that these imputations were defamatory of the petitioner.
A publication is defamatory if it tends to lower the person in the estimation of right-thinking members of society generally: Sim v Stretch [1936] 2 All ER 1237 at 1240. The word “defamation” is not defined in the Act. Indeed, it only appears in s 107(4). In Featherston v Tully (No 2) (2002) 83 SASR 347 Bleby J stated at [214] that:
“Defamation” as used in the Act has no qualifications at all. In those circumstances, I consider it can only relate to the tort of defamation, incorporating any presumptions and defences that are available at common law.
I respectfully agree with that observation. Therefore, I proceed on the basis that the first respondent is entitled to argue the applicability of the various common law and statutory defences to defamation, including the defences of qualified privilege, honest opinion and fair comment.
The first respondent contends that, as the petition refers to alleged imputations or representations of fact, the petitioner’s case on defamation fails since the statements of fact in the leaflets are not misleading and, to the extent that they characterised the petitioner’s record on crime in a negative light, they are expressions of opinion. In respect of the poster, the respondent contends that the words “Kris Hanna has failed on crime” are to be understood as a statement of opinion.
The publications consist of a mixture of fact and comment. The statements “Kris Hanna has failed on crime”, “Kris Hanna’s record is soft on crime”, “Kris Hanna’s record is soft on hoons”, and “Kris Hanna’s record is soft on drugs” are clearly statements of opinion. The leaflets contain other statements of opinion. There are also statements of fact, statements which the petitioner does not deny making. These statements of fact are used to support the statements of opinion expressed in the leaflets.
It may be that the publications, or parts of them, excite in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the petitioner. However, this is not enough to make the publications defamatory: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 Mason J. The question is whether these statements, the statements of fact or the statements of opinion or a combination of both, are likely to cause an ordinary reasonable member of society to think less of the petitioner.
The Court is not bound by the meanings which either the petitioner or the first respondent seek to place upon the words in the leaflets and the poster: Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at 152. This is because it is the function of the Court to determine the meaning of the words used and whether they are defamatory: Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1021.
The overall imputation conveyed by the leaflets and the poster is that the petitioner should not be a Member of Parliament because of his “record” on crime. That is to say the leaflets and the poster convey the imputation that electors should not vote for the petitioner in the election because he is “soft on crime”. The leaflets also convey imputations that the petitioner did not support particular laws and said certain things because he is “soft on crime”. These imputations are used to support the comment that the petitioner is “soft on crime”, which in turn is used to support the view that the petitioner lacks moral rectitude and is not worthy of being elected as a Member of Parliament.
In my view, these imputations are defamatory. I reach that conclusion on the basis that some members of the community would undoubtedly see labelling someone as “soft on crime” as disparaging and derogatory. However, I am also of the opinion that the first respondent is entitled to rely on the defences of common law and statutory qualified privilege, the statutory defence of honest opinion, and the common law defence of fair comment.
In Roberts v Bass (2002) 212 CLR 1, Gaudron, McHugh and Gummow JJ encapsulated the common law defence of qualified privilege in these terms, at [62]:
The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified – hence the name qualified privilege – by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.
(footnotes omitted)
Reciprocity of duty is essential: Bashford v Information Australia (Newsletters) Pty Limited (2004) 218 CLR 366 at [9] Gleeson CJ, Hayne and Heydon JJ. However, it is clear that electors have an interest in receiving information and opinions about the merits of candidates standing for election: Roberts v Bass at [11] Gleeson CJ. The correlative duty has been described as a duty to electors “to inform them honestly and without malice of any matters which may properly affect their choice in using their suffrages”: Braddock v Bevins [1948] 1 KB 580 at 591 Lord Greene MR; Roberts v Bass at [11] Gleeson CJ. For this reason it is clear that the defence of qualified privilege operates in respect of statements by electors, candidates, and their assistants and helpers published to electors of a state electorate on matters that are relevant to the record and suitability of candidates for the seat in which the material is distributed. This is providing that such matters are relevant to the matters which electors will have to consider in deciding which way to cast their votes. Matters relevant to electors include the record and suitability of candidates for election: Roberts v Bass at [73] Gaudron, McHugh and Gummow JJ. The defence operates in this case, providing the statements were made without malice.
I am satisfied that the first respondent can rely upon the statutory defence of qualified privilege contained in s 28 of the Defamation Act 2005 (SA). Electors have an “interest” in receiving information and opinions about the merits of candidates standing for election, and information about the merits of candidates standing for election is a “subject” for the purposes of s 28(1). The leaflets and poster were published in the course of giving electors information on that subject, and the conduct of the first respondent was reasonable in the circumstances, particularly having regard to the public interest in having an open and informed election campaign where information and opinions about the merits of candidates standing for election can be disseminated freely by other candidates and their helpers amongst the relevant electorate.
There is insufficient evidence of the defendant’s state of mind to support a finding of malice sufficient to defeat the defences of common law and statutory qualified privilege. The petitioner has not proved that an improper motive existed and that this motive was the dominant reason for the publications: Roberts v Bass at [104] Gaudron, McHugh and Gummow JJ. The privilege is only lost if it is used for a purpose other than that for which it is granted. The purpose here is the communicating of information, views and opinions about a candidate for election. The petitioner has not established that the leaflets and poster were published for reasons other than this. The targeting of a candidate for election does not of itself constitute malice, and the vigour of the attack on the candidate’s record and policies, without more, is not evidence of an improper motive: Roberts v Bass at [69] Gaudron, McHugh and Gummow JJ.
I am also satisfied that the first respondent is entitled to rely upon the defence of honest opinion contained in s 29 of the Defamation Act 2005 (SA) in relation to the opinions expressed in the leaflets. Section 29(1) provides that:
(1)     It is a defence to the publication of defamatory matter if the defendant proves that –
(a)     the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b)     the opinion related to a matter of public interest; and
(c)     the opinion is based on proper material.
Importantly, an opinion is based on proper material if it is based on material that was published on an occasion of qualified privilege: s 29(5) of the Defamation Act 2005 (SA). In the context of an election campaign opinions expressed about the performance of Mr Hanna as the sitting Member for Mitchell in the last Parliament are opinions that relate “to a matter of public interest” for the purposes of s 29(1)(b), and the petitioner has not established that those opinions were not honestly held by the first respondent at the time the leaflets and poster were published: s 29(4).
The first respondent can also rely on the common law defence of fair comment. Indeed this could be seen as a classic fair comment case. As I have already noted, the imputations conveyed by the leaflets and the poster are that the petitioner is “soft on crime” and that therefore he should not be a Member of Parliament. The leaflets also convey imputations that the petitioner did not support particular laws and said certain things because he is “soft on crime”. The fact that the petitioner did not support particular laws and that he said certain things are statements of fact. Whether he is therefore “soft on crime” and therefore not fit to be a Member of Parliament are conclusions or comments. The statements of fact are used to support these comments.
In my view, the reader would understand the statements of opinion expressed in the leaflets and the poster as expressions of opinion. The statements of opinion are not so mixed up with the statements of fact that the reader cannot distinguish between what is report and what is comment: Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 at [319] Besanko J. The statements of fact, either as quoted or even in their full context, could tenably be held by a fair minded person to justify the opinions expressed. For that reason, the comments are “objectively fair”. The fact that comments in the publications might be affected by prejudice or exaggeration does not make them unfair: Conservation Council of SA Inc v Chapman at [324] Besanko J. The defence protects honest criticism, however severe: O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 173 Barwick CJ, McTiernan, Menzies and Owen JJ.
The first respondent also argued that he is entitled to rely on the defence of extended qualified privilege. There are two different tests for qualified privilege in the context of political debate. The first is the test for common law qualified privilege. The second is the test for extended qualified privilege formulated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
In Lange v Australian Broadcasting Corporation, the High Court extended the law of qualified privilege to protect publications on governmental and political matters to mass audiences. The Court held that the law of defamation effectively burdened the implied freedom of political communication, and that the defence of qualified privilege did not qualify that burden in a way that was consistent with the freedom of political and governmental matters to the general public. The defence of qualified privilege as traditionally understood did not qualify the burden because the common law did not generally recognise a duty or interest to publish defamatory material to the general public: Lange v Australian Broadcasting Corporation at 570; Roberts v Bass at [67] Gaudron, McHugh and Gummow JJ. The common law, without that privilege, imposed an unreasonable restraint on the constitutional freedom, which necessitated the extension of the defence to cover publications made by the general media to the general public.
The defence of extended qualified privilege is subject to a test of reasonableness. That is to say the publication must be reasonable in all the circumstances of the case for the defence to operate. However, this requirement that the publication be reasonable is only relevant to the defence of extended qualified privilege. It is not relevant to the defence of qualified privilege at common law: Lange v Australian Broadcasting Corporation at 573.
I have found that each of the publications fall within the pre-existing category of common law qualified privilege. Therefore, it is not necessary for me to consider whether the first respondent is entitled to rely on the defence of extended qualified privilege. Nor do I need to decide whether the other defences pleaded by the first respondent, namely justification and contextual truth, are made out on the facts. The petitioner’s plea of defamation necessarily fails.
Notwithstanding my findings to date, I will consider whether the result of the election has been affected. However, before I do so, it is necessary for me to address the issue of parliamentary privilege.
The first respondent submits that the a large number of the allegations in the petition relating to the plea of misleading advertising invite the Court to find that he did not do certain things in Parliament for reasons which were “soft on crime”; he was acting for other reasons. In other words, the petitioner seeks to have his statements placed in context by relying on the whole of what he said in Parliament. The first respondent contends that this directly infringes on parliamentary privilege. Given that I have found that the pamphlets were not misleading, it is not strictly necessary for me to deal with the issue of parliamentary privilege or the first respondent’s contention that the allegations in the petition that he says infringe parliamentary privilege should be struck out.
However, just prior to the commencement of the hearing, senior counsel for the first respondent asked that I state a case to the Full Court on the question of whether the petitioner was precluded from relying on the full text of his parliamentary speeches by the principle of parliamentary privilege. He was supported in that request by counsel for the Speaker of the House of Assembly. On 15 June 2010 I refused the first respondent’s request. I gave brief reasons for doing so at the time. I now provide more detailed reasons.
Parliamentary Privilege
Underlying the first respondent’s request was a recognition that I would otherwise be bound by a decision of the Full Court, namely Wright and Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416, a decision which is now questioned.
Both South Australian Houses of Parliament enjoy the same privileges as those held by the House of Commons as at 24 October 1856: s 9 and s 38 Constitution Act 1934 (SA). Those sections pick up and apply Article 9 of the Bill of Rights 1689, which provides:
That the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place outside of Parliament.

In R v Murphy (1986) 5 NSWLR 18 at 38 Hunt J stated that this meant:
… that no court proceedings (or proceedings of a similar nature) having legal consequences against a member of parliament (or a witness before a parliamentary committee) are permitted which by those legal consequences have the effect of preventing that member (or committee witness) exercising his freedom of speech in parliament (or before a committee) or of punishing him for having done so.
In Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 333-334, the decision in Murphy was criticised as having proceeded on too narrow a view of the ambit of parliamentary privilege.
In Wright v Lewis the plaintiff, Lewis, a Member of the House of Assembly, made an allegation against Wright in Parliament. Wright responded by letter addressed to the second defendant, a newspaper, which was published. In the letter Wright accused Lewis of abusing his parliamentary privilege. Lewis then sued in libel. Wright and the newspaper pleaded justification, qualified privilege and fair comment.
King CJ, with whose reasons White J agreed, observed that parliamentary privilege does not prevent citizens from subjecting the actions and statements of Members of Parliament to criticism. Members of the public should be entitled to call in aid statements made in Parliament by a Member whose conduct they have, on that account, criticised. General expressions of the ambit of parliamentary privilege should not be held to prevent resort to statements in the Houses of Parliament for that purpose. Freedom of speech in the Parliament is the primary value to be protected by parliamentary privilege. To allow a person sued to prove statements made by his accuser in Parliament and to prove the truth of what he himself said outside Parliament would not erode that freedom. King CJ went on to say at 427:
If parliamentary privilege operated to prevent a person, exposed to an action by a member for defamation, from defending himself by proving the truth of his criticism of the statements or conduct of the member, it would indeed be “turned into an abominable instrument of oppression”: Adam v Ward (supra).
In Prebble at 335, the Privy Council doubted that the ambit of parliamentary privilege could be affected by whether the maker of the statement under consideration was, or was not, the initiator of the court proceedings.
The first respondent pointed to observations made by the Full Court sitting as a court of five in Rann v Olsen (2000) 76 SASR 450 which raised the correctness of the decision in Wright v Lewis. The Court in Rann v Olsen was concerned with s 16(3) of Parliamentary Privileges Act 1987 (Cth) and there was no majority decision in respect of the correctness of Wright v Lewis.
For his part, the petitioner argued that there was no need for me to state a case to the Full Court on this question. It was submitted that all that the petitioner wished to do in tendering extracts from Hansard was to prove what was said by him on those particular occasions. It was suggested that there was to be no impeachment or questioning of the petitioner or his motives; it was enough for the petitioner’s purposes to prove that certain words were said.
I pointed out to Mr Walsh, for the petitioner, that this submission tended to cut across the wording of the petition, which repeatedly attributed to the paragraphs of the leaflets a meaning that the petitioner had made certain statements in Parliament “for reasons that were ‘soft on crime’”. That is, that the wording of the petition itself tended to invite an examination of the reasons for which the petitioner had made various statements in the House of Assembly. Mr Walsh informed me that on neither the petitioner’s nor the first respondent’s case was there any need or intention to examine the petitioner’s motives or reasons for making the statements he made. Mr Walsh told me that the formula used in the petition, including the use of the word “reasons”, could well have been omitted. I proceeded on the basis that, notwithstanding the wording used, the petition could equally have pleaded that the position taken in Parliament by the petitioner, or the stance demonstrated by him, was as the relevant words disclosed.
I took the view that in all these circumstances it was difficult to see how the principle of parliamentary privilege would be abrogated or diminished in any way by resort to the full text of the statements made by the petitioner in the House. Indeed, it would be odious if the principle of parliamentary privilege was interpreted so that selective quoting of a Member outside Parliament, coupled with a skewed assertion as to his stance, could stand unchallenged, only because the Member himself was precluded from refuting the assertion by resort to the entire text of what he had said.
I invited senior counsel for the petitioner to amend the petition to conform with his oral submission to me, but no such application was ultimately made.
In fact, during final submissions, when Mr Walsh was not present, Mr Ower suggested that Mr Walsh’s concession was made in error. He put that, without enquiry into the genuineness of the reasons given by the petitioner in Parliament for the stance he took, it could be demonstrated by reference to the full text of what was said that the stated reasons could not justify a conclusion that the petitioner was “soft on crime”. As I understand it, this amounts to saying that parliamentary privilege did not preclude a comparison of a partial excerpt “with a full quote” to see whether the stance attributed on the basis of the excerpt is misleading.
I pause to say that the first respondent submitted that the formula in the petition referring to the reasons of the petitioner (for example, “… that the Petitioner did not support a proposed law … for reasons that were ‘soft on crime’ …”) was used deliberately. It was used in an attempt to overcome a perceived difficulty, namely that a reference simply to the petitioner’s statements demonstrating that he was “soft on crime” would present itself, plainly, as a matter of opinion, rather than fact; in which case it could not be, as already discussed, misleading. If so, that could have accounted for Mr Ower’s attempt to resile from Mr Walsh’s concession.
In any event, I have concluded that the position taken by senior and junior counsel for the petitioner can stand together. I remain of the view that the petition is, in the use of this formula, unhappily drafted, and needlessly so. There was no necessity for the drafter to attract this controversy. However, I do not consider that, properly understood, an inquiry into the petitioner’s motives or reasons is invited by the petition. Evaluation of the complaints of misrepresentation does not require analysis of the petitioner’s state of mind or reasoning, but of the stance he explicitly took at various times on the various issues. By quoting him out of context, it is suggested that his position on these issues was presented falsely. Whether his position was falsely presented is, I consider, a question of fact. It involves a comparison of the full text of what he said, as against the words attributed to him in the leaflets. By analogy with Wright v Lewis, and having regard to the underlying purposes of parliamentary privilege, I decided that the principle was not undermined. I was not persuaded that Wright v Lewis was arguably wrongly decided insofar as it justified the decision I made. Moreover, it seemed to me that the issues in the present matter were not, at that early stage of the hearing, sufficiently crystallised to enable the case to be clearly stated. Accordingly, I declined the request. Because I found that no breach of parliamentary privilege arises, the first respondent’s application to strike out paragraphs of the petition also failed.
Impact of the leaflets
In the event that I am wrong in finding that the leaflets and the poster were not misleading, and that the first respondent can rely upon the defences of qualified privilege, honest opinion and fair comment, I now consider the third matter to be proved under s 107(4) and s 107(5), namely that the result of the election was affected.
I take the phrase “that the result of the election was affected by the defamation” or “advertising” in subsections (4) and (5) to mean not merely that the final votes would have been different, and not merely that the result might have been affected, but that the result in the seat of Mitchell would have been different.
In proof of his contention that the leaflets and poster had affected the result in Mitchell, the petitioner presented two witnesses, each said to be expert in his field. The petitioner also tendered an affidavit of the Electoral Commissioner to establish the number of first preference votes recorded in favour of each candidate and the manner in which the preferences were distributed after a candidate was eliminated.
I shall now deal with the two witnesses called by the petitioner.
The evidence of Associate Professor Haydon Manning
Dr Haydon Manning is an academic in the field of political science. He is an Associate Professor and Head of the Department of Politics and Public Policy at Flinders University. He has a particular interest in the study of elections and voting behaviour.
A report of Dr Manning dated 25 May 2010 was tendered in evidence. There are some general observations which are of use. Dr Manning suggested that on average about 40 per cent of voters determine who will get their vote during an election campaign. He did not specifically account for the source of that figure. He also addressed the topic of “swinging voters”. He subdivided that category into two groups, namely the voter who claims identification with a particular party, but then votes for another party; and secondly voters who disclaim any party identification. This latter group are also referred to as “floating voters”. He further subdivided the group of floating voters. He said they included, first, voters who follow election campaigns but are not loyal to any party and may vote in response to campaign messages. Secondly, they included those who dislike the major parties and regularly use their vote as a protest. Thirdly, they include generally disinterested voters who may be swayed by any number of campaign messages, particularly as they approach a polling booth.
He said that at least one quarter of an electorate are thought to be swinging voters.
In his report Dr Manning addressed the question “whether a ‘significant number’ of voters, may have, late in the campaign period, changed their minds as a result of reading one, or a number, of anti-Hanna pamphlets, or on polling day, read anti-Hanna posters as they arrived at the polling booth”. He said that the assessment of “significant numbers” was open to conjecture. His conclusion, expressed early in his report, was:
The evidence of the way political science draws attention to first, the broad category of ‘swinging voters’ and second, types of voters within the category, points to the reasonable conclusion that it is highly likely that, at the very least, 0.1 per cent, and in all probability, a much higher number, of voters in Mitchell would have been dissuaded from supporting Hanna upon reading the pamphlets or the posters, as they walked into the polling booth.
In a letter to the petitioner’s solicitors, dated 30 May, he corrected 0.1 per cent to read “at the very least, 1 per cent”.
In expressing that opinion, Dr Manning appeared to rely heavily on a thesis which he repeated often in his evidence. He expressed the view that, having regard to the fact that political parties spend large amounts on advertising during election campaigns and that their decision to do so would likely be informed by research of voters’ views, it is likely that the decision to use the anti-Hanna material was informed by such research and that it was likely to have been effective. Dr Manning expressed that view notwithstanding an attitude of scepticism about the utility of advertising material in elections generally. However, the witness said it was relevant to take into account in the particular context of this negative advertising that it echoed a recurrent theme of the Rann government, namely its “law and order” platform. It does not pretend to take into account the actual vote in Mitchell, including the fact that in 2010 Mr Hanna’s first preference votes increased. Nor does it take into account the fact that Mr Hanna generated his own advertising material in an effort to counter the Labor Party material.
In cross-examination the genesis of that opinion set out above was examined through comparison with drafts of Dr Manning’s report which were in the hands of Mr Stanley.
An examination of the development of the opinion demonstrated that, as originally expressed, the opinion was that, of the 10 per cent of voters said to make up their minds on election day, certainly more than one per cent would have been affected by the negative advertisements. Hence, it would seem that the original figure of 0.1 per cent in the report was arrived at by multiplying 10 per cent by one per cent.
This conclusion seems to me to accord with the balance of Dr Manning’s report. If it was contemplated that the negative advertising might have an impact upon every voter in the electorate without discrimination, then it is hard to see how the extensive discussion in his report of the concepts of “swinging voter” and “floating voter” were necessary. Moreover, as a matter of common sense, there would have to be a large proportion of voters within the electorate who were committed to either of the main two parties and for whom the advertisements relating to Mr Hanna would have had no impact at all.
Because of my perception that the expression of Dr Manning’s opinion set out above was difficult to interpret, referring to swinging voters as it did and then referring to (finally) at least one per cent of all voters in the seat of Mitchell, I asked Dr Manning to recast that opinion in words of his choosing to better express his view. He did that overnight and just prior to concluding his evidence-in-chief. He then expressed the opinion in this way:
In my view it’s difficult to conclude that they, the negative advertisements, would not have had an impact on voter perceptions of Hanna’s political views. In my view these advertisements dissuaded a significant number of voters I have defined as ‘swinging voters’ from supporting Hanna. Given that Hanna required only about one per cent more of the entire electorate to have supported him to finish in front of the Liberal candidate, I am confident that among swinging voters he would have found sufficient support to finish in front of the Liberal candidate had the negative campaign advertisements not appeared.
In a sense this focus on the percentage figure used by Dr Manning is of no utility. That is because at no point did Dr Manning purport to provide any real basis for settling on one figure as opposed to another. In his evidence he said that he was confident that some figure greater than the number of additional votes needed for Mr Hanna to finish ahead of the Liberal candidate would have been lost to Mr Hanna on account of the negative advertising. It seems then that the figure of one per cent was used, at least at times, to approximate the number of additional votes Mr Hanna needed. But again, an opinion even in these terms seems to rest on no more than Dr Manning’s judgment, based on many years of observing politics, as opposed to any empirical data or learning.
The fact that Dr Manning’s opinion should be treated as qualitative rather than quantitative in terms of any effect of the negative advertising material is underlined by the evidence of the respondent’s witness, Professor Aron O’Cass. Professor O’Cass holds the Chair of Marketing at the University of Newcastle. He has particular interest in political marketing and has published widely on that topic. His central contention in relation to the evidence of Dr Manning was that the field of political science was an inappropriate platform through which to assess the effectiveness of political marketing. The witness said that, short of undertaking a specific study of the communications, key issues, candidates’ stances on issues, and actual voters’ behaviour at a time proximate to any election, it would be difficult to reach any level of confidence in the effectiveness of advertising such as the anti-Hanna material.
While I consider that Dr Manning’s opinions about proportions of voters who are on the one hand entrenched or on the other hand swinging are of interest, I do not consider that his ultimate opinion is sufficiently well based to be of any weight. As the first respondent submitted, by and large his view was simply his own intuitive reaction, based largely upon assumptions made about others, namely the Labor party campaign strategists. I have determined that the report and Dr Manning’s evidence should be admitted, he having shown expertise in the field of political science, but insofar as Dr Manning expresses a view that any number or minimum number of voters would have been affected by the advertising, I give no weight to that view.
The evidence of Jason Dunstone
Mr Dunstone is the managing director of the business known as “Square Holes”, which is an Adelaide-based market research company. Part of the work of Square Holes is conducting surveys of various types for a disparate group of clients. Mr Dunstone has a degree in economics with a post-graduate qualification in commerce. With the assistance of other staff, he designed a questionnaire directed to electors in Mitchell. The report subsequently generated explained the purpose of the work in the following way:
The questionnaire explored respondents’ voting behaviour, issues that impacted their vote for the recent election and their awareness of statements regarding Kris Hanna.
Annexed to the report was a copy of the questionnaire which was administered to 400 persons via a telephone interview conducted by staff of Square Holes over the period 25 to 27 May 2010. The persons conducting the survey were said to have training of a general nature and to have been briefed by Mr Dunstone in respect of requirements specific to this survey. The survey report also gave some detail about methodology. In addition, the raw data upon which the report was based was tendered in evidence.
The respondents to the survey were asked ten questions regarding their voting and the reasons behind their voting in the most recent election, as well as questions about their knowledge of the petitioner and publicity about him. They also gave information about themselves.
Mr Dunstone concluded from his survey that a number of issues had influenced their vote, including negative advertising about the petitioner, and that a substantial proportion could recall information about the petitioner and that it was negative. A group of 16 respondents were identified who had either voted for the petitioner at the previous election or who had planned to vote for him six months before the last election. This group was referred to in evidence as the “N = 16” group. This group was important because it appeared that at some stage prior to the election they had been dissuaded from voting for the petitioner. This group was asked what factors influenced their choice not to vote for the petitioner in the recent election. When asked what factors influenced their choice, three of those respondents cited “hoon” driving. In response to a question soliciting further comments, two respondents mentioned negative advertising in relation to the petitioner. The respondents were read a series of twelve statements about the petitioner and then asked about their awareness and the impact of each statement. The statements concerned material taken directly from the leaflets. A high proportion of the respondents were aware of the assertion that the petitioner had “failed on crime”, that he had criticised the government’s refusal to release notorious killers on parole, and that he was said to be “soft on hoons”. In relation to each of the statements, between two and eight per cent of the respondents claimed to have been discouraged from voting for the petitioner by the statements.

The petitioner argued that if this response was representative of the electorate as a whole then it was likely that, but for the negative advertising, the petitioner would have secured at least the additional 213 votes (or preferences) needed to defeat the Liberal candidate, and that he would have then gone on to win the poll.
Mr Dunstone’s evidence and the survey itself were subjected to close scrutiny by counsel for the first respondent. A large number of criticisms were made of the methodology and of the evaluation of the results. Many, if not most, of these criticisms arise from matters which are not in dispute. That is, they highlight suggested weaknesses in the material in respect of which the contest is over their importance rather than their existence.
In my view Mr Dunstone was qualified to design and direct the administration of this survey. I find that the survey was competently carried out and recorded. Therefore the results are admissible. However, I am left in the position where I do not have sufficient confidence either in Mr Dunstone’s design of the survey, or of the results obtained, in order to base a conclusion that any particular number, or minimum number, of voters were dissuaded from voting for the petitioner on account of the negative advertising. I do not propose to consider all the criticisms advanced in respect of the survey and its results. Rather, I shall mention some of the matters which have eroded my confidence in them.
The 400 respondents were said to be selected randomly on the basis of postcodes contained wholly within the electoral district. However, about 18 per cent of the electorate lived in a suburb the postcode of which was not contained solely within the electorate. Added to that, the electoral boundaries had changed since the 2006 election and there were now fewer voters in the electorate. These matters might have affected the extent to which the sample of 400 was representative.
Nine of the respondents apparently lived in Upper Sturt. This suburb is not part of the electorate. All nine of those respondents claimed to have voted in the seat of Mitchell in 2010. This is a curious and worrying feature of the survey. It raises a question about the ability of the respondents to retain the recollection of their voting over the period of two or so months between the election and the collection of data. Mr Dunstone acknowledged what is perhaps obvious, and that is that the further away people are from an event, the greater the risk they will fail to accurately recall it and that this is a risk factor in surveys. That in turn raises the question whether voters could be expected to give an accurate answer as to the candidate for whom they had voted in the previous election. This concern is reinforced when it is understood that none of the respondents could have said that they voted for the Democrats or Dignity for Disabled party or other independents in 2006, because there was no allowance made in the questionnaire for entry of such data.
In terms of the N = 16 group, a number of criticisms were made. This group would appear to be a significant one in terms of the petitioner’s case, because they comprised voters who had either previously voted for Mr Hanna or who intended to vote for him six months before the election, but who did not do so. Therefore, these were people who were potentially dissuaded from voting for him by the negative advertising. The group in fact comprised 18 persons but, due to the “weighting” process, the number was reduced to 16. Eight out of the group were not intending to vote for the petitioner six months prior to the election. In a sense, their votes seem to have been lost to the petitioner at an early stage. Only two of the group both voted for the petitioner in 2006 and were intending to vote for him six months prior. Each gave a reason for voting for a different candidate which was unrelated to the negative advertising. When asked about that information about the petitioner, one recalled it as being positive and the other said that it made no difference. The third group comprised eight persons who had not voted for the petitioner in 2006 but intended to six months prior to the election and did not. Of those, four either had not seen or heard the negative advertising, or said it made no difference to them. Two respondents said they were discouraged. Both had voted Labor in 2006 and one of those nominated factors influencing him to vote otherwise which did not refer to the petitioner’s stance on crime, drugs or hoons. This group does not support the petitioner’s case.
Finally, there was no capacity for respondents to record that they had determined to vote for the petitioner either because the stated position of the petitioner as presented in the leaflets appealed to them, or as a protest against the negative advertising. There was at least some indication in the survey results that this could have been a factor with a small number of respondents.
Overall, I would not, on the basis of this survey, find that the negative advertising affected the result of the poll in Mitchell.
Conclusion
In summary, I find that neither the leaflets nor the poster are misleading. They are properly characterised as statements of opinion, supported, in the case of the leaflets, by statements of fact. A reasonable reader would be able to identify those statements in the leaflets and the poster that are statements of opinion and those statements of fact upon which it is quite clear the statements of opinion are based. If it was not clear that the statements of opinion were just that, the case might be different. However, this is not the case here. In these circumstances the leaflets and the poster cannot amount to misleading advertising for the purposes of s 107(5) of the Act.
I am also satisfied that to the extent that the imputations that arise from the leaflets and the poster are defamatory, they are met by the defences of common law and statutory qualified privilege, the statutory defence of honest opinion, and the common law defence of fair comment.
Finally, I am satisfied that even if the leaflets or poster contained misleading or defamatory material, the result of the election was not affected. I do not have sufficient confidence in Mr Dunstone’s survey to conclude that a particular number or minimum number of voters in the seat of Mitchell were persuaded not to vote for the petitioner as a result of the leaflets or poster, and I do not consider Mr Manning’s opinion on the same topic to be sufficiently well based to be of any weight.
Mr Hanna’s ability to challenge the validity of the election is an important democratic right. However, for the reasons set out above, his challenge must fail.
Accordingly, I dismiss the petition.