King v Electoral Commissioner No. Scgrg-97-1670 Judgment No. S6557

[1998] SASC 6557

KING v ELECTORAL COMMISSIONER

Court of Disputed Returns

Prior J

The Petitioner was a candidate at the South Australian Parliamentary Election held on 11 October 1997. He seeks an order declaring the election of the Liberal candidate for the District of Davenport void and an order requiring a new election to be held. This Court has power to make those orders pursuant to s107(1)(c) of the Electoral Act 1985. A number of other orders sought are orders that this Court cannot make. They are not orders identified within that section. In these proceedings the court has no power to make any orders apart from those authorised by that section.

The petition alleges that certain irregularities occurred during the electoral period for the District of Davenport.  Those alleged irregularities are said to have "caused the Australian Democrats candidate not to gain the seat for the Davenport District".  It is alleged that the irregularities complained of "caused considerably less first preference votes going to the Independents and boosted the vote for the Liberal Party and hence caused significant less preference votes (from the excluded candidates) being allocated to the Australian Democrats candidate".

The petitioner claims that "the most significant irregularity affecting the Davenport Democrat vote was the pre-election, concentrated (regularly repeated) media advertisement by the Liberal Party that (words to the effect) ‘a vote for an Independent was a vote for the Labor Party’". 

The petitioner was one of three Independent candidates seeking election to the House of Assembly in the electoral District of Davenport. He describes the conduct complained of as a "most inaccurate and misleading advertisement" "clearly contrary to s113 of the Electoral Act" as his second preferences and those of another Independent were allocated to the Democrat candidate and that "69 per cent of the only other Independent votes ended up as Democrat votes". On this basis the petitioner claims that votes for the Independent candidates "were overwhelmingly votes for the Democrat candidate".

The petition refers to a pre-election poll showing some 40 per cent of voters "were intending to vote for alternatives to the two major parties" and says that the fact that this did not occur "is considered to be due essentially to the above inaccurate and misleading advertising.  Liberal voters (disenchanted with the Liberal Party’s performance) were influenced to stay with the Liberals in order to prevent Labor getting back into power". The petitioner says that the advertisements "could readily have accounted for at least 900 voters . . . voting for or giving 2nd preference votes to the Liberal candidate".  If some 900 votes were not received by the Liberal candidate they "would have ended up as Democrat votes and caused the Democrat to win the seat of Davenport".

The successful candidate for the District of Davenport was the Liberal Party’s candidate, Mr Iain Evans.  He required the distribution of preferences in accordance with s96 of the Act to gain election.  An Independent candidate, Ms Seaman, received the lowest number of first preference votes.  Her primary votes were excluded and the second preference votes allotted.  After this, the Independent candidate and petitioner Mr King had his second preferences distributed.  By then the Liberal candidate was 47 votes short of an absolute majority.  The second preferences of the Independent Liberal candidate, Mr Marshall, were then distributed.  That gave the Liberal candidate an absolute majority of votes.  In accordance with s96(10) of the Act, the second preferences of the Labor Party candidate, Ms Bradbury, were then distributed. With that distribution of preferences, the Liberal candidate received 54.27 per cent of the formal vote against 45.73 per cent in favour of the Democrat candidate, Mr Russell. 

On 9 October an advertisement appeared in the Adelaide Advertiser.  It began with the heading "THIS ELECTION IS CLOSE".  It then conveyed the message that a vote for any one of a Labor candidate, or, "Thanks to preferences", an Independent candidate or a Democrat candidate gave voters Mr Rann.  A photograph of the Leader of the Labor Party, Mr Rann, appeared below the words "GIVES YOU".  Those words were below the references to votes for a Labor candidate or an Independent or Democrat candidate.  All of those words were inside a black arrow, pointing to the photograph of Mr Rann.  To the left of that photograph was a smaller photograph.  It was of a former premier, Mr Bannon, with Mr Rann. Below that photograph was the statement that "Mr Rann was a key Minister and adviser during the State Bank disaster years".  The advertisement concluded with the exhortation or plea, "Put Labor Last".  On the day that this advertisement appeared, the Electoral Commissioner received a complaint about the advertisement.  He took action in accordance with an established protocol. 

A similar advertisement appeared in The Advertiser newspaper on 10 October.  Significantly, ‘GIVES YOU" was not in that advertisement.  Instead of the exhortation to "Put Labor Last", "Premier Rann?" appeared below the photographs of Mr Rann and Mr Bannon.  On the next page of that newspaper, another advertisement urged voters to "Put Labor Last".  Above those words was a photograph of Mr Rann.  The advertisement was headed with the title "Premier Rann?".  A reference to preferences and the election being close appeared between the first line of the advertisement and the last three.  The advertisements of 10 October, were repeated in The Advertiser the next day.   They were again on opposite pages but the order of appearance was reversed. 

Advertisements were also placed in two other newspapers circulating in the Davenport district on or about 9 October.  Those advertisements were in the same form as that in The Advertiser of 9 October.  [Copies of The Advertiser advertisements appear in a Schedule to these reasons]

Radio and television advertisements also called upon voters to "Put Labor Last", asserting that preferences had returned previous Labor governments, both state and federal.  The radio and television advertisements occurred on various occasions in the week preceding the election.   They could properly be identified as part of a "Put Labor Last" campaign.

The petition also claimed that other irregularities "would have further reduced the number of first and second preference votes for the independents (and hence for the Democrat)". Reliance was placed upon matters detailed by the Independent Liberal candidate, Mr Marshall. Mr Marshall says that a number of his election posters were removed from prominent locations within the Davenport district. No evidence was led to establish who was responsible for any such removal. No breach of any provision of the Electoral Act was identified or relied upon. This complaint cannot be taken into account in this case. Whatever the cause, neither Mr Evans nor the Liberal Party has been shown to be responsible for any disappearing posters.

Mr Marshall also complains of two leaflets distributed in the District of Davenport two days before the election. One was said to have been printed and authorised by A Seaman of 16 Hovea Street Blackwood. In this document, the Independent, Ms Seaman, appeared to urge voters to give their first preferences to her and to put Mr Marshall last. The pamphlet asserted that it seemed wrong to the author for Mr Marshall "to claim to be a Liberal while clearly supporting the Democrats with his preferences to the detriment of the Liberals". A suggested breach of s112 of the Electoral Act is not made out. Indeed compliance with that section was established in an affidavit from Ms Seaman. She says that she authorised this document during the election campaign and that 10766 leaflets were distributed. The fact is that the voting ticket of Ms Seaman gave her second preference to Mr King and the third to Mr Evans. The leaflet reversed those preferences. In both Mr Marshall was last. No breach of any provision of the Electoral Act is made out with respect to this leaflet. I reject any suggestion that the leaflet was defamatory of Mr Marshall.

The second pamphlet was said to be authorised by B Nicol of 67 Heather Road Stirling.  Barbara Eva Evans says she authorised the leaflet.  Her Maiden name was Nicol.  Mrs Evans admits that she served on Mr Iain Evans’ campaign committee and says that some nine thousand copies of this leaflet were distributed on or about 8 or 9 October through Australia Post.  Mrs Evans does not seek to explain why she did not disclose her married name on the leaflet she admits responsibility for, nor does she claim that this was something she has done on other occasions.  The Electoral Commissioner has made some inquiries with respect to the complaint about this material.  Perhaps some legislative action is needed to control conduct of this kind in the future.

The leaflet began with the words:  "VOTERS BE AWARE".  It then asserted that Independent candidate Marshall, whilst claiming to be Liberal was actually supporting the Democrats because he had given his second preference to the Democrat.  The leaflet then said that Mr Marshall’s claim to be Liberal had already misled some voters to believe that he was supporting the Liberals.  The leaflet continued:

"Polls show Marshall preferences will be distributed.  His registered how to vote card actually directs votes against Liberal to the Democrat.  A vote for Marshall that follows his how to vote card will become a vote for the Democrats when his preferences are distributed.

Independent Candidate King is also directing his 2nd preference to the Democrats.

If your first choice is an Independent make your second choice for Liberal Candidate Iain Evans, a person with a proven community record by voting in the following way:"

There then followed a suggested form of voting where Mr Marshall obtained the voters first preference.  That allocated the second preference to Mr Evans and the third to the petitioner, Mr King, with the Labor Party candidate receiving the fourth preference, the Democrats the fifth and Ms Seaman the sixth.  A voting form was proposed where the first preference was for Mr King.  Preferences ran straight down the card, with Mr Evans therefore still getting the second vote after Mr King, who held the first position on the voting paper.  After Mr Evans’ name appeared that of the Independent Liberal, Mr Marshall, then Ms Seaman, then the Democrat candidate, Mr Russell.  The Labor candidate, Ms Bradbury, was last. 

The leaflet then addressed Labor voters and asserted that they may also recognise the efforts of Mr Evans by giving their second preference to him.  A third how to vote list then followed with the first preference vote entered against Ms Bradbury’s name.  In that list, Mr Evans was given the second preference, after which the third, fourth, fifth and sixth preferences went up the card in favour of Mr Russell, then Ms Seaman, then Mr Marshall with Mr King last.  No preferences were particularised with respect to a vote giving Ms Seaman a first preference.

Other activity is alleged to be illegal and to have reduced votes for Mr Marshall "and hence reduced final votes for the Democrat candidate".  In material lodged with the petition, Mr Marshall claims that Mr Stan Evans, the father of the Liberal candidate, hindered the progress of people entering a polling booth and told them of Mr Marshall’s political affiliations "based purely on Stan Evans’ imagination". This and other allegations in that material were not pursued by the petitioner at the hearing. I find no inaccurate or misleading statement of fact in either of the Seaman or Nicol leaflets.  No one was defamed. No breach of any law has been established with respect to these two leaflets.

That leaves for consideration the advertising material in the "Put Labor Last" campaign.

The petitioner relies upon opinions given by Mr Hepworth and Mr McCarthy.  Mr Hepworth, a lecturer in politics at the University of South Australia for some six years, expressed the opinion that "the overall effect" of the advertisements and other material distributed before the election, including those leaflets with respect to Mr Marshall, could have been to influence "a number of electors who would, in previous elections, have given their first preference vote to the Liberal candidate to change their intention of voting for a Democrat or Independent candidate at the election, sufficient to have varied the result of the election in the electorate of Davenport".

Mr McCarthy is a lecturer in politics at the University of Adelaide.  He expressed an opinion in an affidavit that the advertisement in The Advertiser on 11 October, which spoke of a vote for a Labor candidate, Independent candidate or Democrat candidate, could see Mr Rann as premier, "clearly states that a vote for an Independent is a vote for Labor".  At the hearing he acknowledged that this was not so.  He maintained that opinion with respect to the advertisement of 9 October. 

In his affidavit, Mr McCarthy said that "a statement, which in electoral terms of how preferences flow, is misleading".  Mr McCarthy also said that without wishing to infer that the election result in Davenport was distorted:

". . . it is reasonable to assume that the misleading advertising and leafleting would have shifted votes away from the independent candidates and from the Australian Democrat candidate, and hence, boosted the first preference votes (for) the Liberal candidate and therefore affected the outcome of the election." 

In evidence, Mr McCarthy qualified that opinion by saying that any advertising and leafleting which he saw as misleading could have shifted votes in the way described. 

The State Director of the Liberal Party of Australia, SA Division, Mr Pigott, says that the advertisement appearing in The Advertiser on 9 October was also inserted in every Messenger newspaper, other than the City Messenger, and distributed on or about 9 October.  Two of those newspapers were circulated in the electoral District of Davenport.  He insists that none of the advertising complained of used the expression referred to in the petition.  He also says that the advertisements complained of were prepared by him, with assistance from persons engaged by the Liberal Party to assist with advertising.  Research conducted or commissioned by the Liberal Party indicated that preferences of a potentially high third party, Independent and undecided voters could be important in determining the outcome of the 11 October election.  Because of this, Mr Pigott says he "identified the need to persuade voters to give their preferences to the Liberal Party in the event that they voted for a candidate other than the Liberal Party candidate.  The simplest way for this to occur is encapsulated in the slogan `Put Labor Last’".  Mr Pigott says that his experience was that generally voters do not understand how the preferential voting system works and that he had to take that into account when devising a strategy and the slogan "Put Labor Last" was the simplest way to highlight to voters the importance of preferences.  Mr Pigott then said:

"This general strategy which resulted in the advertisements …. was targeted without exception to all metropolitan seats.  In the case of the seat of Davenport no exception was made.  In fact, the general strategy worked against the re-election of Mr Iain Evans because in his case it was expected that the main opposition would come from the Democrats as it had in the previous election and a strategy that put Labor last would not favour Mr Evans, since the Labor Party’s preferences would be expected to flow to the Democrats."

Mr Pigott says that the advertisements were designed to "counter a flow of votes to the Labor Party".  Mr Pigott considered the preference votes were important in the 14 seats targeted.  "The advertisements were an attempt to prevent preferences going to Labor".  Mr Pigott said that from a study of results
of previous elections and in general, "the preferences flow from the Democrats as to approximately 60 per cent to Labor and 40 per cent to the Liberals".  Mr Pigott also said:

"The advertisement was directed to non Liberal Party voters and was intended to stress the importance of the preferences in determining the election outcome.  The message that I was endeavouring to get across in the advertisement was that preferences are important and that if voters wished to vote for a party or candidate other than the Liberal Party as some form of protest or for another reason, then it was necessary for them to watch carefully where their preferences were going to prevent the Labor Party winning sufficient seats on preferences and subsequently being able to form government."

The managing director of a market research company, Dr Sexton, gave evidence of having been commissioned by the Liberal Party, SA Division to conduct a telephone poll of 200 respondents in the seat of Davenport.  The poll was conducted on 1 and 2 October.  It was Dr Sexton’s evidence that a sample of 200 respondents was regarded as a reasonable sample.  He assessed the sample as being appropriate for the purpose for which the Liberal Party wished to use the results.  He also said that the sample number would attract an error margin of about plus or minus 7 per cent.  The poll disclosed that some 48 per cent of persons intended to give Mr Evans a primary vote.  10 per cent favoured the Labor Party candidate and 26 per cent the Democrat.  In the poll, there were some 6 per cent of respondents undecided.  Dr Sexton made plain that it was not possible to make a direct comparison between this poll and various newspaper polls of the kind referred to in the petition.  They were across the state samplings, with most of the respondents coming from the metropolitan area.  It was his evidence that it was difficult to extrapolate from a state-wide sample to a particular seat such as that of Davenport. 

I found Dr Sexton’s evidence and the result of his poll impressive and significant.  Criticisms of Dr Sexton’s approach were advanced by the petitioner.  I think that Dr Sexton’s opinions and the poll conducted by his organisation are very relevant to the question whether any advertisements had any effect upon voting intentions in the District of Davenport.

In my view, the "Put Labor Last" campaign was not one in which one could properly infer that a vote for an Independent was a vote for the Labor Party.  That was the petitioner’s fundamental complaint.  However, that complaint is understandable with respect to the advertisements published in Messenger newspapers on or about the same day as that in The Advertiser of 9 October, the effect of which was to convey the impression that a vote for anyone other than a Liberal Party candidate was a vote for the Labor Party.  I do not think that the advertisements which appeared on 10 and 11 October conveyed that impression.  I reject the suggestion that the message in the form of the 9 October advertisement permeated any other advertisements.  On the material before the court, the petitioner has established that the advertisement in The Advertiser on 9 October and those in Messenger newspapers contained statements purporting to be statements of fact that were inaccurate and misleading to a material extent. 

Whilst finding that the advertisements just described did contain statements purporting to be statements of fact that were inaccurate and misleading to a material extent in breach of s113, I make no such finding with respect to any other advertisement complained of. In making these findings I have not entirely ignored the opinions which would not normally be admitted in a court bound by the rules of evidence. On the material presented to the court, it is established that those advertisements in breach of s113 were neither likely to, nor did they affect the result of the election in the District of Davenport in the sense of causing Mr Evans and not someone else to be elected .

The statement of fact identified in the advertisements that is inaccurate and misleading to a material extent is the statement that thanks to preferences a vote for an Independent candidate or a Democrat meant that the Labor Party’s leader, Mr Rann, became Premier. That statement was inaccurate because it is incorrect. A vote for either an Independent or a Democrat does not "Give You" Mr Rann as Premier. The statement is also misleading because it gives the impression that preferences will automatically flow to Labor when, of course, they are dependent upon the will of a voter who may give preferences as he or she chooses, or in accordance with a voting ticket or card of a candidate. In the District of Davenport no Independent or Democrat candidate gave a second preference to the Labor candidate. It was not correct to give the impression that a vote for Independent or Democrat candidates automatically saw votes flowing to Labor. The 9 October advertisement was deceptive. The inaccurate and misleading statement of fact was inaccurate and misleading to a substantial or significant extent. On that basis breaches of s113 are made out . That is not so with respect to the advertisements in The Advertiser on 10 and 11 October nor to those on the television and radio. They contained expressions of opinion, not inaccurate and misleading statements purporting to be statements of fact .

Whilst breaches of s113 are clearly established, the court’s power to intervene was said not to be dependent upon that finding alone. Counsel for the Electoral Commissioner submitted that this Court’s power to declare the election void was dependent upon a further finding that the result of the election was connected with the illegal advertisements and that without them Mr Evans would not have been elected. It was put that I could only declare the election void if I found on the balance of probabilities that the breaches of s113 affected the result of the election. Reference was made to Crafter v Webster and Bridge v Bowen . Crafter v Webster, was a case decided under the Electoral Act 1929. An election was declared void because of non-compliance with mandatory provisions and undue influence by persons other than a candidate. Breaches of s148(c) of the 1929 Act were found proved.

In the new Act, there is no offence of the kind identified in s148(c) of the Electoral Act 1929. By that section it was an offence to publish printed matter containing any untrue statement defamatory of any candidate in the election. Mitchell J found a breach of that section was made out against a number of persons other than the elected candidate and that the election was likely to be affected by that defamatory statement . Whilst defamation of a candidate does not constitute an offence of undue influence under the existing electoral law, s107(4) of the present Act states that 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". In s107(3), it is provided that an election is not to be declared void on the ground of "a defect in a roll or certified list of electors, or 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". Neither of these provisions applies to the illegal conduct made out. No defamation of a candidate occurred in the offending advertisements. Subsection (3) of s107 has no application to activities involved in electioneering before the conduct of an election . Given the absence of any other relevant provisions in Part12 of the present Act, the submission was that the common law of elections applies to require proof that the illegal conduct established was connected with the election of the successful candidate and indeed that the illegal conduct caused Mr Evans to be elected before this Court could make any order under s107(1)(c).

Counsel for the interveners, Mr Iain Evans and the Liberal Party, adopted some of the submissions of the Commissioner. However, it was submitted that any breach of s113 relevant to these proceedings had to be proved beyond reasonable doubt in these proceedings. That was not the view of Mitchell J in Crafter v Webster. I agree with what Mitchell J said about the burden of proof with respect to offences in proceedings before a Court of Disputed Returns. Proof on the balance of probabilities suffices. I reject the submission that the reference to proof beyond reasonable doubt in s113(5) calls for any other view. The exceptional nature of the orders available under that new provision explains the higher standard of proof required. It does not displace the approach of Mitchell J in Crafter v Webster .

In Bridge v Bowen, persons ineligible to vote were proved to have voted in a municipal election.  The High Court ruled that the election could not be set aside because it could not be established that the result of the election would have been any different if those persons had not voted.  In the majority view, a defect not striking at an election as an entirety but confined to some breach of law in individual instances does not affect the person elected, "unless he or his majority is shown to be connected with the defect" .  This proposition was invoked by counsel for the Commissioner to support the proposition advanced that any illegal act must be shown to have affected the result of the election before the election could be declared void.  That submission overlooks the fact that here Mr Evans was "connected with the defect".  Thus Mr Evans’ election was open to question whether his majority was shown to be connected with the defect or not.

Counsel for the interveners submitted that Bridge v Bowen was not authority for the proposition that any breach of the law called for an election to be set aside. The submission was that only breaches of the law which strike at the heart of the electoral process justify the exercise of a power to declare an election void. It was submitted that the intention of the Electoral Act was such that it was never intended that this Court should provide a remedy by way of the declaration of invalidity of an election merely on the grounds that it is shown that certain irregularities had occurred in the course of the election. The submission was that an election should not be invalidated by virtue of conduct in circumstances where it cannot be shown that the result would have been different. It was also said that the Court of Disputed Returns is not a tribunal for the correction and control of the conduct of electors and candidates at an election. This was said to be the role of the Electoral Commissioner, not this Court. The Electoral Act was said to provide a variety of remedies to persons aggrieved by the conduct of electors and candidates, including prosecution and the power to prevent misleading advertising.

The petitioner submitted that this Court must have a broad power to intervene where irregularities are established. The court must insist on "properly run, honest elections", "run strictly in accordance with the Electoral Act". Mr King submitted that a properly run election was one free of undue influence, free of bribery, violence and intimidation, free of interference of a democratic right or duty under the Act, and (one) "free of misleading or inaccurate statements and advertisements which may deceive an elector to vote one way or the other". On this approach, the effect of the petitioner’s submission could be that this Court’s power should extend to set aside an election because of an irregularity identifiable as serious and likely to affect the outcome of an election whether in fact it did or not.

The 1985 Act is different from its predecessor in some significant respects.  However, the so-called "overhaul"  of the State’s electoral laws was against a fundamental set of principles reflected in the legislation of Parliament of this State from 1908, and even before then .  In the Electoral Code 1908 Parliament expressly declared that illegal practices in the course of an election empowered a Court of Disputed Returns to declare an election void.  Distinctions have been made and recognised between certain types of conduct in the course of elections.  Some conditions have been attached to the exercise of certain powers but, for a long time, Parliaments have maintained an intention that a Court of Disputed Returns should have special powers with respect to elections.  Their validity and the propriety of conduct in the course of elections are of immediate concern to such a court.  The power to intervene with respect to such conduct is not to be denied because of the particular responsibilities of the Electoral Commissioner or because people may be prosecuted for offences.

The common law did not call for proof that the result of an election was affected if, for example, bribery was made out. An election so tainted would be declared void unless of course the bribery identified was shown not to be connected with the elected candidate .  The relevant committee of Parliament or Court of Disputed Returns might then denounce the conduct but not declare an election void.

In the case of errors made by officers in the conduct of an election, interference did not occur if such an error was not proved to have affected the result of a particular election.  In other cases, non-compliance with particular statutory demands applicable to a particular election might result in the election being declared void for that reason alone.  This was the case in Crafter v Webster with respect to proven breaches of s109 of the Electoral Act 1929. 

In this State, Parliament saw fit to indicate and affirm in 1908 and 1929 that a Court of Disputed Returns was entitled to declare a person not duly elected or an election void on the ground that illegal practices were committed in connection with the election.  Saying that, it nonetheless insisted that with some illegal practices the power should not be exercised unless the court was satisfied that the result of the election was likely to be affected by the illegal practice and that it was just that the candidate elected should be declared not elected or the election declared void .  Significantly, under earlier legislation, if a Court of Disputed Returns found a candidate to have committed bribery or undue influence, any election of that candidate was to be declared void.  Also, no finding by the court was to bar or prejudice any prosecution for any illegal practice .  In the current Act, s133 simply states that a person convicted of bribery or undue influence is disqualified from sitting or being elected as a member of either House of the Parliament.  In my view, neither s133 nor any other provision of the present law ousts the jurisdiction of this Court to adjudicate upon allegations of illegal or improper conduct against anyone at an election, including bribery or undue influence by a candidate.  A proper construction of the present statute is that this Court can declare elections void because of bribery, undue influence or other significant, improper behaviour, including particular breaches of the electoral law.  Both subsections (3) and (4) of s107acknowledge the continuing authority of a Court of Disputed Returns to deal with allegations of impropriety even if those provisions qualify or vary what was ordained in earlier legislation.

Upon receipt of a duly instituted petition, this Court inquires into any alleged improprieties in the course of an election and must consider whether, for good cause, action should be taken with respect to the result of an election. The court’s power to declare an election void in cases identified in s107(3) and (4) of the current Act is not to be exercised unless the court is satisfied on the balance of probabilities that the result of a particular election was affected by the defect, irregularity or defamation identified in those provisions. Those provisions assume the jurisdiction denied in some of the submissions put for the interveners. It must be noticed that after Crafter v Webster Parliament amended s182 of the 1929 Act to require that certain illegal practices had to be proved to have affected the result of (an) election and the court (to be) satisfied that it (was) just … that the election be declared void". The language in (3) and (4) of s107 is not exactly the same as that in the 1982 amendment to s182 of the Electoral Act 1929. Whether that be significant or not, I am not persuaded that under the present law a breach of s113 must be shown to have affected the result of the election before the power to intervene arises.

In the material referred to in the petition were allegations of bribery, undue influence, interference with political liberty and misleading advertising in breach of ss109, 110, 111 and 113 of the present Act.  Had all these allegations been proved, this Court would have had power to intervene without those improprieties being shown to have affected the result of the election.  Indeed under the present law, a protracted advertising campaign, in which misleading advertisements abounded, could justify the exercise of this Court’s proper powers again without a positive finding that such a campaign was likely to have affected the result of an election.  This Court might decline to exercise its powers if those connected with such a campaign established that the offending advertisements were not likely to have affected the result of an election or that it was not in fact affected. 

What is clear is that the restraint on the exercise of powers in the situations identified in (3) and (4) of s107 cannot dictate a similar demand with respect to conduct outside those provisions. A power to intervene in those other situations must be acknowledged. That power should only be exercised for good cause, but in situations where offences against s113 are made out the petitioner need not prove that those breaches affected the result of the election. The elected candidate shown to have been connected with those breaches of the law may seek to have the court satisfied that the result of the election was neither affected nor likely to be affected. In situations where the court was so satisfied the power to intervene may or may not be exercised.

In this case the proven breaches of s113 were but part of a wider lawful advertising campaign. They were neither likely to, nor did they affect the result of the election in the District of Davenport. Prosecution of persons authorising, causing or permitting the publication of the advertisements may be appropriate, but orders pursuant to 107(1)(c) are not.

The petition is dismissed.