Liberal Party of Australia (Victorian Division) v Rae

[2019] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0151

LIBERAL PARTY OF AUSTRALIA (VICTORIAN DIVISION)	First Applicant
and
NICHOLAS JAMES DEMIRIS	Second Applicant
v
SAMUEL RAE	First Respondent
and
VICTORIAN ELECTORAL COMMISSION	Second Respondent
and
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Third Respondent

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JUDGES:	MAXWELL P, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2018
DATE OF ORDERS:	22 November 2018
DATE OF JUDGMENT:	8 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 13
JUDGMENT APPEALED FROM:	[2018] VSC 731 (Richards J)

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ELECTIONS – Election procedures – How-to-vote cards – Registration – Candidate endorsed by political party – Disendorsed after close of nominations – How-to-vote cards showed candidate as party’s recommended candidate – Cards registered by Electoral Commission – Merits review by Tribunal of registration decision – Tribunal refused registration – Whether cards likely to mislead or deceive electors – Reasonably open to Tribunal to refuse registration – Leave to appeal refused – Evans v Crichton-Browne (1981) 147 CLR 469 applied – Electoral Act 2002 (Vic) ss 79(3), 82A, Victorian Civil and Administrative Tribunal Act 1998 s 148.

WORDS AND PHRASES – ‘likely to mislead or deceive an elector in casting the vote of the elector’.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr M Wyles QC with Mr C E Shaw	Hope Earle
For the First Respondent	Mr A F Solomon-Bridge	Holding Redlich Lawyers
For the Second Respondent	Mr L T Brown, Crown Counsel	Victorian Government Solicitor

MAXWELL P
BEACH JA
T FORREST JA:

Summary

1. At the State election held on 24 November 2018, Ms Meralyn Klein stood for the Legislative Assembly seat of Yan Yean as an independent candidate.  She had originally been the endorsed Liberal Party candidate for that seat but was later disendorsed.  The Liberal Party informed the Victorian Electoral Commission of her disendorsement on 19 November 2018. 

1. By the time of that notification, the Commission had already registered ‘how-to-vote’ cards lodged under s 78(1) of the Electoral Act 2002 (the ‘Act’), which showed Ms Klein as the Party’s recommended candidate for Yan Yean.  The cards in question (‘the cards’) were multi-electorate ‘how-to-vote’ cards, providing information to electors about how-to-vote for the Liberal Party (or, in certain instances, the National Party) in every Victorian electorate. 

1. The first respondent, Mr Rae, the Secretary of the Victorian Branch of the Australian Labor Party, applied to the Victorian Civil and Administrative Tribunal for review, under s 82A of the Act, of the Commission’s decision to register the cards. On 20 November 2018, the Tribunal determined to refuse registration under s 79(3) of the Act, being satisfied that the cards were ‘likely to mislead or deceive an elector in casting the vote of the elector.’

1. An urgent application for leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 was heard by Richards J on 21 November 2018.  The following morning, her Honour granted leave to appeal but dismissed the appeal.[1]  That same afternoon, the applicants sought leave to appeal to this Court from her Honour’s decision.  At the conclusion of argument, we refused leave to appeal, stating that we would give our reasons in due course.  These are those reasons.

   [1]Liberal Party of Australia (Victorian Division) v Rae [2018] VSC 731 (‘Reasons’).

1. Put shortly, the question for the Tribunal was whether it was satisfied that the cards were ‘likely to mislead or deceive’. The Tribunal decided that it was so satisfied, and on that basis refused to register the cards. The appeal under s 148 was confined to a question of law, namely, whether it was reasonably open to the Tribunal to reach that state of satisfaction. Her Honour was clearly correct to conclude that it was.

The approach to construction

1. Section 79 of the Act provides:

(1) Before noon on the next day after receiving a how-to-vote card from the applicant or an election manager, the Commission must—

(a)       register the how-to-vote card;  or

(b)       refuse to register the how-to-vote card—

and inform the applicant of the Commission’s decision.

(2)In determining whether to register a how-to-vote card, the Commission must have regard to the following matters—

(a)that the how-to-vote card clearly identifies the person, political party, organisation or group on whose behalf the card is to be distributed;

(b) that the size of any logo, emblem or insignia belonging to the person, political party, organisation or group on whose behalf the card is to be distributed appearing on the how-to-vote card is not less than the relevant prescribed size;

(c) in the case of a how-to-vote card to be used for an Assembly election, that the how-to-vote card indicates the order of voting preference for all candidates listed on the card or contains a statement that a number must be placed against the name of each candidate;

…

(3)The Commission must refuse to register a how-to-vote card if the Commission is satisfied that the card—

(a) is likely to mislead or deceive an elector in casting the vote of the elector;  or

(b) is likely to induce an elector to mark the vote of the elector otherwise than in accordance with the directions on the ballot-paper;  or

(c)       contains offensive or obscene material.

1. It was common ground before the judge ― and in this Court ― that s 79(3)(a) should be construed in accordance with the High Court’s decision in Evans v Crichton-Browne.[2] In that case, the High Court was concerned with the scope of s 161(e) of the Commonwealth Electoral Act 1918 (Cth), and, in particular, the phrase ‘in or in relation to the casting of his vote’. The Court held:

The use of this phrase in s 161(e) suggests that the Parliament is concerned with misleading or incorrect statements which are intended or likely to affect an elector when he seeks to record and give effect to the judgment which he has formed as to the candidate for whom he intends to vote, rather than with statements which might affect the formation of that judgment.[3]

[2](1981) 147 CLR 169 (‘Crichton-Browne’).

[3]Ibid 204.

1. Her Honour concluded as follows:

It follows that s 79(3)(a) precludes registration of a how-to-vote card that is likely to mislead or deceive a voter in casting a vote to give effect to the voter’s political judgment. It has nothing to say about how-to-vote cards that might mislead or deceive a voter in forming that political judgment.

The appellants submitted that the likely effect of a how-to-vote card should be assessed by reference to the probable reactions of ordinary and reasonable voters, consistent with the approach taken to an allegation of misleading or deceptive conduct in trade or commerce under s 52 of the former Trade Practices Act 1974 (Cth).[4] In contrast, both Mr Rae and the Commission submitted that, for the purposes of s 79(3)(a), the ‘elector’ to be considered is ‘any gullible or naïve elector’ who might see the how-to-vote card, and not one of ‘ordinary sophistication’.[5] 

I prefer the respondents’ submissions on this point.  There is in my view danger in transposing a standard developed in relation to commercial dealings,[6] where there is broad prohibition of misleading and deceptive conduct, to the electoral context, where the protection applies more narrowly. In those circumstances, a provision such as s 79(3)(b) should be interpreted so as to give the fullest possible effect to its evident protective purpose – that purpose being to ensure that a voter is not misled or deceived into voting in a way that does not register the political judgment formed by the voter.

Whether the Tribunal’s conclusion was open is therefore to be determined by considering the likely effect of the how-to-vote cards on any gullible or naïve elector, rather than a sophisticated voter who is informed about current affairs.

The appellants further submitted that there must be a probability, not merely a possibility, that the how-to-vote cards will mislead or deceive a voter.[7] I accept that submission, which accords with the use of the word ‘likely’ in s 79(3)(a).[8]

[4]Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45, 85 [102].

[5]Goss v Swan [1994] 1 Qd R 40, 41.

[6]Now to be found in pt 2.1 of the Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’).

[7]Goss v Swan [1994] 1 Qd R 40, 41.

[8]Reasons [17]–[21].

Was the Tribunal’s conclusion open?

1. As to whether the Tribunal’s conclusion was open to it, the judge accepted the submission of the Commission that the correct approach was that set out in the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS.[9]  The question to be addressed was whether, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as the Tribunal.  Her Honour said:

This approach allows that rational decision makers may reach different conclusions on the same evidence — or, to put it another way, that reasonable minds may differ.[10]

[9](2010) 240 CLR 611, 648–50 [132]–[135].

[10]Reasons [22].

1. The judge said that the following matters were apparent from the affidavit evidence before the Tribunal:

(a)At the close of nominations on 9 November 2018 Meralyn Klein was the endorsed Liberal Party candidate for the Yan Yean District in the Lower House.

(b)On 15 November 2018 the Honourable Matthew Guy, Leader of the Opposition and Leader of the Parliamentary Liberal Party, made public statements to the effect that the Liberal Party no longer endorsed Ms Klein as its candidate.

(c)On 19 November 2018 solicitors for the Liberal Party wrote to the Victorian Electoral Commission, informing it that Ms Klein was no longer the endorsed Liberal Party candidate for Yan Yean.

(d)The impugned cards are multiple how-to-vote cards that provide information about how to vote Liberal, or how to vote Liberal/The Nationals, in every electorate in the Lower House and the Upper House.  Each of the cards gives Ms Klein the same prominence that is given to endorsed Liberal candidates, and indicates a first preference vote next to her name.  The same prominence is given to endorsed Nationals candidates, in electorates marked with an asterisk.  In the only other Lower House District in which there is no endorsed Liberal or Nationals candidate, Richmond, the cards make no recommendation that any candidate should receive a first preference vote.

(e)The word ‘Liberal’ and the Liberal Party logo appears next to Ms Klein’s name on the ballot paper for Yan Yean.[11]

[11]Ibid [24] (citations omitted).

1. Her Honour’s conclusion was as follows:

The Liberal Party submitted to the Tribunal, and before me, that these how-to-vote cards could be understood as indicating to voters how they might vote to support the interests of the Liberal Party.  I accept that they are capable of being understood that way, at least by a voter of ‘ordinary sophistication’.  However, they are also capable of being understood by a naïve or gullible voter as representing that Ms Klein is the endorsed Liberal Party candidate in Yan Yean, when that is no longer the case.  That being so, a voter who had decided to vote for the Liberal Party may well be misled into the belief that Ms Klein is the endorsed Liberal Party candidate, and into casting a ballot for Ms Klein on that basis. 

Applying the approach in SZMDS here, I am satisfied that it was open to the Tribunal on the evidence before it to find that the impugned how-to-vote cards were likely to mislead or deceive a voter in the casting of the voter’s ballot.[12]

[12]Ibid [25]–[26].

Consideration

1. As already noted, there was no dispute about the correct interpretation of the statutory test. And it was common ground that s 79(3) of the Act created a statutory duty not to register a card if, but only if, the decision-maker (in this case, the Tribunal) reached a state of satisfaction that the cards were ‘likely to mislead or deceive’.

1. It followed, as senior counsel for the Liberal Party conceded in this Court, that the challenge to the Tribunal’s conclusion could only succeed if it were established that it was not open to the Tribunal to reach that state of satisfaction.  Put another way, it had to be shown that there was no reasonable view of the cards which justified the Tribunal arriving at that state of satisfaction.[13] 

   [13]See Chaarani v DPP (Cth) [2018] VSCA 299 [38]–[39].

1. The applicants’ submissions in this Court were put in the alternative.  First, it was said, the judge was wrong to conclude that the cards were

capable of being understood by a naïve or gullible voter as representing that Ms Klein [was] the endorsed Liberal Party candidate in Yan Yean. 

Alternatively, even if the cards conveyed the impression that Ms Klein was the endorsed candidate, voters were not likely to be misled in the casting of their votes because a voter who had decided to support the Liberal Party in the election would be able to give effect to that decision by voting for Ms Klein.

1. The first of these submissions essentially rested on the absence from the cards of any express use of the word ‘endorsement’.  As a result, it was said, there was no more than a ‘mere possibility’ that a voter reading one of the cards might think Ms Klein was the endorsed candidate. 

1. We were not persuaded by that submission.  It is, of course, the very purpose of a political party’s how-to-vote card that it identifies for electors the candidate or candidates who have the official backing or endorsement of that party.  These cards were in the usual official form, clearly identified as carrying the authorisation of the Liberal Party and highlighting for each electorate the candidate backed by the Party.  Any reasonable reader of the card would have concluded that Ms Klein was indeed the endorsed Liberal Party candidate for Yan Yean. 

1. Nor, in our view, was there room to doubt the capacity of these cards to mislead or deceive electors.  It is, of course, significant for an elector to know that a particular candidate has the endorsement of a political party.  The guidance which a how-to-vote card is designed to provide is premised on the assumption that many electors, at the point of casting their votes, will have formed the view that they wish to vote for the candidate endorsed by a particular party, in order to advance the likelihood of that party forming government and being able to implement the policies on which it has campaigned. 

1. In the case of Yan Yean, an elector who had decided to vote for the endorsed Liberal candidate would ― if these cards had been distributed ― have been misled into thinking that Ms Klein had that endorsement.  Had the true position been known to that elector ― namely, that there was no endorsed Liberal candidate for Yan Yean ― then such an elector would have been obliged to reconsider the merits of the competing candidates. 

1. In Crichton-Browne, the High Court gave as an example of a misleading how- to-vote card one which stated that a person who wished to support a particular party should vote for a particular candidate when in fact the candidate belonged to a different party.[14]  The present case is not as stark an example, but the analogy is clear.  It is a significant thing for electors to be misled into believing that a person has the status of being the endorsed candidate of a political party when in fact she does not have that status. 

   [14](1981) 147 CLR 169, 205.

Conclusion

1. For these reasons, it was open to the Tribunal to find that the impugned how-to-vote cards were likely to mislead or deceive a voter, and her Honour correctly considered this.  Leave to appeal her Honour’s decision was therefore refused.

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