Liberal Party of Australia (Victorian Division) v Rae
[2018] VSC 731
•23 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02329
| LIBERAL PARTY OF AUSTRALIA (VICTORIAN DIVISION) | First Appellant |
| and | |
| NICHOLAS JAMES DEMIRIS | Second Appellant |
| v | |
| SAMUEL RAE | First Respondent |
| and | |
| VICTORIAN ELECTORAL COMMISSION | Second Respondent |
| and | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Third Respondent |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 November 2018 |
DATE OF JUDGMENT: | 23 November 2018 |
CASE MAY BE CITED AS: | Liberal Party of Australia (Victorian Division) v Rae |
MEDIUM NEUTRAL CITATION: | [2018] VSC 731 |
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ELECTIONS – Endorsement of candidate by political party – Candidate disendorsed after close of nominations – Registration of how-to-vote cards refused by Victorian Civil and Administrative Tribunal on basis that cards likely to mislead or deceive an elector in casting the elector’s vote – Whether conclusion open to Tribunal – Construction of Electoral Act 2002 (Vic), s 79(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr M Wyles QC with Mr JWG Grant | Hope Earle |
| For the First Respondent | Mr AF Solomon-Bridge with Mr C Tran | Holding Redlich Lawyers |
| For the Second Respondent | Mr LT Brown, Crown Counsel | Victorian Government Solicitor |
HER HONOUR:
A general election for both Houses of the Parliament of Victoria is to be held on Saturday, 24 November 2018. On 7 November 2018, the Liberal Party of Australia (Victorian Division) nominated Meralyn Klein as its endorsed candidate for the Yan Yean District in the Legislative Assembly. On 19 November 2018, after the close of nominations, solicitors for the Liberal Party advised the Victorian Electoral Commission that Ms Klein was no longer the endorsed candidate for the Liberal Party for Yan Yean.
On 16 November 2018, the Commission registered four multiple how-to-vote cards submitted by the registered officer of the Liberal Party[1] with registration numbers 1303, 1306, 1308 and 1311. The cards were registered under s 79 of the Electoral Act 2002 (Vic).
[1]Under s 78(3)(b) of the Electoral Act.
On 19 November 2018, Samuel Rae, the State Secretary of the Australian Labor Party – Victorian Branch (ALP) applied to the Victorian Civil and Administrative Tribunal for review of the Commission’s decision to register the cards, under s 82A of the Electoral Act. The application was heard on 20 November 2018 by Deputy President Proctor, who joined the Liberal Party as the second respondent to the application. That afternoon, Deputy President Proctor determined to refuse registration of the cards, and made an order in the following terms:
Under section 82A(2) … of the Electoral Act 2002, the Tribunal determines to refuse registration of four how-to-vote-cards identified by the first respondent as HTVC 1303, HTVC 1306, HTVC 1308 and HTVC 1311.
The effect of the Tribunal’s order is that the Liberal Party is not able to use the how-to-vote cards concerned. It is specifically prohibited by s 156(1) of the Electoral Act from handing out anything other than registered how-to-vote cards within 400 metres of a voting centre on election day.
On the application of the Liberal Party, the Tribunal stayed the operation of the order until 12 noon on 21 November 2018. At that time, counsel for the Liberal Party made an oral application in the Practice Court for a stay pending appeal. Senior counsel for the Liberal Party, on the instructions of the State Director of the Liberal Party, undertook that an appeal would be commenced forthwith. Upon that undertaking, I stayed the operation of the Tribunal’s order until 5 pm on 21 November 2018, or further order.
A notice of appeal, summons and supporting affidavit were filed on behalf of the Liberal Party shortly afterwards. I heard the application for leave to appeal and the appeal together that afternoon.
The Liberal Party is an unincorporated association and does not, strictly speaking, have capacity to bring a proceeding in this Court.[2] To overcome this difficulty, I ordered that Nicholas Demiris be added as an appellant. He is the Liberal Party’s State Director, its registered officer for the purposes of the Electoral Act and the person on whose instructions the appeal was brought. He was in my view the person who should have been joined as the second respondent to the Tribunal proceeding.
[2]The legal status of the Liberal Party is discussed in Alston v Cormack Foundation Pty Ltd (2018) 358 ALR 263, [262]-[277].
At the end of the hearing on 21 November 2018, I extended the stay until 10 am the following morning.
On the morning of 22 November 2018 I made the following orders:
1.The appellants have leave to appeal against order 4 of the orders made by Deputy President Proctor of the Victorian Civil and Administrative Tribunal on 20 November 2018 in proceeding No. Z1027/2018 (the Tribunal’s order).
2.The stay of the Tribunal’s order, granted on 21 November 2018, is further extended until 1.00 pm on 22 November 2018.
3.Effective 1.00 pm on 22 November 2018, the appeal is dismissed.
4.The appellants are to pay the respondents’ costs of the proceeding on the standard basis to be assessed by the Costs Court in default of agreement.
My reasons for making those orders follow.
The appellants sought leave to appeal from the Tribunal’s order under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Such an appeal may only be brought on a question of law. The appellants’ notice of appeal identified one question of law:
Whether it was reasonably open to [the Tribunal] on the evidence before it to find that how-to-vote card with registration numbers HTVC 1303, HTVC 1306, HTVC 1308 and HTVC 1311 (the Cards) were likely to mislead or deceive an elector in casting the vote of the elector for the purposes of s 79(3)(a) of the Electoral Act 2002 (Vic) (the Electoral Act).
In the course of argument it became clear that there was also a question about the proper construction of s 79(3)(a). At the suggestion of counsel for the Commission, the question of law was reformulated thus:
On the proper construction of s 79(3) of the Electoral Act, was it open to the Tribunal to conclude that the impugned how-to-vote cards were likely to mislead or deceive an elector in the casting of the elector’s vote?
Section 79 of the Electoral 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.
In exercising its review jurisdiction under s 82A of the Electoral Act, the Tribunal stood in the shoes of the Commission. The Tribunal’s jurisdiction was to conduct a merits review, and to make the correct or preferable decision on the evidence before it.[3]
[3]Mond v Perkins Architects Pty Ltd [2013] VSC 455, [10]; Hoskin v Greater Bendigo City Council (2015) 48 VR 715, [113].
The disposition of this appeal turns on s 79(3)(a) of the Electoral Act. Although the Tribunal’s reasons for decision were not available in time for the hearing of the appeal, it was common ground that the Tribunal refused to register the how-to-vote cards because it found that they were likely to mislead or deceive an elector in the casting of the vote of the elector. In light of that finding, s 79(3)(a) obliged the Tribunal to refuse to register the how-to-vote cards.
Construction of s 79(3)(a)
As to the proper construction of s 79(3)(a), the appellants submitted, and the respondents accepted, that it should be construed conformably with the High Court’s decision in Evans v Crichton-Browne.[4] 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:[5]
[4](1981) 147 CLR 469 (Evans).
[5]Evans, 204.
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.
There followed a number of examples of statements that might affect an elector in casting a vote to record the political judgment that the voter has formed. One of those examples was:[6]
… a statement that a person who wished to support a particular party should vote for a particular candidate, when that candidate in fact belonged to a rival party.
In conclusion, the Court held that the phrase referred to ‘the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment’.[7]
[6]Evans, 205.
[7]Evans, 207–8.
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).[8] 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’.[9]
[8]Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45, [102].
[9]Goss v Swan [1994] 1 Qd R 40, 41.
I prefer the respondents’ submissions on this point. There is in my view danger in transposing a standard developed in relation to commercial dealings,[10] 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.
[10]Now to be found in Part 2.1 of the Australian Consumer Law.
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.[11] I accept that submission, which accords with the use of the word ‘likely’ in s 79(3)(a).
[11]Goss v Swan [1994] 1 Qd R 40, 41.
Was the Tribunal’s conclusion open?
As to whether the Tribunal’s conclusion was open to it, I accept the submission of the Commission that the correct approach is that set out in the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS[12] – namely whether, on the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. 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.
[12](2010) 240 CLR 611, [132]–[135].
The evidence before the Tribunal was:
(a) an affidavit of Howard Roger Rapke dated 19 November 2018 together with the following exhibits:
(i) HRR-1 – a bundle of media articles relating to Ms Klein’s disendorsement by the Liberal Party;
(ii) HRR-2 – screenshots of Ms Klein’s Facebook candidacy page taken on or before 15 November 2018;
(iii) HRR-3 – screenshot of Ms Klein’s Facebook candidacy page taken on 19 November 2018;
(iv)HRR-4 – ‘Our Team’ pack, listing endorsed Liberal Party candidates as at 19 November 2018;
(v) HRR-5 – copies of the four Liberal Party how-to-vote cards registered by the Commission on 16 November 2018;
(vi)HRR-6 – copy of the how-to-vote card registered for Ms Klein on 16 November 2018;
(vii) HRR-7 – screenshot of Ms Klein’s former website;
(viii) HRR-8 – screenshot of the results of the 2014 election for the Yan Yean District on the Commission’s website;
(ix) HRR-9 – letter from Mr Rae on behalf of the ALP to the Commission dated 18 November 2018;
(x) HRR-10 – letter from the Commission to Mr Rae dated 19 November 2018;
(xi) HRR-11 – ballot paper for Yan Yean District.
(b) a letter from Mr Rae to Mr Demiris dated 18 November 2018;
(c) a letter from HR Legal, solicitors for the Liberal Party, to the Commission dated 19 November 2018; and
(d) a letter from the Liberal Party to the Tribunal dated 20 November 2018.
From this evidence the following matters were apparent:
(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.[13]
[13]Rapke affidavit, [8].
(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.[14]
[14]Rapke affidavit, [9] and HRR-1.
(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,[15] or how to vote Liberal/The Nationals,[16] 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.[17] 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.[18]
(e) The word ‘Liberal’ and the Liberal Party logo appears next to Ms Klein’s name on the ballot paper for Yan Yean.[19]
[15]How-to-vote cards 1308 and 1311.
[16]How-to-vote cards 1303 and 1306.
[17]Euroa, Gippsland East, Gippsland South, Lowan, Mildura, and Ovens Valley. In Bendigo East, Morwell and Shepparton, where there are both Liberal and Nationals endorsed candidates, how-to-vote cards 1303 and 1306 show separately how to vote for the Liberal candidate and how to vote for the Nationals candidate.
[18]Rapke affidavit, [10]–[11] and HRR-5.
[19]HRR-11. I held in Rae v Victorian Electoral Commission [2018] VSC 730 that ss 74(4) and (5) of the Electoral Act obliged the Commission to include this information on the ballot paper, because Ms Klein had been endorsed by the Liberal Party when she was nominated.
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.
Disposition
The appellants had a serious argument that the Tribunal was in error, that had a real and not fanciful prospect of success, and so I granted leave to appeal.
For the reasons I have given, I dismissed the appeal.
The outcome in this case may appear inconsistent with that in Rae v Victorian Electoral Commission.[20] In that case, I dismissed Mr Rae’s application for orders directing the Commission to reprint, or consider reprinting, the ballot papers for the Yan Yean District to reflect the fact that Ms Klein is no longer the endorsed Liberal Party candidate. That decision did not turn on an assessment of whether the ballot paper was likely to mislead or deceive electors in the casting of their votes. Had it done so, the outcome may have been different. The decision in Rae reflected the deliberate choice made by Parliament, in ss 74(4) and (5) of the Electoral Act, to fix the endorsement information to be printed on ballot papers at the time of nomination. By contrast, the judgment as to whether a how-to-vote card is likely to mislead or deceive is to be made at the time registration is considered under s 79 of the Electoral Act.
[20][2018] VSC 730.
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