Re Australian Electoral Officer, Ex parte Abotto

[1996] HCATrans 42

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 8699
  A  1.3.96

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M13 of 1996

RE: THE AUSTRALIAN ELECTORAL OFFICER

ex parte:

JOHN MURRAY ABBOTTO

DAWSON J

AT MELBOURNE, WEDNESDAY THE 28TH DAY OF FEBRUARY 1996

MR J.M. ABBOTTO:   If it please the Court, your Honour, I represent myself in these proceedings.

HIS HONOUR:   Yes, Mr Abbotto, come forward.  This is an application for an order nisi for a writ of prohibition.

MR ABBOTTO:   That is correct, your Honour.

HIS HONOUR:   Yes.  I have read the material or more accurately the more recent materials, Mr Abbotto.

MR ABBOTTO:   Yes.  Would your Honour like me to take you through the case as I see it, your Honour, or do you have any questions to ask?

HIS HONOUR:   Yes, if you could explain how you wish to put your argument.

MR ABBOTTO:   Yes, your Honour.  Your Honour, if I can refer the Court to my exhibit JM4 I would like to proceed from that point onwards.

HIS HONOUR: What you are alleging is a breach of section 329(1) of the Commonwealth Electoral Act; is that not so?

MR ABBOTTO:   That is correct, your Honour.

HIS HONOUR:   Yes, and you seek to restrain the further breach of that Act by the further publication of the material of which you complain.

MR ABBOTTO:   That is right.

HIS HONOUR:   Yes.

MR ABBOTTO:   It is my submission, your Honour, that the material forwarded by the Commissioner is misleading and bordering on the discrimination to the Independents in this election coming on 2 March of which I am a candidate.

HIS HONOUR:   Yes.

MR ABBOTTO:   Your Honour, in my exhibits in my supporting affidavit in these proceedings marked JMA4.

HIS HONOUR:   Yes.

MR ABBOTTO:   I point out to the Court, your Honour, that that particular page, at the bottom of the page, it clearly states:  "Note" - in big lettering ‑ ‑ ‑ 

HIS HONOUR:   Just stop there.  What you are complaining about, Mr Abbotto, is what appears in exhibit ‑ ‑ ‑ 

MR ABBOTTO:   4.

HIS HONOUR:   Well, no, exhibit 4 is - that is your previous material but exhibit 9 is it not, really, that is the advertisement that appears?

MR ABBOTTO:   No, your Honour, I refer to the booklet which is marked in the affidavit sworn on this day, the 28th.

HIS HONOUR:   5, I am sorry.

MR ABBOTTO:   Yes.

HIS HONOUR:   Yes.  So it is exhibit 4.

MR ABBOTTO:   Exhibit 4, yes.

HIS HONOUR:   Right, yes.

MR ABBOTTO:   How to vote for the Senate.

HIS HONOUR:   Yes.

MR ABBOTTO:   Top of the page.  At the bottom of the page, your Honour, we have:

Note - Some candidates are not part of a party or group which has a box above the line.

HIS HONOUR:   Yes.

MR ABBOTTO:  

If you wish to vote for these candidates you must vote below the line, but remember to put a number in every box.

Now there is no contention to that, your Honour.  It is correct.  The contention comes through all the subsequent advertising after that booklet was issued to every household.  If I point out to your Honour, in my exhibit JMA5.

HIS HONOUR:   Yes.

MR ABBOTTO:   I have here the original which is the entire page of the Herald Sun dated February 27th, which was yesterday.

HIS HONOUR:   Yes.

MR ABBOTTO:   And on that exhibit, your Honour, if you would note that the notation that I had previously read from the booklet issued by the Electoral Commissioner appears nowhere.

HIS HONOUR:   Yes.

MR ABBOTTO:   Clearly indicating that the electorate has a choice above or below the line when voting for their chosen candidate, albeit a group or an Independent.  Now, I would refer your Honour to the actual paper which is exhibit JMA3, left hand corner, bold lettering, it states:

You may vote in one of two ways, either by placing the single figure 1 in one and only one of these squares to indicate the voting ticket you wish to adopt as your vote or by placing the numbers 1 to 44 in the order of your preference.

Further down:

Fold the ballot paper, place it in the envelope addressed to the Divisional Returning Officer and fasten the envelope.

Now clearly that ballot paper does not indicate that to vote the ungrouped you must vote the lower portion.  There is nothing indicating it in the editorial that I have just pointed out to the Court.  Further media advertising, the electronic media, television, clearly indicates that the electorate has a choice between the upper section or the lower section, nothing indicating what was indicated on "How to Vote" distributed by the Electoral Commissioner.

HIS HONOUR:   But, Mr Abbotto, if you take the advertisement of which you complain, what it tells the elector is that you can cast a vote in one of two ways, one by putting the number 1 in one of the group ticket voting squares or alternatively by numbering all of the boxes which appear opposite the names of each of the candidates, numbering them in order of - consecutively in order of - preference.

MR ABBOTTO:   Yes, your Honour.

HIS HONOUR:   And those are the two methods by which a voter can vote.

MR ABBOTTO:   That is correct, your Honour.

HIS HONOUR:   What you are saying is, there are not two methods in your case because you are an ungrouped candidate.

MR ABBOTTO:   That is correct, your Honour.

HIS HONOUR:   And therefore it is misleading because it suggests that you could vote for you by placing the number 1 in a square above the line, that is to say, in a group voting ticket square.

MR ABBOTTO:   Yes, your Honour.

HIS HONOUR:   But that cannot be so if there is no square in which to place a number.

MR ABBOTTO:   That is so.  That would appear at first sighting, your Honour, but in my exhibit 6 ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR ABBOTTO:   ‑ ‑ ‑ pages 31 and 46 of the booklet titled "Scrutineers Handbook", clearly the problem exists in that the Electoral Commissioner has taken the trouble of actually showing how some of the electorate would vote and in fact there it indicates clearly that one electorate has put a box above the ungrouped, marked it 1 and actually put the 1...

HIS HONOUR:   I see, yes.

MR ABBOTTO:   Yes.  So therefore clearly that particular section is listed as number 9 in the page 31 of formality of ballot papers and it clearly states in number 9:

Top section is informal because there is no first preference.

But the electorate has placed a box at the top.  Considering ‑ ‑ ‑ 

HIS HONOUR:   I am sorry, the elector has placed ‑ ‑ ‑ 

MR ABBOTTO:   Elector, I am sorry.

HIS HONOUR:   That is not something which the advertisement suggests can be done.

MR ABBOTTO:   That is correct, your Honour.  However, because the elector would consider from these advertisements that there has been a misprint, that somebody forgot to put the square above.

HIS HONOUR:   Why would he consider that?

MR ABBOTTO:   Because clearly it says that you may choose either the top or the bottom.  People acknowledging from the advertisements that if you ‑ ‑ ‑ 

HIS HONOUR:   But it does not say that.  It says:  Can choose the top or the bottom, which could refer to the actual advertisement.

MR ABBOTTO:   Yes.

HIS HONOUR:   By placing ‑ ‑ ‑ 

MR ABBOTTO:   Number 1 at the top ‑ ‑ ‑ 

HIS HONOUR:   In one of the boxes above the line.

MR ABBOTTO:   Yes.

HIS HONOUR:   Well, if there is no box there then that is not an available option in the case of an ungrouped independent candidate, is it?

MR ABBOTTO:   Not as far as the Electoral Commissioner goes, sir, that is correct.

HIS HONOUR:   But so far as anyone is concerned, you cannot write number 1 in a box which does not appear.

MR ABBOTTO:   One would assume so, your Honour, but clearly the Electoral Commissioner considers that it is possible because they have given it as an example on page 46 of their Scrutineers Handbook and there is nothing in the advertising that says you cannot.

HIS HONOUR:   Well, what he says there or what he said there is that it is possible that an elector may add a box which is not there and place a number 1 in that box but that is not something that the advertisement suggests ‑ ‑ ‑ 

MR ABBOTTO:   No, it is not, sir.

HIS HONOUR:   ‑ ‑ ‑ as a possibility.

MR ABBOTTO:   That is correct, sir, but the advertisement does not indicate what the original handbook that I have exhibited as JM4 - that it says, "Note" etcetera.  It does not say any of that.  This is where all the advertisements are deceitful and could very well be misconstrued and therefore I indicate to the Court on that basis alone that as a Senatorial candidate for the Independent candidate, and may I add, sir, that I became Independent because I do not accept the group politics, I do not accept their ideas, I wanted to go in as an Independent, but on that basis I have been, if I may add, discriminated because anyone voting for me must fill out 44 squares and generally people are not going to study a ballot paper having better things to do, shopping, etcetera, and would merely seek the easy way out and would look for a square at the top to place their number 1. 

Not seeing one there, some would consider it easy enough to place one there above the ungrouped, considering it there, the Independents and consequently coming in with a donkey vote, and as a consequence going to other parties and my submission, sir, is that there is a possibility that the electorate can be deceived.  As such I would ask this Court, sir, to place a restraining order on the Electoral Commission to continue with such advertisements but to correct it in the form that they have taken the initiative to do so in the:  "Your Guide to the Federal Elections", all too easy to do, sir, but merely it has been neglected for whatever reason.

Clearly the Electoral Commissioner is aware that this problem can occur, took the initiative to at least do something about it in that book but has done nothing to even vaguely indicate to the electorate that it cannot be so in any of their media advertising, written or visual, and as a consequence the majority of the people, I submit, sir, the electorate, going to the booths this Saturday morning or through Saturday, hoping to be able to cast their vote, not to someone that they do not like but rather to an Independent, find themselves in a precarious position of not finding the little square where it should be and as a consequence jeopardising their vote, or at least their honest vote.

[3.26pm]

I may also add, sir, that as a consequence of that this election, Saturday, 2 March, may well be that whoever is elected may be only elected by stealth, not by honesty.  And as a consequence, from the figures given by the Electoral Commissioner, the very fact that people are given even a choice of choosing between one number and 44, 97 per cent of the electorate are going to choose putting the one number down instead of 44.

HIS HONOUR:   This is a different point that you are making.

MR ABBOTTO:   I submit, sir, that that is the case.  However ‑ ‑ ‑ 

HIS HONOUR:   Now, this is a different point you are making, Mr Abbotto.

MR ABBOTTO:   Yes, I appreciate that, sir, but I thought that I would alert the Court to such a possibility.  But in essence, I seek from the Court today that at least to be given the opportunity for the Commissioner to correct misleading advertising, making clear to the electorate that they have not got a choice at the top of the line for the Independents.  They can choose an Independent in one way and one way only, by placing the number 1 in their chosen Independent and then continuing to number every one of the 44 squares or at least 90 per cent of them.

Now, unless something is done quickly, sir, I submit that the coming elections are not going to be honest.  People are being misled and I so end my submission, sir.

HIS HONOUR:   Yes, thank you, Mr Abbotto.  I will retire for a short while to consider the matter.

SHORT ADJOURNMENT

[4.04pm]

HIS HONOUR: This is an application for an order nisi for a writ of prohibition directed to the Australian Electoral Officer for the State of Victoria restraining him from distributing or publishing certain material contrary to section 329(1) of the Commonwealth Electoral Act 1918. In the alternative, the applicant seeks an interim injunction to the same effect. Section 329(1) reads:

A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit, or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote.

The applicant, who appears in person, is standing for the Senate as an independent candidate for the State of Victoria in the forthcoming half-Senate election. He contends that television and newspaper advertisements published by the Australian Electoral Commission are misleading and deceptive within the meaning of section 329(1) and seeks to prevent the further publication of such material.

The advertisements of which the applicant complains purport to inform electors how to vote for the Senate.  They show a partial representation of a ballot paper including the line which is drawn between group voting ticket squares at the top (which enable an elector to cast a group vote by placing figure 1 in the appropriate square) and the squares which appear against the names of the individual candidates.  To cast a vote other than a group vote, an elector must number consecutively in order of his or her preference, each of the squares appearing against the candidates' names.

The newspaper advertisements read (and I read from the example which is selected by the applicant) as follows:

Senate ballot paper.  We draw the line.

And these words appear above the line:

Either you can write the number 1 in one of the boxes above the line.  This means your preferences will be allocated by the party or group you have voted for -

And these words appear below the line -

...to give you a choice. Or you can number all of the boxes below the line from 1 onwards.  This means you choose your own preferences for candidates.

So number one box above the line or every box below the line. And remember, it's your right, don't get it wrong.

The television advertisements are, according to the applicant, to the same effect.

In seeking to support his application, the applicant refers to a brochure distributed by the Australian Electoral Commission which is in the same form as the advertisements, but contains the words:

Note:  Some candidates are not part of a party or group which has a box above the line.  If you wish to vote for these candidates, you must vote below the line, but remember to put a number in every box.

The absence of those words, the applicant contends, makes the newspaper and television advertisements misleading and deceptive because an elector is led to believe that he or she may cast a vote for an ungrouped independent candidate, such as the applicant, by placing the figure 1 in a group voting ticket square above the relevant line.

In my view, the absence of the words which appear in the brochure does not have that effect.  Even in the absence of those words, the elector is presented with two alternatives, namely, to number a square above the relevant line, or to number consecutively in order of preference all squares below the line.  Since no group voting ticket square appears on the ballot paper above the line in relation to any of the ungrouped Independent candidates, it is not possible in the case of those candidates to cast a group vote and an elector would not be misled by the advertisements into thinking that he or she could do so.

The applicant seeks to overcome the absence of a group voting ticket square upon the ballot paper in relation to the ungrouped independent candidates by saying that an elector could draw in a square and place in it the figure 1 under the mistaken belief that such would constitute a formal group vote.  A Scrutineer's Handbook issued by the Australian Electoral Commission uses that example to indicate an informal vote.

However, the advertisements do not suggest that the adoption of such a course would result in the casting of a formal vote, or indeed, that such a course is any way open to an elector.  In my view, the advertisements complained of do no more than inform voters that there are two methods of casting a formal vote in the Senate election, one by placing the figure 1 in the square above the line on the ballot paper and the other by numbering all the squares below the line consecutively.  They do not suggest that an elector may draw in a square above the line and place the figure 1 in it, and in the case of ungrouped individual candidates, the effect of the advertisement is to leave to the elector the one course of marking all the squares below the line.

For these reasons, I do not consider that the advertisements which are complained of are misleading or deceptive and the applications must fail.  The application is dismissed.

AT 4.11 PM HIS HONOUR LEFT THE BENCH