Tuffy v Vaughan

[2009] NSWADT 316

CITATION:

Tuffy v Vaughan & ors [2009] NSWADT 316

DIVISION:

General Division

PARTIES:

Applicant:
Michael Tuffy

First Respondent:
Leigh Vaughan

Second Respondent:
John Weate

Third Respondent:
Linda Gill

FILE NUMBER:

083287

HEARING DATES:

27, 28 29 April 2009

SUBMISSIONS CLOSED:

29 April 2009

EXTEMPORE DECISION DATE:

29 April 2009

 
DATE OF DECISION: 

29 April 2009

BEFORE:

Britton A - Deputy President; Higgins S - Judicial Member; Antonios Z - Non-Judicial Member

LEGISLATION CITED:

Local Government Act 1993
Local Government (General) Regulation 2005
Telecommunication Act 1997 (Cth)
Commonwealth Electoral Act 1918(Cth)

CASES CITED:

R v Gray; Ex Parte Marsh (1985) CLR 351
Roberts v Jeffrey & Ors (2003) NSWSC 162
Bourne v Murphy (1992) LGERA 329

REPRESENTATION:

Applicant Representative:
G Wells, agent

First & Second Respondent Representative:
J Vaughan, solicitor

Third Respondent Representative:
In person

ORDERS:

The application in respect of Mr Weate, Ms Vaughan and Ms Gill is dismissed.

REASONS FOR DECISION

1 The brief reasons for our decision are these. On 31 October 2008, Michael Tuffy, the applicant in these proceedings applied to the Administrative Decisions Tribunal under s 329 of the Local Government Act1993, (the Act), for orders that fellow councillors, Leigh Vaughan and John Weate, respectively the first and second respondents, be dismissed from office.

2 In December 2008, at the request of Mr Tuffy, Ms Linda Gill, the third respondent in these proceedings, was joined as a party. Mr Tuffy also seeks Ms Gill’s dismissal.

3 The factual background to this application can be briefly stated. On 13 September 2008, an election was conducted for Great Lakes Council. Forty-four candidates stood for nine positions. All respondents and the applicant were elected to office. Mr Weate and Ms Vaughan stood as Labor candidates; Ms Gill stood as an independent.

4 This morning Ms Higgins read onto transcript the documents that were admitted into these proceedings. All have been taken into account in our decision as have the written submissions made by the parties. We note that voluminous material has been provided to the Tribunal and a wide range of issues have been canvassed, many irrelevant to the decision that we are called upon to make. In these reasons we have decided not to address those issues which are not relevant to our determination.

5 One of the issues in these proceedings was the nature of the purported irregularities on which the applicant relied. The Tribunal, with the assistance of the parties, sought to refine the scope of those alleged irregularities, this being considered necessary given their number, scope and lack of clarity.

6 It is agreed with Dr Wells, who represents Mr Tuffy in these proceedings that the following constitute the alleged irregularities for the purpose of our determination. (In these reasons ‘the Regulation’ is a reference to the Local Government (General) Regulation 2005. It is common ground that these regulations and the Act governed the conduct of the subject elections.)

7 In respect of Ms Vaughan, the allegations are these:

First, that in contravention of cl. 356 of the Regulation, Ms Vaughan distributed electoral material, namely, the material contained in her website that had not been registered under subdiv 6 of Div 9A of the Regulation. We refer to this as the ‘non-registration allegation’.

Second, that in contravention of cl 356G of the Regulation, Ms Vaughan’s website did not carry the name and address of the person who had authorised the material contained on it. We refer to this as the ‘non-authorisation allegation’.

Third, that in contravention of, and this is somewhat unclear to the Tribunal, but as we understand it, cl 356B(2), the website carried an image of the Council’s logo. We also understand that this is asserted to be a departure from some rule in the extended meaning of the term, “irregularity”, to which we shall return.

Fourth, that in contravention of cl 356M of the Regulation, Ms Vaughan distributed on the day of the election a council fridge magnet to a voter.

8 They are the allegations or the alleged irregularities that relate to Ms Vaughan. The first and second are claimed to also apply to Mr Weate, that is, the non-registration allegation and the non-authorisation allegation.

9 In respect of Ms Gill, two separate stand alone allegations of irregularities have been made.

Firstly, that on polling day, a poster advertising her candidature was displayed at Green Point polling booth which did not comply with cl 356G of the Regulation; that is, it did not carry the name of the person who had authorised it.

And secondly, that throughout the ‘regulated period’, Ms Gill was mentioned on the Greens’ website as a Greens councillor and that that material, ie, the website material, was unregistered.

10 Before turning to consider each of those allegations, it is necessary to briefly state what the law is in this area. This has been discussed with the parties in the course of these proceedings and I do not wish to go into it in any great detail. The law in this matter is, as we understand it, settled.

11 Section 329 of the Act on which the subject application is based gives the Tribunal the power to entertain an application to dismiss a person from civic office. It provides that any person may apply to the Administrative Decisions Tribunal for an order that a person be dismissed from civic office, and on any such application the Tribunal may order the dismissal of a person from civic office:

(a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office,

12 The meaning of the term “irregularity” in the context of s 329(2) has been considered by the Court of Appeal and the Supreme Court. It has been held to extend to an irregularity affecting the conduct of the election which includes the whole proceedings, from the first step taken by the returning officer to the declaration of the result: per Bell J in Roberts v Jeffrey & Ors (2003) NSWSC 162 at 49.

13 Applying that definition to the matters before us, we have adopted the two step approach enunciated by Beazley J in Bourne v Murphy (1992) LGERA 329 and 358. Accordingly, in respect of each purported irregularity, which I have just set out, we must ask in relation to each relevant respondent:

First, does the conduct constitute a potential breach of any provision of the Act or the Regulations?

Second, if not, does it constitute ‘a departure from some rule, established practice or generally accepted principle’ per Gibbs CJ in R v Gray; Ex Parte Marsh (1985) CLR 351 at 368 and adopted by Beazley J in Bourne v Murphy at 358.

Third, if so, was the nature of that irregularity such that either separately or in combination with any other irregularity, that the result of the 2008 Great Lakes Council election, the subject of Mr Tuffy’s application, was thereby rendered uncertain?

And finally, if the answer to that question is ‘yes’, should the Tribunal order that any of the respondents be dismissed from civic office, that is, from their position as councillor.

14 In addressing these questions, it is important to note that the applications do not stand and fall together; that is, it may be the case that it is found that the application succeeds against one but not all of the councillors.

15 Turning to the first allegation. That is, the non-registration of the website. The provision relied upon by Mr Tuffy in these proceedings is cl 356M of the Regulations. It provides that a person must not, in a public place, distribute any electoral material on election day unless the material has been registered under subdiv 6 for the election. Subcl 2 provides that for the purpose of this clause and without limiting its operation, material is taken to be distributed if it is left in such a position and in such circumstances as to indicate that it is intended to be available for collection by members of the public who are in a public place.

16 The first issue that arises therefore is —does the website constitute ‘electoral material’ for the purpose of cl 356M? Cl 356A of the Regulation defines electoral material broadly to mean a ‘how-to-vote card, poster or advertisement containing electoral matter or anything else containing electoral matter’. In our view, the words “or anything else” indicate that the material is not limited to a how-to-vote poster or advertisement and on its face, a page from a website could potentially constitute electoral material.

17 However, the definition of electoral material needs to be read in context with the words “that it must contain”, that is, the material must contain electoral matter. Paragraph (a) of the definition of electoral matter is defined to mean ‘any matter that is intended or calculated or likely to affect or is capable of affecting the result of any election held or to be held or that is intended or calculated or likely to influence or is capable of influencing an elector in relation to the casting of his or her vote at any election’.

18 Now while as we have indicated, on the face of the definition, there is nothing to indicate that a document in electronic form is excluded, the definition must also be read in the context of cl 356M, which is the provision that requires that electoral material be registered on polling day. Returning to the words of that provision, it provides ‘a person must not in a public place distribute any electoral material unless the material has been registered under Subdivision 6 for the election’. The term “distribute” is clarified by subs 2 of that provision which provides that ‘for the purpose of this clause without limiting its operation, material is taken to be distributed if it is left in such a position and in such circumstances as to indicate that it is intended to be available for collection by members of the public who are in a public place’.

19 The issue raised by this application is whether a website is caught by cl 356M. It is common knowledge that unless password restricted, a website is accessible to members of the public and there is no issue that Ms Vaughan’s website throughout the relevant period was not so protected. From this we conclude that the material was accessible on Election Day. However, a fair reading of the provision, in our view, does not lead us to conclude that it could be said that it was distributed on Election Day. While electronic material is not expressly excluded from the definition, the word “distribute” indicates that there must be some active step taken by someone to make the material available as opposed to, as is in the case of a website, where the ‘reader’ must take the initiative to, obtain the material by visiting the website. In our view, the website is not caught by cl 356M of the Regulation.

20 We deal briefly with one factual contest, that is, the identification of the material accessible on Election Day. There is some evidence about the content of the website on the day prior to Election Day. In the absence of any evidence to the contrary we think it reasonable to infer and, that the material remained unchanged until 13 September 2008. In any event, given our finding in respect of the construction of cl 356M, nothing turns on this point.

21 To summarise, we are not satisfied that the failure of Ms Vaughan to take steps to have the website registered under the relevant provisions of the Regulation constitutes an irregularity for the purpose of s 329 of the Local Government Act. Before closing on that point, I should briefly deal with the submission made this morning by Dr Wells which, as I understand it, is this. By the combined effect of the Telecommunication Act 1997 (Cth)and the Commonwealth Electoral Act 1918 (Cth), cl 356M of the Local Government Regulation should be read as extending to material in electronic form such as that which is the subject of this alleged irregularity.

22 The provision relied on by Dr Wells is the extended meaning of ‘communications’ in the Telecommunications Act which includes material that might conveniently be described as ‘material in an electronic form’. As a matter of statutory construction, State legislation is not to be read to incorporate provisions of either different State Acts or Commonwealth Acts or regulations. In our view, the argument is misconceived.

23 We turn now to the second alleged irregularity. That is, the non-authorisation of the website. It is not contested that at least for part of the regulated period, Ms Vaughan’s website did not carry an authorisation as the applicant asserts it was required to carry by the operation of cl 356G of the Regulations. In our view, on the proper construction of cl 356G, an electronic document is not caught by that provision for these reasons. The provision is in the following terms:

356G Name and address on electoral material

(1) A person must not, during the regulated period, print, publish, distribute or publicly display electoral material (other than the announcement in a newspaper of the holding of a meeting), without legibly showing on the material:
(a) the name and address of the person on whose instructions the material was printed, and
(b) the name of the printer and the street address of the premises at which it was printed.

24 In our view, read in context, it is plain that the provision does not extend to documents that are not available in hard copy form. If that were otherwise paras (a) and (b) which refer to the material being printed and the name of the printer and the premises where the document was printed, would have no work to do. It may well be, as Dr Wells contends, that this is an oversight and Parliament did not intend that the provision be restricted to documents in hard copy form. However, on the proper construction of cl 356G, the provision in our view does not extend to documents in electronic form. There is no evidence before us to suggest that ‘electronic documents’ were printed by Ms Vaughan and distributed in the context of this election.

25 Turning now to Irregularity Three, that is, the use of the council logo on Ms Vaughan’s website. Extracts from Ms Vaughan’s website are contained in a number of the documents before the Tribunal. For these purposes, I am referring to Exhibit A2 Annexure 9 which contains a page printed off from the website apparently, on 12 September 2008. It includes, amongst other things, a photo of Ms Vaughan and the council logo. In brief terms, it encourages voters to re-elect Councillor Weate and Vaughan and to vote for the ‘Local Labor team’. It includes a link to download the “how to vote” card.

26 It is not in issue, that at least for part of the regulated period, and I failed on the last occasion to specify that period, namely, 4 August 08 to 13 September 08, Ms Vaughan’s website carried an image of the council logo. Dr Wells argues that the carrying of a logo constitutes an irregularity in two ways. First, its use meant that the website or a part of the site on which it appears, carried non-complying electoral material under cl 356B(a) of the Regulations. Cl 356B(a) reads,

For the purpose of this division, electoral material contravenes this subdivision if the material contains voting directions intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote.

27 Dr Wells, as we understand him to argue, submits that Ms Vaughan sought to, in effect, capitalise on the prestige associated with her position as councillor, and her association with council, by putting the Council logo on her website. This, he contended, had the potential to ‘improperly interfere with an elector in or in relation to the casting of their vote’.

28 The question, therefore, we need to consider is — ‘Was the use of the council logo in the circumstances before us, intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote?’ While we accept that the use of the council logo might have the effect of holding out Ms Vaughan and Mr Weate as enjoying some status within the community as a consequence of their respective council positions, we do not accept that it could be said that it was intended to improperly, and I emphasise the word “improperly”, interfere with an elector in the sense as caught by cl. 356B(a).

29 It is relevant that no issue of misrepresentation arises. The offending page encourages electors to cast a vote for Weate and Vaughan. At all relevant times, both were councillors. That they might have been seeking to use the fact of their incumbency to extract some electoral advantage does not translate into ‘improper interference with an elector in or in relation to the casting of their vote’.

30 For these reasons, we are not satisfied that the use of the council logo in the circumstances as described, constitutes a potential breach of cl 356B(a).

31 I now turn to the second submission made in respect of the logo that is, that it constitutes an irregularity in the broader sense of the word, that is in the sense referred to by Gibbs CJ in R v Gray that is, ‘a departure from some rule, establish practice, or generally accepted procedure’.

32 The submission made by Dr Wells relies on two memos which are contained in Exhibit A2, Annexure 4 to which I will return. Before I look at those memos, I note this. Ms Vaughan’s evidence was to the effect that in or about mid-2007 she sought and received permission from council General Manager, Kevin O’Leary to (1) include council’s logo on her website and (2) display a link to the council’s website on her website. Before us in these proceedings was a letter dated 6 January 2009 prepared by Mr O’Leary which substantiated those claims. Mr O’Leary wrote that council had no formal position or policy on the use of the council logo on the websites of individual councillors and, that he was unaware of any legislative provision or directive from the New South Wales Department of Local Government that might prevent the use of the council logo in this way.

33 Mr O’Leary was not called to give evidence in these proceedings, although, I note a summons was issued by the Registrar at the request of the applicant, for him to attend to give evidence. As I understand the argument put by Dr Wells, Mr O’Leary was not in a position to authorise Ms Vaughan to use the Council logo in the manner she did and relies for that contention on the memos that I referred to earlier. He says that the effect of the memo issued by Garry Payne, Director General of the Department of Local Government, on 7 May 2008 which, as mentioned, is contained in Annexure 4 to Exhibit A2, effectively bars councillors from using a council logo on their website. The memo is headed “Misuse of Council Resources”. The memo, among other things, reminds councillors of their need to be scrupulously honest in the use of council resources including motor vehicles, information, telecommunications etc and attention is drawn to the model code of conduct. It then sets out further requirements imposed on councillors in respect of their duties and obligations. It contains this extract from the model code of conduct.

“The councillors must not seek or obtain either directly or indirectly any financial benefit or any other improper advantage for themselves or any other person or body from the use of council information or other resources”.

Second,

“Must use council resources ethically, effectively, efficiently and carefully in the course of their public duties” et cetera “ and,

“Must avoid any action or situation which could cause the impression that council property, official services or public facilities are being improperly used for their own or any other person or bodies private benefit or gain” and

“Must not convert any property of the council to their own use unless properly authorised”.

34 A fair reading of those particular provisions and the memo as a whole does not lead us to conclude that it captures a situation such as this where, with permission of the general manager, a council logo was used on the website of a councillor, in circumstances where no issue of misrepresentation or improper advantage or financial benefit arises.

35 Turning now to the second document that Dr Wells relies on to support his contention that the logo constitutes an irregularity in the broader sense of the word, the memo of 19 May 2008, from Acting General Manager, Steve Emery. That memo highlights cl 9(18) of the council’s code of conduct. It states that:

…the interests of a councillor in their re-election is considered to be a ‘personal interest’ and as such, the reimbursement of travel expenses incurred on election matters is inappropriate. Council letterhead, council crests and other information that could give the impression it is official council material must not be used for these purposes.

36 It is our understanding that Dr Wells relies on the second sentence, that is, ‘Council letterhead et cetera must not be used to give the impression that it is official council material and must not be used for these purposes’.

37 Turning again to the website, there is nothing from in the extract referred to earlier from Ms Vaughan’s website or the website as a whole, to suggest that it is official council material. The banner to the website states, “Leigh Vaughan, your community voice” and carries a photo of Ms Vaughan. Read as a whole, together with the links, we do not think that the use of the logo could reasonably be taken to indicate that it is, or is held out to be, official council material. For that reason, we are not satisfied that the website constitutes an ‘irregularity’ in the broader sense of the word.

38 I turn now to the fourth alleged irregularity, namely the fridge magnet. It is common ground that on polling day Ms Vaughan handed an elector in the vicinity of a polling booth a council fridge magnet. On Ms Vaughan’s account, which has not been challenged in these proceedings, from time to time she is asked by electors for a magnet which council provides free of charge to ratepayers. She claims that the magnet was produced as part of an anti-crime campaign that she was involved in, as was the council.

39 A copy of the offending magnet is to be found at Exhibit A2 Annexure 12. It is in the shape of a house and reads “Let’s stop crime” and includes phone numbers for emergency services, Forster police, police assistance, crime stoppers and at the words “Great Lakes Crime Prevention Taskforce”, appear together with the council logo. As we understand it, it is asserted that the distribution of the fridge magnet on polling day constitutes a potential breach of cl 356D, 356G and 356M of the Regulations.

40 To enliven any of these provisions, it is necessary to establish that the fridge magnet constitutes electoral material. As noted, the term “electoral material” captures a wide class of material and that it is not a how-to-vote card, poster or advertisement, does not of itself, mean that the magnet is not electoral material. However, critical to a thing being considered “electoral material” is whether it contains “electoral matter”.

41 I return to the definition of “electoral matter” which I have already read onto transcript but in short form, I repeat that it is ‘any matter intended or calculated or likely to affect or capable of affecting the result of any election held or that is intended or calculated or likely to influence or is capable of influencing an elector in relation to the casting of his or her vote at any election’. It is to be noted that the magnet makes no mention of Ms Vaughan, the Labor party or the 2008 election. There is no evidence that the magnet was intended or calculated to effect the result of the 2008 election or that it was intended or calculated to influence a voter in relation to the casting of his or her vote. Nor has it been explained to us how the magnet would be likely to influence or be capable of influencing either the result of the election or an elector in relation to the casting of his or her vote.

42 It is relevant, in our view, that it is the matter that must be intended to calculate et cetera, either the outcome of the election or the elector in relation to the casting of the vote, not as, we understand, Dr Wells to contend the giving of the matter.

43 For these reasons, we could not be satisfied that the magnet constitutes electoral material for the purpose of the Regulations and it is therefore unnecessary to consider whether or not there has been a breach of the Regulations.

44 To conclude in respect of the alleged irregularities that relate to Ms Vaughan, we are not satisfied that any have been made out.

45 We turn now to the irregularities alleged in respect of Mr Weate. As noted, they are the non-registration and non-authorisation of the website. It follows given our findings made in respect of Ms Vaughan that neither constitutes an irregularity in relation to Mr Weate.

46 We turn now to the separate matters that concern Ms Gill, firstly to the poster allegation. It is common ground that on polling day, a poster was displayed at Green Point polling booth that encouraged electors to vote for Ms Gill and did not carry, as required by cl 356G of the Regulation, the name and address of the person on whose instruction the poster was printed. A copy of the offending poster is included in Exhibit AA1 Annexure A. It reads,

“Green Point! A vote for a councillor who voted for you, Linda Gill. Linda says no to development”.

47 Before looking at that poster, we deal with an issue that has arisen in the course of this inquiry. Mr Roberts gave evidence about the poster. He provided the Tribunal with a statutory declaration. He was asked in evidence whether the poster he was referring to, that he contended did not carry the relevant authorisation, was that contained in Exhibit AA 1 Annexure 1. He stated that that was not the poster he had been referring to. He said the poster he saw was handwritten and included photographs of wetlands areas, allegedly in or around the Green Point area. He claimed that the poster so described carried a misrepresentation as, in his view, it suggested that there was opposition to that development.

48 Mr Oldfield, gave evidence on behalf of Ms Gill. His evidence was to the effect that ‘on and off’ for most of polling day he had been assisting with handing out electoral material on behalf of Ms Gill at Green Point; that he had not sighted a poster that met the description given by Mr Roberts. He identified two posters displayed by Ms Gill’s team on Election Day. One was the poster contained in Exhibit AA1; the second was a printed poster and carried a photograph of Ms Gill’s team - MFI 2.

49 Mr Oldfield was asked some questions about the alleged photographic poster described by Mr Roberts. He gave a description of a poster that was used by the Greens which might meet that description but, in any event from the evidence before us, we could not be satisfied that, in fact, a third poster was used on election day by Ms Gill’s team at Green Point polling booth.

50 Many of the matters raised about the display of the poster contained in Exhibit AA1 Annexure 1, and for convenience will be referred to as the ‘official Gill poster’ is uncontroversial –it is conceded that it did not carry an authorisation setting out the name of the person who had authorised the poster. The only factual issue in dispute is whether the poster had been amended by hand as claimed by Mr Oldfield and corroborated by Mr Davies at or about 1.30 pm. Evidence was given by Ms Armstrong, who was called by the applicant, that at about 4.30pm on polling day, she sighted a poster that did not carry the requisite authorisation and took a photo. A copy of that photograph was attached to her statement and it does not appear to carry the authorisation. Mr Oldfield was cross-examined on this point. His evidence was clear — by the afternoon of polling day the poster did carry the requisite authorisation. He was certain that only two posters were on display throughout the relevant period and he had taken steps to amend both by hand. He was unable to offer an explanation as to why the photograph provided by Ms Armstrong did not include the authorisation.

51 In our view, it is not necessary to determine the evidence on that point for these reasons. Even if the evidence for the applicant is taken at its highest and we accept that throughout polling day the poster did not carry the authorisation as required by cl 356G of the Local Government Regulation, it is not clear to us how the second element of the test in Bourne v Murphy could be satisfied — that the nature of the irregularity was of such a type to render the election uncertain.

52 As conceded for Dr Wells, no evidence has been given that suggests that the failure of the poster to carry the authorisation might have affected voter intention. Nor, in our view, is that proposition inherently plausible. We have no evidence before us that, firstly, the carriage of the authorisation plays any part in the decision that voters might make and, secondly, apart from activists and persons such as Ms Armstrong and Mr Roberts who have a long history and experience with elections, that voters at large are aware that, there is a regulation which requires electoral material to carry a relevant authorisation. In our view, the proposition cannot be sustained. In summary we are not satisfied that for the purpose of s 329, the irregularity is of such a nature as to render the result of the election uncertain.

53 I now turn to the final allegation, that is the allegation concerning the Greens website. I note that at the commencement of the proceedings a large number of allegations were made about the Greens website. Ultimately the alleged irregularity relied on was that the website contravened cl 356M and 356G of the Local Government Regulations. In fairness to Dr Wells, we note that in some material filed it was also asserted that there was a potential breach of cl 356B (b) and we will also consider the allegation on that basis.

54 Much evidence was given and many claims and counterclaims made in these proceedings, but ultimately it emerged that the following matters were agreed in respect of Ms Gill. First, that Ms Gill was not a member of the Greens during the 2008 election and she had taken steps to resign from the Greens in mid 2007. Second, that it had been the subject of some publicity within the local area that Ms Gill had resigned from the Greens and was running as an independent candidate. Third, that Ms Gill had not held herself out to be a member of the Greens at any material time in the course of the election and had at all times identified herself to be an independent candidate. Fourth, that she had no control and/or access to the offending official website of the Greens party during the regulated period.

55 I note in completeness that on behalf of Ms Gill an affidavit was prepared by Greens official, Geoffrey Ash, which is included as Exhibit R8 in the material. Mr Ash’s evidence was accepted. He was not required for cross-examination. In his affidavit he sets out a description of the offending website. He explains that on the home page of the Greens website throughout the relevant period and on the day of the election there was a link to candidates standing for the Greens in the local government election held on 13 September,, 2008. That included under the council area, Great Lakes — Jacqui Keats who was a Greens candidate in that election. No mention is made under the heading “Great Lakes” of Ms Gill. The sole reference to Ms Gill, on the website, listed her as a Greens councillor. According to Mr Ash the reason Ms Gill’s name remained on the website was, notwithstanding that she had advised the party that she had resigned, it had not taken steps to remove her name — an oversight on the part of the party.

56 For the reasons as given in respect of Ms Vaughan’s website in our view the website does not constitute electoral material for the purposes of cl 356M or G of the Regulation.

57 We note that this was not raised by Dr Wells in final submissions, but for completeness we will consider whether the Greens website could constitute a potential breach of cl. 356B(b); that is, ‘the material contains an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote’.

58 In our view it could be argued that the material did contain an incorrect statement as at the relevant time Ms Gill was not a Greens councillor. We accept Mr Ash’s evidence that it was an oversight that Ms Gill’s name was on the website but there in nothing in subcl (b) to indicate that the error must be intentional. So we believe the first limb has been satisfied.

59 The real question appears to us to be — was it intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote? As indicated, we do not believe that Ms Gill or the Greens intended to mislead. Indeed, on one view the Greens might have been disadvantaged if it held out Ms Gill to have an association with it.

60 The sole evidence on this point is that provided by Ms Armstrong. She gave evidence that she visited the Green website, saw Ms Gill’s name and was surprised, given that Ms Gill had claimed to have resigned from the Greens. Ms Armstrong does not claim, and nor do we think this could reasonably be inferred, that she changed her vote as a result of noting on the website that Ms Gill was listed as a Greens councillor.

61 We do not think that on a fair reading of the provision it could reasonably be argued that listing Ms Gill as a Greens councillor could have the effect of improperly interfering with an elector in or in relation to the casting of his or her vote. In reaching that conclusion, we note that there was a clear link on the website to the list of Green candidates. Secondly, as Mr Ash’s evidence revealed, the list of councillors was more difficult to find on the website by a visitor than the list of candidates. And finally, the evidence overwhelmingly makes clear that Ms Gill’s resignation from the Green party had been a matter of public note and comment in the media. For those reasons, we could not be satisfied that there has been a potential breach of cl 356B of the Regulations.

62 As we have indicated, we have found one alleged irregularity in respect of this election; that is, the poster irregularity involving Ms Gill. However, in case we are wrong in our finding that none of the other purported irregularities constitute an irregularity, we will consider whether they would satisfy the second test that needs to be satisfied for the purpose of s 329 of the Local Government Act; that is, that the irregularity was of such a nature either separately or in combination with any other irregularity that the result of the election was thereby uncertain. We will deal with these in groups.

63 Firstly, the non-registration of the alleged electoral material that is, the website of both Ms Vaughan and the Greens s and the fridge magnet allegation. A point not mentioned in these proceedings is what is the impact of, or what is the effect of the registration of electoral material? It is governed, as I have mentioned, by subdiv 6 of div 9A of pt 11 of the Local Government Regulation. It requires, in short, that if electoral material is to be distributed on polling day it must be registered with the Electoral Commission. On our reading of the Regulation, there is nothing that requires the electoral material to carry any indication that it has in fact been registered by the Electoral Commission. While upon application for registration, if accepted, a certificate of registration is provided, there is no requirement that the material must display either the certificate or indicate in some way that it has been registered. Clause 356R(7) of the Regulation requires a copy of electoral material registered under the clause and the relevant certificate of registration to be available for inspection at either the office of the returning officer for the area during the hours of polling day or at such other places if any during those hours as the electoral commission determines and is to be available for scrutiny by any person who so requests including a scrutineer.

64 It follows, therefore, that even if the fridge magnet and websites were not registered that they would not be required to display that fact in any form. There is no evidence that any enquiry was made by any person as to whether or not the material was registered. There is no evidence that any voter was affected in any way by the knowledge that the material was not registered. In our view, it is inherently implausible to suggest that the non-registration of electoral material in these circumstances could have an impact on the outcome of the election.

65 We turn now to the second class of allegations which concern the non-authorisation of electoral material. This includes the Greens website, the fridge magnet and the poster. There is little evidence before us about what electors knew about the Regulations that relate to the authorisation of electoral material. As I indicated earlier, Mr Roberts and Ms Armstrong were apparently aware that it was a requirement for electoral material to carry an authorisation of the person who had authorised that material. Interestingly, in contrast, Messrs Oldfield and Davies who had assisted Ms Gill in her campaign were unaware of that requirement.

66 We do not think it could be reasonably argued that it was common knowledge within the community that electoral material must carry the requisite authorisation but in our view, in any event, it is inherently implausible that it could have had an impact on voter intention or influence an individual voter about how they might cast their vote.

67 Dr Wells concedes that there is no evidence that the non-authorisation had an impact on the election results and nor in our view, having regard to all of the evidence, could that inference be drawn.

68 Turning finally to the logo allegation, again it is conceded that there is no evidence that the display of the logo might have had some impact on the council election. It is purely a matter of speculation as to whether it might have given Mr Weate and/or Ms Vaughan any electoral advantage but, more to the point, we could not be satisfied in the circumstances that the evidence supports a finding that the result of the election was therefore rendered uncertain.

69 And finally if we were to proceed on the basis that the Greens website constituted a potential breach of 356B or, put another way, if our finding in respect of that is incorrect, from what we have heard, we could not be satisfied that it also rendered the outcome of the election uncertain and nor has it been explained to us how it could have relevantly affected voter intention.

70 For these reasons, our decision is this. The application in respect of Mr Weate, Ms Vaughan and Ms Gill is dismissed.