FEDERAL COURT OF AUSTRALIA

Peebles v Honourable Tony Burke [2010] FCA 838

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     On 4 August 2010 I made an order dismissing an application for injunctive relief under s 383 of the Commonwealth Electoral Act 1918 (the Electoral Act).  These are my reasons.

2                     In certain circumstances, an elector can vote in Parliamentary Elections conducted under the Electoral Act by submitting a postal vote rather than voting at a polling booth on polling day or casting a pre-poll vote.  Postal voting is dealt with under Part XV of the Electoral Act.  It is necessary to apply in writing for a postal vote. Section 184AA of that Act authorises the issue of an application form for a postal vote by a person or organisation.  It may be issued as an attachment to or forming part of other written material issued by that person or organisation. It should be noted that s 197 obliges a person entrusted with an application for a postal vote (that is, a completed application) to post or deliver the application form to the Australian Electoral Commission (AEC) as soon as practicable.  The practical effect of these two provisions appears to be that a person, including a candidate, or an organisation can distribute uncompleted application forms for a postal vote, gather together completed forms and remit them to the AEC. Such forms can also be issued directly by the AEC and also downloaded from the AEC website on the internet.

3                     In the present case, the first respondent, a member of the House of Representatives and candidate in the forthcoming Parliamentary Election has sent to electors in his electorate such an uncompleted application form and has done so in the following way.  The member, or someone on his behalf, has sent out an envelope containing printed material.  On the envelope (measuring 23.5 cm x 12 cm) is the Commonwealth Coat of Arms printed at the top in white on a red background (in the left hand corner) and across the top of the envelope are the words "IMPORTANT" and "Postal Voting Information".  Below this are the words "TO THE HOUSEHOLDER" printed at an angle in red on a white background.  Enclosed in the envelope was a reply paid envelope (22 cm x 11 cm) containing the candidate's address "Tony Burke MP, Reply Paid 324, KINGSGROVE NSW 1480" and a document (49 cm x 21 cm) printed on both sides.  It is necessary to describe this document.

4                     The printing on the document is divided into equal sections (9.5 cm x 21 cm) creased in such a way that they fold in on themselves to create a leaflet.  When folded, the first page contains a note in large font "IMPORTANT" and the words "Postal Voting Information" and in smaller font "For the Electorate of Watson".  The first page contains instructions such as "If you or your family can't make it to a polling booth on Election Day you may be eligible for a pre-poll or postal vote" and on the reverse side of this page, a heading, "How to fill out your postal vote application form" with accompanying pictures and instructions explaining the procedure for filling in an application for a postal vote.  The next page (if the leaflet is unfolded), printed only on one side is headed, "Eligibility for early voting", and lists reasons people would be entitled to vote early and a contact phone number to obtain times and locations of early voting centres in Australia and overseas.  The third page contains an explanation of how to fill in various fields of information in the application form for a postal vote.  The explanations are linked by dotted lines to various points in the form which is to the immediate right of the third page.  The reverse side of page three lists the web site www.aec.gov.au and contact phone numbers for instructions in 15 different languages and a general phone number. 

5                     Pages four and five are identical and are two uncompleted applications for a postal vote.  The reverse sides are not the same and contain information about witnesses and the time in which the applications must be received by the AEC.  At this point, the creases are perforated so these two pages (the two applications for a postal vote) can be detached from the remainder of the leaflet.  The information to be completed on each of the forms is: (1) title, surname/family name, given names; (2) date of birth; (3) "Your enrolled address" – the instructions on page three to assist in completion state, "If you are unsure of your enrolled address please call us to check"; (4) daytime phone number and email address; (5) postal address where voting papers should be sent; (6) date by which ballot papers are required.  At the bottom of each of the forms is an empty signature box which is part of a "Declaration" which states, "I declare I am entitled to apply for a postal vote" and a number of empty boxes for the witness to sign and note an address.  The instructions on page three concerning the declaration state "Please read the information on eligibility before you sign this declaration".  At the foot of each of the forms are a series of boxes headed "Office Use".

6                     The applicant alleges that sending this material involves a contravention of s 329 of the Act.  That section prohibits the publication or distribution of any matter or thing that is likely to mislead or deceive an elector in relation to the casting a vote.  In terms, the section provides:

(1)    A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize 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.

…

(4)    A person who contravenes subsection (1) is guilty of an offence punishable on conviction:

(a)                if the offender is a natural person- by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months, or both; or

(b)                if the offender is a body corporate- by a fine not exceeding $5,000.

(5)    In a prosecution of a person for an offence against subsection (4) by virtue of a contravention of subsection (1), it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the matter or thing was likely to mislead an elector in relation to the casting of a vote.

Note: A defendant bears a legal burden in relation to the defence in subsection (5) (see section 13.4 of the Criminal Code).

(6)    In this section, publish includes publish by radio or television.

The word "matter" is not defined in s 4 of the Act, but the expression "electoral matter" is.

7                     The printed material sent out by the first respondent is said by the applicant to be misleading or deceptive in a number of respects including that the use of the Commonwealth Coat of Arms implies that the material came from the Commonwealth Government or an agency of that Government (at least in the absence of other information that makes it clear that it does not), the use of the Coat of Arms implies some connection between the person sending the form and the Commonwealth, that it did not reveal or reveal with sufficient clarity that the material came from a candidate contesting the election and would be returned to that candidate before being remitted to the AEC, that the telephone hotline referred to in the material had some direct connection with the Commonwealth (whereas it was a telephone number of the electoral office of the candidate) and that the reference to "early voting" was misleading.  There is considerable force in at least some of those contentions.  There was also a narrowly focused attack on the form of the declaration in the uncompleted application form.  It was that the declaration did not require the declarant to declare that he or she was an elector. I return to this point later in these reasons. 

8                     It is unnecessary to determine conclusively whether the material is misleading or deceptive in the way alleged because the application fails at the threshold.  It may be assumed that it is misleading and deceptive in all of the ways alleged.  However the material does not, subject to one matter which I discuss later concerning the form of the declaration, have any relevant connection to what is comprehended by the expression "in relation to the casting of a vote" as it appears in s 329. That is, the envelope, leaflet and reply paid envelope are not a matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote.

9                     The leading authority on the expression "in relation to the casting of a vote" is the decision of the High Court in Evans v Crichton-Browne (1981)147 CLR 169.  Counsel for the applicant relied on the following passage in the joint judgment at 207 – 208 (and the highlighted passage in particular): 

With all respect to the arguments presented on behalf of the petitioners, we can see nothing in the context provided by the Act as a whole, or in the general considerations of policy upon which the petitions relied, which warrants a departure from the natural meaning of the words of par. (e), which, we hold, refer to the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment.  It would no doubt be too narrow to regard the casting of the vote as the mere act of putting the paper in the ballot-box—the words would appear to refer to the whole process of obtaining and marking the paper and depositing it in the ballot-box.  However, the words clearly do not refer to the whole conduct of the election, which begins before and ends after the votes are cast. (Emphasis added)

10                  While this authority concerned s 161(e) of the Act, it applies also to the language of s 329: see Webster v Deahm (1993) 116 ALR 223.  It is clear from reading the entire reasons for judgment of the High Court in Crichton-Brown that the prohibition in s 329 concerns misleading or deceptive conduct which might affect the process of casting a vote rather than the formation of the political judgment about how the vote will be cast.  That is, the section concerns conduct which might, for example, lead a voter either to fail to record a valid vote or to record a valid vote but not for the candidate or candidates of the voter's choice.  An obvious example would be information which told a voter how to go about completing the ballot paper which was wrong and would result in the casting of an informal vote.   

11                  In this matter the misleading material will have no such effect.  It will simply mean that an elector will obtain and may complete an application for a postal vote by a mechanism contemplated by the Electoral Act.  There is nothing to suggest that, in the present case, the candidate will fail to comply with the obligation created by s 197 to remit to the AEC any completed applications received as a result of the distribution of this material. Any misleading aspect of the material will have no bearing on the casting of the vote, that is the process leading to the recording of the political judgment of an elector.

12                  However it is necessary to consider in more detail the narrowly focused attack by the applicant on the form of the declaration in the application for a postal vote distributed by the first respondent.  Section 184(1) provides (in relation to such an application):

(1)        An application shall be in writing in the approved form and shall:

(a)        contain a declaration by the applicant that he or she is an elector entitled to apply for a postal vote; and

(b)        be signed by the applicant in the presence of an authorised witness (but see subsection (3A)).

This section requires that an application for a postal vote "contain a declaration by the applicant that he or she is an elector entitled to apply for a postal vote". What the applicant points to in this case is that the terms of the declaration in the uncompleted forms does not require the declarant to declare, in express terms, that he or she is an elector.  The form simply requires the declarant to declare that he or she is eligible to apply for a postal vote.  Plainly the purpose of s 184(1) is to ensure that the applicant for the postal vote provides evidence that he or she satisfies one of the criteria for eligibility to vote by a postal vote established through the combined operation of s 183 and schedule 2 of the Electoral Act.

13                  I am satisfied this form of declaration satisfies s 184(1)(a).  The terms of the declaration must be viewed in the context in which they appear on the form and the purpose for which the declaration is made.  To complete the form, a person would have to have identified their enrolled address.  Absent fraud, a person would be identifying indirectly that their name was on an electoral roll (which satisfies the definition of elector in s 4 of the Electoral Act, namely "any person whose name appears on a Roll as an elector").    Having regard to the structure of the form, it could be expected this information (the enrolled address) would at least ordinarily be added to the form before the declaration was made.  Thus a person who was an elector would be declaring they were entitled to apply for a postal vote.  In so doing the statutory purpose of the requirement that a declaration be made, would be met.  Even if, in the unlikely event, the declaration was signed before the electoral address was added, the addition of the information in that field would perfect the declaration and make it clear to the recipient of the form (the AEC) that the declaration had been made by elector.

14                    If the form of the declaration did not satisfy s 184(1)(a) then it may be that the publication of a form defective in this respect would engage s 329.  That would be because any recipients of the application forms who completed them would have been induced to believe that the form they were completing would, in due course, lead to a postal vote being issued when it would not.  It would not because a statutory precondition to the issue of the postal vote had not been met.  In these circumstances the form may be misleading in a way which was comprehended by the expression "in relation to the casting of a vote".  That would be because a voter who completed the form and signed the deficient declaration would not be entitled to receive a postal vote.  The time it took for that to be revealed to the voter may have precluded the voter for obtaining a postal vote by regular means.  The voter might otherwise be unable to vote.

15                  I will hear the parties on the question of costs when these reasons are published.

Associate:

Dated:         9 August 2010