FEDERAL COURT OF AUSTRALIA

Faulkner v Elliot [2010] FCA 884

THE COURT ORDERS THAT:

1.                  Application QUD 334 of 2010 is 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                     The applicant in these proceedings is Mr Nicolas de Bray Faulkner. 

2                     Mr Faulkner is an independent candidate standing in the Electoral Division of Richmond for the House of Representatives at the Federal Election to be held on 21 August 2010.  Mr Faulkner contends that the first respondent, Ms Justine Elliot, during the period of electoral campaigning since the issue of the writs on 19 July 2010 for the election of members of the House of Representatives has engaged in conduct which contravenes s 329(1) of the Commonwealth Electoral Act 1918 (the “Electoral Act”).  Mr Faulkner seeks an injunction under s 383 of the Electoral Act restraining Ms Elliot from continuing to engage in such conduct. 

3                     The central matter is this. 

4                     Ms Elliot was the member for Richmond at the date of dissolution of the House of Representatives on Monday, 19 July 2010, consequent upon the Proclamation of the Governor‑General made on 17 July 2010.  By that Proclamation, the Governor‑General prorogued the Parliament on Monday, 19 July 2010 and, pursuant to s 5 of the Constitution, dissolved the House of Representatives at 5.00pm on 19 July 2010.  Mr Faulkner says that from the moment of dissolution of the House, Ms Elliot was no longer the “Member” for Richmond.  Mr Faulkner says that although Ms Elliot might properly be described as a Member of the 42^nd Parliament of the Commonwealth of Australia, she is not entitled in the course of the election campaign as a candidate for re‑election for the 43^rd Parliament to describe herself as anything other than a candidate and, more particularly, she is not entitled to print, publish or distribute any matter or thing which describes her as a “Federal Member of Parliament”, the “Member for Richmond”, “MP”, “current Member”, “sitting Member” or “Incumbent”.  Mr Faulkner contends that Ms Elliot has described herself in this way in advertisements during the period since the issue of the writs for the election for the House. 

5                     Mr Faulkner says that the appropriate term, consistent with s 162 and s 169B of the Electoral Act, to be used to describe a person standing for election is simply the description “candidate”.  Those sections deal with the nomination of persons for election to the Senate or the House of Representatives (s 162) and the events which determine whether a person is to be taken as having been endorsed as a candidate in an election by a registered political party (s 169B). 

6                     Ms Elliot is the endorsed candidate of the Australian Labor Party. 

7                     Mr Faulkner says that when Ms Elliot describes herself in any of the ways mentioned above or causes or permits herself to be so described, she is engaging in conduct likely to mislead or deceive an elector in the Division of Richmond in relation to the casting of a vote in the election.  Mr Faulkner says that the community does not appreciate that the effect of the Proclamation is to dissolve the House of Representatives and therefore electors do not appreciate that a former member of the House, during the period of the election, is not truly a continuing “Member” of the House with the result that any references to the former member as an MP, current Member, the Incumbent, sitting Member or Federal Member for Richmond, necessarily misleads electors into the belief that the former member has a continuing entitlement as a Member of the House of Representatives.  Mr Faulkner says that this is very unfair because it creates momentum for the former Member and will have the effect of leading electors into simply voting for Ms Elliot because she has led electors to believe that she is the current Member. 

8                     In discourse in the community whether in general conversation or in discussion in the print or electronic media it is common to describe the person who was a Member of the House of Representatives immediately prior to the calling of the election as the “sitting Member” or the “current Member” and that discourse takes place in the context of a public awareness that voting in an election is to take place on a particular date, in this case 21 August 2010.  Electors or commentators engaging in that discourse understand that although the person might be described as the sitting Member (or in such similar terms) the individual is in fact putting himself or herself forward for election as a member of the Parliament to be convened after the declaration of the poll for each Division. 

9                     Section 329(1) of the Electoral Act is in these terms:

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. 

                                                                                                [emphasis added]

10                  Section 383 of the Electoral Act is in these terms:

(1)        Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of, or an offence against, this Act or any other law of the Commonwealth in its application to elections, the Federal Court of Australia (the Federal Court) may, on the application of:

            (a)        in a case where the conduct relates to an election – a candidate in the election; or

            (b)        in any case – the Electoral Commission;

grant an injunction restraining the first‑mentioned person from engaging in the conduct and, if in the opinion of the Federal Court it is desirable to do so, requiring that person to do any act or thing. 

11                  In Evans v Crichton‑Browne (1981) 147 CLR 169, the Full Court of the High Court of Australia (Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ) considered the meaning and construction to be attributed to the words set out in s 161(e) of the Electoral Act as it then was.  That section essentially reflects the present language of s 329(1).  Section 161(e) characterised the “Printing, publishing, or distributing [of] any electoral advertisement, notice, handbill, pamphlet or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote”, as an “illegal practice”. 

12                  The important element of both s 161(e) and the present s 329(1) upon which Mr Faulkner relies is the description of the relevant material (advertisement or otherwise) as “likely to mislead or deceive an elector in relation to the casting of a vote”. 

13                  The High Court observed at p 204 in Evans v Crichton‑Browne that those words forbid the printing, publishing or distributing of material intended or likely to mislead an elector in or in relation to the casting of his or her vote and that notion, related to casting a vote, did not include deciding for whom an elector might vote.  The Court said this:

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 [or she] seeks to record and give effect to the judgment which he [or she] has formed as to the candidate for he [or she] intends to vote, rather than with statements which might affect the formation of that judgment. 

                                                                                                [emphasis added]

14                  At pp 207 and 208 of the judgment, the Court said “we can see nothing in the context provided by the Act as a whole, or in the general considerations of policy … which warrants a departure from the natural meaning of the words in par. (e), which, we hold, refer to the act of recording or expressing the political judgment which the elector has made rather than the formation of that judgment” (emphasis added). 

15                  That construction equally applies to s 329(1).  In Webster v Deahm and Another (1993) 116 ALR 223, Gaudron J at 228 said that the phrase “in relation to the casting of a vote” in s 329(1) “must be construed in the same way” as the decision in Evans v Crichton‑Browne.  Those decisions were applied in the Federal Court of Australia in Peebles v Burke [2010] FCA 838. 

16                  Having regard to Mr Faulkner’s contentions and his affidavit sworn 16 August 2010, there is nothing in the contentions he makes which suggest that there is any conduct on the part of Ms Elliot which could be regarded as likely to mislead or deceive an elector in relation to the casting of a vote in the forthcoming election.  As to the more general question of whether the description Ms Elliot has adopted of herself is likely to mislead or deceive an elector, it seems to me that two things are important.  The first is that the use of the particular description occurs expressly in the context of an election in which Ms Elliot is seeking re‑election.  Electors in the Division of Richmond in observing those descriptions would understand that Ms Elliot is putting herself forward in the electoral contest. 

17                  Although electors might think that the use of the description suggests continuing actual membership, they must be taken to understand that the election will bring about a new Parliament.  Former members of the House of Representatives have, in any event, a continuing connection with the immediately dissolved House of Representatives.  They continue to receive parliamentary allowances under s 5A of the Parliamentary Allowances Act 1952 (Cth) notwithstanding the dissolution of the House by the Governor‑General’s Proclamation.  Moreover, the Executive Government by the Department of the Prime Minister and Cabinet published in 2010 a document described as “Guidance on Caretaker Conventions” which briefly addresses this topic by observing at 8.1.3 that: 

To avoid confusion, and as a matter of courtesy, members of the House of Representatives who are standing for re‑election should continue to be addressed as “MP” until it is known whether they have been re‑elected.  Newly‑elected members should be addressed as “MP” as soon as it is known that they are elected.  Members who are not standing for re‑election should not be addressed as “MP” following the dissolution of the House of Representatives. 

18                  The document suggests that during the period of the election campaign references to a candidate seeking re‑election to the House as MP is an appropriate description to present to electors in each Electoral Division.  That protocol is put forward on the footing that it might avoid confusion and operate as a proper matter of courtesy in all the circumstances.  Apart from those considerations, the question here is whether the conduct Mr Faulkner complains about involves a contravention of s 329(1) not simply whether the use of the terms might be discourteous, unfair or in some respects, confusing.  The question is whether the conduct of Ms Elliot is arguably likely to mislead or deceive an elector in relation to the casting of a vote as opposed to influencing the formation of a judgment by an elector of for whom to vote. 

19                  Having regard to these considerations, I am satisfied that there is no contravention of s 329(1) by Ms Elliot and nor is there an arguable contravention.  Accordingly, the application, that is, the proceeding, must be dismissed. 

20                  Although there is some authority for the proposition that costs ought to follow the event in the context of successful applications by unsuccessful candidates in challenging the declaration of a poll (Free v Kelly and Another (1996) 185 CLR 296; Scott‑Irving v Oakeshott and Others (2009) 256 ALR 442), I am not satisfied that a costs order ought to be made against Mr Faulkner in the circumstances of this application.  This is an application by a candidate in the course of an election campaign.  The conduct is said to materially affect Mr Faulkner as a candidate and although Mr Faulkner has not been able to establish a contravention of the Electoral Act, I am satisfied that the public interest is served by enabling Mr Faulkner to quickly come before the Court without facing the burden of a costs order.  I accept that Mr Faulkner believes in the merits of his contentions notwithstanding that he has not been able to demonstrate a contravention of the Act.  The orders will be that Application QUD 334 of 2010 is dismissed with no order as to costs. 

21                  The third respondent in the proceeding is News Ltd.  It was joined in the proceedings as contended publisher of particular material.  It submits that it is not the relevant publisher of the particular material and otherwise contends that no contravention of the Electoral Act is made out. 

Associate:

Dated:         17 August 2010