Federal Court of Australia

Australian Electoral Commission v Kelly [2022] FCA 628

ORDERS

THE COURT ORDERS THAT:

1.    The application for interlocutory relief as set out in paragraphs 4 and 5 of the originating application filed 20 May 2022 be dismissed.

2.    The applicant pay the respondent’s costs of and in connection with the claim for interlocutory relief as agreed or taxed.

3.    The matter be listed for a case management hearing on a date to be determined in consultation with the parties.

4.    Liberty to restore on 48 hours’ notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1    Late this afternoon (Friday, 20 May 2022) the Court was notified by the applicant, the Australian Electoral Commission, that it wished to apply for urgent interlocutory relief against Craig Kelly, the respondent. The originating application seeks both final and interlocutory relief pursuant to s 383 of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act) and/or s 23 of the Federal Court of Australia Act 1976 (Cth).

2    The claims for interlocutory relief initially sought in the originating application may be summarised as follows:

(1)    in proposed order 4, the applicant sought that the respondent be restrained from communicating electoral matter in the form of signage as shown in annexure AC-14 to the affidavit of Abigail Cooper, where such signage does not include authorisation particulars that are legible at a distance at which the communication is to be read; and

(2)    in proposed order 5, the applicant sought orders that the respondent on five occasions between midnight and 4:00pm tomorrow, that is 21 May 2022, inspect a 100 metre circumference [sic] around 42 polling places in the electorate of Hughes, for signs in relation to the respondent in the form of the signage annexed to Ms Cooper’s affidavit at annexure AC-14, defined as non-compliant signs, and remove or rectify any non-compliant signs.

3    The essential proposition of the applicant is that the signs in question do not comply with the requirements of s 321D of the Electoral Act, in particular, s 321D(5) and item 3 in the table to that section. These provisions provide that if the communication of the electoral matter is by a poster authorised by a disclosure entity who is a natural person, then the name of the person and the address of the person authorising the communication is a required particular. Further, under s 321D(7) of the Electoral Act, the Electoral Commissioner may, by legislative instrument, determine requirements or particulars for various purposes including s 321D(5) itself. The Commissioner has made such a determination, being the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021. Part 3 of that Determination says in s 9 that the part is made for the purposes of s 321D(7)(b) of the Electoral Act. Section 10 provides that the Division determines requirements for notifying particulars in relation to a communication for the purposes of, relevantly, s 321D(5) of that Act. Section 11(1) provides that it applies to a communication that is a printed communication. According to s 11(2)(b), the particulars must be notified (if the communication is other than a publication in a journal) at the end of the communication. Section 11(3) is in these terms:

(3) The particulars must:

(a) be reasonably prominent; and (b) be legible at a distance at which the communication is intended to be read; and (c) not be placed over complex pictorial or multicoloured backgrounds; and (d) be in a text that contrasts with the background on which the text appears; and (e) be printed in a way that cannot be removed or erased under normal conditions or use; and (f) be printed in a way that the particulars will not fade, run or rub off.

4    The applicant’s contention is that the evidence establishes to a prima facie standard that there is signage which has been erected in the electorate of Hughes identifying the respondent as a candidate, and that signage either does not disclose the name of the person or the address of the person who authorised the signage as required by s 321D(5) item 3 of the table or, if there is any such disclosure, that the evidence establishes to a prima facie standard that the particulars are not either reasonably prominent or legible at a distance at which the communication is intended to be read.

5    I note that s 383 of the Electoral Act is also relevant, in particular, ss 383(1), (3), (5), (6), (7) and (10) which are as follows:

83  Injunctions

Restraining injunctions

(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.

…

Interim injunctions

(3)    Where an application is made to the Federal Court for an injunction under subsection (1), (2A), (2B), (2C) or (2D), the Federal Court may, if in the opinion of the Federal Court it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in subsection (1), or restraining the carriage service provider or broadcaster as referred to in subsection (2A), (2B), (2C) or (2D), pending the determination of the application.

…

Court not required to consider past and future conduct

(5)    Where an application is made to the Federal Court for the grant of an injunction under subsection (1) restraining a person from engaging in conduct of a particular kind, the power of the Federal Court to grant the injunction may be exercised:

(a)    if the Federal Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Federal Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b)    if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

(6)    Where an application is made to the Federal Court for the grant of an injunction under subsection (1) or (2) requiring a person to do a particular act or thing, the power of the Federal Court to grant the injunction may be exercised:

(a)    if the Federal Court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the Federal Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

(b)    if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

No undertakings as to damages

(7)    Where the Electoral Commission makes an application to the Federal Court for the grant of an injunction under this section, the Federal Court shall not require the Electoral Commission or any other person, as a condition of the granting of an interim injunction, to give any undertakings as to damages.

…

This section does not limit other powers of the Federal Court

(10)    The powers conferred on the Federal Court under this section are in addition to, and not in derogation of, any other powers of the Federal Court, whether conferred by this Act or otherwise.

6    Section 383(1) of the Electoral Act refers to the grant of an injunction restraining a person from engaging in conduct and requiring that person to do any act or thing. Section 383(3) also refers to an injunction being granted if, in the opinion of the Federal Court, it is desirable to do so before considering the substantive application and pending the determination of that substantive application. Section 383(5) also refers to an injunction under s 383(1) being granted in a more extensive range of circumstances than would otherwise be the case under the general law. Section 383(6) refers to an injunction requiring a person to do a particular act or thing and reflects the extensive circumstances in which a court may grant a restraining injunction provided for in s 383(5).

7    As originally framed, proposed order 4 was an injunction restraining the respondent from communicating electoral matter in the form of the signage as described in the proposed order. In the course of the hearing, it became apparent that the applicant’s position was that although proposed order 4 was negative in form because the order would restrain the respondent from communicating electoral matter in the form of the signage as described, the effect of the order would be to require the respondent immediately to remove all existing signage which did not comply with the requirements as set out in s 321D(5) item 3 of the table and s 11(3) of the Determination (that is, that the name and address of the person authorising the signage be provided and be both reasonably prominent and legible at a distance at which the communication is intended to be read).

8    It is apparent that proposed order 4, if it had that effect, would have placed the respondent immediately in breach of the order if made. Other difficulties are also apparent on the face of proposed order 4, as discussed in exchanges with counsel for the applicant. For example, proposed order 4 has no geographical limitation, and accordingly, would apply to require the respondent immediately to remove all such signage wherever it was located in Australia.

9    In exchanges with counsel for the applicant, I also raised issues of concern about proposed order 5 which is a form of mandatory injunction requiring the respondent to do certain acts. As a form of mandatory injunction, s 383(6) would be applicable. In addition, such a mandatory injunction could also be made pursuant to the power in s 23 of the Federal Court of Australia Act 1976 (Cth).

10    It seems to me that the apparent distinction in the legislative provisions between injunctions either restraining a person from doing an act (a negative injunction) or requiring a person to do an act (a mandatory injunction) reflects an important practical and general law distinction. In short, it is generally always within a person’s control to not do a thing which is the subject of a contrary court order. However, if a court wishes to order a person to do a particular thing, then care must be taken to ensure that the person, in fact, can do the thing that is required in accordance with the order. Otherwise, the court would be making an order of no practical utility other than to place a person in peril of being found in contempt of court without any proper basis.

11    As noted, during the hearing I raised with the applicant my concerns about a proposed order which required the respondent either himself, or by causing other people to do so, to carry out five inspections within what was described as a 100 metre “circumference” of each and every one of the 42 polling booths in the electorate of Hughes to remove or rectify the allegedly non-compliant signs. I was not persuaded that the respondent could comply with the order or that the order was capable of practical implementation. The reference to “circumference” appeared to be in error. If the correct reference was “radius”, that would involve the respondent or people on his behalf inspecting and removing signs across a large area on five occasions, with each inspection required to be completed within 30 minutes according to the proposed order. It was not clear if the respondent was in the electorate of Hughes or elsewhere.

12    The applicant then considered its position further and proposed a far more restricted order. The order which was ultimately sought by the applicant was as follows:

An order under s 383(3) of the Commonwealth Electoral Act 1918 (Cth) and/or s 23 of the Federal Court of Australia Act 1976 (Cth) that the respondent, at his expense, by 7am on 21 May 2022, procure removal of the signs in the form of the signage annexed to the affidavit of Abigail Caitlin Cooper at Annexure AC-13 and AC-14 erected in the vicinity of the Engadine Pre Poll Voting Centre and Wattle Grove Pre Poll Voting Centre.

13    Counsel for the respondent contended that even this order should not be made. First, the respondent contended that the applicant had not established a prima facie case or serious question to be tried that the signs in question failed to comply with the relevant statutory requirements. This was said to be so on two separate bases:

(1)    first, it is not apparent from the photographs that the signs do not identify the required particulars, given that there is apparently writing on the bottom right-hand corner of at least some of the signs, which may or may not be those particulars; and

(2)    secondly, on the evidence which has been adduced by the applicant, the respondent has previously said that a number of signs were stolen and are no longer within the control of the respondent or the respondent’s registered political party, and, accordingly, it is not the case that the respondent can be responsible under the provisions of the Electoral Act for the communications in those stolen signs.

14    I should record that if the only question before me was whether there was a prima facie case or serious question to be tried that the signs do not comply with the statutory requirements to which I have referred, then I would have concluded that there was such a prima facie case or serious question to be tried. The reason for this is that although I could not be satisfied that the name and address of the respondent is not disclosed anywhere on the signage, it seems to me that I am able to infer from the photographs that any such name and address is not reasonably prominent and legible at a distance at which the communication is intended to be read. While the photographs were taken at a distance of some 50 metres from the signs, it is possible to enlarge the photographs, and I have done so. I would infer that the fine print on the right-hand bottom corner of the signs is not prominent and most likely is not legible from the required distance at which the communication is intended to be read.

15    However, the existence of a prima facie case or serious question to be tried is not the end of the matter. The grant of any form of injunction, particularly a mandatory injunction as is sought, calls up for consideration the practicality and utility of the order, and matters relevant to the balance of convenience.

16    What is now sought under the proposed more confined order is that the respondent by 7:00am tomorrow – and I should record that it is now 10:18pm – procure removal of the signs in the form of the signage annexed to the affidavit of Ms Cooper at both annexures AC-13 and AC-14 erected in the vicinity of the Engadine pre-poll voting centre and Wattle Grove pre-poll voting centre.

17    I am not persuaded that it is in the interests of justice to make an order sought in these terms on the grounds of the likely practicality and utility of the order. I do not know, for example, whether the respondent can procure removal of all of those signs by 7:00am tomorrow. I do not know where the respondent is physically located at this time or what resources he can arrange for removal of the signs between now (after 10:00pm) and 7:00am tomorrow. I am also concerned about the continuing potential ambiguity of the proposed order. It refers to signage as shown at annexures AC-13 and AC-14 erected “in the vicinity of” two polling centres. The photographs that are in those two annexures seem to show signage at least some metres – perhaps up to 50 metres – away from the polling centres. If I make an order in the form proposed, then there is ambiguity in the meaning of the words “in the vicinity of”.

18    Another concern is that the order requires the procuring of the removal of the signs. This is in circumstances where, from the evidence, it is apparent that the applicant has accepted that if an appropriate sticker is placed on the signs which includes the name and address of the person authorising the signs, in a reasonably prominent and legible manner as required by the relevant statutory provisions, then the signs would be in compliance with the statutory requirements. However, no option is provided in the newly proposed order for the bringing of the signs into compliance with the statutory requirements by the affixing of a sticker. Even if that had been proposed, however, I would not know whether it is physically possible and practical for the respondent to cause stickers to be affixed to all of the signs by 7:00am tomorrow morning. Indeed, I would not know whether it was possible for that to occur by any particular time tomorrow.

19    I have given consideration to whether an order in an alternative form should be made, such as, for example, one in which the respondent would be required to use his reasonable endeavours in the circumstances to cause removal of the signs, or for the signs to be the subject of affixation of a sticker to bring them into compliance with the statutory requirements. The reason I hesitate about such an order is that, for one thing, it has not been proposed by the applicant, for reasons which I would understand and will return to, but, for another thing, the flurry of correspondence between the parties which has occurred today includes that the respondent will cause stickers to be affixed to these signs as shown in the photographs, or for the removal of these signs, as the applicant has sought. I accept that there has been no undertaking either to the applicant or to the Court to that effect, but the fact that, in the circumstances to which I will refer, the respondent has indicated a willingness to ensure that the specifically identified signs are either removed or otherwise brought into compliance with the statutory requirements is a relevant consideration.

20    A circumstance which I also think is particularly relevant in this case is that the issue of the allegedly non-compliant signage has been known to the applicant since 29 April 2022. While I accept that correspondence on behalf of the respondent to the applicant up to 4 May 2022 reflected that the respondent was printing new signs and would ensure compliance with the requirements of the Electoral Act, it appears that there is a gap in the communications between 4 and 11 May 2022. On 11 May 2022, the applicant again wrote to the respondent, noting that it had received a further complaint about allegedly non-compliant signage. The applicant apparently received no communication in response to its 11 May 2022 letter and wrote again on 17 May 2022, there then occurring from 19 May 2022 the flurry of correspondence to which I have referred.

21    It seems to me that in circumstances where it is the evening before the election and I do not know where the respondent is physically located, nor what resources the respondent has available to him, other than that I would infer that as a leader of a registered political party campaigning across Australia, according to the evidence, the respondent would have access to various resources, the problem nevertheless remains that it is extremely late in the day for the applicant to seek an order in the form of a mandatory as opposed to a restraining injunction against the respondent.

22    For example, after a few days, when no response had been received to its correspondence of 11 May 2022, the applicant could have approached the Court on an urgent basis for a declaration that the signs did not comply, and an associated order at that time, which would have enabled the respondent to give evidence of some kind as to what could practically be done in between that day and some day before the election to remove, or affix stickers to, the allegedly non-compliant signs. The fact that this application was not made until the night before the election has placed the respondent in a difficult position of not having an opportunity to call any evidence about what can practically be achieved without the respondent being placed at risk of being found to be in contempt of Court.

23    Of course, I accept that the statutory provisions are significant and ought to be complied with. As both parties have noted, the objects of those provisions are set out in s 321C of the Electoral Act, which is in the following terms:

(1)    The objects of this Part are to promote free and informed voting at elections by enhancing the following:

(a)    the transparency of the electoral system, by allowing voters to know who is communicating electoral matter;

(b)    the accountability of those persons participating in public debate relating to electoral matter, by making those persons responsible for their communications;

(c)    the traceability of communications of electoral matter, by ensuring that obligations imposed by this Part in relation to those communications can be enforced;

(d)    the integrity of the electoral system, by ensuring that only those with a legitimate connection to Australia are able to influence Australian elections.

(2)    This Part aims to achieve these objects by doing the following:

(a)    requiring the particulars of the person who authorised the communication of electoral matter to be notified if:

(i)    the matter is an electoral advertisement, all or part of whose distribution or production is paid for; or

(ii)    the matter forms part of a specified printed communication; or

(iii)    the matter is communicated by, or on behalf of, a disclosure entity;

(b)    ensuring that the particulars are clearly identifiable, irrespective of how the matter is communicated;

(c)    restricting the communication of electoral matter authorised by foreign campaigners.

(3)    This Part is not intended to detract from:

(a)    the ability of Australians to communicate electoral matters to voters; and

(b)    voters’ ability to communicate with each other on electoral matters.

24    I accept the submissions for the applicant that the Parliament has decided that the name and address of the person authorising signage which communicates electoral matter is important and has to be clearly disclosed. As noted, I do consider that there is a prima facie case that the signs in question in this case do not meet the requirement of those statutory provisions, at the least, the requirements set out in the Determination of reasonable prominence and legibility, if these matters appear on the signs at all. I also note, however, that there is no suggestion that the signage is misleading in the sense that it is not signage advocating (as it appears to do) a vote for the respondent.

25    The difficulty is that I am not persuaded that in the circumstances in which we currently find ourselves, that is, at 10:30pm on the night before the election, it would be appropriate to order the respondent to procure removal of the signage said to be erected in the vicinity of the two nominated polling centres, for the reasons I have given.

Associate:

Dated:    30 May 2022