The construction of "legible at a distance at which the communication is intended to be read" in cl 11(3)(b)
102 The requirement in cl 11(3)(b) is at first glance capable of appearing confusing. Each of the applicants, Mr Kelly and the Attorney-General said that it could not be read to impose an obligation to use the same font size as the largest lettering on the posters the subject of this proceeding. As I have noted above, the applicants contended that the larger the size of the font in the communication, the larger the particulars of authorisation had to be, without, however, suggesting any objective standard to create a relationship between the two, or what size would suffice.
103 The requirements in cl 11(3) apply distributively to the particular medium comprising a printed communication, and obviously must be adapted to that medium. The nature of the medium of communication of electoral matter must affect the font and size of any authorisation appearing on it. The size of the font used on a fridge magnet to notify an authorisation must be adapted to respect the surface area of the fridge magnet itself and the fact that the remaining surface area is intended to carry the communication of the electoral material. Obviously, a fridge magnet could be expected to be small and affixed to a magnetic surface. The authorisation, comprising an individual's name and address, necessarily will be no less than the words "authorised by" together with an initial or first name, a surname, a street number, the name of the street (being at least two words), the city or suburb and possibly the State or Territory, all of which have varying lengths. For example, I have set out Mr Kelly's authorisation particulars at [23]-[24] above.
104 A sticker could be affixed to a motor vehicle. A how-to-vote leaflet, card, flyer or pamphlet can be expected to be held in one's hand. And, a poster, such as Mr Kelly's, can be put up in a variety of locations, viewed by various audiences and from various distances. For example, the poster erected on a telegraph pole near Sutherland Train Station was able to be viewed from the street, either by pedestrians or persons driving past in their cars. No one would expect that particulars of an authorisation of the length needed to comply with item 3 in the table to s 321D(5) that must appear on a sticker placed on a car's rear window or bumper bar would be legible to other road users while the car was in motion, stationary in traffic or parked, even though its communication of electoral matter would be legible to other road users. Yet, such particulars of an authorisation should readily be legible if a voter approached the car when parked and looked at close range for it at the end of the sticker, provided that the other requirements of cl 11(3) were met, including that, in its position at the end of the sticker, it was reasonably prominent.
105 The expression "legible at a distance" (emphasis added) used in cl 11(3)(b) appears to recognise that there may, and often will, be more than one distance at which the communication of electoral matter is intended to be read. A large corflute or a billboard with both big and smaller writing may be expected to be legible or read differently at different distances. Here, some of the writing on Mr Kelly's 8pt authorisation posters was very large and could be seen from quite a distance, while the black band of material written on it in white towards the base of the portrait corflutes or the top of the landscape ones would only be legible as the voter moved closer. And, the 8pt authorisation would only be legible if the voter moved much closer still. However, it would not be realistic to think that one size fits all so that the proportionate size of an authorisation on a poster could satisfy cl 11(3)(b) by appearing in the same way as one on a fridge magnet or a sticker might. A voter may have to pick up or walk very close to a fridge magnet or a sticker and look closely at it to see the authorisation, or for that matter, its communication of electoral matter, both of which may have a different proportionate relationship to the medium.
106 If the electoral matter is intended to be read at a close distance, regardless of whether it, or parts of it, is also intended to be read further away, cl 11(3)(b) will be satisfied if the authorisation is legible only at the close distance. That is because s 321C(2)(b) specifies the legislative purpose of "ensuring that the particulars are clearly identifiable, irrespective of how the matter is communicated". The Parliament's concern was to ensure that one could clearly identify the authorisation, in its character as giving particulars of the notifying party, included in the medium used for the communication of electoral matter, but not that the particulars became part, or altered the character, of the communication itself, although at some distance it may do so.
107 It is necessary to read cl 11(3) as a whole, in the context that it was intended to give effect to the objects of Pt XXA of the Electoral Act as the Parliament expressed in s 321C, and to determine how a natural person would "notify" particulars set out in item 3 of the table to s 321D(5) in accordance with the requirements that cl 11(3) specified, pursuant to s 321D(5) and (7)(b)(i). The Parliament chose the word "notify" to describe the function of the authorisation as being different from the function of the communication of electoral matter of which it must form part. The notification is intended to ensure that the person authorising that communication is clearly identifiable in it and that the author was not anonymous. But the Parliament did not intend that every possible communication on any medium always had to convey the authorisation itself to a voter seeing or reading only part of it from any specific distance. Rather, it intended that notification of an authorisation would be sufficient so long as the medium of the communication included that notification in a clearly identifiable manner to enable a voter, who wished, to ascertain the particulars from looking at the end of that medium.
108 In his explanatory statement, the Commissioner set out his understanding of how and why cl 11(3) was intended to operate as follows:
Subsection 11(3) sets out the formatting and placement of notifying particulars for printed communications. The particulars must be reasonably prominent and legible at a distance at which the communication is intended to be read, amongst other things. The purpose of these requirements is to ensure that authorisations are legible and prominent. This is consistent with the objects of Part XXA of the Electoral Act - namely, to promote free and informed voting at elections by enhancing:
• the transparency of the electoral system, by allowing voters to know who is communicating electoral matter;
• the accountability of those persons participating in public debate relating to electoral matter, by making those persons responsible for their communications; and
• the traceability of communications of electoral matter, by ensuring that obligations in relation to those communications can be enforced.
The particulars are required to be legible at a distance at which the communication is intended to be read. This is to ensure that the particulars are legible from the distance that the material is intended to be accessible. For example, if a communication is in the form of a flyer, it should be legible at arms' length. If the particulars in relation to a communication are contained in a school fence sign and a person can physically approach the sign (that is, walk up to it), then it is sufficient if the particulars can be read from a close distance. If the particulars are contained in a billboard or sign that cannot be physically accessed (for example, on the outer wall of a building a few stories high) then the particulars must be able to be read from a distance.
(emphasis added)
109 That explanation is consistent with, and confirms, the construction of cl 11(3) at which I have arrived: see the note to s 2(1) and s 15AB(1) of the Acts Interpretation Act 1901 (Cth) and s 13(1) of the Legislation Act 2003 (Cth) which applies the Acts Interpretation Act to a legislative instrument, such as the Determination (see s 321D(7) of the Electoral Act), as if it were an Act.
110 I reject the applicants' argument that there is a tension between the text of cl 11(3)(b) and the explanatory statement together with their disavowal, in their submissions, of the Commissioner's explanatory statement of the purpose of cl 11(3)(b). Sir Winston Churchill is reputed to have said that in the course of his life "I have often had to eat my own words and I must confess that I have always found them a most wholesome diet". Here, however, the Commissioner's volte face has not been accompanied by a suggested construction of cl 11(3)(b) that is digestible with the objects of Pt XXA. That is because the applicants' new construction ignored the importance of the use of the indefinite article, "a", to specify that the legibility of the authorisation was not linked to all possible positions from which it could be read: see Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.
111 The requirement of legibility in cl 11(3)(b) is simple, in the sense that the provision does not create any link between the size of the notification of the particulars and the size of writing or other matter appearing on the balance of the communication on which s 321D(5) requires them to be notified. The requirement of legibility in cl 11(3)(b) is only that the notification itself be legible as it appears on the communication at one distance at which it is intended to be read. The fact that the authorisation is not legible from one or more other distances at which the communication in it is intended to be read is neither here nor there. In conjunction with the requirement in cl 11(3)(a) that the authorisation, in the context of appearing at the end of the communication, be reasonably prominent and satisfying the other composite requirements of cl 11(3), the particulars only also have to be legible, but need not be equally prominent with the text of, or representations in, the communication or otherwise comparable to the balance of the communication of electoral matter.
112 A poster or billboard is intended to be read in broad daylight, as well as in other conditions of ambient light during the day and night in the location at which it is displayed. While the requirement in cl 11(3)(b) is silent on the ambient conditions in which the communication is intended to be read, the provision must be understood as including an intention as to where, and the conditions in which, a reading of the communication takes place. It is unlikely that the Determination was intended to apply at all times to a poster that is displayed day and night. Trying to read smaller print at night is comparable to what Windeyer J described in Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308 at 326 as to the task of a jury, using common sense, in acting reasonably to assess damages, namely:
Their task may, therefore, be fittingly described by a sentence Lord Goddard, then Goddard L.J., used in his judgment in Mills v. Stanway Coaches Ltd ([1940] 2 KB 334): "Of course, different minds have different ideas as to what is moderate and seeking for a mean, a normal or an average, where there is really no guide is very like Lord Bowen's illustration of a blind man looking for a black hat in a dark room".
(emphasis added)
113 In the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2018 (Cth), which cl 1 of Sch 1 in the Determination wholly repealed, the Commissioner approached the issue of the legibility of an authorisation of printed material by prescribing, in item 1(b) of the table to cl 9(i), that the particulars had to be notified (as item 1(a) provided, at the end or bottom of the printed material) "in a font size that can be read by a person with 20/20 vision without the use of any visual aid". That requirement was not related to any particular circumstance in which the communication might occur, unlike the new provisions in cl 11(3) of the Determination.
114 Here, cl 11(3) was not intended to operate in relation to communications of printed electoral matter in respect of all of the media referred to in s 321D(1)(b)(i) and (5) in item 3 of the table in each and every one of the possible ambient conditions at all hours of the day and night in which the relevant communication was intended to be read. Rather, the Determination only required, as a practical and reasonable measure, that the particulars be legible at one distance at which it is intended to be read. As the Commissioner said, in the passage I have quoted from his explanatory statement (at [108] above), one of the distances at which a school fence sign (such as was one intended use for Mr Kelly's 8pt authorisation portrait and landscape corflutes) may be read is "a close distance", if a person chooses to walk up to it and seeks to find and read the authorisation. If the authorisation is reasonably prominent and legible at that degree of proximity and assessed in a reasonable and realistic way in the context of an ambient condition of lighting in which it is intended to be read, it will comply with the requirements of cl 11(3).
115 One such reasonable and realistic scenario in which election posters, such as Mr Kelly's portrait and landscape corflutes notifying the 8pt authorisation, were intended to be read was in broad daylight by voters as they passed at a close distance to a school fence or sandwich board on the path leading to a polling place. Of course, there will be other locations and times of day or night at which such posters may be displayed where the ambient light is not as clear or distinct and that may affect the visibility, apparent prominence and legibility of an authorisation. But that is not a factor that denies the capacity of an authorisation on a poster to meet the requirements of cl 11(3), provided that, in broad daylight, it can be located because of its reasonable prominence and can be read at a close distance.