Evans v Crichton-Browne

The Court delivered the following written judgment: -

March 18 Gibbs C.J., Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ.

Before the Court are cases stated in three proceedings commenced by petition addressed to this Court sitting as the Court of Disputed Returns. The petitions respectively challenged the validity of the election of Mr. Noel Ashley Crichton-Browne to the Senate as a senator for the State of Western Australia (Petition No. 17 of 1980), the election of the Right Honourable Sir William McMahon as a member of the House of Representatives for the electoral division of Lowe in the State of New South Wales (Petition No. 148 of 1980) and the election of Mr. Grant Chapman as a member of the House of Representatives for the electoral division of Kingston in the State of South Australia (Petition No. 21 of 1980), at the election held on 18th October 1980. There is a question of law common to all three cases upon the decision of which the fate of each petition depends, and for that reason it was thought convenient to hear the cases together. The cases raise, in addition, some other questions of less importance.

The petition in each case is based on the alleged commission of illegal practices of the kind described in s. 161 (e) of the Commonwealth Electoral Act 1918, as amended ("the Act"). By that paragraph the following is declared to be an illegal practice:

Printing, publishing, or distributing 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. In all three cases it was claimed that advertisements containing untrue or incorrect statements of the kind described in s. 161 (e) were published in newspapers and telecast by television stations, and in two cases (Nos. 17 and 148) it was further alleged that the advertisements were broadcast by radio stations. In case No. 17 the petitioner also relied on the publication of a letter by sending it to many electors in the State of Western Australia, and in case No. 21 it was claimed that certain articles published in newspapers fell within s. 161 (e) although they were apparently not advertisements in the narrow sense of that word. However, the principal question in the case is not whether the manner in which the statements were published brought them within s. 161 (e), but whether statements of the kind made in each case could properly be said to have been "intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote", within the meaning of that paragraph.

The petitioner in case No. 17, Mr. Evans, was one of three persons indorsed by the Australian Democrats as candidates for election as senators for Western Australia. The successful candidate, Mr. Crichton-Browne, had been indorsed as a candidate by the Liberal Party of Australia. Another group of candidates for the election had been indorsed by the Australian Labor Party. The statements which the petitioner in that case claims to have been untrue or incorrect were to the effect that Australian Democrat senators had in the last Parliament voted with the Labor Party eight times out of ten, that a vote for the Australian Democrats could be a vote for the Labor Party and could give the Labor Party control of the Senate, and that the Australian Democrat senators in the last Parliament had been absent for 52 votes out of 192 occasions. Further the petitioner in that case alleged (in par. 30 of his petition) that untrue and incorrect statements had been made in relation to candidates of the Labor Party. It was alleged that the probable effect of those statements was to reduce the number of votes cast for the candidates indorsed by the Labor Party, and thereby indirectly to reduce the number of preference votes which might have been transferred to the petitioner, since it was expected that most of the voters who voted for a Labor candidate would give their preferences to the petitioner rather than to the respondent. No particulars of those statements were given in the petition, which stated that "Full particulars of such statements have been given in other petitions presented to this Honourable Court." In the course of the hearing counsel for the petitioner did not attempt to support par. 30.

In the other two cases, also, the successful candidates had been indorsed by the Liberal Party, but the petitions in those cases were presented by, or in the interests of, the candidate indorsed by the Labor Party. Put very shortly the effect of the statements on which the petitioners in both those cases relied was that the Labor Party was committed to the introduction of a wealth tax or capital gains tax which would affect not only the wealthy, but also persons who had, by means of superannuation, insurance policies or small investments, made savings intended to provide for their old age or for their children, and would affect also hundreds of thousands of Australians who owned modest homes which had risen in value. It was also stated, or implied (in the case of the advertisements referred to in Petition No. 21, with greater emphasis) that the policies of the Labor Party would lead to a rate of inflation of 20 per cent. The articles (other than those described as advertisements) in case No. 21 also stated in effect that the Labor Party proposed to hold an inquiry which would involve an investigation of the assets and income of most people in Australia.

In each case the respondents contend that even if statements of this kind were made, and were untrue or incorrect, they were not statements of the kind to which s. 161 (e) refers. It is apparent that the statements relied on by all the petitioners were intended, and may have been likely, to influence an elector in forming his judgment, and making his decision, as to the candidate for whom, or the political party in favor of which, he would cast his vote. The respondents however submit that s. 161 (e) does not apply to statements of that kind; the application of that paragraph is limited, they say, to untrue or incorrect statements intended or likely to mislead or improperly interfere with an elector in or in relation to acts which he must perform in order to record his vote in accordance with the decision he has made or makes at the time. The question is, does s. 161 (e) refer to statements intended or likely to mislead or improperly interfere with an elector in or in relation to his choice of the candidate or candidates for whom he will vote, or does it refer only to statements intended or likely to mislead or improperly interfere with an elector in such a way that his choice when made is not properly expressed or given effect by the physical act of voting? The answer to this question of course depends on the proper construction of s. 161 (e).

Section 161 (e) appears in Pt XVII of the Act, which is headed "Electoral Offences". Section 154, which appears in that part, provides as follows:

To secure the due execution of this Act and the purity of elections the following acts are hereby prohibited and penalized:

Section 155 describes the meaning of "breach or neglect of official duty", ss. 156 and 157 deal with bribery and ss. 158 and 159 deal with undue influence. Although it is unnecessary to quote those sections in full, it may be noticed that s. 155 (i) includes the phrase "attempt to influence the vote of any elector", ss. 156 (a) and 158 (a) refer respectively to promises or threats "to induce any vote", s. 157 includes the phrase "with a view to influence the vote of an elector", and s. 159 refers to "every interference or attempted interference with the free exercise of the franchise of any voter". The difference between these expressions, and the concluding words of s. 161 (e), is not without significance. Section 160 provides that no declaration of public policy or promise of public action shall be deemed bribery or undue influence. Then follows s. 161 which should be set out in full; that section reads: In addition to bribery and undue influence the following shall be illegal practices:

(a) Any publication of any electoral advertisement handbill or pamphlet or any issue of any electoral notice (other than the announcement by advertisement in a newspaper of the holding of a meeting) without at the end thereof the name and address of the person authorizing the same:

(b) Printing or publishing any printed electoral advertisement handbill or pamphlet (other than an advertisement in a newspaper) without the name and place of business of the printer being printed at the foot of it:

(d) Printing, publishing, or distributing any electoral advertisement, notice, handbill, pamphlet, or card containing any representation of a ballot-paper or any representation apparently intended to represent a ballot-paper, and having thereon any directions intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote:

(e) Printing, publishing, or distributing 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:

(f) Wilfully informing any elector on polling day that he is not enrolled, or that he is not enrolled for a particular Subdivision, when as a fact he is enrolled, or is enrolled for that Subdivision, as the case may be:

Provided that nothing in paragraphs (d) and (e) of this section shall prevent the printing, publishing, or distributing of any card, not otherwise illegal, which contains instructions how to vote for any particular candidate, so long as those instructions are not intended or likely to mislead any elector in or in relation to the casting of his vote.

Section 162 provides for the punishment of any illegal practice; an illegal practice other than bribery or undue influence is punishable by a penalty not exceeding $200, or by an imprisonment not exceeding six months. Then follow a number of sections which create electoral offences. With two exceptions, it is not necessary to refer to those sections, although it may be mentioned that s. 170 sets out a number of electoral offences which include: Distributing any advertisement, hand-bill or pamphlet published in contravention of section one hundred and sixty-one of this Act. This is a curiosity of drafting, but it does not assist in discovering the meaning of s. 161 (e). Two sections which create electoral offences and which should be mentioned are ss. 181 and 181A. The former section makes it an offence for any person to make or publish any false and defamatory statement in relation to the personal character or conduct of a candidate, but provides that it shall be a defence if the defendant proves that he had reasonable grounds for believing and did in fact believe the statement made or published by him to be true. Section 181A makes it an offence for any person, inter alia, to publish on behalf of any association, league, organization or other body of persons any matter in which it is, without the written authority of the candidate, claimed or suggested that the candidate is associated with or supports the policy or activities of that association league, organization or other body of persons. These are the only sections which control the making of untrue or incorrect statements in the course of an election campaign, unless s. 161 has that effect.

Division 1 of Pt XVIII of the Act deals with "Disputed Elections and Returns". Section 183 (1) enables the validity of any election or return to be disputed by petition addressed to the Court of Disputed Returns. Section 185 provides, inter alia, as follows:

Every petition disputing an election or return in this Part of this Act called the petition shall -

(a) set out the facts relied on to invalidate the election or return:

(e) be filed in the Principal Registry of the High Court or in the District Registry of that Court in the capital city of the State in which the election was held within forty days after the return of the writ; or, in the case of the choice or the appointment of a person to hold the place of a Senator under section fifteen of the Constitution, within forty days after the notification of that choice or appointment.

Section 187 provides: No proceedings shall be had on the petition unless the requirements of the preceding sections are complied with. Section 191 (3) then provides: The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected, or declare any election void -

(a) on the ground of any illegal practice committed by any person other than the candidate and without his knowledge or authority; or

(b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption, unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

We may now return to the words of s. 161. That section appeared in its original form as s. 180 of the Commonwealth Electoral Act 1902; it then contained pars (a) and (b), (although the form of par. (a) has since been altered), and a par. (c), which dealt with any contravention by a candidate of the provisions of that Act relating to the limitation of electoral expenses, and which has since disappeared from the section, but it did not contain the present pars (d), (e) and (f) or the proviso. Paragraphs (d) and (e) and the proviso were inserted by the Commonwealth Electoral Act 1911. The section, as thus amended, appeared as s. 161 in the Act of 1918. Paragraph (f) was added in 1928.

If the words of s. 161 (e) are considered alone, and given their natural meaning, they do not have the effect for which the petitioners contend. The words forbid the printing, publishing or distributing of the electoral advertisements and other documents of the kind mentioned in the paragraph only if they contain any untrue or incorrect statement which is intended or likely to mislead or improperly interfere with any elector in the manner to which the paragraph refers, i.e. "in or in relation to the casting of his vote". The phrase "cast a vote" has a well defined meaning - "to deposit (a voting paper or ticket); to give (a vote)" (Oxford English Dictionary); "to deposit (a ballot) formally or officially; give a vote" (Websters International Dictionary). It does not include "to decide for whom to vote". 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 seeks to record and give effect to the judgment which he has formed as to the candidate for whom he intends to vote, rather than with statements which might affect the formation of that judgment. Certainly par. (d) of s. 161 is concerned only with a particular instance of a misleading or incorrect statement of that kind, namely a statement contained in a document representing, or apparently intended to represent, a ballot-paper. For example, a document in the form of a ballot-paper, which contained directions that a ballot-paper must be marked in a manner different from that provided by the Act, or in a manner that would favour a particular candidate, would, if the other conditions were satisfied, fall within the prohibition of s. 161 (d). It seems reasonable to conclude that s. 161 (e) was intended to deal with misleading or incorrect statements of a similar kind, even though not contained in a representation of a ballot-paper. For example, a statement contained in a newspaper advertisement that a ballot-paper should be marked in a way that would not conform to the requirements of the Act and which would render the vote invalid might mislead or improperly interfere with an elector in the casting of his vote. The same might be true of a statement that a person who wished to support a particular party should vote for a particular candidate, when that candidate in fact belonged to a rival party. An erroneous statement as to the hours or place of polling which had the result that an elector (perhaps in a remote country district) failed to get to a polling booth in time to vote would have misled that elector in relation to the casting of his vote, although it would not have misled him in casting his vote, since in the case imagined no vote was cast. The insertion of the proviso to s. 161 at the same time as pars (d) and (e) confirms the construction suggested.

It was submitted by Mr. Masterman, who appeared for the petitioner in case No. 148, that the casting of a vote cannot be limited to the physical act of putting the ballot-paper in the ballot-box, and that it embraces the mental decision accompanying the act - the making of the choice by the elector of the candidate in whose favour he will mark the paper. However, the words used in the section are not apt to refer to the mental process of decision or choice which precedes the formal expression of that opinion or choice by the casting of a vote. To say, "I have cast my vote for X" does not mean the same as, "I have made up my mind to vote for X". It is only to the act of formal expression that the words in question in s. 161 (e) naturally refer.

Counsel for the petitioners placed considerable emphasis on the inclusion in s. 161 (e) of the words "in relation to". It is true that those words are capable of a wide application, and that they bring within the scope of the section a statement intended or likely to mislead or improperly interfere with an elector in a way that has some connexion with the casting of his vote. It was submitted that the formation of the political judgment which precedes the casting of the vote is sufficiently related to the casting of the vote itself to come within the section. There are however a number of reasons for rejecting the contention that the paragraph is intended to refer to statements which affect the elector in his decision or choice. In the first place, the use of the expression "the casting of his vote" was quite inappropriate if it was intended that the paragraph should refer to untrue or incorrect statements which affect the judgment of the elector in making his choice. If that had been the intention of the Parliament, it would have been very easy to say so. To construe the paragraph as applicable to statements which might influence the political judgment of an elector would give it a more extensive operation than its words appear to warrant. It is not necessary to give such a meaning to the provision in order to render the words "in relation to" effective, for as has already been pointed out those words render the section applicable to statements which are intended or likely to prevent the elector from casting his vote as well as those which are intended or likely to mislead him as to the manner in which he should cast his vote in order to give expression to his choice. Moreover, a breach of the section is punishable by fine or imprisonment, and may result in the invalidation of an election. In those circumstances, if the provision is ambiguous, it should be given its more restricted meaning.

In the argument for the petitioners much stress was laid on the importance, in the public interest, of ensuring "the purity of elections" to which s. 154 refers. In support of this argument reference was made to Smith v. Oldham [1] where Isaacs J. said:

The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances. That is no doubt true as a statement of general principle. On the other hand, the framers of a law designed to prevent misrepresentation or concealment which may affect the political judgment of electors must consider also the importance of ensuring that freedom of speech is not unduly restricted, especially during an election campaign, and the practical difficulties that might result if an election were liable to invalidation on the ground that statements made in the interests of candidates were found in subsequent litigation to be untrue or incorrect. This Court is not concerned with what it would be desirable for Parliament to provide, but with the meaning of what Parliament has in fact provided, but the possible difficulty and inconvenience to which the wider construction of the provision might give rise is a matter properly to be considered in determining the meaning of the words used if they are ambiguous. Counsel for the petitioners recognized that par. (e) - which of course refers to incorrect as well as to untrue statements - might have a very drastic effect if it applied to any statement which is intended or likely to affect the political judgment of electors, and therefore made an attempt to read down the words of the section so as to restrict their meaning - in particular an attempt was made to limit them to statements of fact. However a statement may be one of opinion, belief or intention as well as of fact, and there is nothing in the words of par. (e) to limit the provisions of that paragraph to statements of the latter kind. But even if the paragraph were thought to apply only to those statements affecting a voter's choice of candidate which appear to be statements of fact, that construction would require an election campaign to be conducted in anticipation of proceedings brought to test the truth or correctness of any statement made in the campaign. Indeed any person who published an electoral advertisement containing an incorrect statement of fact might be exposed to criminal proceedings. In a campaign ranging over a wide variety of matters, many of the issues canvassed are likely to be unsuited to resolution in legal proceedings; and a court should not attribute to the Parliament an intention to expose election issues to the potential requirement of legal proof in the absence of clear words. Neither the words not the context suggest such an intention either clearly or at all. Of course, as the petitioners submitted, an election would not be declared void unless the Court of Disputed Returns was satisfied that the result of the election was likely to be affected by the illegal practice and that it was just that the candidate should be declared not to be duly elected or that the election should be declared void (see s. 191 (3)). Nevertheless it can be seen that the result of many elections might be rendered uncertain if any untrue or incorrect statement of fact, opinion, belief or intention might have the effect of invalidating the election if the statement was intended or likely to mislead or improperly interfere with any elector in the formation of his political judgment 1. (1912) 15 C.L.R. 355, at p. 362.

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 petitioners 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.

For these reasons we hold that the statements complained of were not intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote within the meaning of s. 161 (e). This conclusion is fatal to all three petitions. It is perhaps unnecessary to add that the question whether any of the statements was untrue or incorrect did not arise on the hearing of the stated cases and that nothing in this judgment reflects any view on that question.

It is sufficient to deal very briefly with the remaining questions. Paragraph 30 of the petition of Mr. Evans incorporates by reference the contents of other petitions, and does not set out the statements of which complaint is made. In that respect the petition does not comply with the provisions of s. 185 (a) and is not susceptible of amendment, since the time within which the petition must be filed has elapsed: see In re Berrill [2] and the case there cited. No proceedings could in any event be taken on par. 30 of that petition: s. 187.

1. (1978) 52 A.L.J.R. 359, at p. 360; 19 A.L.R. 254, at p. 255.

The question whether the publication of electoral advertisements by means of television or radio comes within the scope of s. 161 (e) is one of some difficulty, but in the circumstances it is unnecessary to answer it.

For the same reason it is unnecessary to answer the question raised in Petition No. 21 as to whether the articles, which were apparently not advertisements in the narrow sense, came within the words of s. 161 (e).

The questions asked in the various stated cases should be answered as follows: