re Carroll v Electoral Commission of Qld & Reeves [1998] QSC 190

re Carroll v Electoral Commission of Qld & Reeves [1998] QSC 190 - QSC 1998 case summary — Zoe

[53]

"We are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e. that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such error as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think that the same result should follow if, by reason of any such similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament."

[186]

83 Reliance was placed on a dictum of Gray J in re Amalgamated Metals Foundry and Shipwrights Union; Ex parte Adamson (1984) 4 FCR 319, 346 where he held that a how to vote card allegedly implying, in a union election, that a candidate had backing of the ALP might be regarded as misleading or interfering with voters in or in relation to the casting of their votes. This decision was the subject of prerogative proceedings in the High Court (re Gray; ex parte Marsh [1985] HCA 67; (1985) 59 ALJR 804)). Gibbs CJ, at 810, said "Some misleading statements may hinder the full and free recording of vote" but held that in the case in question the representations "could do no more than influence an elector in his choice of the candidate for whom he would vote. The statements allegedly made ... could not have prevented or hindered the `full and free recording of votes' within the meaning of the definition." That provision required that the conduct prevented or hindered the "full and free recording of votes". The provisions of s.158 focus on conduct hindering or interfering with the free exercise of a right under the Act. In addition, what Gibbs CJ said seems to be more of a concession that examples where the making of misleading statements hindered the full and free recording of the vote may exist, while saying that this was not one of them. It is not intended to be a definitive statement on the issue. Nevertheless, I will approach this matter on the basis that a misleading statement may be capable of hindering or interfering with the free exercise of a right under the Act. In the context of this case the question to be answered if the misleading statement is to have the requisite character is, in any event, similar to that which must be asked under s.163, namely whether the conduct alleged hindered or interfered with the right to express, by marking the ballot paper, his decision to vote in a particular way. Conduct affecting the making of the political judgment for whom to vote is not subject to the section.

[196]

89 The words "matter or thing" used there were replaced in the Act by "anything". That word is of the widest possible scope. In its ordinary usage it extends to words as well as objects. The only limitation of its comprehensive definition would come from the context in which it was used in a particular case. There is no reason to think that a more restricted meaning than that intended by EARC when it used the words "matter or thing" was conveyed by the change. The words "matter or thing" are those used in the Commonwealth Act. Inclusion of anything broadcast within the subject matter of the sub-section necessarily extends its operation to at least some kinds of spoken words. For the purposes of the present case the question is whether anything in the context of s.163(1) excludes words spoken in a situation where they were intended or likely to mislead an elector in relation to the way of voting but not broadcast. For reasons already explained it is doubtful whether the spoken word was within the scope of s.112 of the Elections Act 1983. The specific categories referred to in it have been replaced by "anything" in the present s.163. That removes argument whether, e.g. "newspapers" with only "news" about a Member were within them. The meaning to be given to "publish" in s.163(1) is also important is resolving the issue. Depending on the context it may relate to material generally or to printed material. It is used in each of the three sub-sections of s.163. In s.163(1) and (3) it is used in the group of words "print, publish, distribute or broadcast". In s.163(2) it is used in the phrase "knowingly publish". Section 163(2) appears to be the analogue (without the element of purpose) of the former s.105(4) of the Criminal Code. It is essentially a defamation section and there is no reason to restrict the meaning of "publish" to the written word in it. Nor are there any surrounding words to colour its meaning. Because it refers to a "representation ... of a ballot paper" s.163(3) is necessarily restricted to a written publication except in the case where the representation is shown on television. With respect to s.163(1) the resolution of the question under consideration is not easy. The EARC Report and the explanatory notes to the bill contain no express statement of what was intended. However, in discussing the "general issue" whether the existing provisions governing political advertising in Queensland were adequate it recommended (para.11.33) that "controls over political advertising be established to prevent misleading or false advertising which may adversely affect political parties and individual candidates. These controls should apply to both electronic and printed advertisements" (my underlining). Paragraph 11.34 refers to s.163 of the draft bill. Issue three within this "general issue" is concerned with what restrictions if any should be placed upon party candidate and third party political advertising and whether the current provisions in Queensland were adequate. The recommendation in para.11.65 is as follows:-

[210]

"... 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 a 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 a 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 o 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."

[227]

An elector coming into the polling booth with the intention of casting a vote for, say, Mr O'Donnell, or any one of the other four Australian Labor Party candidates numbered three to six in the appellant's "how to vote" card, knowing for certain that the candidate of his choice was a member of the Australian Labor Party, could well have concluded from the appellant's "how to vote" card that the seven persons listed in the right-hand column were all Australian Labor Party candidates. It is by no means fanciful to conclude that a substantial number of individual electors would not have been aware of the political alliances of all twenty four candidates. It is by no means fanciful to conclude that a substantial number of individual electors might have known one or more of the five Australian Labor Party candidates but have been ignorant of the appellant's comparatively recent estrangement from that party. It is by no means fanciful to conclude that a substantial number of individual electors falling within the category described in the preceding sentence, recognizing the name of their favoured Australian Labor Party candidate or candidates in the favoured positions numbered two to six on the appellant's how to vote card, would have assumed that the seven names in that column which the appellant had identified as a group were at least associated together in the pursuit of Australian Labor Party policies if not actually officially candidates sponsored by that party. This would amount to a misleading or an improper interference with such electors in relation to the casting of their votes. It was likely to influence directly the actual numbering of the squares. The recommendation put forward by the appellant was in terms aimed at the manner in which the squares would be numbered, that is to say at the manner in which the vote would be cast. It was misleading in that it conveyed an impression of affinity in policy and association in political identity as between the appellant and the other six persons where no such affinity or identity existed. Electors could thereby have been misled in relation to the casting of their votes."

[266]

131 If there were substantial evidence that a card was distributed in circumstances intended to mislead and people were misled into recording a vote in accordance with it a further question is involved, namely whether they should be regarded as misled as to the way of voting or merely as to the formation of a judgment as to whether a second preference should be allocated and if so to the ALP. In one sense there is still a contingency involved. The representation is that the card is a One Nation how to vote card, but the person still has to make a decision whether to accept that the card applies to him or her. That is to say, the person has to consider whether he or she is a person thinking of voting One Nation who does not want Joan Sheldon back for three more years. In that sense there is a process of reasoning which has to be gone through culminating in the recording of the vote. Another way of looking at it is to consider the situation of a person who had decided to vote for One Nation and who understood the card to be an expression of One Nation's wish that if a person was thinking of voting for One Nation and did not want Joan Sheldon back for three more years, that person should give a preference to Labor. In other words, because of what was said when it was given to him the card was construed as a statement that irrespective of the position on the One Nation how to vote card, which said that a One Nation voter may record other preferences if he or she wishes, it was One Nation's wish, in a case where the voter does not want Joan Sheldon back for three more years that the person register his second preference and that it be given to the ALP. In that sort of situation, if the person had formed the intention to vote in accordance with One Nation's directions and genuinely took the card to be a One Nation card, in my opinion it would remove it from the category of a case in which it was left to the voter to decide whether to mark any other squares and place it in a category where a person who wished to vote in accordance with One Nation's wishes was induced to complete the ballot paper in accordance with the card by the combination of the appearance of the card and what was said when it was handed to him. It would, however, be misleading to assume that everyone necessarily fell into that category, since it is entirely possible for example that there might be a category of persons who had not yet made up their minds how to vote and whether to give preferences, and if so to whom. In that case, the outcome may be different. The notion that only one outcome follows from the fact that Exhibit 1 was handed out, accompanied by words representing it as a One Nation card, or that there are necessarily closed categories of facts is erroneous.

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Judgment (297 paragraphs)

re Carroll v Electoral Commission of Qld & Reeves [1998] QSC 190 (21 September 1998)

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Legislation Cited (6)

Cases Cited (9)