1. The decision of the Respondent Tribunal handed down on 5 December 2000 is set aside and there is substituted therefor a decision that the "How-to-Vote-Card" approved by the Returning Officer for use by Andres Puig in the 2000 municipal election for the Furlong Ward of the City of Brimbank was likely to mislead or deceive a voter in relation to the casting of the vote of the voter.

1. The following are extracts from agreed position statement filed with the Tribunal:

1 . The Brimbank City Council held a general election in the Furlong Ward, under s. 3 6 of the Local Government Act 1989 ("the Act") on Saturday, 18 March 2000.

The candidates and their first preference votes, in the order that they appeared on the ballot paper, were as follows:

2. Puig was declared elected, having an absolute majority on the first count (total of all others 4208)."

"5. On 27 March 2000, under s.45 of the Act and in the form required by Regulation 93 of the Local Government (Election) Regulations 1995 applications were made by Terry Muscat and Asip Dimiri for an inquiry by the Municipal Electoral Tribunal into the election."

8. Section 48 of the Act provides for review of a decision of a Municipal Electoral Tribunal by the Victorian Civil and Administrative Tribunal, on an application to be made within 7 days after the day on which written reasons are given.

Candidate Muscat applied to VCAT on 12 December 2000.

9. The application for review applies for the following Decision to be reviewed:

"That the 'How to Vote' card ("HTVC") approved by the Returning Officer for use by Andres Puig in the 2000 Municipal Election for the Furlong Ward ... did not mislead or deceive a voter in the casting of the vote of the voter."

" ... the applicants have not established on the balance of probabilities that the material has mislead or deceived voters in the casting of their votes. In reaching this conclusion we rely upon the authority of Evans v. Crichton Browne.

11. How to vote cards were registered for all candidates (see copy of H.T.V.C. Register attached).

Candidates Tarczon, Muscat and Puig were members of the A.L.P.

Candidate Puig issued a HTVC (copy provided) which contained:

* a photograph of the candidate with the Premier Mr Bracks;

* and contained the descriptor "Cr" before Candidate Puig's name at the head of the HTVC.

* On the reverse side, statements in English and purportedly the following languages: Croation, Italian, Greek, Macedonian, Maltese, Polish, Serbian, Spanish, Turkish and Vietnamese.

12. The HTVC of the other candidates included the following words:

13. In each case of candidates other than Puig, with a photograph of the Candidate, but without a photograph of the Premier."

2. Section 44 of the Act provides for the establishment of one or more Municipal Electoral Tribunal's to consider disputes which may arise from the holding of elections. As indicated above Section 45 enables a candidate at an election to apply for an inquiry by such a Tribunal into the election.

3. Section 46 of the Act sets out the powers of a Municipal Electoral Tribunal which include the power to declare that any person declared elected was not duly elected and to declare an election void. Section 48 provides that a person whose interests are affected by a decision of such a Tribunal may apply to this Tribunal for review of the decision.

4. In its reasons for decision the Respondent Tribunal stated that the Applicant sought a declaration that candidate Puig was not duly elected and that the election was void (refer LGA Section 46(1)(a) and (b)).

5. Mr Ryan, appearing before this Tribunal on behalf of the Applicant, indicated that his client was not seeking similar declarations but wished a ruling of this Tribunal by way of review of the decision of the Respondent Tribunal because such a review would be "important for the conduct of similar elections in the future." The hearing before this Tribunal proceeded on the basis that a review of the decision of the Respondent Tribunal was justified if only for this purpose.

6. Mr Heathcote, who appeared on behalf of the Respondent, called two witnesses. Both witnesses were interpreters and both had been requested to interpret a paragraph printed in Maltese on the HTVC of Mr Puig. The interpreters were Mr Manwel Cassar and Mr Joseph Axiaq. Their translations vary in relation to a few words but for the purposes of this Tribunal hearing were similar. The translation of Mr Cassar reads as follows:

"Andres Puig is Labour Councillor with the City of Brimbank. He works hard with the Labor Party in order that you are certain that our community gets the best service. Vote for Andres Puig so that he continues to fight for our community."

7. In re-examination Mr Axiaq confirmed that there was no significant difference between his translation and that of Mr Cassar. In his witness statement Mr Axiaq concluded:

"I have been asked by the Victorian Government Solicitor whether it is possible that the Maltese paragraph could in any way be read to state or imply that Andres Puig was the endorsed Labor candidate for the election. In my opinion the answer to that question is no."

8. During the course of his submissions on behalf of the Applicant Mr Ryan tendered a document of a Rita Portelli which was headed "Affidavit". The document states that Ms Portelli, a resident of North Sunshine, voted in the election for the Furlong Ward of Brimbank City Council. Although Ms Portelli was not called as a witness and was subject to cross-examination her "Affidavit" is of interest as she states:

"When I arrived at the Sunshine North Primary School to vote I was given several How to Vote Cards including ones for Andres Puig and Terry Muscat.

When I saw the How to Vote Card for Andres Puig with the picture of Andres Puig and the Premier Mr Bracks I thought that this meant that Andres Puig was the Premiers choice and the Labor Party choice.

I knew Terry Muscat was standing for election in the Furlong Ward and I thought he was standing against the Labor Party.

I know Terry Muscat as both he and I are members of the Maltese Cultural Association of Victoria.

I always vote for the Labour Party and I was going to vote for Andres Puig as the Labor Party candidate.

When I saw Terry Muscat's How to Vote Card I was confused because it said that he was a member of the ALP and I didn't understand why he was standing against the Labor Party.

However, as I don't like Andres Puig I was looking to see if I could vote for someone else. When I read Terry Muscat's How to Vote Card I saw that he was a member of the ALP and so I voted for him.

Even though I voted for Terry Muscat I believed at the time that Andres Puig was the official Labor Party choice.

After the election I had several conversations with my Asian neighbours and with my Maltese and Australian friends and each told me that they thought Andres Puig was the Labor Candidate because of the photo of Andres Puig with the Premier."

9. Although, as indicated this witness did not give sworn evidence the views expressed by her confirmed the findings of this Tribunal.

10. In their submissions, both written and oral, both parties relied on the authority of the judgements of the High Court in Evans v Crichton-Browne [1981] HCA 14; (1981) 147 CLR 169.

11. In that decision the Full Court, sitting as A Court of Disputed Returns, concerned itself with the Senate Election in October 1980 in Western Australia. The Commonwealth Electoral Act 1918 contained Section 161 which lists several illegal practices including in sub-section (e) that the printing publishing etc of electoral material "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." Section 55(5) of the Local Government Act 1989 of the State of Victoria is in similar terms. The sub-section is as follows:

"(5) A person must not print, publish or distribute or cause to be printed, publish or distributed any electoral material that is likely to mislead or deceive a voter in relation to the casting of the vote of the voter."

12. The sub-section provides a penalty for the offence.

13. The Head Note of the Crichton-Browne decision is as follows:

"Held, that the words in s. 161(e) "in or in relation to the casting of his vote" refer to the act of recording or expressing the elector's political judgment, e.g. in obtaining and marking a ballot-paper and depositing it in the ballot-box, and not to the formation of that judgment."

14. The Full Court of the High Court in the Evans v Crichton-Browne decision said:

"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."

15. On page 205 the Court gives examples of the type of statement which would appear to mislead a voter in the casting of his vote and stated:

"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."

16. After commenting "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..." the Court said at pps 207/8:

"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 is perhaps unnecessary to add that the question whether any of the statements was untrue or incorrect did not arise on the haring of the stated cases and that nothing in this judgment reflects any view on that question."

17. Mr Heathcote, on behalf of the Respondent stated "in Puig's case the photograph with Premier Bracks does no more than show that Puig enjoyed the friendship of the Premier. The Premier does not endorse candidates. Neither was stated or implied in any of the other language messages on Puig's card that he was an endorsed Labor candidate." Mr Heathcote further commented regarding the assertion that Puig's card was misleading ".... it could only have aimed at influencing the voter in forming the judgment for whom to vote and therefore could not offend the law as set out in the Crichton-Browne case."

18. Mr Ryan, on behalf of the Applicant, strongly contested this submission and stated that if a person intended to vote for the endorsed ALP candidate the HTVC implied that Puig had the special approval of the Premier and was the endorsed candidate.

19. Both parties referred the Tribunal to another decision of the High Court in R v Gray, Ex Parte Marsh [1985] HCA 67; (1985) 157 CLR 351 where the Court was dealing with a provision of the Commonwealth Conciliation and Arbitration Act concerning an alleged "irregularity in or in connection with an election for an office in the organisation". One of the issues before the High Court in that decision was whether or not the use of a photograph of the candidate with the then Prime Minister on a HTVC and other electoral material would have caused an irregularity in relation to the election. Chief Justice Gibbs at p 366 said that "the definition of "irregularity" in s. 4(1) of the Act expressly refers to the "recording of votes". Those words are no different in meaning from "casting of votes" - they describe the Act of obtaining and marking a ballot paper and depositing it ... the do not refer to the process of deciding for whom to vote." The Chief Justice also said at p 368:

"The gravamen of the respondents' complaint appears to lie in the second of the matters to which I have just referred, i.e. in the claim that there was a false suggestion that Mr Bali was supported and backed by the Australian Labour Party. There was, of course, no express statement to that effect. The inference that he was backed and supported by the Australian Labor Party is sought to be drawn mainly from photographs showing him in company with the Prime Minister. However, it was not suggested that the photographs were not genuine and (again in the absence of express provision) it cannot be an irregularity to publish a genuine photograph of that kind, even if it carries a false suggestion."

20. The Tribunal notes that in the passage of Chief Justice Gibbs quoted above he states that it could not be an irregularity to publish a photograph of a person with the Prime Minister "in the absence of express provision". The Tribunal finds that in this case the wording of Section 55(5) of the Local Government Act contains an express provision which causes, in the opinion of this Tribunal, the publication of the photo of Premier Bracks on Puig's HTVC to imply that he was the endorsed or preferred candidate of the Labor Party. Both parties drew the Tribunal's attention to a decision of the New South Wales Court of Appeal in Consandine v Strathfield Municipal Council 44 LGRA 435. In his judgment Chief Justice Street stated that he considered that that case on its facts was clearly distinguishable from Evans v Crichton-Browne and that the material there under consideration was clearly enough likely to mislead or improperly interfere with an elector informing his judgment as to whom he wished to vote for. Moffitt P in his judgment at p 442 said:-

"I agree with the judgment of the Chief Justice. I wish only to add the following comments.

As legislative and executive power rests upon the party system of politics, the decision of persons to be candidates for election have come substantially to depend on their selection by a political party to stand as its endorsed candidate. For a like reason voting at parliamentary elections has come substantially to depend on voters identifying candidates by their membership of a political party. In consequence many electors vote for a particular candidate because he is a member of a political party which or whose leader has the voter's approval. Thus the decision of an elector as to how he will cast his vote may be simply to vote for a particular political party or group, in the sense that he will vote for those candidates, whoever they are who are members of that party or group. He may go to the polling booth having decided to cast his vote in this way or as put colloquially to vote for "X party", so that the only significance of his knowing the identity of particular candidates whose names appear on the ballot-paper will be to provide the means by which he can carry out his decision as to how he will cast his vote."

21. Relying on these authorities the Tribunal finds that the HTVC published by candidate Puig with a photo of him with Premier Bracks implied or indicated that he was the endorsed, approved or preferred candidate of the Australian Labor Party in respect of the Council elections.

22. Mr Ryan tendered to the Tribunal a copy of a letter on the letterhead of the Victorian Branch of the Australian Labor Party signed by a Mr David Feeney, State Secretary and Campaign Director, and addressed to a Ms Liz Williams of the Victorian Electoral Commission which stated that Premier Bracks "has instructed me to convey to you his resolve that no image of him is to accompany any electoral or how to vote cards in municipal elections generally and Brimbank in particular."

23. Irrespective of whether or not Premier Bracks authorised the photo to appear on Puig's HTVC the Tribunal believes that the Premier's image was likely to mislead or deceive a vote in relation to the casting of the vote of the voter. If that person who intended to vote for a candidate whom he or she believed to be the endorsed or approved candidate of the Australian Labor Party. The Tribunal finds that the Premier's image in Puig's HTVC was likely to mislead or deceive that person into choosing to vote for Puig believing him to be the endorsed or preferred Labor Candidate.

23. In the circumstances the Tribunal will set aside the decision of the Respondent Tribunal and make a finding that Puig's HTVC was in breach of Section 55(5) of the Local Government Act.

24. As no submissions were made during the course of the hearing in relation to the matter of costs this question is reserved.