Liberal Party’s misleading tricks in Kooyong and Chisholm … Corflutes to heaven … Full Feds finds the dodgy signage didn’t swing enough votes to make a difference … Fresh meaning for the phrase “likely to mislead” … Judges tread wearily on political rorts … Christmas Eve judgment that deserves attention … Alan Zheng to the rescue 

On the eve of Christmas, the Full Federal Court upheld the election of Gladys Liu and Treasurer Josh Frydenberg despite the deployment of purple and white corflutes at polling stations which closely resembled those of the Australian Electoral Commission.

Using Chinese characters, the corflutes advised voters of the “Correct voting method”, directing them to “put 1 next to the Liberal Party candidate”. 

Both Chisholm and Kooyong are home to substantial Chinese communities, with the Court referring to census data which indicated up to 20 percent of electors in Chisholm and 12 percent in Kooyong carried Chinese ancestry. 

The corflutes, which were not accompanied with any prominent Liberal Party branding, ended up in the majority of polling places in both electorates, with most placed close to AEC signage. 

Unsurprisingly, complaints to the AEC came through thick and fast on polling day. 

The direct challengers to the election results for the two Victorian seats were Vanessa Garbett in Chisholm and an unsuccessful independent candidate in Kooyong, Oliver Yates.

The Court of Disputed Returns worked against time, hoping to be out before Christmas. 

It partially agreed with the petitioners. The corflutes were an illegal practice, but it found the outcome would have remained the same even if the corflutes were not used.

According to the petition, the corflutes were an illegal practice “likely to mislead or deceive an elector in relation to the casting of a vote“.

The proximity of the corflutes to the AEC material created an “identical colour match” with “no sign on the corflute making it identifiable as separate from the clearly marked AEC sign”. 

“It was intended to look like an AEC sign,” wrote Chief Justice Allsop alongside Justices Greenwood and Besanko, noting that this would not be the case if the corflutes had been placed at a distance from the AEC material. 

In at least 16 polling places (of 42) in Chisholm and 11 (of 37) in Kooyong, the court found the corflutes were placed sufficiently adjacent or close to AEC signage to be misleading or deceptive.

In determining the meaning of “likely to mislead or deceive an elector” within section 329, Allsop, Greenwood and Besanko rejected established definitions of “likely” – including “more probable than not” and “a material risk” – which were applied in different contexts, being trade and commerce or under the Trade Practices Act. 

Instead, they held that “likely to mislead or deceive an elector” meant:

“A real chance of misleading or deceiving any elector, even one who is intelligent, or gullible, or naive.” [91]

The court thought that the misleading or deceptive character of the corflutes, when set against the context of AEC signage was palpable, even though the message was highly partisan.

As to whether the corflutes were likely to mislead or deceive an elector “in relation to the casting of a vote,” the court construed the phrase broadly. 

Applying the distinction in Crichton-Browne, the Federal Court found the corflutes were not merely an encouragement to vote Liberal which influenced the formation of a voter’s political judgement.

Rather, by compelling voters to preference the Liberal candidate first, the corflutes influenced how a voter recorded their political judgement, irrespective of their preferred choice.

They did this by representing themselves to be official AEC instructions on how to cast a valid vote.

Despite clearing the first hurdle, the petitioners fell short soon after.

The judges were not satisfied that the result of the elections – being the return of a particular candidate, not the margins between candidates – were likely to be affected by the illegal practice. 

Had they been satisfied, only then, would the court have cast aside the “apparent will of the majority” and declared the elections of Liu and Frydenberg void. 

The meaning of “likely to be affected” was up in the air. The authorities were divided between a patchwork of different tests. Some had required that it be “more probable than not” that results be affected. Others had required a “real chance.” 

Most of the historical cases had applied the provision with the benefit of clearer factual scenarios.

In AEC v Lalara, the AEC failed to supply voter card envelopes to 465 intending voters in a regional council election, leading to the rejection of 95 percent of the votes. The court declared the election void. 

The bulk of authorities had not considered the provision owing to summary dismissal of the petitions for other reasons.

The court held that where that where there was a real chance in the circumstances that results would be affected, it should set aside the elections. 

This standard required something less definite than proof that was probable, or more probable than not, that the electoral result was affected.

Liu had won the two-candidate preferred vote by a margin of 1,090 and Frydenberg by 11,287. For the results to have been affected, more than half of these margins needed to have voted differently. 

Applying the threshold, the court found that there was only a real chance that a handful of people had been influenced by the corflutes, and certainly not enough to surpass half the margins of victory in both electorates. 

Accordingly, the court thought the results were not likely to be affected. 

“We are not prepared to conclude otherwise than that there may be a small group of electors who had a lack of interest or naivety, or lack of intelligence, or who had some other characteristic and whose choice of party was, by reason of such, either influenced or changed (expressed broadly for present purposes) by reading the corflutes.” [148]

The court struggled to imagine “Australians, whether of Chinese heritage or not, feeling compelled to vote for a candidate because they were instructed or encouraged to do so by the AEC”.  

That the independent electoral authority would direct electors to vote for a particular party was considered bizarre and scandalous.

However, the the judges did acknowledge the fact that deploying the corflutes must have been premised on some electoral advantage to be gained.

That advantage, it was concluded, was gaining a tiny handful of voters if the elections were to be close. 

But ultimately the elections were not close in either electorate.

The court went on to determine who, if anyone, was responsible for the corflutes. 

Neither Liu nor Frydenberg were found to have authorised or permitted the display of the corflutes. Although Liu was aware of the corflutes’ content early on polling day, she had no role in causing or authorising their display. 

Mere knowledge of the content was insufficient. Liu needed to have sanctioned or approved the circumstances. Yet the evidence showed that she had little influence over the deployment of the corflutes, even if she had voiced an objection.  

The case against Frydenberg was even weaker. He was unfamiliar with the correct English translation of the corflutes. There was nothing to suggest that he had any responsibility for them.

Liu and Frydenberg may have been free to join elected members of the Liberal Party in the 46th Parliament, but senior party functionary Simon Frost – who authorised the corflutes – didn’t get the same free pass. 

The court held Frost caused or authorised the printing, publishing and distribution of the corflutes.

That same division of the Liberal Party had been recalcitrant in cooperating with the petitioners in the lead up to the proceedings, the High Court was told in September, before the matter was remitted to the Federal Court for trial.

Ultimately, it was only Frost who was clued in to the essence of the corflute’s misrepresentation. 

He denied setting out to mislead voters but in a concession he admitted the aim was to “convey the impression of AEC corflutes”.

In the spirit of political bipartisanship, Frost had been inspired by the purple and white Korean language corflutes deployed by Labor in the 2017 Bennelong by-election. 

The radio active breadcrumbs could be found in the digital paper trail. The design of the corflutes had been labelled “generic AEC-looking corflutes” and PDF documents sent for printing were also named “polling day corflute Chinese_AEC_simplified”.

The corflutes had originally read “Make your vote count” in English. But after a process of translation, including with the help of Liberal Candidate for Hotham George Hua, the final meaning was closer to “correct voting method”. 

Although Frost was unaware of this change in meaning, he was nevertheless prepared to authorise the outcome of the translation.

The court advised Frost it would seek to make a direction that he breached section 329 of the Commonwealth Electoral Act (1918) with opportunity for him to oppose the direction in submissions.

“On the evidence we find that Mr Frost caused or authorised the printing, publishing and distribution of the corflutes which were matters or things that were likely to mislead or deceive an elector in relation to the casting of a vote.” 

Penalties for breaches of section 329 include imprisonment for up to six months or a fine of  $2,100 or both. 

Frost has left his job as Victorian director of the Liberal Party and can now be found in Mr Frydenberg’s office as a “senior advisor”.