Federal court rules the elections in Chisholm and Kooyong were valid, but finds the signs implied the AEC was recommending a Liberal vote

This article is more than 8 months old

This article is more than 8 months old

The federal court has upheld the election of Liberal MP Gladys Liu and treasurer Josh Frydenberg, finding there was “no real chance” that Chinese-language signs, designed to look as though they were from the Australian Electoral Commission, changed the result.

But the court put the Liberal party’s then acting Victorian director, Simon Frost, on notice that it is preparing to make a declaration he committed an illegal practice “in respect to characterisation of the corflutes”. It granted him leave to file submissions as to why it should not make that declaration.

A breach of section 329 of the Electoral Act is punishable by up to six months in prison or $2,100 or both.

“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,” the court said.

“In our view, the corflutes are properly read, not as encouragement to vote 1 Liberal, but as a statement first, that to vote correctly (that is validly), one must vote 1 Liberal and, secondly, that there was an official instruction of the AEC that electors must cast their votes as indicated.”

The chief justice, James Allsop, and justices Andrew Greenwood and Anthony Besanko found that Frost “had full knowledge of the essence of the misrepresentation that the corflute appeared to be a sign of the AEC”, and noted that the criminal code could apply to such an illegal practice.

AEC argues Chinese-language election signs could not have swayed voters Read more

The signs in the Victorian seats of Chisholm and Kooyong had been displayed at polling booths, and told voters that the “correct” or “right” way to vote was to put a “1” next to the Liberal candidate, and used the Australian Electoral Commission’s official colours of purple and white.

Liu won the marginal seat of Chisholm by only 1,090 votes against Labor’s Jennifer Yang, while Frydenberg won by 11,289 votes against Greens candidate Julian Burnside, after the distribution of preferences during the 18 May election.

An unsuccessful Kooyong candidate, Oliver Yates, and climate campaigner Vanessa Garbett then challenged the results in both electorates.

Yates and Garbett argued the signs breached section 329(1) of the Electoral Act, which makes it an offence to print material likely to deceive a voter.

But on Tuesday, the court ruled that the petition be dismissed, subject to further submissions from Frost about whether he committed an illegal practice.

During hearings in October, Liu and Frydenberg’s lawyers admitted that the translation told voters the “correct” or “right” way to vote was to put a 1 next to the Liberal candidate.

Frost also admitted that the signs were designed to look like official AEC signage.

But the AEC itself also told the court the challenge should be dismissed, and submitted that no reasonable voter could have changed their vote as a result of the signs.

The electoral commission said there was no detail or proof that voters would have changed their votes due to the signs.

On Tuesday, the federal court agreed.

Frost told the court in October the signs were intended to say: “To make your vote count put a 1 next to the Liberal candidate”. But the translation more accurately said this was the “correct way to vote”, “correct voting method” or “the right way to vote”.

Liberal party lawyers say it’s 'laughable' Chinese-language election signs swayed voters Read more

Frydenberg and Liu denied that publication of the signs was done with their knowledge or authority.

Outside court in Sydney, Yates’s and Garbett’s lawyer, Michael Bradley, said his clients were “vindicated” by the judge’s findings on the corflutes.

“Mr Yates is extremely happy with the result, he feels vindicated,” Bradley said. “His intent was that this issue be exposed and resolved and a line drawn in the sand by the courts.”

“There were two things the court needed to do,” he said.

“Determine if there had been a contravention of the electoral act by the use of these corflutes by the Liberal party.

“And the court has found the use of these corflutes were misleading and deceptive, in contravention of the Electoral Act. And it has made a finding that the person responsible for that, Mr Frost, the court has given him an opportunity to make submissions as to why he shouldn’t be referred to the minister, which could potentially lead to prosecution.

“The second part of the case determines if that illegal conduct was likely to have affected the result in the two elections in Kooyong and Chisholm. And the court found that on the facts, not enough electors would have been aware of the corflutes for it to have changed the results.”

At a doorstop in Mount Barker, Scott Morrison said he was “not surprised” by the result “because of the nature of the case”.

“It was a smear job and it’s been chucked out,” he said.

In a statement, the state director of the Victorian Liberals, Sam McQuestin, said the party welcomed the decision of the court to dismiss the case.

“Consequently there will be no by-elections for either electorate as a result of this case.”

Labor’s shadow attorney-general, Mark Dreyfus, said the government could “take no comfort” from today’s decision.

“It is now clear the tactics employed by the Liberal party in this election went well beyond the accepted bounds of a vigorously contested election campaign – especially in the divisions of Chisholm and Kooyong.

“Mr Morrison and his colleagues can take no comfort from the fact that the court found that the Liberal party’s potentially unlawful conduct did not affect the election result. What’s relevant here is the conduct of the Liberal party.”