AEC v Bennetts [2001] FCA 1779

FEDERAL COURT OF AUSTRALIA

AEC v Bennetts [2001] FCA 1779

AUSTRALIAN ELECTORAL COMMISSION v LYN BENNETTS & ANOR V 1170 OF 2001 NORTH J 10 NOVEMBER 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1170 OF 2001

BETWEEN: AUSTRALIAN ELECTORAL COMMISSION

APPLICANT

AND: LYN BENNETTS

FIRST RESPONDENT

ROBERT MAKLEY

SECOND RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 10 NOVEMBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The respondents are restrained from distributing or counselling or encouraging any other person to distribute how to vote cards produced by Pauline Hanson's One Nation Party for the House of Representatives division of Indi and for the half Senate election for the State of Victoria in the form of exhibits A1 and A2 annexed to this order until further order. 2. Liberty to the respondents to apply to the Court on short notice for orders varying or dissolving the order contained in paragraph 1. 3. A directions hearing is fixed for 10.15 am on 17 December 2001. 4. Costs reserved. 5. Service of this order on the respondents may be effected by phone immediately. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1170 OF 2001

BETWEEN: AUSTRALIAN ELECTORAL COMMISSION

APPLICANT

AND: LYN BENNETTS

FIRST RESPONDENT

ROBERT MAKLEY

SECOND RESPONDENT

JUDGE: NORTH J

DATE: 10 NOVEMBER 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 An application has been made urgently by the Australian Electoral Commission (AEC) against Lyn Bennetts and Robert Makley. Lyn Bennetts is the Pauline Hanson's One Nation Party candidate for the Federal seat of Indi, and Robert Makley is the Deputy Registered Officer of Pauline Hanson's One Nation Party. 2 The application is made under s 383 of the Electoral Act 1918 (Cth) (the Act). Section 383(1) gives the Court power to grant an injunction where a person has engaged, is engaging in, or is proposing to engage in, conduct which would constitute a contravention of or an offence against, the Act. The section empowers the Court to grant an injunction restraining such a person from engaging in the conduct and can be brought on the application of the AEC. 3 Evidence has been given to the Court orally by Ms Haywood, the director of operations of the AEC, that the first respondent, Ms Bennetts, has been distributing how to vote cards which are misleading and deceptive in several respects. It is contended on the part of the AEC that the distribution is at least prima facie in breach of the provisions of s 329 of the Act which provides that: "A person shall not distribute or cause, permit or authorise to be distributed any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote." 4 The evidence before me suggests that the how to vote card of Pauline Hanson's One Nation Party is being distributed in Indi in the course of today's federal election. That how to vote card, on the evidence presently before me, is a double‑sided document. In relation to the side headed House of Representatives, there is a reference to the Legislative Assembly and two spelling errors in the names of the candidates. 5 It does not appear to me that there is a serious likelihood of misleading or deceiving an elector by the form of that side of the how to vote card, albeit that the reference to the Legislative Assembly is plainly wrong. 6 The other side of the how to vote card, however, stands in a different position. It is intended, probably, to be a how to vote card in relation to the Senate. However, it is headed How-to-Vote Legislative Council. The format of the instructions to vote above the line on the ballot paper bear no resemblance to the actual format of the Senate ballot paper. Furthermore, the format is, in fact, different from that of the actual Senate ballot paper. 7 On the face, of it that difference is prone to mislead or deceive an elector, in particular because parties are listed across the top of the template in a completely different order to that found on the actual ballot paper. Consequently, the AEC has made out a sufficient case for the purpose of considering whether an injunction under s 383 should be granted. 8 An important consideration in determining whether or not to grant an injunction comes from the background which has been explained to me by Ms Haywood. The inaccuracies and difficulties with the ballot paper have been drawn to the attention of Ms Bennetts in a number of communications, both written and oral, over the last 24 hours. The evidence is that Ms Bennetts has attempted to avoid receiving instructions from the AEC concerning the alteration or withdrawal of the how to vote card. That conduct attests to some consciousness of contravention. 9 Given the urgency and the circumstances of this case, a sufficient case has been made out for an injunction to be granted. I intend to make the orders sought. In so doing I have not heard any argument from the respondents. It is perfectly possible that the circumstances would look quite different if their side of the story were to be heard by the Court. Consequently, it is appropriate that I reserve to them liberty to apply on short notice at any time this afternoon to dissolve the injunctions that I otherwise intend to grant.