Isaac & anor v Nannelli [2005] NSWADT 78

CITATION: Isaac & anor v Nannelli [2005] NSWADT 78 DIVISION: General Division FIRST APPLICANT Andrew Isaac PARTIES: SECOND APPLICANT Peter Downey RESPONDENT Owen Nannelli FILE NUMBER: 043201 HEARING DATES: 9-10 February 2005 SUBMISSIONS CLOSED: 03/04/2005 DATE OF DECISION: 04/06/2005

BEFORE: Hennessy N - Magistrate (Deputy President); Montgomery S - Judicial Member; Antonios Z - Non Judicial Member APPLICATION: Local Government Act - dismissal from civic office - Dismissal from civic office MATTER FOR DECISION: Principal matter Commonwealth Electoral Act 1918 (Cth) LEGISLATION CITED : Conciliation and Arbitration Act 1904 (Cth) Local Government (Elections) Regulation 1998 Local Government Act 1993 Bourne v Murphy, (1996) 2 LGERA 329 Evans v Crichton-Browne (1981) 147 CLR 169 CASES CITED: R v Gray Re Collins; ex parte Hockings (1989) 87 ALR 656 R v Gray; ex parte Marsh (1985) 157 CLR 351 Roberts v Jeffrey & 4 Ors [2003] NSWSC 162 FIRST APPLICANT In person SECOND APPLICANT REPRESENTATION: D Clark, solicitor

RESPONDENT R Lancaster, barrister ORDERS: The application that the Tribunal dismiss Mr Nannelli from civic office is refused

REASONS FOR DECISION Introduction 1 The election. On 27 March 2004 local government elections were held across New South Wales. The elections for the Hornsby Shire Council were for both Mayor and for three councillors from each ward. In ward C seven groups of three people competed for the three positions on Council. Owen Nannelli (Group F) was one of those elected for ward C. Andrew Isaac from Group A and Peter Downey, who was the third member of Mr Browne's group, were not elected. The issue in this case is whether the Tribunal should dismiss Mr Nannelli from office because there has been an irregularity in the manner in which he was elected to that office: s 329(2)(a) of the Local Government Act 1993 (the Act). 2 The alleged irregularities. Four irregularities were identified by either Mr Isaac or Mr Downey. We have given these irregularities the following labels: (a) the "second preference arrangements irregularity"; (b) the "three how to vote cards irregularity"; (c) the "registration irregularity"; and (d) the "misleading voters irregularity". 3 The "second preference arrangements irregularity" is an allegation that both Mr Isaac's group and Mr Browne's group had an exclusive agreement with Mr Nannelli's group that they would exchange second preferences. Both groups say that Mr Nannelli did not honour that agreement. The "three how to vote cards irregularity" stems from the fact that on polling day Mr Nannelli's workers handed out three different how to vote cards, one of which gave second preference to Mr Isaac's group and two of which gave second preference to Mr Browne's group. The "registration irregularity" is an allegation that one of the three "how to vote cards" handed out by Mr Nannelli's team was not registered with the Electoral Commissioner as required by the Act. Finally, the "misleading voters irregularity" was an allegation by Mr Isaac that the "how to vote" cards distributed by Mr Nannelli included directions or statements which were likely to mislead a voter when casting his or her vote. Meaning of "irregularity" 4 Section 329(2) of the Act gives the Tribunal power to dismiss a person from civic office "if there has been any irregularity in the manner in which the person has been elected or appointed to that office." The word "irregularity" is not defined in the Act. The most authoritative interpretation of the word was given by the Court of Appeal in Bourne v Murphy, (1996) 2 LGERA 329 per Priestley, Cole and Beazley JJA. Cole JA and Beazley JA were in the majority, although their reasoning differed. Beazley JA discussed the meaning of irregularity and noted at 358, that: The Macquarie Dictionary defines "irregular" to mean, "not conforming to rule, or accepted principle, method, course, etc." "Irregularity" has a corresponding meaning. The Oxford English Dictionary defines "irregularity" to mean, "want of conformity to rules, deviation from or violation of a rule, law or principle". The meaning of the word "irregularity" was considered by the High Court in R v Gray; ex parte Marsh (1985) 157 CLR 351. Gibbs CJ stated at 368: "The notion of an irregularity in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election." It is also clear from R v Gray that an irregularity includes matters that affect the declaration of the poll. See also Re Collins; ex parte Hockings (1989) 87 ALR 656 at 657, 658 and 659. The construction of the word "irregularity" in R v Gray was in the context of the phrase "in or in connection with an election". The phrase here is "any irregularity in the manner in which the person has been elected". "Manner" is defined in the Macquarie Dictionary to mean "way of doing, being done, or happening; mode of action". The Oxford Dictionary definition is the "way a thing is done". In my opinion, subject to one further consideration, the difference in wording between s329 and that under consideration in R v Gray makes no difference to the meaning of the word "irregularity" in s329. However, I am of the opinion that it is not any irregularity which suffices for the purpose of s329. Rather, it must be an irregularity such that the result of the election is thereby uncertain: see Bridge v Bowen (1916) 21 CLR 582. 5 The term "irregularity" has also been discussed by the High Court in several cases interpreting Commonwealth legislation including the Conciliation and Arbitration Act 1904 (Cth) and the Commonwealth Electoral Act 1918 (Cth). The critical distinction made in those cases is between conduct affecting the casting or recording of votes, which may amount to an irregularity, and conduct affecting a voter's decision about who to vote for, which does not amount to an irregularity. (See Evans v Crichton-Browne (1981) 147 CLR 169, R v Gray Re Collins; ex parte Hockings (1989) 87 ALR 656 and R v Gray; ex parte Marsh (1985) 157 CLR 351.) The distinction between a voter's intention and the recording of that intention is not so apparent in s 329(2). 6 Roberts v Jeffrey & 4 Ors [2003] NSWSC 162, 20 February 2003 was an appeal to the Supreme Court from a decision of this Tribunal involving an allegation, among others, that it was an "irregularity" to wrongly state in a newspaper advertisement that the advertisement was authorised by a prominent individual. On appeal, the plaintiff submitted to the Supreme Court that an "irregularity" for the purpose of s 329(2) does not include conduct that only affects (or may affect) voter intention as distinct from conduct that touches on the process of nomination, conduct and declaration of the poll. Bell J decided that the conduct did constitute an irregularity and said, at [49], that "an irregularity for the purposes of s 329(2) in the manner in which a person is elected to office extends to an irregularity (in the way that terms was defined by Gibbs CJ in R v Gray) affecting the conduct of the election, the latter including the whole proceedings from the first step taken by the returning officer to the declaration of the result." It is clear from Her Honour's conclusion that she regarded the representation in the advertisement as affecting the formation of voter intention. While the extent to which conduct affecting the formation of voter intention amounts to an "irregularity" is not clear, we have assumed for the purposes of these reasons that an irregularity includes such conduct. 7 Bell J also agreed with the view of Beazley JA in Bourne v Murphy that the Tribunal has no discretion to refuse to dismiss a person from civic office once an irregularity has been found. Our conclusion makes it unnecessary for us to consider that issue. Issues 8 In order to determine whether the conduct complained of by Mr Isaac and Mr Downey amounts to an "irregularity" in the manner in which Mr Nannelli has been elected to office, we must ask ourselves the following questions: (a) Does that conduct represent a potential breach of any provision of the Act or the Local Government (Elections) Regulation 1998 (the Regulations)? (b) If not, firstly, was it "a departure from some rule, established practice or generally accepted principle" and secondly was it conduct relating to the "manner in which the person was elected"? (c) Finally, if either (a) or (b) is answered in the affirmative, did any of the conduct, either separately or in combination with other conduct, make the result of the election uncertain? 9 Mr Isaac was not legally represented and several submissions made by him or on his behalf were not relevant. For example, we were urged to find Mr Nannelli guilty of various offences and impose penalties on him. That is not a matter over which this Tribunal has jurisdiction. Other submissions that are irrelevant to the issues the Tribunal has to determine have not been canvassed in these reasons. Second preference arrangements irregularity. 10 Agreement with Isaac's group. Mr Nannelli and Mr Isaac both say that they had an agreement that each would recommend the other as second preference for ward elections on their "how to vote" cards. Mr Nannelli gave evidence that he said to Mr Isaac, "I will put your group as second preference on my how to vote card as long as you give me your number two and actively promote people voting 1, 2 and 3 above the line." Mr Isaac says that this agreement was exclusive and was a legally binding contract whereas Mr Nannelli says that the agreement was not exclusive and was not binding. 11 Evidence about the agreement with Isaac's group. Mr Nannelli and Mr Isaac met on 2 March 2004 to discuss the distribution of their preferences. Mr Isaac said that at that meeting Mr Nannelli agreed to exchange second preferences with him on an exclusive basis. Mr Isaac telephoned Mr Nannelli to re-confirm his commitment to the agreement. At Mr Isaac's request, Mr Nannelli sent a copy of a "how to vote" card by facsimile to Mr Isaac showing Isaac's group as his second preference. The card bears a hand written note from Mr Nannelli stating "Copy for your information only." The words "your" and "only" are underlined. Mr Isaac also said that when they met at the pre-polling venue they reconfirmed the agreement and shook hands. At that meeting Mr Isaac said he had the facsimile that Mr Nannelli had sent to him in his hand. He said that Mr Nannelli said to him, "Don't let Robert Browne see it." Mr Nannelli denies making that comment. 12 Evidence about exclusivity. Mr Nannelli gave evidence that it was his understanding that there was "nothing certain about arrangements made between candidates for swapping recommendations for preferences" and that his "impression was that Mr Isaac was making an informal arrangement that he might change if it was politically expedient for him to do so." Mr Nannelli said that in previous elections and in this election, candidates had informed him that they would give him their second preferences but did not do so. Mr Nannelli conceded that he intended to "keep to the arrangement with Mr Isaac for the remainder of the election period after the pre-poll voting" but he arranged for two other "how to vote" cards to be printed giving Mr Browne's group his second preference because of his past experience with other candidates reneging on agreements at the last minute. 13 Agreement with Browne's group. Mr Nannelli says that his agreement with Robert Browne's group was that he would recommend Mr Browne as a second preference for Mayor and third preference for the ward elections, in return for Mr Browne recommending Mr Nannelli as second preference for both the Mayor and ward elections. Mr Browne's evidence was that his agreement with Mr Nannelli was that they exchange second preferences with one another for both the Mayor and the ward elections and that that arrangement was exclusive and binding on each of the parties. 14 February meeting. During the first week of February, Victor Batten, the Browne Group's logistics advisor, met with Mr Nannelli and Mick Gallagher, an advisor to Mr Nannelli, at Mr Nannelli's home. Mr Batten said that he obtained Mr Nannelli's in principle support for an exclusive preference agreement but understood that the agreement needed to be confirmed by the leader of each group. Mr Nannelli says that while preference arrangements were discussed, no arrangement about preferences was made and no one used the word "exclusive". Mr Gallagher said that the word "exclusive" was never used in that meeting and that the discussion was about in principle possibilities. 15 Later conversations. On 8 February 2004 Mr Batten told the Group G members (Downey, Browne and Crook) that an exclusive preference arrangement had been reached with Mr Nannelli. Mr Browne had a telephone conversation with Mr Nannelli on Sunday 7 March to discuss his final "how to vote" cards for ward C and Mayoral elections. Mr Browne said that Mr Nannelli clearly told him that his ward "how to vote card" would show his second preference going to Group G (Robert Browne's Group) and his third preference to Group E. When Mr Browne asked whether he would be sharing any preferences with Mr Isaac or anyone else Mr Nannelli insisted that he would not be sharing his preferences. Mr Nannelli said that he gave Mr Browne's group third preference, not second preference, for ward elections but that he gave Mr Browne second preference for the Mayoral vote. 16 Further exchanges. At a "Meet the Candidates" function on 2 March 2004 Mr Nannelli agreed that he may have said to Mr Browne and others that Mr Isaac would be a difficult person to work with on Council and that he would not be inclined to give preferences to someone like that. Mr Browne's and Mr Downey's evidence was that Mr Nannelli said in reference to Mr Isaac, "I could not give my preferences to someone like that." According to Mr Browne, Mr Nannelli again confirmed the exclusive preference agreement by phone on 18 March 2004. Mr Nannelli does not recall that conversation. Mr Browne said that on 24 March, only 3 days before polling day, he was told that Mr Nannelli's team was handing out "how to vote" cards at the pre-poll which did not show the Browne group as receiving his second preference. Mr Browne said that he again phoned Mr Nannelli who said that what was happening at pre-poll was only a ruse to confuse the opposition, especially Mr Isaac, and there was still an exclusive agreement with the Browne Group for the exchange of second preferences on election day for both the ward and mayoral elections. Mr Nannelli denies making those comments. 17 Findings in relation to agreements. Mr Nannelli admitted that he had been disappointed in previous elections when other candidates had reneged on preference deals with him. In our view, he was determined not to let that happen to him again. In general we accept the evidence of Mr Isaac, Mr Downey and Mr Browne in preference to that of Mr Nannelli in relation to the content and scope of the agreements between them. Their evidence was consistent, credible and supported in many respects by objective evidence and Mr Nannelli's own admissions. Examples include the note on the facsimile copy of the "how to vote" card ("for your information only") as well as Mr Nannelli's admission that he "may" have told Mr Brown and Mr Downey that he would find it difficult to give Mr Isaac his second preference. We also find that Mr Nannelli told Mr Browne that the "how to vote" card distributed at the pre-poll was only a ruse to confuse the opposition, especially Mr Isaac. That is a credible assertion consistent with Mr Nannelli's stated concerns and his previous conduct. Mr Nannelli's evidence that he told Mr Browne that he would put his group third for the ward elections is not consistent with Mr Browne's clear recollection and we reject it. The evidence as a whole leads us to draw the inference that Mr Nannelli was attempting to convince each group that they had a second preference arrangement with his group. 18 Were the agreements "exclusive"? We also find that Mr Nannelli intended to give both Mr Isaac and Mr Browne the impression that he would give them his second preference, to the exclusion of any other candidate in the ward elections. Whether or not the words "exclusive" were used in any of these conversations is immaterial. That is what Mr Nannelli intended to convey and that is how both Mr Browne's group and Mr Isaac's group understood the arrangement. Whether or not this agreement constituted a legally binding contract is not relevant to the question of whether the conduct amounted to an "irregularity". 19 Were the agreements dishonoured? Mr Nannelli instructed a printing company to produce 25,000 copies of a "how to vote" card giving Mr Isaac his second preference, 5,000 copies giving Mr Browne's group his second preference and Mr Isaac's group his third preference and 5,000 copies giving Mr Browne's group his second preference and Ms Findlay's group his third preference. The invoices from the printing company support that finding. Mr Nannelli said that he had three different versions printed because of his uncertainty in relation to arrangements with Mr Isaac and his past experience with other candidates reneging on preference deals. Although he says he intended to distribute only the 25,000 copies giving Mr Isaac his second preference, unbeknown to him one of his workers went to his home and took "a small number" of the other two "how to vote" cards for distribution. 20 Conclusion. We are satisfied that Mr Nannelli intended to distribute the "how to vote" cards giving Mr Isaac his second preference. We accept that one of his team members inadvertently picked up some of the other "how to vote" cards from his home. That finding leads us to conclude that Mr Nannelli intentionally dishonoured his agreement with Mr Browne's group to give them his second preference. It also leads us to conclude that Mr Nannelli unintentionally dishonoured his agreement with Mr Isaac because his team handed out some "how to vote" cards that did not allocate second preferences to his group. Does dishonouring the agreements amount to an "irregularity"? 21 Introduction. The allegation in relation to the second preference irregularity is not that it constitutes a potential breach of any provision of the Act or the Regulation but that it is a "departure from some rule, established practice or generally accepted principle governing the conduct of an election." (R v Gray, ex parte March (1985) 157 CLR 351 per Gibbs CJ at 368). Mr Isaac says that it is a basic rule of honesty and integrity that you inform people with whom you have agreed to exchange preferences, of your intentions so that they can reconsider their position. Mr Isaac's said that Mr Nannelli's actions in dishonouring his preference agreements were "unacceptable to our society and in our laws and hence constitute a departure from generally accepted principles." 22 Reasoning and conclusion. The allocation of preferences to other candidates is part of the political process in which candidates engage prior to polling day. Candidates are free to negotiate preference agreements or not to negotiate any agreements. The honouring of preference agreements is a matter between the candidates and is not relevant to the recording of an elector's vote, once that elector has decided how to vote. The only basis on which Mr Isaac submitted that the dishonouring of the agreement affected the formation of voter intention was that if voters had known that Mr Nannelli had not honoured his preference agreements, they would not have voted for him. If we accepted that submission, then every failure by a candidate to disclose conduct that voters may perceive as unethical, would amount to an irregularity in the manner in which the person was elected. Our view is supported by the following comments of Gibbs CJ in R v Gray, ex parte March (1985) 157 CLR 351 at 370: Although it was clearly correct to say that it is a wrong that electors should be tricked or misled, . . . it does not follow that the Parliament intended that every statement by which voters might be misled, or every failure to disclose information which voters might consider material, should be an irregularity within the meaning of Pt IX of the Act. 23 For these reasons the dishonouring of the preference agreements does not constitute an irregularity under s 329(2) of the Act. Three "how to vote" cards irregularity 24 There is no dispute that Mr Nannelli's team distributed three different "how to vote cards" on polling day. The number of different how to vote cards that a candidate may distribute is not governed by any legislative provision or rule. As with the second preference arrangement irregularity, the allegation in relation to the distribution of three different "how to vote" cards is that it constitutes a "departure from some rule, established practice or generally accepted principle governing the conduct of an election." (R v Gray, ex parte March (1985) 157 CLR 351 per Gibbs CJ at 368). Mr Gallagher said that he was aware from his own experience that candidates sometimes handed out different "how to vote" cards in different areas of the same ward. He said that may be done because of a perception of the strength of other candidates in those areas within the ward. We gained the impression from Mr Gallagher's evidence that such an arrangement would generally occur with the knowledge of the candidates involved. 25 While we accept that candidates have handed out more than one version of a "how to vote" card in the same ward for the same election, we are satisfied that such an arrangement would be unusual and would normally only be done with the knowledge of the candidates concerned. We have found that it was Mr Nannelli's intention to hand out a single "how to vote" card in this election. The distribution of more than one "how to vote" card was inadvertent and he attempted to retrieve two versions of the card when the matter was brought to his attention. Based on all the evidence, we find that, as a general rule, the expectation from voters and candidates alike, is that a candidate will only hand out one version of their "how to vote" card in any one election. Consequently, the distribution of more than one version of a "how to vote" card in circumstances where neither the candidates involved nor the voters is aware that that has occurred, is a departure from established practice. 26 The second question is whether the conduct relates to the manner in which Mr Nannelli was elected. The manner in which Mr Nannelli was elected includes the recording of the votes and, at least to some extent, the formation of voter intention. In Roberts v Jeffery & 4 Ors [2003] NSWSC 162, Bell J found that the Tribunal had not made an error of law when it found that it was an "irregularity" to wrongly state in a newspaper advertisement that the advertisement was authorised by a prominent individual. Implicit in that finding is that voters may have decided to vote for that candidate on the basis of the authorisation in the advertisement. As we have said, it is clear from Her Honour's conclusion that she regarded the representation in the advertisement as affecting the formation of voter intention. 27 The fact that some voters received one version of Mr Nannelli's "how to vote" card and some voters received another version, does not affect the recording of that person's vote. If the person followed the instructions on the card, then he or she would have registered a formal vote for the candidates nominated on the card. The next question is whether the distribution of more than one card affected voter intention? The "how to vote" cards merely make recommendations about the candidates for whom an elector should vote. Voters are free to follow those recommendations or not to follow them. There was no evidence that voters knew that more than one card had been distributed, so they could not have drawn an adverse inference against Mr Nannelli on that basis. In all those circumstances, we are not satisfied that the distribution of more than one "how to vote" card had any effect on voter intentions. Registration irregularity 28 Section 108A. The applicants submitted that Mr Nannelli distributed one "how to vote" card on polling day which had not been registered with the Electoral Commissioner. According to the applicants, that conduct constitutes a potential breach of s 108A of the Local Government (Elections) Regulation that makes it an offence to distribute electoral material unless it has been registered. The Tribunal does not have jurisdiction to determine whether or not Mr Nannelli is guilty of an offence, but we can determine whether there has been a potential breach of s 108A. Section 108A(1) states that: A person must not, in a public place, distribute any electoral material on the polling day for an election unless the material has been registered under clause 38A. Maximum penalty: 10 penalty units. 29 Questions to be determined. The "how to vote" card in question was "electoral material" as defined in cl 108A(3). That definition includes any "how to vote" card having on it any directions or suggestions (whether express or implied) in relation to the casting of votes. The allegedly unregistered "how to vote" card was "distributed" in a public place. The only remaining question is whether it was registered under cl 38A. Clause 38A(12) deems electoral material to be registered as long as that material is "substantially the same" as material which has been registered. That provision states that: Electoral material is to be taken to be registered in accordance with this clause even though the material contains some differences from the draft or sample in respect of which the certificate of registration was issued, so long as the material is substantially the same as the draft or sample. 30 Facts not in dispute. The issue of whether there has been a potential breach of cl 108A is a mixed question of fact and law. The facts are not in dispute. Mr Nannelli registered 15 different how to vote cards with the Electoral Commissioner. There was no criticism of this practice and other candidates also registered multiple versions of their card. Each card contained recommendations on how to vote in the Mayoral elections and recommendations on how to vote in the ward elections. The "how to vote" card that the applicants say was not registered, combined the recommendations from one registered card on how to vote in the Mayoral elections, with the recommendations from another registered card on how to vote in the ward elections. In other words, Mr Nannelli did a "cut and paste" from two registered "how to vote" cards to create a third "how to vote" card which was subsequently printed and distributed on polling day. Voters received separate ballot papers for the Mayoral and ward elections. 31 Opinions from officers of the Electoral Office on the question of law. Whether combining two registered "how to vote" cards to make a third "how to vote" card is a potential breach of cl 108A is a question of law. The Acting Electoral Commissioner at the time, Mr De Celis, wrote to the applicants after the election advising that the card which had resulted from a "cut and paste" was not registered. This was despite the fact that both Mr Nannelli and Mr Gallagher said that they had each been told by an officer from the Electoral Office prior to polling day that it was acceptable to cut and paste two registered "how to vote" cards. The opinions expressed by Mr De Celis and other officers of the Electoral Commission are evidence of their opinions about the legal question. Without intending any disrespect, those opinions do not bind the Tribunal. 32 Conclusion. Clause 38A(12) is intended to excuse a candidate where the material distributed has "some differences" but is "substantially the same" as material which has been registered. The words "substantially the same" have been interpreted in another context to mean the two items being compared essentially or materially have the same essence: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 481-482 per Stein J.) Even though cl 38A(12) relates to "the draft or sample" rather than two or more drafts or samples, the intention of the provision is to provide a defence when the electoral material that has actually been registered and the electoral material that is distributed to the public is "substantially the same". In this case the "cut and paste" version contained "some differences" from the material that was registered because it combined recommendations from two different registered "how to vote" cards for the Mayoral and ward elections. In our view the "cut and paste" version was "substantially the same" material as the material which had already been registered and is therefore taken to be registered under cl 38A(12). Consequently there has been no potential breach of cl 108A. Misleading voters irregularity 33 Mr Isaac mentioned cl 109 in some of the material he presented to the Tribunal. At the end of the hearing, he was uncertain whether he was relying on cl 109(1)(a) or (b) and was not in a position to provide oral submissions in relation to those alleged breaches. When requested in writing to clarify his position on this issue after the hearing, he merely stated that he was relying on Cl 109(1)(a) or (b). Unfortunately Mr Isaac continued to correspond with the Tribunal after answering (or not answering) the single question that the Tribunal asked him to clarify. In fairness to Mr Nannelli, we have not taken into account Mr Isaac's letters of the 4 or 5 March 2005. 34 The relevant provision of cl 109 are as follows: (1) A person must not do any of the following: (a) print, publish or distribute a "how to vote" card, electoral advertisement, notice, handbill, pamphlet, or card, containing a representation of a ballot-paper or a representation apparently intended to represent a ballot-paper, if the card, advertisement, notice, handbill or pamphlet includes directions intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote, (b) print, publish or distribute a "how to vote" card, electoral advertisement, notice, handbill, pamphlet, or card, containing an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote, Maximum penalty: 10 penalty units. (2) A person is not guilty of an offence against this clause merely by printing, publishing or distributing a "how to vote" card which contains instructions on how to vote for a particular candidate or candidates, so long as those instructions are not intended or likely to mislead an elector in or in relation to the casting of his or her vote. 35 Section 109(1)(a). It is common ground that Mr Nannelli, or his agents, distributed "how to vote" cards which were intended to represent a ballot-paper. Those cards contained "recommendations", "instructions" or "directions" on how to vote for particular candidates. Section 109(2) makes it clear that a person is not guilty of an offence if the "how to vote" card contains instructions on how to vote for a particular candidate or candidates, so long as those instructions are not intended or likely to mislead an elector in the casting of his or her vote. The words 'in relation to the casting of his or her vote' were considered by the High Court, in the context of s 161(e) of the Commonwealth Electoral Act 1918, in Evans -v- Crichton-Browne (1981) 147 CLR 169. In a unanimous decision the High Court said at 204: The use of this phrase ["in or in relation to the casting of his vote"] suggests that the Parliament is concerned with misleading or incorrect statements 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." 36 The Court went on to say that the natural meaning of these words does not include "to decide for whom to vote." In this case the "how to vote" card did not affect the recording or giving effect to an intention that had already been formed. As we have said, if the voter followed the instructions on the card, then he or she would have registered a formal vote for the candidates nominated on the card. Consequently, in accordance with the High Court's decision in Evans v Crichton-Browne, there has been no potential breach of s 109(1)(a). 37 Clause 109(1)(b). The "how to vote" cards did not contain any "statements" which are alleged to be untrue or incorrect. They merely contained instructions or directions on how to vote for a particular candidate or candidates. For the same reasons as outlined above, those instructions were not intended or likely to mislead an elector in or "in relation to the casting of his or her vote." Uncertainty in the result? 38 We have found that none of the four "irregularities" represent a potential breach of the Act or Regulation, nor are they "a departure from some rule, established practice or generally accepted principle" relating to the manner in which Mr Nannelli was elected. In case our conclusion is wrong, we are prepared to consider the final question, that is whether the applicants have discharged their onus of establishing that the result of the election was rendered uncertain on account of those breaches or that conduct. 39 There was a considerable amount of evidence and submissions on the issue of how many of the alternative "how to vote" cards were circulated and what effect the distribution of those cards could have had on the election. For example, Mr Isaac alleged that 80% of voters followed the "how to vote" cards. That figure is calculated on the basis of the number of voters who voted "above the line" for a group compared with the number of voters who voted "below the line" for individuals. We do not accept Mr Isaac's assertion that people who voted "above the line" were necessarily following "how to vote" cards. Even if a high percentage of electors did follow "how to vote" cards, we cannot estimate with any degree of certainty, the number of voters who received the alternative "how to vote" cards, much less how many were influenced to vote in accordance with the recommendations on those cards. While precise numbers are not needed in order to for us to come to a conclusion that the result of the election was rendered uncertain, we are not satisfied that if only one "how to vote" card had been distributed, the result of the election would have been different. Order The application that the Tribunal dismiss Mr Nannelli from civic office is refused.