Best v Electoral Commissioner of New South Wales [2007] NSWSC 269

New South Wales Supreme Court

CITATION : Best v Electoral Commissioner of New South Wales [2007] NSWSC 269

HEARING DATE(S) : 20/3/07

JUDGMENT DATE : 20 March 2007

JUDGMENT OF : Bell J at 1

DECISION : Summons is dismissed; The plaintiff is to pay the costs.

CATCHWORDS : Judicial review - decision of Electoral Commissioner to refuse to register election material containing offensive words

Local Government Act 1989 (Vic) LEGISLATION CITED : Parliamentary Electorates and Elections Act 1912 Workplace Relations Act (1996) (Cth)

Associated Provincial Picture House v Wednesbury Corp (1948) 1 KB 223 CASES CITED : Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Australian Postal Corporation [1998] 85 FCR 526 Patrick v Cobain [1993] 1 VR 290

PARTIES : Gregory Paul Best (Plaintiff) Electoral Commissioner of New South Wales (Defendant)

FILE NUMBER(S) : SC 30020/07

COUNSEL : L. Byrne (Plaintiff) B.K. Baker (Defendant)

SOLICITORS : Douglas Eaton Solicitor (Plaintiff) Electoral Commissioner of NSW (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

BELL J

TUESDAY 20 MARCH 2007

30020/07 - GREGORY PAUL BEST v ELECTORAL COMMISSIONER OF NEW SOUTH WALES

JUDGMENT 1 HER HONOUR: This is an application for judicial review of the decision of the Electoral Commissioner of New South Wales ("the Commissioner") not to register two how-to-vote cards, both bearing the words "we're screwed". 2 The plaintiff, Gregory Paul Best, is an independent candidate for the district of Wyong in the New South Wales State election scheduled for polling on Saturday, 24 March 2007. On 12 March 2007 the plaintiff signed an application applying for six how-to-vote cards that were marked one to six to be registered pursuant to s 51G of the Parliamentary Electorates and Elections Act 1912 (the Act). Card number one and card four contained the words "we're screwed". Cards numbered three and six contained the words "we're screwed" and "dickheads and wankers rule". The remaining two cards, numbered two and five, (Exhibit 1) did not contain either of those expressions. 3 The Commissioner accepted cards two and five for registration and rejected cards one, three, four and six. The plaintiff accepted the Commissioner's ruling in relation to cards three and six but asked the Commissioner to review the determination to reject cards one and four. 4 By letter dated 14 March 2007 the Commissioner responded to the request for review affirming his determination not to register cards one and four. He set out his reasons for decision: "s 151G(7A)(c) requires that I must not register the electoral material (how-to-vote card) if it appears to the commissioner that the material contains words that are obscene or offensive. In my view the phrase 'we're screwed' is offensive within the context of the environment in which these how-to-vote cards would be presented to electors. Voting is compulsory and people of all ages with diverse views and perspectives must attend a polling place to vote. They do not have a choice whether to go into a polling place or not. The law requires them to do so. How-to-vote material is thrust into electors' hands as they make their way to enter the polling place to cast their vote. Attending a polling place is, as I have said, a civic obligation. There is no element of choice for the elector. It is a different environment from the theatre, a cinema or performance places where the community has a choice to attend. In my view the standards that apply to electoral material to be distributed on election day must meet the broadest community expectations of not causing offence to the broadest range of electors from young residents to older citizens of different views, beliefs and perspectives." 5 By his summons which was filed on 19 March 2007 the plaintiff claims the following relief: (1) A declaration that it was not reasonably open to the third defendant to find that the term "we're screwed" is obscene or offensive within the meaning of s 151G(7A)(c) of the Parliamentary Electorates and Elections Act 1912; (2) An order that the defendant register the plaintiff's how-to-vote cards numbered one and four and forthwith issue a certificate of registration pursuant to the provisions of s 151G of the Parliamentary Electorates and Elections Act 1912; (3) In the alternative an order in the nature of certiorari quashing the decision of the defendant to not register the plaintiff' s how-to-vote cards number one and four; and (4) An order in the nature of mandamus requiring the defendant to remake his decision under s 151G according to law." 6 The plaintiff's case is put in two ways. It is contended that the Commissioner's decision not to register how-to-vote cards one and four was unreasonable in the Wednesbury sense. That is, that the Commissioner's decision was so unreasonable that no reasonable decision maker could have so decided. In the alternative, the plaintiff submits that in making his decision the Commissioner applied the wrong test and misdirected himself such as to constitute an error of law (WS par 5). 7 The declaration sought in prayer one of the plaintiff's summons refers to the Commissioner's finding that the phrase "we're screwed" is obscene or offensive and within the meaning of subs (7A)(c). The matter has been argued upon an acceptance that the Commissioner's decision was that the words were "offensive" for the purposes of s 151G(7A)(c). 8 Before turning to the submissions advanced on the plaintiff's behalf it is convenient to set out certain of the provisions of the Act. Section 151F, relevantly, provides: "(1) A person shall not in a public place distribute any electoral material on the polling day for an election and on all days to which the polling is adjourned unless the material has been registered under s 151G for the election. Maximum penalty 10 penalty units or imprisonment for six months. ……. (3) In this section electoral material means a ' how-to-vote' card on the bill, pamphlet or notice containing (a) electoral material as defined in s 151B or (b) without limiting paragraph (a) and express or implicit reference to or comment on (i) the election or referendum or (ii) the government, the opposition, a previous government or a previous opposition of the state or (iii) the government, the opposition, a previous government or a previous opposition of the Commonwealth or any other State or a Territory or (iv) a member or a former member of Parliament or the Parliament of the Commonwealth or any other State or Territory or (v) a political party, a branch or division of a political party or a candidate in the election or (vi) an issue submitted to or otherwise before the electors in connection with the election or referendum." 9 Section 151G deals with the registration of electoral material. Relevantly, it provides as follows: (1) For the purposes of s 151F an application may be made in accordance with regulations to the Electoral Commissioner for the registration of electoral material for a particular election and for a particular district or districts. …. (3) And application must contain draft or sample of the electoral material. …. (6) The Electoral Commissioner shall register the electoral material if satisfied that registration is not prohibited by this section.