27 September 2019

Committee Secretary, Joint Standing Committee on Electoral Matters, PO Box 6021, Parliament House, Canberra ACT 2600

Blatantly Misleading Dickson How To Vote Cards for Minor Parties & Independent Candidate distributed at the 2019 Federal Election

Dear Committee Secretary,

Thank you for the opportunity to provide a submission responsive to the Joint Standing Committee on Electoral Matters’ (‘JSCEM’) regarding the Inquiry into and report on all aspects of the conduct of the 2019 Federal Election and matters related thereto.

At the last federal election, the following Candidates for Dickson were misrepresented on a How To Vote card produced by a party called Vote For :

• Maureen Brohman – • Benedict Coyne – The Greens • Richelle Simpson from Anning Conservative National • Steve Austin – United Party • Carrol Halliwell – One Nation • Thor Prohaska - Independent

The following candidates have prepared a combined submission to the Joint Standing Committee on Electoral Matters in relation to this matter:

• Thor Prohaska, • Maureen Brohman • Carrol Halliwell

In summary we make the submission below calling for a substantive response to address the inability of the Australian Electoral Commission ( AEC )to be able to take any action with regards to blatantly misleading How To Vote (HTV) Cards like that authorised by Warwick Armstrong as shown below in this submission (hereafter referred to as “the Misleading Armstrong How-to-Vote-Card”).

Fraudulent Dickson How To Vote Cards for Minor Parties & Independent Candidates distributed at the 2019 Federal Election

The AEC technical interpretation of Section 329 may be legally correct but, any fair minded person would conclude that the aim of this Misleading Armstrong How-to-Vote-Card was to mislead voters to the benefit of the incumbent and LNP candidate Dutton

It sure doesn’t pass the ‘Pub Test’.

Regards,

Mr Thor Prohaska,

Ms Maureen Patricia Brohman

Ms Carrol Halliwell

P.S. Benedict Coyne from The Greens is making a separate submission as he is prosecuting another line of argument about why the AEC’s decision not to refer this matter to the AFP was wrong in law. P.P.S. Steve Austin from United Australia Party did not wish to be part of this submission. P.P.P.S. Richelle Simpson from Anning Conservative National could not be contacted.

Page 2 of 10

Fraudulent Dickson How To Vote Cards for Minor Parties & Independent Candidates distributed at the 2019 Federal Election

Section 329 of the COMMONWEALTH ELECTORAL ACT 1918 - SECT states:

Misleading or deceptive publications etc. (1) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote. (4) A person who contravenes subsection (1) commits an offence punishable on conviction: (a) if the offender is a natural person--by imprisonment for a period not exceeding 6 months or a fine not exceeding 10 penalty units, or both; or (b) if the offender is a body corporate--by a fine not exceeding 50 penalty units. (5) In a prosecution of a person for an offence against subsection (4) by virtue of a contravention of subsection (1), it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the matter or thing was likely to mislead an elector in relation to the casting of a vote. Note: A defendant bears a legal burden in relation to the defence in subsection (5) (see section 13.4 of the Criminal Code ). (5A) Section 15.2 of the Criminal Code (extended geographical jurisdiction--category B) applies to an offence against subsection (4). (6) In this section, publish includes publish by radio, television, internet or telephone.

At the 2019 Federal election on Saturday 18 May 2019 Misleading Armstrong How-to-Vote-Cards were distributed reportedly at a minimum of 10 polling booths throughout the electorate of Dickson:

This was captured by a Channel 7 new team at one location in the following video: https://www.perthnow.com.au/news/fake-voting-cards-preferencing-dutton-exposed-in- queensland-ng-b881203701z

Page 3 of 10

Fraudulent Dickson How To Vote Cards for Minor Parties & Independent Candidates distributed at the 2019 Federal Election

The misleading How To Vote card appears as follows:

Page 4 of 10

Fraudulent Dickson How To Vote Cards for Minor Parties & Independent Candidates distributed at the 2019 Federal Election

A comparison of the candidates actual How to Vote card rankings against the fake rankings on the Misleading Armstrong How-to-Vote-Card distributed by Vote for Queensland volunteers shows that on every candidates card the LNP’s was preferenced higher that the ALPs Ali France:

This clearly shows the aim of the misrepresentation was to advantage Peter Dutton over Ali France.

The authoriser of the Misleading Armstrong How-to-Vote-Card, was visibly a supporter of Peter Dutton as he had Peter Dutton election sign placed in the front yard of his property at as seen in the following photograph reportedly taken on Election Day 2019:

Page 5 of 10

Fraudulent Dickson How To Vote Cards for Minor Parties & Independent Candidates distributed at the 2019 Federal Election

However, nowhere on the above Misleading Armstrong How-to-Vote-Card was there any indication of the political association of the person who authorised the card. It is not unreasonable therefore to contend that the first impression of a voter could easily be that this card was produced with the agreement of the six parties represented on the card. Where that was the case if the voter followed this card then they would be voting in a manner other than what all of the six parties recommended on their official HTV cards, and they would likely have been misled in casting their vote in this manner. We say that this should be a sufficient condition to trigger legal proceedings under section 329 of the electoral act.

On the Tuesday following the election I submitted the following complaint to the AEC via their website:

-----Original Message----- From: Sent: Tuesday, 21 May 2019 10:59 AM To: Fraud Subject: [FRAUD] Prohaska, Thor Leopold *WWW* [SEC=UNCLASSIFIED]

Fraud allegation Name: Prohaska, Thor Leopold

Allegation: I was the Independent Candidate for Dickson. On election day the 18th of May 2019 it was brought to my attention by the Greens candidate for Dickson Benedict Coyne that a misleading & deceptive How To Vote card was being handed out at various Dickson polling booths ( See attached photo ).

It would appear that this election material contravenes Sects 329 & 351of the Commonwealth Electoral Act 1918.

For me personally this was even more misleading & deceptive as my official HTV contained no preferences other than vote 1 for me ( a.k.a. Open Ticket ).

I understand that some of the other parties affected by this misleading & deceptive HTV have also lodged a complaint.

Can you please advise asap as to what the next step will be in this complaints process.

The next day I received the following reply from from the Legal & Procurement Branch AEC:

-----Original Message----- From: Sent: Wednesday, 22 May 2019 2:12 PM To: Cc: Fraud Subject: FW: [FRAUD] Prohaska, Thor Leopold *WWW* [DLM=Sensitive:Legal]

Dear Mr Prohaska

Page 6 of 10

Fraudulent Dickson How To Vote Cards for Minor Parties & Independent Candidates distributed at the 2019 Federal Election

I refer to your email below. I have been asked to respond to your email on behalf of the Australian Electoral Commission (AEC). As you emails were misaddressed to our fraud inbox (rather than the complaints inbox), your emails were not brought to my attention until this morning.

The AEC was first made aware of this HTV card by a representative of GetUp Pty Ltd just after 10.10am on Saturday 18 May 2019. The email from GetUp Pty Ltd showed both sides of this HTV card which purported to show how to cast votes for each of the political parties and candidates who appeared on the ballot paper for the House of Representatives election in the Division of Dickson. The AEC carefully examined the contents and formed the view that the listing of the 6 parties and candidates and the authorisation particulars made it clear that this was not an official HTV card that had been authorised and published by each of the candidates and political parties listed on the HTV card. Indeed , in many ways it appeared to be similar to some of the HTV cards that were published by GetUp Pty Ltd.

The legal framework against which the AEC is required to assess such complaints is as follows. In relation to the actual content of public communications that relate to an election, with one exception, the AEC has no role in examining the content of such information. I note that the courts have made it clear that there is no such thing as truth in electoral advertising in the Commonwealth jurisdiction.

The one exception is the power in subsection 329(1) of the Commonwealth Electoral Act 1918 (Electoral Act) which enables the AEC to address "misleading and deceptive" electoral advertisements. Subsection 329(1) of the Electoral Act provides that:

"(1) A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote."

The scope of what is covered by subsection 329(1) of the Electoral Act has been addressed in a number of Court decisions including the High Court of Australia in Evans v Crichton-Browne (1981) 147 CLR 169. In this case the Court commented that this provision is not aimed to regulate the content of political messages directed at influencing the choice of preferred candidates or parties by voters, but merely to regulate publications and broadcasts that are directed at influencing the way in which a ballot paper is actually marked.

The Federal Court of Australia provided further amplification on the scope of section 329 of the Electoral Act in the matter of Peebles v Honourable Tony Burke [2010] FCA 838. At paragraph 10 of the decision in the Peebles case the Court stated that:

"It is clear from reading the entire reasons for judgment of the High Court in Crichton-Browne that the prohibition in s 329 concerns misleading or deceptive conduct which might affect the process of casting a vote rather than the formation of the political judgment about how the vote will be cast. That is, the section concerns conduct which might, for example, lead a voter either to fail to record a valid vote or to record a valid vote but not for the candidate or candidates of the voter's choice. An obvious example would be information which told a voter how to go about completing the ballot paper which was wrong and would result in the casting of an informal vote."

The AEC is of the view that images of the HTV card in this instance did not mislead voters about marking their first preferences for the candidates of their choice. Indeed, as you have conceded your HTV card only indicated a first preference vote should be cast for you and left the decision

Page 7 of 10

Fraudulent Dickson How To Vote Cards for Minor Parties & Independent Candidates distributed at the 2019 Federal Election about other lower preferences to the voter. As such, there was clearly no misleading or deceptive information on this HTV card when it came to voters who were going to vote for you.

The issue of false second preference vote directions is rather more complex. The AEC notes that a breach of section 329 of the Electoral Act is a criminal offence. Accordingly, the relevant standard of proof for dealing with such a claimed breach is the criminal standard of proof - beyond reasonable doubt. As such the investigation of any possible criminal offence is a matter that would require a referral to the Australian Federal Police. Further, the prosecution for any criminal offence falls within the jurisdiction of the Commonwealth Director of Public Prosecutions (see section 6 of the Director of Public Prosecutions Act 1983).

On at least two previous occasions the AEC has made a referral of second preference HTV cards that differed from the officially endorsed HTV card to the AFP for investigation. On both occasions the AFP has refused to accept the referral on the basis that the disparity between the official and the fake second preferences listed was apparent on the face of the card and that the elector still marked a valid first preference vote in accordance with their intentions. The AEC formed the view that the HTV card in this instance would fall within the previous approach taken by the AFP and would not be progressed for criminal action.

Later on Saturday 18 May 2019 the AEC became aware that the lawyers for the Animal Justice Party had sent a letter to Mr Armstrong to immediately cease and desist from any further publication of this HTV card. As any action that the AEC could have considered to take on polling day would merely have had a similar result, the AEC decided that there was no further action that could be taken given our doubts about whether it fell within the scope of the criminal offence contained in section 329 of the Electoral Act.

In relation to your reference to section 351 of the Electoral Act the AEC does not accept that that section has any possible application to the facts of this case.

Yours sincerely

In our collective and respectful submission the above response from the AEC is inadequate for the following reasons:

We do not agree with the AEC’s determination that the listing of the six parties and candidates and the authorisation particulars did make it sufficiently clear was not an official HTV card that had been authorised and published by each of the candidates and political parties listed on the HTV card.

In support of this statement the AEC cited that this card in many ways appeared to be similar to some of the HTV cards that were published by GetUp Pty Ltd.

For Dickson the Getup HTV card appears as follows:

Page 8 of 10

Fraudulent Dickson How To Vote Cards for Minor Parties & Independent Candidates distributed at the 2019 Federal Election

While we agree that there are some similarities, we say that there are two significant differences that would have increased the likelihood that voters could have been misled by the Misleading Armstrong How to Vote Card in a way that was against what the 6 parties involved were recommending. These differences are:

1. GetUp do NOT use the party’s logos. 2. GetUp’s political associations are a matter of public knowledge. 3. Get Up actually acknowledge their position & their values are explained on their HTV cards.

We do not agree with the proposition put forward by the AEC that the High Court decision High in Evans v Crichton-Browne (1981) 147 CLR 169 is grounds to claim that this HTV is misleading. This case relates to misleading material that was published before election day in newspapers and telecast by television stations and does not directly relate to How To Vote cards. However, the principles in the case clearly sanction misleading materials such as the Misleading Armstrong How- to-Vote-Cards.

While we acknowledge that a How To Vote card is a form of political advertising it does materially differ in that it’s primary aim is to directly influence how the voter marks their ballot paper in the casting of their vote.

But the reality appears to be that irrespective of the above common sense observations the legal precedents that the AEC are relying on to assert that this HTV did not mislead voters in the ‘casting of a vote’, rests on the technical definition of casting a vote that is merely the act of marking the ballot paper and placing it in the ballot box. And not the more broadly understood version of this term which actually means whom you vote for. This is a sad indictment on Australia’s electoral system when the electoral watchdog is rendered impotent by a technicality.

Page 9 of 10

Fraudulent Dickson How To Vote Cards for Minor Parties & Independent Candidates distributed at the 2019 Federal Election

As stated at the start of this submission this misleading and manipulative Armstrong How to Vote Card does NOT pass the Pub Test.

On election day when we told our supporters and other voters about what had just occurred with this Misleading Armstrong How to Vote Card, they were shocked & angry that this had happened and was sure that the AEC would take action to initially stop the distribution and to then legally pursue sanctions against those behind it. When they were informed of the AECs assessment and subsequent failure to take any action, they were even more shocked and angry.

This disbelief was shared by the Channel 7 reporter Erin Edwards on election day as shown in the above link to her news story. And also, in her follow up story several weeks later. The link to this story on Twitter is as follows and we commend the JSCEM Members to watch this and the other relevant news articles and interviews

The Channel 7 media footage from 27 May 2019 and the responses of the subject volunteers. The footage is available to view at this link: https://twitter.com/7NewsBrisbane/status/1139451079995744256?s=17

This later story also includes a comment by the University of Queensland’s Political Law expert Professor Graham Orr that these are the sort of cards that people had an expectation would be investigated further.

We note that unlike various state electoral acts the Commonwealth Electoral Acts does not give any direction on what constitutes a valid How To Vote card or any rules and regulations on how they are managed. This only adds to the uncertainty of the use of HTVs in a Federal election.

So where to from here?

If there were ‘Truth in Political Advertising’ laws then this Misleading Armstrong How to Vote Card would probably have fallen foul of them. However, we sincerely doubt that there will be any moves to ensure that there is some form of meaningful regulation & monitoring of ‘Truth in Political Advertising’ for similar reasons given to the impracticality of applying Section 329 to misleading voters.

We therefore ask the committee to consider amending Section 329 by adding to ‘casting of a vote’ the phrase ‘and how they vote’ ( or similar wording ) to cover the misleading of voters in their forming of a decision of whom they are going to vote for. With this change it would then be possible to legally sanction parties who produce How To Vote cards like the one in this submission and any other election materials that have the same misleading effect.

Yours Faithfully,

Thor Prohaska, and on behalf of the abovenamed Minor Party Candidates.

Page 10 of 10