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 Queensland: • Maureen Brohman – Animal Justice party • Benedict Coyne – The Greens • Richelle Simpson from Anning Conservative National • Steve Austin – United Australia 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 Peter Dutton 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.