IN THE HIGH COURT OF AUSTRALIA  

SITTING AS THE COURT OF DISPUTED RETURNS

SYDNEY REGISTRY No. S237 of 2019

BETWEEN: Oliver Tennant Yates
 Petitioner

 and

 Joshua Anthony Frydenberg
 Respondent

ELECTION PETITION

This petition concerns the election for Kooyong in the election for the House of Representatives held on 18 May 2019.

RETURN OF WRIT

The writ for the election was returned on 21 June 2019.

ENTITLEMENT TO FILE THIS PETITION

The petitioner is entitled to file this petition because he was a candidate at the election in dispute.

STATEMENT OF FACTS

The election in dispute

1. Writs were issued for the general election of Members of the House of Representatives for the 46th Parliament of Australia (Election), including the election for Kooyong (Kooyong Election), on 11 April 2019.
2. The rolls for the Election were closed on 18 April 2019 (Close of Rolls).
3. Pre-poll voting for the Election commenced on 29 April 2019.
4. Polling day for the Election was 18 May 2019 (Polling Day).

5.              The writ for the Kooyong Election was returned on 21 June 2019.

6.              The relevant period in relation to the Kooyong Election was the period commencing on 11 April 2019 and expiring at 6pm, AEST, on Polling Day, being the latest time on Polling Day at which an elector in Kooyong could enter a polling booth for the purpose of casting a vote (Relevant Period).

The Australian Electoral Commission

7.              The Australian Electoral Commission (AEC) is an independent statutory authority of the Commonwealth of Australia.

8.              The AEC states, on its website, that its purpose is to “Maintain an impartial and independent electoral system for eligible voters through active electoral roll management, efficient delivery of polling services and targeted education and public awareness programs”.  The AEC’s functions and powers are set out in section 7 of the Commonwealth Electoral Act 1918 (Cth) (the Act).

9.              During the Relevant Period, the AEC used a purple and white colour scheme on its official materials, including but not limited to its website www.aec.gov.au, its published Official Guide to the Election, and signs and banners displayed at polling and pre-polling booths. 

10.          On Polling Day, the AEC had signs and/or banners displayed at the entrance(s) to a polling place.  An example is shown in the photograph reproduced at Annexure A.  (Also shown in that photograph is an image of a corflute (Corflute), affixed to a fence immediately to the left of the AEC banner.)

The Divisions of Kooyong and Chisholm

Kooyong

11.          The Division of Kooyong is located in Melbourne's eastern suburbs.  It covers an area of approximately 55 sq km stretching from Kew and Hawthorn in the west to Balwyn and Canterbury in the east, and from Balwyn North in the north to Hawthorn East and Camberwell in the south.  Kooyong suburbs include Balwyn, Balwyn North, Camberwell, Canterbury, Deepdene, Hawthorn, Hawthorn East, Kew, Kew East, Mont Albert, Mont Albert North and Surrey Hills (part).  Reproduced at Annexure B is a map for the Division of Kooyong at the Election.

12.          The candidates for the Kooyong Election were:

1. D’ELIA, Steven (United Australia Party);
2. YATES, Oliver (Independent);
3.  ZUBAC, Angelina (Independent);
4. FRYDENBERG, Joshua (Liberal);
5. STEWART, Jana (Australian Labor Party);
6. HINKLEY, Davina (Animal Justice Party);
7. BURNSIDE, Julian (The Greens (VIC)); and
8. CHANDLER, Bill (Independent).

1. The polling places for Kooyong at the Election are set out in Annexure C.

Chisholm

14.          The Division of Chisholm is located in Melbourne's eastern suburbs.  It covers an area of approximately 65 sq km stretching from Chadstone and Ashwood in the west to Glen Waverley in the east, and from Box Hill North and Blackburn North in the north to Mount Waverley in the south.  Chisholm suburbs include Ashwood, Blackburn, Blackburn South, Box Hill, Box Hill North, Box Hill South, Burwood, Burwood East, Chadstone, Forest Hill, Glen Waverley, Mount Waverley, Nunawading and Surrey Hills (part).  Reproduced at Annexure D is a map for the Division of Chisholm at the Election.

15.          The candidates for Chisholm at the Election were:

1. DOBBY, Ian (Independent)
2. DORIAN, Angela Mary (Rise Up Australia Party)
3.  ARTHUR, Luke (The Greens (VIC))
4. LIU, Gladys (Liberal)
5. LAVIN, Rosemary (Animal Justice Party)
6.  WICKS, Anne (Derryn Hinch’s Justice Party)
7. ZORAYA, George (United Australia Party)
8. YANG, Jennifer (Australian Labor Party)
9.  JENKINS, Philip (Labour DLP)

1. LIU was born in Hong Kong, and is a fluent speaker of Mandarin.  YANG was born in Taiwan. 
2. There were a number of media reports commenting on the fact that, should either LIU or YANG win, that person would be the first Chinese Australian Member of Parliament. 
3. Both LIU and YANG campaigned in Mandarin and/or Cantonese, including by participating in the first electoral debate to be held in both Mandarin and English. 
4. The polling places for Chisholm at the Election are set out in Annexure E.

Shared boundaries

20.          The Division of Kooyong and the Division of Chisholm are adjacent to one another. 

Demographic characteristics of Kooyong and of Chisholm

21.          The Division of Kooyong has a higher percentage of individuals (compared to the remainder of Greater Melbourne, Victoria and Australia) who speak Mandarin or Cantonese at home and, accordingly, are likely to read Chinese.

22.          The Division of Chisholm has a higher percentage of individuals (compared to the remainder of Greater Melbourne, Victoria and Australia) who speak Mandarin or Cantonese at home and, accordingly, are likely to read Chinese.

23.          The 2016 census conducted by the Australian Bureau of Statistics (ABS) recorded the following data for the Division of Kooyong:

24.          The 2016 census conducted by the ABS recorded the following data for the Division of Chisholm:

25.          The Greater Melbourne statistical area for the 2016 Census extends across the urban area of the city, from Bacchus Marsh/Werribee in the west to Warburton and Koo Wee Rup in the east, and from Lancefield in the north to Shoreham in the south.  It includes the Divisions of Kooyong and Chisholm.

26.          The 2016 census conducted by the ABS recorded the following data for Greater Melbourne, Victoria and Australia:

27.          The trend in the Division of Kooyong, since at least 2006, has been an increase in the number of individuals who speak Mandarin or Cantonese at home, both in absolute numbers and in percentages.

28.          The petitioner is not aware of any matter likely to have caused a deviation in the above trend in the Division of Kooyong, in the period from 10 May 2016 (Census Day for 2016) to Close of Rolls.

29.          The trend in the Division of Chisholm, since at least 2006, has been an increase in the number of individuals who speak Mandarin or Cantonese at home, both in absolute numbers and in percentages.

30.          The petitioner is not aware of any matter likely to have caused a deviation in the above trend in the Division of Chisholm, in the period from Census Day for 2016 to Close of Rolls.

Voting on Polling Day

31.          On Polling Day, an elector enrolled to vote for Kooyong was able to vote:

1. at a polling place for Kooyong; or
2. by making an absentee vote at any polling place in the State of Victoria (including any polling place for Chisholm).

1. The ballot paper for the Kooyong Election:
   1. was green; and
   2. had the word “LIBERAL” underneath the name of FRYDENBERG.

The characteristics of the Corflutes and its publication

33.          The Corflute displays white and purple Chinese characters on a purple and white background. 

34.          The Corflute uses the same colour scheme as was used by the AEC during the Relevant Period.

35.          Translated in English, the Corflute reads:

“Correct voting method

On the green ballot paper, put 1 next to the Liberal Party candidate

And in the other boxes, fill in the numbers in sequence, from small to big”

or alternatively:

“The right way to vote:

On the green ballot paper

fill in 1 next to the candidate of Liberal Party

and fill in the numbers from smallest to largest

in the rest of the boxes”

or alternatively:

“The correct way to vote:

Fill in 1 next to the Liberal Party candidate on the green ballot and fill in numbers from small to large successively in other boxes”

Certified translations of the Corflute are at Annexure F.

36.          The Corflute could be understood by both Mandarin and Cantonese speakers.

37.          The Corflute also included the following English text, which was printed in very small font, white in colour, on a background of a purple stripe at the bottom: “Authorised by Simon Frost, Registered Officer of the Liberal Party of Australia (Victoria Division), 104 Exhibition Street, Melbourne, Victoria, 3000” (the Authorisation).

38.          Simon Frost was:

1. Acting State Director of the Liberal Party of Australia (Victorian Division); and
2. the registered officer of the Liberal Party of Australia (Victorian Division) for the purposes of the Act.

1. The Corflute does not display the name or image of any candidate for Kooyong.
2. The Corflute does not, in fact, display the name of any candidate for the Election.
3. The Corflute does not display:
   1. the colour blue, which has been used for a number of years by the Liberal Party in connection with elections (including federal elections for Victorian Divisions), for example by having Liberal Party volunteers wear blue t-shirts and by using blue on ‘how to vote’ cards, and which was used by the Liberal Party at the Election (including at the Kooyong Election); or
   2. the logo registered for the Liberal Party of Australia (Victorian Division), being a composite image of the Australian flag and the word ‘LIBERAL’; or
   3.  the words ‘Liberal’ or ‘Liberal Party’ (save for “Liberal” as it appears in the middle of the text in Chinese characters, and save for the Authorisation); or
   4. any references to policies or to campaign slogans of FRYDENBERG and/or of the Liberal Party.
4. The Corflute was substantially different from other material promoting FRYDENBERG and/or the Liberal Party at polling places for Kooyong on Polling Day (or at any time during the Relevant Period).
5. The Corflute was:
   1. printed;
   2. distributed to volunteers, agents or employees of the Liberal Party for the purpose of being displayed at polling places on Polling Day;
   3.  published, including by being affixed (for example, to fences) and/or otherwise displayed at the entrances to polling places on Polling Day, including immediately adjacent to banners of the AEC (the Publication Conduct);

(jointly and severally, the Conduct).

44.          The Publication Conduct occurred in Kooyong.

Particulars

The Corflute was published at least at the following polling places:

1.  Balwyn;
2.  Boroondara;
3.  Canterbury North;
4.  Canterbury South;
5.  Cotham;
6.  Deepdene;
7.  Greythorn;
8. Kew;
9.  Kew East;
10.  Kew South;
11.  Koonung Heights (Kooyong);
12.  Mont Albert;
13.  Studley Park.

Further particulars may be provided prior to hearing.

45.          The Publication Conduct also occurred in Chisholm.

Particulars

The Corflute was published at least at the following polling places:

1.  Ashwood;
2.  Bennettswood;
3.  Blackburn Lake;
4.  Blackburn North;
5.  Blackburn North CHISHOLM PPVC;
6.  Blackburn South;
7.  Blackburn Upper;
8. Blackburn West;
9.  Box Hill;
10.  Box Hill Central;
11.  Box Hill South;
12.  Camelot;
13.  Elgar Park (Chisholm);
14.  Essex Heights;
15.  Highvale;
16.  Kerrimuir;
17. Koonung Heights (Chisholm);
18. Laburnum;
19.  Manooka;
20.  Mount Waverley;
21.  Mount Waverley PPVC;
22. Mount Waverley South (Chisholm);
23. Springview;
24. Surrey Hills (Chisholm);
25. Syndal South;
26. Tally Ho;
27. The Glen;
28. Tyne;
29. Wattle Park.

Further particulars may be provided prior to hearing.

FRYDENBERG

46.          FRYDENBERG:

1. has been a member of the Liberal Party since 1999;
2. has served as Deputy Leader of the Federal Parliamentary Liberal Party since 24 August 2018;
3.  was the candidate for the Liberal Party at the Kooyong Election;
4. was re-elected as the Member for Kooyong at the Kooyong Election.

1. On Polling Day, FRYDENBERG:
   1. attended polling places in Kooyong, including Chatham Primary School, Camberwell High School, Greythorn Primary School and Kew Primary School, at which the Corflutes were affixed to fences and/or otherwise displayed at the entrances;
   2. was the verified holder of the twitter handle @joshfrydenberg, at which at least one message containing an image of the Corflute was ‘tweeted’; and
   3.  omitted to take action to remove the Corflutes.
2. By reason of the matters at paragraphs 43–47 above, it is to be inferred that FRYDENBERG:
   1. caused, permitted or authorized the Corflute to be published, alternatively to continue to be published (the FRYDENBERG Conduct); and
   2. had knowledge of the Publication Conduct.

The Corflute was likely to mislead or deceive

49.          The Corflute was likely to mislead or deceive an elector in relation to the casting of a vote at the Kooyong Election, including by misleading the elector to think that:

1. in order to cast a valid vote, the number ‘1’ had to be placed in the box on the green ballot paper that was next to the Liberal candidate; and/or
2. in order to cast a valid vote, the instructions on the Corflute should be followed; and/or
3.  the official instructions of the AEC were that the number ‘1’ had to be placed in the box on the green ballot paper that was next to the Liberal candidate; and/or
4. the official instructions of the AEC were that electors should cast votes as indicated on the Corflute; and/or
5. the Corflute was an official AEC publication.

Illegal practice

50.          Each of the following was an illegal practice within the meaning of s 352 of the Act:

1. the Conduct;
2. the Publication Conduct;
3.  the FRYDENBERG Conduct

(collectively, the Illegal Practices).

The AEC refuses to act

51.          On Polling Day, representatives for the petitioner told the AEC that:

1. the Corflute was being affixed and/or displayed at entrances to polling places in Kooyong;
2. the Corflute used the same colours as those used by the AEC;
3.  translated in English, the Corflute read “The correct voting method – Note down number 1 besides the Liberal party on the green ballot paper and then the number from small to large in the rest of the squares”;
4. the Corflute was likely to mislead or deceive an elector, contrary to section 329 of the Act.

1. On Polling Day, a number of other complaints were made to the AEC about the Publication Conduct, other than by the petitioner, his representatives or persons associated with him.
2. On Polling Day, the AEC refused to take action in relation to the Corflutes.

Electoral results

54.          The system of preferential voting for the Kooyong Election operated as follows:

1. Each number ‘1’ vote was counted by the AEC for each candidate (First Preference Vote Count).
2. If a candidate received more than half of the total first preference votes, that candidate would be elected.
3.  If no candidate received more than half of the votes, the candidate with the fewest votes was excluded (First Excluded Candidate).
4. The votes for the First Excluded Candidate were transferred to the other candidates according to the second preferences of electors on the ballot paper for the First Excluded Candidate. 
5. If still no candidate had more than half of the votes, the candidate who then had the fewest votes was excluded and the votes were transferred according to the next preference shown.
6.  The process of excluding candidates continued until one candidate had more than half of the total number of formal votes and was elected (Two Candidate Preferred Result).

1. The First Preference Vote Count for the Kooyong Election, as published by the AEC, is reproduced in Annexure G.
2. The First Preference Vote Count for the Kooyong Election by polling places is published by the AEC on its website, and particulars can thereby be obtained.
3. FRYDENBERG was not elected at the First Preference Vote Count.
4. The Two Candidate Preferred Result for the Kooyong Election, as published by the AEC, is reproduced at Annexure H.  It shows that FRYDENBERG was “Re-elected”.
5. The Two Candidate Preferred Result for the Kooyong Election by polling places is published by the AEC on its website, and particulars can thereby be obtained.

Section 362(3) of the Act

Application of the subsection

60.          It is to be inferred that the Conduct, and particularly the Publication Conduct, was done with the knowledge or authority of the candidate FRYDENBERG, within the meaning of section 362(3)(a) of the Act.

61.          The FRYDENBERG Conduct was done with the knowledge or authority of the candidate FRYDENBERG, within the meaning of section 362(3)(a) of the Act.

Relevant matters should the subsection apply

62.          By reason of the matters in paragraphs 21–30 above, it is to be inferred that a significant number of electors in the Kooyong Election were able to read Chinese writing, or knew someone (for example, a family member) able to do so. 

63.          By reason of the matters in paragraphs 31 and 33–45  above, it is to be inferred that the Corflute was read by persons (including electors for the Kooyong Election) who were able to read Chinese writing and who voted in the Kooyong Election on Polling Day.

64.          Further, it is to be inferred, from the occurrence of the Conduct, the Publication Conduct and the FRYDENBERG Conduct, that Simon Frost and/or FRYDENBERG and/or other persons associated with the Liberal Party considered that the demographics of Kooyong warranted engaging in that conduct, for the purpose of affecting the result of the Kooyong Election.

65.          In the premises, it is likely that ordinary and absentee votes in the Kooyong Election were cast by electors who:

1. were able to and did read the Chinese writing on the Corflute; or
2. were told, by someone (for example, a family member) who was able to and did read the Chinese writing on the Corflute (whether or not that person was an elector in the Kooyong Election), what was there stated in Chinese writing; and
3.  as a consequence:
   1. wrote ‘1’ on the ballot paper for FRYDENBERG, notwithstanding that such was not the vote that they otherwise intended to cast;
   2. directed their first and other preferences in a way that they otherwise would not have done

(the Directed Votes).

66.          A Directed Vote counted towards FRYDENBERG’s First Preference Count, with the result that:

1. the elector’s second preferences and onwards were not counted in the Kooyong Election; and
2. had it been the elector’s intention to direct his or her first preference to a candidate other than FRYDENBERG, that intention was not realised.

1. The Two Candidate Preferred Result is likely to have been affected by one or more of the Illegal Practices.
2. Having regard to the demographics of Kooyong, including the trend since at least 2006 of increasing absolute numbers and percentages of Mandarin and Cantonese speakers, the result of the Kooyong Election is likely to have been affected by one or more of the Illegal Practices.
3. In the premises, it is just that FRYDENBERG should be declared not duly elected and/or that the Kooyong Election should be declared void.

RELIEF

The petitioner asks the Court to make the following orders:

(a)                A declaration that the Conduct was an illegal practice.

(b)                Additionally or alternatively to (a), a declaration that the Publication Conduct was an illegal practice.

(c)                 Additionally or alternatively to (a) and (b), a declaration that the Publication Conduct in Kooyong was an illegal practice.

(d)                A declaration that the FRYDENBERG Conduct was an illegal practice.

(e)                A declaration that Simon Frost committed an illegal practice.

(f)                  A declaration that FRYDENBERG committed an illegal practice.

(g)                 A declaration that FRYDENBERG was not duly elected.

(h)                Additionally or alternatively to (g), a declaration that the Kooyong Election is absolutely void.

(i)                  The Respondent pay the petitioner’s costs.

(j)                  Alternatively to (i), the Commonwealth pay the petitioner’s costs.

DATED

 ........................................

 Oliver Tennant Yates

IN THE PRESENCE OF:

………………………........ .........................

Signed by Witness Signed by Witness

.................. .........................

Name of Witness Name of Witness

.................. .........................

Occupation of Witness Occupation of Witness

.................. .........................

Address of Witness Address of Witness

TO: Joshua Anthony Frydenberg

THE RESPONDENT

695 Burke Road

Camberwell, VIC, 3124

The petitioner’s address for service is c/o Marque Lawyers, Level 4, 343 George Street, Sydney NSW 2000.

Annexure A

Photograph by Maryam Williams, captured at Tally Ho polling place, Burwood East Primary School Photograph by Maryam Williams, captured at Tally Ho polling place, Burwood East Primary School

Photograph by Maryam Williams, captured at Tally Ho polling place, Burwood East Primary School.

Annexure B

Kooyong Map

Annexure C

Kooyong Polling Places

Annexure D

Chisholm Map

Annexure E

Chisholm Polling Places

Annexure F

Certified Translations

Annexure G

Kooyong – First Preference Vote Count

Annexure H

Kooyong - Two Candidate Preferred Result