Election challenge to Josh Frydenberg, Gladys Liu over Chinese signs dismissed

Chinese-language signage designed to look like official AEC information ruled to have no impact on election.

Mandarin-language election signs instructing Chinese voters how to vote Liberal were used in Melbourne. Picture: Twitter

Josh Frydenberg’s election victory in Kooyong and Liberal MP Gladys Liu’s in Chisholm will stand after the Federal Court dismissed challenges to the poll results after Chinese-language Liberal Party signage designed to look like official Australian Electoral Commission information was displayed outside polling booths.

But former Victorian Liberal Party state director Simon Frost has been asked by the court to explain why his actions regarding the signs don’t breach the Electoral Act.

The court, sitting as the Court of Disputed Returns, accepted a number of arguments raised by the challengers, unsuccessful Kooyong candidate Oliver Yates and climate campaigner Vanessa Garbett, but ultimately decided too few voters would have been influenced by the signage to make a difference to the result either in Kooyong (Mr Frydenberg’s margin is 11,000 votes) or even in Ms Liu’s tightly contested seat which she won by 1090 votes.

“Whatever the number, if any, of people who may have been influenced or may have felt directed to have voted Liberal when they would not have done so had it not been for the corflutes (signage), it would, in our view, not have been anywhere near 500 or 5000 in either electorate,” the court found.

Treasurer Josh Frydenberg arrives to vote at a voting booth in Balwyn for the seat of Kooyong on election Day. Picture: AAP

The three judges were asked to decide if the signage was likely to mislead or deceive voters, and if so, whether it affected the outcome of the election. Mr Yates and Ms Garbett argued the corflutes, in Chinese language, featured the colour scheme traditionally used by the AEC and instructed voters that the “correct” voting method was to put a “1” next to the Liberal candidate.

The court found the corflutes were “plainly misleading and deceptive” and ordered that Mr Frost provide it with a written submission by February 7 next year as to why he should not be referred to the High Court for breaching the Electoral Act with regard to the content of the signage.

“In our view, the corflutes are properly read, not as encouragement to vote 1 Liberal, but as a statement first, that to vote correctly (that is validly), one must vote 1 Liberal and, secondly, that there was an official instruction of the AEC that electors must cast their votes as indicated,” they ruled.

“On the evidence we find that Mr Frost caused or authorised the printing, publishing and distribution of the corflutes which were matters or things that were likely to mislead or deceive an elector in relation to the casting of a vote.”

But the challenge failed on the next hurdle. “In our view, even if the display of the corflutes next to the AEC signage was far more widespread in both electorates than the evidence reveals, it could only have been a very small group of people who would have felt that they should follow the direction on the corflute,” the judgment read.

Liberal member for Chisholm Gladys Liu had also been challenged.

The judges criticised the Liberal Party’s election day tactic. “The AEC occupies an independent place and role under the Act of some importance. Its independence should not be appropriated or undermined by trickery or misleading or deceptive material whereby the AEC is, in effect, impersonated, in order to alter (or on one view, influence) how electors vote.”

But the court exonerated Mr Frydenberg from any knowledge of the matter.

“As to Mr Frydenberg, based on the evidence and the findings made earlier there is no basis to find that he … he caused, permitted or authorised the printing, publishing or distribution of any matter or thing that was likely to mislead or deceive an elector in casting a vote.”

The outcome of the court case carried some political weight given the Morrison government’s slender majority in the House of Representatives.

In a statement, the Victorian Liberal Party welcomed the court’s decision. “Consequently there will be no by-elections for either electorate as a result of this case,” it said in a statement.

Mr Yates said the court decision was “no victory for the Liberals”.

“The LNP (Liberal National Party) have a blatant disregard and disdain for the electors,” he said.

“There is increasing concern that our democracy is being undermined by misleading and deceptive practices of self-serving politicians and political parties selfishly pursuing a ‘win at all cost’ strategy.”