…for removal of non-compliant election signs
In Australian Electoral Commission v Kelly  FCA 628 (20 May 2022), the Australian Electoral Commission (AEC), on the eve of the federal election, sought an urgent injunction against Craig Kelly pursuant to s383 of the Commonwealth Electoral Act 1918 (Cth) (Electoral Act) and/or s23 of the Federal Court of Australia Act 1976 (Cth).
The AEC sought an order restraining Mr Kelly from communicating electoral information – in the form of a sign – that it alleged did not include authorisation particulars legible at a distance, in breach of s321D of the Electoral Act (restraining order).
The AEC also sought an order compelling Mr Kelly on five occasions – between midnight and 4pm on the day of the election – to inspect a 100-metre circumference around 42 polling places in the electorate of Hughes, for non-compliant signs, and to remove or rectify them (mandatory order).
The AEC contended that the evidence established to a prima facie standard that the signs did not have the name and address of the person authorising the communications at all, or in a sufficiently legible form.
The AEC’s position was that, although the restraining order was negative in form, the effect of the order would be to require Mr Kelly to immediately remove all existing non-compliance signage. This would have had the effect of placing Mr Kelly immediately in breach of the order if made (at ). The proposed order also had no geographical limitation.
Jagot J also raised concerns about Mr Kelly’s capacity to comply with the mandatory order, noting “if a court wishes to order a person to do a particular thing, then care must be taken to ensure that the person, in fact, can do the thing that is required in accordance with the order” (at ).
The AEC proposed a more restricted order by which Mr Kelly would be required by 7am the next day, to procure removal of the relevant signs erected in the vicinity of two specific polling stations.
While Jagot J was satisfied that there was a prima facie case or serious question to be tried, her Honour remained concerned about the respondent’s ability to comply with the proposed order, in circumstances where it was, by this time, 10.18pm, and where the words of the order were ambiguous and no provision was made to place a sticker on the signs rather than removing them.
Her Honour was not persuaded that it was in the interests of justice to make the order, on the grounds of the likely practicality and utility of the order (at ). Jagot J also considered it relevant that the alleged non-compliance had been known about for three weeks, and the application was being brought the evening before the election.
The application was dismissed.
Shanta Martinis a barrister at the Victorian Bar, ph 03 9225 7222 or email email@example.com. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.