Federal Court of Australia

Scarr v Greene [2025] FCA 560

ORDERS

PENAL NOTICE

TO:    GEOFFRY GREENE

and

GERARD RENNICK

IF YOU (BEING THE PERSONS BOUND BY THIS ORDER):

A. REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

B. DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT ORDERS THAT:

1. Pursuant to section 383(3) of the Commonwealth Electoral Act 1918 (Cth) or, alternatively, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), until determination of the proceeding or earlier order:

(a) the first and second respondents, by their agents, servants or associates however described, are restrained from displaying, or causing to be displayed, any corflute or other signage in the form, or substantially in the form of the signage depicted in Annexure PS-3 to the affidavit of Paul Martin Scarr affirmed on 3 May 2025; and

(b) Ms Lisa Chapman, a solicitor in the employ of Sparke Belmore (solicitors), and any other solicitor at Sparke Belmore authorised by Ms Chapman to do so, and any officer of the Australian Electoral Commission, are authorised to remove the signs referred to in subparagraph (a).

2. The applicant must take all reasonable steps to bring this order to the attention of the first and second respondents.

3. Liberty to apply.

4. Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

HORAN J:

1 The applicant, Paul Martin Scarr, who is a senator for Queensland, moves on an application for urgent interim relief under s 383 of the Commonwealth Electoral Act 1918 (Cth) or, alternatively, s 23 of the Federal Court of Australia Act 1976 (Cth) to restrain the respondents from displaying a corflute at polling booths in the federal election being conducted today.

2 The respondents are Mr Geoffrey Greene, whose name appears on the corflute as having authorised it, and Mr Gerard Rennick of the People First Party.

3 The applicant relies on his affidavit affirmed 3 May 2025. In summary, it is alleged that the display of the corflute involves conduct by either or both of the respondents in contravention of s 351 of the Electoral Act, which provides as follows:

351  Publication of matter regarding candidates

(1)    If, in any matter announced or published by any person, or caused by any person to be announced or published, on behalf of any association, league, organization or other body of persons, it is:

(a)    claimed or suggested that a candidate in an election is associated with, or supports the policy or activities of, that association, league, organization or other body of persons; or

(b)    expressly or impliedly advocated or suggested:

(i)    in the case of an election of Senators for any State—that a voter should place in the square corresponding with the name of a candidate on a ballot paper a number not greater than the number of Senators to be elected; or

(ii)    in the case of an election of a Member of the House of Representatives—that that candidate is the candidate for whom the first preference vote should be given;

that person commits an offence.

Penalty:

(a)     if the offender is a natural person—10 penalty units; or

(b)    if the offender is a body corporate—50 penalty units.

(1A)    Subsection (1) does not apply if the person proves that he or she is authorised in writing by the candidate to announce or publish the thing claimed, suggested or advocated.

Note:     A defendant bears a legal burden in relation to the matter in subsection (1A) (see section 13.4 of the Criminal Code).

(2)     Where any matter, the announcement or publication of which by any person without the written authority of a candidate would be an offence against subsection (1) on the part of that person, is announced or published by or on behalf of, or with the support of, any association, league, organization or other body of persons, every person who was an officer thereof at the time of that announcement or publication is taken to have committed an offence against subsection (1).

(3)    For the purposes of this section, where any matter purports expressly or impliedly to be announced or published by or on behalf of, or in the interests or with the support of, any association, league, organization or other body of persons, the matter shall, in the absence of proof to the contrary, be deemed to be announced or published by or on behalf, or with the support, of the association, league, organization or other body of persons.

Note:     A defendant bears a legal burden in relation to proof to the contrary under subsection (3) (see section 13.4 of the Criminal Code).

(4)    Nothing in the foregoing provisions of this section shall apply to or in relation to any announcement or publication made or authorized by any bona fide political party or by any bona fide branch thereof respecting a candidate who, by public announcement, has declared his or her candidature to be a candidature on behalf of or in the interests of that party.

(5)    The person whose name is notified under section 321D in relation to electoral matter as the person who authorised the communication of the matter, in the absence of evidence to the contrary, is taken to have announced or published the matter, or caused it to be announced or published, for the purpose of this section.

Note:    A defendant bears an evidential burden in relation to evidence to the contrary under subsection (5) (see subsection 13.3(3) of the Criminal Code).

4 The corflute comprises a sign which is headed with the words, “STOP LABOR’S WIND FARMS IN MORETON BAY!”.  It sets out pictorial representations of the House of Representatives ballot sheet in the electoral division of Lilley, in which voting preferences are indicated with the first preference vote for Ms Kimberley Washington, who is the endorsed candidate for the Liberal National Party. It also displays a partial representation of a Senate ballot sheet for the State of Queensland, which advocates for the number one to be placed “above the line” for the group ticket for the “Gerrard Rennick People First/Katter’s Australian Party”, with the numbers two to six allocated to other specified group tickets.

5 The corflute also displays a “QR code” with the message “GET YOUR HOW TO VOTE CARD”.  The evidence before me indicates that the QR code links to a copy of a how-to-vote card which is headed with the words “Kimberley Washington and Senator Gerard Rennick will help stop Labor and the Greens’ plan for wind farms in Moreton Bay.”  It then continues in a smaller typeface, “Support a local candidate committed to saving Moreton Bay when you vote on May 3”. The how-to-vote card displays a picture of two persons, who I have been told are Senator Gerard Rennick on the left and Ms Kimberley Washington on the right, with arrows from each of them pointing to the same pictorial representations of the House of Representatives ballot for the electoral division of Lilley and the Senate ballot. Each of the corflute and the how-to-vote card contain statements that they have been authorised by Mr Greene.

6 The applicant contends that each of the corflute and the how-to-vote card suggest an association between Ms Washington, as the endorsed Liberal National Party candidate in the electoral division of Lilley, and the Gerard Rennick People First Party. This is by reason of the link between placing a first preference vote for Ms Washington in the division of Lilley and voting “1” for the Gerrard Rennick People First/Katter’s Australian Party in the Senate. Further, the how-to-vote card contains a picture of both Ms Washington and Mr Rennick together with recommended voting in both the House of Representatives and the Senate, along with a statement that both of them will “help stop Labor and the Greens’ plan for wind farms in Moreton Bay”.

7 Ms Washington has not authorised either the corflute or the how-to-vote card. Mr Rennick has informed the applicant’s legal representatives that he has no knowledge of the material.

8 Mr Greene appeared at the hearing of the application today. In summary, he submitted as follows.

(a) He is not a member of the Liberal National Party or the People First Party.  He produced and authorised the material himself and not on behalf of the People First Party or any other association.

(b) The how-to-vote cards have been distributed for over two weeks, in addition to being letterboxed over that period by various persons from various different parties or associations.

(c) The materials do not suggest any association between Ms Washington and the People First Party or Senator Rennick. Rather, he submits that the material addresses a community issue and informs persons of two candidates for whom they can vote if they are against wind farms in Moreton Bay.

9 The evidence before me raises a prima facie case that the how-to-vote cards were distributed in the course of the electoral campaign by volunteers from the People First Party, at least at one pre-polling booth. Although it has been suggested that the how-to-vote cards have also been distributed by other persons, including persons who are associated with different associations or political parties, it is unnecessary for me to make any finding on that question, and there is no material before the Court which enables me to do so.

10 Turning to s 351 of the Electoral Act, on the material before the Court, I am satisfied there is a serious question to be tried that the material was published by Mr Greene on behalf of the People First Party or, at least, that the material authorised by Mr Greene was distributed by persons who were connected with the People First Party.

11 There is also a serious issue to be tried as to whether the material claims or suggests an association between Ms Washington and the People First Party, including Senator Rennick. Further, there is a serious issue that the material advocates or suggests that Ms Washington is the candidate for whom a first preference vote should be given in the division of Lilley, having been published by persons on behalf of the People First Party.

12 Accordingly, on the limited material before me, I am satisfied that there is at least a serious issue to be tried that the corflute and its continued display is in contravention of s 351 of the Electoral Act.

13 In relation to the balance of convenience, I have taken into account Mr Greene’s submissions that the display of the corflute cannot be said to cause any damage or prejudice to either the Liberal National Party or the People First Party. I have also had regard to, without making any determination about, his argument that the application of s 351 of the Electoral Act to the distribution of material of this nature is a disproportionate burden on the implied freedom of political communication in so far as it is said to restrict a citizen or an elector from promoting a vote for particular candidate or candidates. I note in this regard that my current understanding is that s 351 would not necessarily reach so far as to prevent an individual from advocating in support of any particular candidate in an election.  Section 351 is directed at material being published on behalf of associations or other such bodies in a way that claims an association with candidates in an election or the manner in which votes should be cast for those candidates. While Mr Greene contends that there is no damage or prejudice to the Liberal National Party candidate from advocating a first preference vote in her favour, that is itself a matter that is not beyond dispute given the mischief at which s 351 is directed.

14 In the circumstances that the election is being conducted today and relief is sought on an urgent basis, I consider the balance of convenience favours the grant of relief to restrain the publication or further publication of the material until the matter can be determined at a final hearing. For those reasons, I am prepared to make orders in the terms sought by the applicant in his originating application.

Associate:

Dated:    28 May 2025