VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
review and regulation LIST	
VCAT REFERENCE NO. Z889/2022	
CATCHWORDS	
Electoral Act 2002(Vic) – s 79(2) and (3) – mandatory considerations in registration of a how-to-vote-card – whether card likely to mislead or deceive an elector in voting – ‘gullible or naïve voter’ test – card shows opinion about candidates’/parties’ policy on climate change by coloured check box system – includes statement that a number must be placed against the name of each candidate – includes image of blank (unfilled) ballot form.	
APPLICANT	Leigh Naunton	
RESPONDENT	Victorian Electoral Commission	
WHERE HELD	Melbourne	
BEFORE	Deputy President I. Proctor	
HEARING TYPE	Hearing by videoconference	
DATE OF HEARING	21 November 2022	
DATE OF ORDERS & oral reasons	21 November 2022	
DATE OF written reasons	25 November 2022	
CITATION	Naunton v Victorian Electoral Commission (Review and Regulation) [2022] VCAT 1346	

Orders
1	The Application under section 82A of the Electoral Act 2002 is allowed.
2	The how-to-vote card lodged on behalf of the Kooyong Climate Change Alliance on 16 November 2022 with the Victorian Electoral Commission is to be registered forthwith. 

Ian Proctor
Deputy President			

APPEARANCES:		
For the Applicant:	In person	
For the Respondent:	Ms F. Batten of Counsel	

Reasons
1	At 11:55 am on Friday, 18 November 2022, VCAT received an application from Mr Leigh Naunton for the upcoming 2022 Victorian State Election, seeking review of the Victorian Electoral Commission’s (VEC) 17 November 2022 decision to refuse to register a how-to-vote (HTV) card in the Kew electorate for the Legislative Assembly of the Victorian Parliament. 
2	Mr Naunton is a member of the Kooyong Climate Change Alliance (KCCA) which authorised him to apply to VCAT on behalf of the group, which is not registered as a company or association. The KCCA was campaigning on climate change in the Kew and Hawthorn electorates for the Legislative Assembly and the Southern Metro region for the Legislative Council of the Victorian Parliament.
3	Under section 82A of the Electoral Act 2002 (Vic) (the Act), VCAT must by 5:00 pm the next working day after receiving such an application, determine the application and give the applicant and the VEC directions as to any changes required to obtain registration.
4	On Monday, 21 November 2022, I heard evidence and submissions and decided the HTV card should be registered.
5	The key issue before VCAT was whether the HTV card should be refused registration because it was likely to mislead or deceive an elector in casting the vote of the elector under s 79(3) of the Act.
6	In its 17 November 2022 decision letter, the VEC advised that it had refused to register the HTV card, being satisfied that the HTV card was likely to mislead or deceive an elector in the casting of their vote because the HTV card instructions contained on the HTV card did not contain a preference or sequence of preferences that would result in a formal vote, or was likely to result in the elector voting in a way that was inconsistent with their intent.
7	The decision was made before VCAT announced its 17 November 2022 decision in Torney v Victorian Electoral Commission. Before hearing the KCCA’s application, I listened to the audio recording of the decision and reasons by Quigley J in Torney, with written reasons later published as Torney v Victorian Electoral Commission (Review and Regulation) [2022] 1337. 
8	On 21 November 2022, Mr Naunton appeared on behalf of the KCCA. In light of VCAT’s Torney decision, the VEC took a neutral position as to the correct and preferable decision concerning the HTV card. It made submissions to VCAT concerning the Act, its operation and interpretation.
The Electoral Act and VCAT’s role
9	Section 3 of the Act defines “elector” to mean a person whose name appears on the register of electors. Section 3, together with s 21 define “register of electors” to mean the register of electors for Victoria.
10	Section 3 of the Act defines a HTV card to mean any card, handbill, pamphlet or notice that – 
(a)	is or includes a representation or partial representation or purported representation or purported partial representation of a ballot-paper for use in an election; or
(b)	lists the names of any or all of the candidates for an election with a number indicating an order of voting preference against the names of any or all of those candidates;
11		Section 156(1) prohibits on election day the giving of any printed electoral material other than registered HTV cards within 400 metres of a voting centre.
12	Section 156(2) prohibits the printing and distribution of HTV cards which are not registered HTV cards which contain the endorsement “Registered by the Victorian Electoral Commission”.
13	For completeness I note that the handing out of election material at early voting centres, before election day, and distribution of election material before election day by say letterbox drop and/or door knocking is in part regulated by s 84 of the Act. It prohibits the printing, publishing, distribution or any matter or thing that is likely to mislead or deceive an elector in relation to the casting vote of the elector.
14	As said in Torney, ss 77 to 82A of the Act deal with the provisions in respect of HTV cards. The Registration process for HTV cards is set out in s 79. The VEC has the power to register or refuse to register a HTV card.  The mandatory considerations to which the VEC (and VCAT on review) must have regard to are set out in s 79(2), which are, relevant here that the: 
(a)	card clearly identifies the organisation or group on whose behalf the card is to be distributed;
(b)	size of any logo, emblem or insignia belonging to the organisation or group on whose behalf the card is to be distributed appearing on the card is not less than the relevant prescribed size;
(c)	card indicates the order of voting preference for all candidates listed on the card or contains a statement that a number must be placed against the name of each candidate;
(d)	contains on at least one printed side the name and address of the person who authorised the card, the name and place of business of the printer or publisher of the how-to-vote card; and
(e)	card contains the endorsement, “registered by the Victorian Electoral Commission”.
15	Section 79(3) says the VEC must refuse to register a HTV card if satisfied that the card –
(a)	is likely to mislead or deceive an elector in casting the vote of the elector; or
(b)	is likely to induce an elector to mark the vote of the elector otherwise than in accordance with the directions on the ballot paper; or
(c)	contains offensive or obscene material. 
16	VCAT stands in the shoes of the VEC on review and makes the correct and preferable decision as to whether the HTV card should be registered. The Tribunal must have regard to the mandatory considerations in s 79(2) of the Act and consider whether the Tribunal is satisfied of any of the matters in s 79(3). 
17	VCAT must consider whether there is a likelihood that ‘any gullible or naïve elector’(as opposed to one of ‘ordinary sophistication’) may be misled in casting a vote to give effect to the voter’s political judgement.
18	If the Tribunal is satisfied that the HTV card is likely to mislead or deceive an elector in casting their vote, the Tribunal must refuse to register the card. 
19	In terms of VCAT’s ‘satisfaction’ as to the likelihood to mislead or deceive, that assessment must be on the basis of material of sufficient probative weight or some other logical basis.
20	The standard of ‘likely to mislead’ means “a probability, not a mere possibility” that a hypothetical elector may be misled. 
21	The test entails forecasting the future, based on material of sufficient probative weight or some other logical basis.
22	‘Mislead’ in its ordinary meaning means “lead or guided wrongly, lead astray” or “to lead into error of conduct, thought or judgement”.
23	The authorities have identified that s 79(3)(a) has “a protective purpose - that purpose being to ensure that a voter is not misled or deceived into voting in a way that does not register the political judgment formed by the voter”.
The evidence
24	The proposed HTV card is shown here.

25	It concerns voting for the Victorian Parliament’s Legislative Assembly in the electorate of Kew.
26	It is headed “Climate Scorecard”, and says it was prepared by the KCCA. It prominently says, “You are required to NUMBER EVERY BOX. For an effective vote on climate and integrity, put ALL the stronger candidates before the others.”
27	In the upper left-hand, a small picture of the ballot paper for Kew appears with no numbers written into the boxes adjacent to the candidate names.
28	Through ticks, dashes and crosses and colour coding (dark blue for “very good” to red for “poor/no policy”) it presents what is said to be the KCCA’s opinion as to the merit of seven aspects of climate change policy, with respect to six parties/candidates.
29	This is followed by the statement, “We are facing a climate emergency. Vote for strong climate action!”, followed by footnotes including that two independent candidates have limited or no relevant published policies, that the scores are based on published policies as at 11 November 2022, and more information is available from the KCCA website.
30	The card concludes with the words, “Registered by the Victorian Electoral Commission”.
Submissions
31	Mr Naunton submitted that the HTV card was intended to assist voters who wished to vote to advance parties and individuals with strong climate change policy. He asserted that the vast majority of voters arrive at the polling booth on election day with firm intentions as to how they will vote. He noted that voters in the Kew electorate have higher than the state average educational qualifications. They are unlikely to be misled.
32	He submitted the card itself poses no risk that the voter would be misled. There is a clear statement that the voter must number every box. While the image of the ballot paper on the card did not show any numbers written on the card, no voter would think on reading the card, that it was telling them not to vote. 
33	The HTV card clearly promotes a view of the strengths and weaknesses of climate policy with respect to parties and individual candidates. It also provides information by which a voter is able to access the KCCA website, where detailed analysis of the climate change policies of candidates can be found.
34	Mr Naunton gave evidence that similar forms of cards had been used in the 2019 and 2022 Federal elections for the Kooyong electorate which overlaps the Kew and Hawthorn electorates, with no discernible impact on the proportion of invalid votes, that proportion being lower than the Victorian state average. 
35	The KCCA had widely distributed the HTV card through letterbox drops and doorknocking and would continue to do so for the remainder of the campaign.
36	Mr Naunton advised that on Saturday, 19 November 2022, the VEC had registered the same form of HTV card for the Hawthorn electorate.
37	The VEC’s submissions, with it taking a neutral stance on whether or not the card should be registered, are largely reflected in the analysis of the Act set out above.
Decision
38	I ordered:
a)	The ‘KCCA’s application’ under section 82A of the Electoral Act 2002 is allowed; and
b)	The HTV card lodged on behalf of the Kooyong Climate Change Alliance on 16 November 2022 with the Victorian Electoral Commission is to be registered forthwith. 
39	With respect to the criteria at s 79(2), the HTV card:
a)	identifies the group on behalf of the card is to be distributed; 
b)	does not contain a logo emblem or insignia belonging to the KCCA;
c)	contains a statement that a number must be placed against each candidate;
d)	contains the name and the address of the person who authorised it and the relevant details concerning the printer; and
e)	is endorsed, “Registered by the Victorian Electoral Commission”.
40	Concerning s 79(3), I accepted the KCCA’s submissions and am satisfied that the HTV card is not likely to mislead or deceive an elector in casting the vote of the elector and is not likely to induce an elector to mark the vote of the elector otherwise than in accordance with the directions on the ballot paper. For completeness I note that it obviously does not contain offensive or obscene material.
41	Placing myself in the shoes of the ‘naïve and gullible elector’, such a voter would glance this HTV card, decide it is too complex to deal with and vote without reference to it. There appears no basis to conclude that the elector would be swayed by this HTV card to leave his or her ballot paper blank and place it in the ballot box. 
42	The more informed voter would likely take a little time to understand that the card was not provided by a political party and was intended to provide information about the relevant strengths and weaknesses of parties and individual candidates concerning climate change policy, as perceived by the KCCA. Once the voter understood that, it would not mislead, whether or not the voter accepted or rejected the KCCA’s opinion and recommendation.
43	Therefore, I was not required under s 79(3) to refuse to register the HTV card and under s 79(2) determined the HTV card should be registered.

Ian Proctor
Deputy President