The Australian Democrats is one of Australia’s once-great minor parties. In the 1980s when Green parties around Australia were tiny and divided, the Democrats held the balance of power in the Senate from 1981 all the way until 1993, and remained a big factor until 2005. However the party broke out into open civil war in the late 1990s, which has led to their continuing exile from the Federal Parliament since 2008. While the party may be out of Parliament, the struggle to control it continues and has spilled over into the 2013 election campaign, potentially putting at least one member of one of the factions into legal hot water.
On Sunday, the Pirate Party released a Statement of Preferences explaining what preference arrangements they had made and why. The statement included a passage “Australian Democrats deal considered null and void“. It appears the Pirate Party had not checked with the Australian Electoral Commission and made certain who the legal officers of the registered “Australian Democrats” political party were, but just sent an email to the organisation who comes up first if you search online for “Australian Democrats“. The trouble is, that organisation is NOT the official Australian Democrats who are registered as a political party – their website is here.
What is going on? Well late last year, as part of the struggle to control the Australian Democrats, one group claimed the other group had broken the rules, had automatically been expelled, and that therefore a new group was now in charge. A Stuart Horrex and a Paul Morgan applied to the Electoral Commission saying that they were now the official Secretary and Registered Officer (a crucial position) of the Party. However the other group in the Democrats protested to the Electoral Commission, and in May the Commission ruled that Horrex and Morgan were not the legal officers of the Democrats. This decision was upheld upon review by the Commission on August 10 2013.
So when (according to the Pirate Party), a Mr Dan McMillan got in touch with the Pirates to discuss a preference deal with the Democrats, McMillan knew for a fact he was not authorised to talk about preference arrangements for the official Australian Democrats. I spoke to the President of the official Australian Democrats, Mr Darren Churchill, tonight and he confirmed that Mr McMillan had no authority to speak for the official party.
The Pirate Party state that they reached a deal with Mr McMillan, thinking they had reached a deal with the official Democrats. The Pirate Party went ahead and kept their part of the deal but the official Democrats, not knowing such a deal had even been discussed, gave the Pirate Party very low preferences.
Mr McMillan’s actions appear to be illegal. It is illegal, during an election campaign, to:
“print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote”.
Most lies in an election campaign are legal. It’s perfectly legal to spread the most brutal lies about an opponent to win. But it’s NOT legal to confuse voters about *how* to vote. This usually means you’re not allowed to, for instance, tell people the wrong day to vote. But let’s look at this a bit closer:
What McMillan tried to do was get the Pirate Party to think they had done a deal with the offical Democrats. The Pirate Party published all details of their preference deals on their website. Therefore, had the Pirate Party not noticed that the official Democrats had given them a low preference, statements on the Pirate Party website would have said a vote for the Democrats would go to the Pirate Party if the Democrats weren’t elected.
That would have been a misleading statement about the “casting of a vote”, and it would have been “caused” by McMillan mis-representing himself as an authorised negotiator for the official Democrats. The maximum penalty for breaching the relevant section of the Electoral Act is six months’ jail, or a $1000 fine. The Pirate Party have stated they intend to refer their complaint to the Australian Electoral Commission.
After some generously-spirited comments online suggesting that my legal interpretation is incorrect, I thought I’d lay out in some more detail why I think the behaviour of Mr McMillan is a breach of the law. On Page 7 of this Electoral Backgrounder published by the Electoral Commission, the Commission says that if a publication helps you judge who to vote *for*, then the rules about misleading conduct don’t apply. If the publication misleads about “the actual act of marking the ballot paper”, then the law against misleading publications DOES apply. It says “The AEC notes that the distinction between these two things is a question of fact and degree”.
So, consider a voter who had ALREADY decided that their favourite party was the Democrats, and their second favourite party was the Pirate Party. That voter would believe, from statements caused and permitted to be published by McMillan, that voting “1″ Democrat in the Senate was one way of effecting their political judgment. And they would have been misled.