The Liberal party’s former Victorian state director will not be referred to the high court over his role in authorising “misleading and deceptive” corflutes that were designed to look like official Australian Electoral Commission signs.
In a judgment handed down on Thursday, the federal court, sitting as the court of disputed returns, said it would not refer Simon Frost to the high court, despite his admission that the signs, which were written in Chinese and used at the 2019 election, were intended to look like the AEC’s material.
The court was required to decide whether it would refer Frost after it handed down a decision in December over a challenge to the election of the Liberals Gladys Liu, in Chisholm and the federal treasurer, Josh Frydenberg, in Kooyong.
It found the purple and white signs were misleading or deceptive, but it dismissed the challenge to Liu and Frydenberg’s victories, saying there was “no real chance” the corflutes could have affected the results.
On Thursday, federal court justices James Allsop, Andrew Greenwood and Anthony Besanki said in their decision that the nature of the court challenge meant it had not examined enough evidence to satisfy by the “relevant fault element”.
“Given the limited nature of our findings in the December reasons and the way the hearing of the petitions was conducted we are not in a position to draw such conclusion about Mr Frost’s state of mind and knowledge and it would be unfair on him so to do,” the judgment said.
The court found that the signs were “only misleading or deceptive when placed adjacent to the AEC material” and that “Mr Frost was not cross-examined on any instructions about the placement of the corflutes”.
Submissions from Frost’s counsel had “correctly pointed out” that Frost had not been represented in court and “that there were many loose ends in his evidence, to a degree favourable to him”, the court said.
“No findings were made, nor did the proceeding address, any fault element to allow any conclusion that Mr Frost acted in a way that may be said to amount to the committal of an offence,” the judgment said.
The challenge was brought by climate campaigner Vanessa Garbett, who lives in Liu’s electorate of Chisholm, in Melbourne’s east.
The two signs – one in traditional Chinese characters, and one in simplified Chinese – were used in seven electorates in Victoria and said the “correct way to vote” was to put 1 next to the Liberal candidate.
In their judgment that asked Frost to explain why he should not be referred to the high court, the justices said: “The deliberateness of the attempt to make the sign look like an AEC sign by someone in Mr Frost’s position bespeaks a view of someone with experience in political campaigning that there was some advantage in doing so.”
