Three Victorian independent candidates have scored an early election win, after a decision by the electoral commission to reject their how-to-vote cards was overturned.
Kew candidate Sophie Torney, Hawthorn candidate Melissa Lowe and Mornington candidate Kate Lardner launched legal action after the Victorian Electoral Commission (VEC) denied registration of their how-to-vote cards because they did not place numbers next to the names of other candidates.
The three candidates are linked to the 'teal' independent movement and were represented by the same legal team for their individual applications.
The VEC argued the commission was required to refuse registration of a how-to-vote card "if it is likely to mislead or deceive an elector", raising concerns the cards could lead to increased informal voting amongst linguistically diverse communities.
But at an appeal at the Victorian Civil and Administrative Tribunal (VCAT), Justice Michelle Quigley told the hearing she was not satisfied the design of the cards "would likely mislead or deceive voters", saying the reasons for informal voting were "many and varied".
"There is obviously some correlation with language, demographic and the like, however, that's not the whole answer," Justice Quigley said.
She said the candidates' how-to-vote cards contained several "visual cues" for instructing people on how to properly vote, and ordered they be immediately registered.
"In the Torney example, there are four exhortations that the numbers on the paper are required for a valid vote," Justice Quigley said.
"Those exhortations are both underlined and in red font. If one is considering someone of a non-English-speaking background or otherwise, the visual cue of how the card is set out, including that colour and exhortation … I think is very important."
Justice Quigley also ruled that the candidates would be permitted to caption themselves as 'independent' on the ballot portion of the cards next to the preference box — a detail the VEC had also rejected.
In the wake of the VCAT decision, the VEC said it would publish four how-to-vote cards that followed the format that had been in dispute.
Electoral commissioner Warwick Gately said he acknowledged the "significant time, resources and energy" incurred by the three candidates who launched the court action.
"The VEC will incorporate the decision into its processes for considering applications to register how-to-vote cards lodged by the deadline at 12 noon tomorrow, and will withdraw cease and desist notices where relevant," he said.
"Today's decision will help inform the VEC's future requirements in respect to how-to-vote cards.
"In the fullness of time, the VEC will report to the parliament in relation to recommended legislative clarifications, particularly around the regulation of campaigning in a contemporary state election setting."
Monique Ryan's federal card cited as precedent
During the hearing, counsel for the candidates Adam McBeth said the how-to-vote cards "could not be any clearer", and cited the cards of Kooyong independent candidate Monique Ryan, which were permitted by the Australian Electoral Commission to be unnumbered.
Dr McBeth said despite the partially blank design, the informal voting rate for Kooyong during this year's federal election was 2.89 per cent, lower than the state's average of 4.7 per cent.
"The same voters in Kew and Hawthorn managed to vote correctly in Kooyong," Dr McBeth said.
"But, according to the commission, now can't be trusted to vote for Torney or Lowe."
VEC says cards must be designed for 'naive' voters
But Liam Brown, counsel for the VEC, said that the circumstances of one electorate during the federal election could not be applied to others, citing the example of Goldstein, which elected teal independent Zoe Daniel and saw an increase in informal voting.
"Informal voting in some electorates went up, in some electorates it went down," Mr Brown told the tribunal.
"You can't form a view as to what caused those trends.
"It's not about any electorate or general electors, or most, or some."
"It's about an elector – and that's the gullible or naive elector."
Yesterday, Melissa Lowe's campaign was emailed a cease and desist letter by the VEC, which threatened up to six months' imprisonment over volunteers handing out the how-to-vote cards.
Ms Lowe, along with the other independents, had originally believed they were permitted to hand out the original design of the flyers during the early voting period because they were not required to be registered by the commission until election day.
In a statement, Kew independent candidate Sophie Torney said she looked forward to handing out how-to-vote cards at pre-poll and election day "without further interference from the VEC".
"We're pleased that the VEC's undemocratic, party-centric decision was overturned today," Ms Torney said.
"It's unfortunate that we had to invest campaign resources into this challenge during the important pre-poll period but in the interest of fairness and the integrity of the electoral process, we had no choice."
