The allegedly offensive, How to Vote card, including the word ‘sacked’ against the names of two candidates, Andrew McEwen and Frank Hirst, dismissed in June 2019 as part of the former council.

 

By Michael Giles

IT HAD to happen. The race for the South Gippsland Shire Council has taken a turn for the worse.

Frank Hirst, and presumably Andrew McEwen, candidates in the Strzelecki Ward, have both complained to the Victorian Electoral Commission (VEC) about election advertising material put out by one of their opponents, Jim Forbes.

The allegedly “defamatory election flyer” and How to Vote card feature a stylised voting suggestion with the word ‘Sacked’ alongside the names of Mr Hirst and Mr McEwen, both members of the South Gippsland Shire Council that was dismissed in June 2019.

Mr Hirst and McEwen don’t like it, and as well as dobbing in their opponent to the VEC, who referred it to the Local Government Inspectorate, they’ve threatened legal action.

Mr Forbes is unapologetic.

The Inspectorate complaint has since been dismissed in letters to Mr Forbes, Mr Hirst and presumably Mr McEwen.

The letter to Mr Forbes reads as follows:

Election complaint South Gippsland Shire Council

The Local Government Inspectorate (Inspectorate) is the dedicated integrity agency for local government in Victoria. During council elections, the Inspectorate is the agency responsible for receiving, assessing and, where appropriate, investigating matters and offences provided for under the electoral provisions of the Local Government Act 2020 (Act).

The Inspectorate received a complaint which alleged that your double sided A4 flyer and how to vote card contains false and misleading information and your double sided A4 flyer does not contain the prescribed authorisation statement.

Notice of Decision: When the Inspectorate receives a complaint, a preliminary assessment is conducted to determine if and how the complaint may be dealt with by a delegate of the Chief Municipal Inspector under Division 4 of Part 7 of the Act.

The Inspectorate has conducted a review of the complaint and concluded that there have been no identifiable offences committed under the electoral provisions of the Act.

Accordingly, the Inspectorate will be taking no further action in relation to this matter. For more information about the Inspectorate go to http://lgi.vic.gov.au.

The response is signed by an officer of the Inspectorate.

Nothing to see here

Mr Hirst supplied the reply he received from the Inspectorate as well:

I confirm that you lodged a complaint with the Victorian Electoral Commission (VEC) on 4 October 2021. The complaint was referred to the Inspectorate for review. The complaint alleged: 1. candidate Jim Forbes’ double sided A4 flyer and how to vote card contains false and misleading information (Matter 1); 2. candidate Jim Forbes’ poster does not contain the prescribed authorisation statement (Matter 2); and 3. candidate Jim Forbes’ electoral material contains defamatory statements (Matter 3).

The Inspectorate repeated to Mr Hirst that after review “no identifiable offences were committed under the electoral provisions of the Act” offering the following explanation:

Matter 1. It is important to note that the expression of opinion is an ordinary part of robust political debate. Throughout the election period, candidates and voters are able to put matters to the electorate and refute material through public forums and the media. Ultimately, it remains up to the electorate whether or not to accept such views and comments.

The publication of the matter the subject of your complaint is not considered misleading or deceptive within the meaning of section 288(1) of the Local Government Act 2020, as it is not likely to mislead or deceive a voter in relation to the casting of the vote of the voter.

The Courts have interpreted the phrase “in relation to the casting of the vote” narrowly. Courts are particularly concerned with material that is likely to mislead or deceive voters in relation to how they mark their ballot paper, rather than any misinformation which arises through political debate during election periods.

Matter 2. The Inspectorate notes the VEC’s advice to you on 4 October 2021 that they have assessed the flyer and it does appear to be correctly authorised, with the authorisation statement running vertically up the bottom right hand side of the ‘How To Vote’ section of the flyer.

Matter 3. Allegations regarding defamation fall outside the jurisdiction of the Inspectorate. Should you wish to receive advice regarding pursuing allegations of defamation, you may wish to obtain independent legal advice. Accordingly, the Inspectorate will be taking no further action in relation to this matter.

Threats of legal action

Mr Forbes has since contacted the ‘Sentinel-Times’ to head off any scuttlebutt that might be associated with the now dismissed complaint, supplying a letter he received from fellow Strzelecki candidates Hirst and McEwen warning of dire consequences.

“It has come to our attention that you have been distributing an illegal and, in our opinion, defamatory election flyer in regard to the Strzelecki Ward South Gippsland Shire elections. As a JP we would have assumed that you were familiar with both the Local Government Act & Electoral Regulations 2020 and the laws of defamation.

“The flyer, contrary to the requirements of the Act, is unauthorised and is therefore in our opinion illegal. The comments in relation to ourselves as “sacked former councillor” is in our opinion highly defamatory and is a misleading or deceptive matter under the act.

“We have sought advice from a senior partner of Slater and Gordon, and we are prepared to take further action if this pamphlet is not withdrawn and destroyed immediately.

“You also need to make an undertaking that you will refrain from the use of such inflammatory comments in regard to past councillors Hirst and McEwen. The Council was dismissed by an Act of Parliament, and it is incorrect to infer that we were personally sacked.

“Could you please advise immediately that you are taking the actions that we have formally requested. Could you please respond and comply within 24 hours.”

The allegedly offensive remarks by Mr Forbes on his flyer include the following:

“My commitment to you is to always act with integrity, use my past vast experience to advantage and demand a term of good governance. Ratepayers and residents must once again be proud of our Shire. A new group is needed to remove the dark cloud that was cast upon us by the recently sacked Councillors – the old adage “past behaviour is a good predictor of future behaviour” is perhaps apt to consider when casting your vote,” Mr Forbes said.

‘Serious charges’

Mr Forbes also supplied the following request for comment by Don Hill, editor of a local publication and a candidate in the Tarwin Valley Ward.

“Would you care to comment on the VEC referring your how to vote card to the municipal inspectorate?

“Have you removed those publications from circulation at this stage or are they still around in shops etc.

“Do you plan to distribute them further through either Australia Post or other delivery methods direct to people’s houses?

“Are you aware of the seriousness of the possible charges you might face?”

‘Low blow’ says Frank Hirst

One of the candidates targeted by Mr Forbes’ How to Vote card, Frank Hirst, has described the attack on him as “a low blow”.

“Seeing Jim’s publicity labelling me as “SACKED” was a real kick in the guts. I’ve known Jim for the best part of 40 years and I don’t believe we’ve ever had a cross word,” Mr Hirst said.

“Jim is clearly very politically astute and would have been well aware that in my 10 weeks in Council, I was nothing but collateral damage in a scenario which was set up long before.

“So, to label me as “sacked” was, to say the least, extremely disappointing. Yet Jim’s flyer says: “My commitment to you is to always act with integrity”.

“We did what we could to get this offensive suggestion removed, but now that the Inspectorate has decided that it’s “opinion” and “part of robust political debate” we’ll be leaving it at that. It just remains for voters to judge whether or not Jim’s tactic was “below the belt” and vote accordingly “Seeing Jim’s publicity labelling me as “SACKED” was a real kick in the guts. I’ve known Jim for the best part of 40 years and I don’t believe we’ve ever had a cross word,” Mr Hirst said.

“Jim is clearly very politically astute and would have been well aware that in my 10 weeks in Council, I was nothing but collateral damage in a scenario which was set up long before.

“So, to label me as “sacked” was, to say the least, extremely disappointing. Yet Jim’s flyer says: “My commitment to you is to always act with integrity”.

“We did what we could to get this offensive suggestion removed, but now that the Inspectorate has decided that it’s “opinion” and “part of robust political debate” we’ll be leaving it at that. It just remains for voters to judge whether or not Jim’s tactic was “below the belt” and vote accordingly.”