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Craig Kelly defeats AEC challenge over election sign font size

A court has ruled that the font on Craig Kelly’s election signage was small, but not unlawful.

The Federal Court of Australia has rejected claims by the Australian Electoral Commission that Liberal-turned-United Australia Party MP Craig Kelly broke the law by using a font size on electoral advertising that was too small.

The AEC alleged that Kelly used 8pt font on his corflute signs for his re-election campaign in the Division of Hughes at the 2022 federal election, which was not “reasonably prominent” or “legible at a distance which the communication is intended to be read.”

The font in question was the text at the bottom of the signs, which stated that the sign was authorised by Craig Kelly and provided his address, as required by Section 321D(5) of the Commonwealth Electoral Act 1918 (Cth).

Communication between the AEC and Kelly during the campaign led to Kelly agreeing to print 1000 stickers in 20pt font, later upgraded to 24 pt font, to place over the 8pt text. This wasn’t enough for all the signs and posters, but Kelly, who had relied on graphic designers for the initial design of the material, argued that this was because many of his signs had been stolen or graffitied.

As Justice Steven Rares, who heard the case, acknowledged, this ‘authorisation’ text is important for campaign material, as it provides accountability and transparency, allowing voters to know who is producing the campaign material. This is important because, as seen in Common(wealth) Knowledge #38, Australian electoral legislation also allows organisations to produce electoral advertising for particular candidates or parties.

The Australian Electoral Commissioner is given authority under the Commonwealth Electoral Act 1918 (Cth) to create electoral regulations, subject to Parliament’s wishes. In particular, clauses 11(3)(a) and (b) of the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (Cth) create the “reasonably prominent” and legibility requirements mentioned above.

The case turned on the construction and interpretation of the two phrases contained in clauses 11(3)(a) and (b), which Justice Rares said needed to be read in the context of the entire Determination and the authorising legislation.

According to the AEC, the word ‘reasonably’ meant that the authorisation had to be ‘prominent’ in relation to the other text on the electoral material. The bigger the other text is, the bigger the authorisation text must be.

Justice Rares disagreed with this construction. He recognised that Parliament intended for the text to be “clearly identifiable,” but he divided campaign material into two categories, with different purposes.

Some material, he said, was meant to be held in a person’s hand to be read, like pamphlets. But other material, like signs, fridge magnets, and car stickers, are meant to be displayed for other people. This purpose distinguishes what the word “reasonable” means.

Therefore, the size of the authorisation text depends on the purpose of the material, and also the size of the material, which determines the amount of available text space, rather than the size of the other text.

According to Justice Rares:

“The word ‘reasonably’ in cl 11(3)(a) must be understood as intended to ensure that the prominence of the particulars of the character that enables a voter to find the particulars of authorisation without difficulty where they should be … identifiable to a voter who is interested to find them, as the particulars notifying the authorisation.”

Although small, the text’s size would be “sufficient if the particulars could be read from a close distance,” and Kelly met this requirement, especially because he contrasted white text with the black background from his party’s colours.

His Honour also noted that ‘prominent’ shouldn’t be interpreted in the same way that it is in consumer law, where ‘prominent’ is used to prevent sellers from hiding terms and conditions in ‘fine print,’ especially given that this requirement uses ‘prominent’ on its own, not ‘reasonably prominent.’

Justice Rares then addressed the legibility issue, where clause 11(3)(b) states that it must be “legible at a distance at which the communication is intended to be read.”

Once again, the purpose of the material that the text is on is important here. According to Justice Rares, its most important use is on school fences at polling stations, where voters will be voting during ‘broad daylight,’ which makes text easier to read. This is important, as one complaint by the AEC was that it was difficult to read at 6:56 pm at a pre-polling centre.

Corflute signs are also displayed along roads and footpaths, for ordinary citizens to read them as they walk or drive by, and public advertising also appears in the form of car stickers.

Importantly, His Honour argued that the use of the word “a” implies that there is more than one distance at which the material is meant to be viewed. This is why different font sizes are used in the first place. For example, the candidate’s name, and any party affiliation, are the most important parts of the text, and so are given the biggest font size.

Therefore, the necessary distance required for reading authorisation text is much shorter. It is sufficient if it can be read at a ‘close distance’ by someone who has approached the sign or sticker on a parked car to read that information. This would still meet the requirement for all text on the material to be “clearly identifiable” under Section 321C(2)(b) of the Commonwealth Electoral Act 1918 (Cth).

As a result, His Honour concluded that the corflute signs in question met the requirements under the Determination, and therefore did not violate the authorising legislation.

For more on why the use of corflute signs for electoral advertising is protected under Australian constitutional law, check out Common(wealth) Knowledge #21.

Justice Rares ordered the AEC to pay the legal costs incurred by Kelly as a result of these proceedings, including lawyers’ fees.

The AEC has not commented on whether they will be appealing this ruling, although Justice Rares recognised that they might.

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