The submission from Mr Frost’s lawyers, lodged with the Federal Court on Friday afternoon, argues it would be “unfair” to report an adverse finding against him when he was only a witness to a proceeding, was not legally represented at the hearing and was not warned that his evidence could lead to a finding that he has committed an illegal practice.
Mr Frost’s barristers, Neil Clelland QC and Ruth Shannon, say he had no opportunity to elaborate on his other evidence during the trial, where he would have argued he imagined the corflute being “one of a variety of different looking corflutes that all came together to deliver the Liberal Party message”.
He also intended for the corflute to “form part of a whole suite of positive and negative messages which, when taken together, would encourage voters that they should vote for the Liberal Party and not any other Party”, the submission said.
“Mr Frost was not provided with an opportunity to develop his evidence and to clarify whether or not – in light of his experience in Bennelong upon seeing similarly presented corflutes by the Australian Labor Party – the impression he sought to convey was only an initial impression designed to draw in the attention of persons passing through the “sea of colour and activity” of the polling booth but who, on actually reading the corflute, would recognise that it was not an AEC corflute but was a message from the Liberal Party,” the submission said.
Failed Kooyong independent candidate Oliver Yates and climate campaigner Vanessa Garbett challenged the wins of Josh Frydenberg and Glady Liu in May over purple and white Chinese language signs telling voters in Kooyong and Chisholm, respectively, the “correct” way to vote was to put the Liberal Party first.
Chief Justice James Allsop, Justice Andrew Greenwood and Justice Anthony Besanko dismissed the challenge, saying there was “no real chance” the result of either of the seats in May was affected.
“Even if the display of the corflutes next to the AEC signage was far more widespread in both electorates than the evidence reveals, it could only have been a very small group of people who would have felt that they should follow the direction on the corflute,” the justices wrote in their decision.
The submission on behalf of Mr Frost said the Court had accepted he did not set out to mislead voters.
“The Court held that “away from the proximity to an AEC banner there was nothing misleading or deceptive”, and that “Mr Frost did not give instructions about where to put the corflutes.
This is consistent with the evidence from the volunteers that “they received no instructions as to where to place the corflutes”.