FEDERAL COURT OF AUSTRALIA

Electoral Commissioner of the Australian Electoral Commission v Laming [2024] FCAFC 109

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The cross-appeal and the notice of contention be dismissed.

3.    In the event that agreement between the parties as to the appropriate orders for costs is not reached:

(a)    the parties are to agree a timetable by 4:00pm on Friday 6 September 2024 in which short submissions on, and any evidence with respect to, costs are to be filed and served; and

(b)    subject to further order of the Court, any issue as to costs is to be determined on the papers.

4.    The declaration and pecuniary penalty orders made by the primary judge on 9 August 2023 be set aside and replaced by the declaration and orders at paragraphs 5 and 6 below.

DECLARATION

5.    The Court declares that Mr Laming contravened s 321D(5) of the Commonwealth Electoral Act 1918 (Cth) (the Act) on 28 occasions by making the following communications through the “Redland Hospital: Let’s fight for fair funding” Facebook page:

(a)    a Facebook post on 24 December 2018, viewed by six different people, which referred to Mr Laming in the third person and asserted as a “fact check” that he had boosted funding of the Redland Hospital by $77 million;

(b)    a Facebook post on 7 February 2019, viewed by eight different people, which favourably compared federal health funding by the Liberal National Party (LNP) (of which he was a member) with that provided by the Australian Labor Party (ALP); and

(c)    a Facebook post on 5 May 2019, viewed by fourteen different people, which compared health funding by the Commonwealth (LNP) Government to that by the Queensland (ALP) Government, accompanied by the caption “Know anyone supporting Labor. Send them this”,

in circumstances where Mr Laming:

(d)    was a sitting Member of the House of Representatives, and a candidate in the 2019 federal election, and so was a “disclosure entity” within the meaning of s 321B of the Act;

(e)    had authorisation obligations under s 321D(1)(c) of the Act in relation to the communication of electoral matter;

(f)    made each of the posts for the dominant purpose of influencing the way in which electors would vote in the 2019 federal election, such that each post constituted “electoral matter” within the meaning of s 4AA(1) of the Act; and

(g)    contrary to s 321D(5) of the Act (item 4), did not ensure that the communication of each post to each viewer included his name, and town or city, as the person authorising the communication.

PECUNIARY PENALTIES

6.    Mr Laming is to pay to the Commonwealth of Australia, within 30 days of the date of this order, the following pecuniary penalties in respect of the contraventions of s 321D(5) of the Act identified in paragraph 5 above:

(a)    in respect of the six contraventions arising from the Facebook post of 24 December 2018, $20,000;

(b)    in respect of the eight contraventions arising from the Facebook post of 7 February 2019, $10,000; and

(c)    in respect of the fourteen contraventions arising from the Facebook post of 5 May 2019, $10,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

Introduction

1    I have had the privilege of reading in draft the reasons for judgment of Perry J in relation to ground 1 in the appeal from the judgment of the primary judge in Electoral Commissioner of the Australian Electoral Commission v Laming (No 2) [2023] FCA 917 (PJ). Subject to what follows, I agree with her Honour’s reasons in respect of that ground.

2    The Commissioner’s success in respect of ground 1 necessarily means that the sentencing discretion of the primary judge miscarried such that it falls to the Court to exercise afresh that discretion. A corollary of this is that it renders it unnecessary to deal with ground 2 in the appeal, save in the context of re-exercising that sentencing discretion. Mr Laming’s cross appeal, but not his notice of contention, is also rendered irrelevant, which is not to say that submissions advanced in relation to the cross-appeal may not also be relevant to the exercising afresh of the penalty discretion.

The appeal

3    Because we are differing from the reasons of the primary judge, and those later delivered in Electoral Commissioner v McQuestin [2024] FCA 287 (McQuestin), as well as in deference to the submissions carefully put on behalf of Mr Laming by Mr Moxon of counsel, I wish to add some further reasons of my own in relation to ground 1.

4    The mischief which Parliament has sought to address by s 321D(5) of the Commonwealth Electoral Act 1918 (Cth) (Electoral Act) is no different in kind to that found in the then s 181AA of the Commonwealth Electoral Act 1902 (Cth) (1902 Act), considered by the High Court in Smith v Oldham (1912) 15 CLR 355 (Oldham). Unsurprisingly, with respect, given their earlier, distinguished parliamentary careers, that lends particular force to the observations made by Griffith CJ and Isaacs J in Oldham, as quoted by Perry J, concerning the purpose of s 181AA of the 1902 Act.

5    Reflecting the then limits of technology, the overt authorisation requirement found in s 181AA of the 1902 Act was in respect of “every article, report, letter, or other matter commenting upon any candidate or political party, or the issues being submitted to the electors, printed and published in any newspaper, circular, pamphlet, or ‘dodger’” (emphasis added).

6    Then, as now, it was within Commonwealth parliamentary legislative competence to make laws with respect to “Postal, telegraphic, telephonic, and other like services” (Constitution, s 51(v)). Pursuant to that head of power, the parliament had then recently sought, via the Wireless Telegraphy Act 1905 (Cth) (Wireless Telegraphy Act), to regulate radio communications, then known as “wireless telegraphy”. However, at the time when Oldham was decided, the then limits and restricted availability of that technology doubtless meant that its electoral matter use was not within the experience of legislators. I expect this explains why it was not considered necessary to address its employment in the publication of electoral matter or whether and to what extent continuance of the focus on “publication” was apt fully to address the mischief discerned by Griffiths CJ and Isaacs J.

7    There can be no doubt that the requirement found in s 321D of the Electoral Act reflects the experience of legislators of the digital age. It may be that that experience has been taken up into the text of s 321D(1) of the Electoral Act in its reference to “communicated to a person”. In this, s 321D(1) of the Electoral Act differs from s 181AA of the 1902 Act, the focus of which was on “printed and published” (emphasis added). As is revealed in Oldham by the law reporter’s recitation of background facts, at 355 – 356, and by the judgment of Barton J, at 359, the contravening act consisted of the publication in the Argus, then a newspaper published in and from Melbourne, of an unsigned article “commenting upon certain candidates offering themselves at such election and upon certain political parties” in the context of an election of a member of the House of Representatives for the Division of Werriwa. Published as it was in a major metropolitan newspaper, that article must have come to the attention of many thousands of readers. However, there is no suggestion in Oldham that the single count laid against the editors of the Argus was bad for duplicity, because it rolled up in one count what, in law, were multiple offences.

8    Absent the addition of “to a person” in s 321D(1) of the Electoral Act, it may be that greater ambiguity would attend the use of the word “communicate” alone. That is because some of the means of communication expressly identified in s 321D(5) of the Electoral Act (sticker, fridge magnet, notice and poster) are either communications to the world at large or at least to some indefinite and perhaps unidentifiable group of recipients. Absent “to a person”, questions analogous to those which arose in R v Brislan; Ex parte Williams (1935) 54 CLR 262 concerning the meaning of the word “messages” in the Wireless Telegraphy Act might arise concerning “communicate” as to whether there must be a specific recipient or whether the word embraced a broadcast to the world at large.

9    Subsection 321D(1) of the Electoral Act governs the application of s 321D “in relation to electoral matter that is communicated to a person”. It also identifies who, in particular contexts, is the “notifying entity”. It is s 321D(5) of the Electoral Act which contains, under pain of civil penal sanction for contravention, the authorisation requirements which fall on a “notifying entity”. It may even be that, because the chapeau to s 321D(1) applies s 321D indifferently “in relation to electoral matter that is communicated to a person” by “notifying parties” (as defined) who may employ some means of communication to the world at large or at least to some indefinite and perhaps unidentifiable group of recipients, “communicate to a person” can, in the case of, for example, a radio or television broadcast or a sticker, fridge magnet, notice or poster, yield but one contravening act. Thus, I do not completely reject the notion that “a person” might never permissibly also embrace “persons”.

10    It is, however, unnecessary to reach any concluded view on these subjects, because the means of communication employed on the facts of the present case was only “to a person” when accessed by a person. That necessarily meant that, in the absence of the required authorisation particulars, there was a contravention on each separate access occasion.

11    It is a mistake, within s 321D(1) of the Electoral Act, to assimilate “communicate to a person” with “publish”. That said, there is in s 351 of the Electoral Act, which regulates the announcement or publication of matter regarding candidates, an uneasy marriage, found in s 351(5), between that section and s 321D. Subsection 351(5) of the Electoral Act provides:

(5)    The person whose name is notified under section 321D in relation to electoral matter as the person who authorised the communication of the matter, in the absence of evidence to the contrary, is taken to have announced or published the matter, or caused it to be announced or published, for the purpose of this section.

As can be seen, s 351(5) assimilates “communication of the matter” by a notifying party for the purposes of s 321D with “announcing or publishing the matter” for the purposes of the separate requirements imposed by s 351 of the Electoral Act.

12    It does not necessarily follow from this assimilation that there might not be a separate “communication of the matter” for the purposes of s 351, depending on the means of communication employed. Once again, it is unnecessary to reach any concluded view about this. However, it is, with respect, unfortunate that, in taking up into the Electoral Act the experience of the 2016 election and, with that, the modernisation of that Act to address challenges presented by the digital age, greater attention was not given to clarity and consistency.

Penalty

13    For reasons already mentioned, it is necessary to exercise afresh the discretion as to penalty.

14    As with other civil penalty regimes, the principal, if not sole, objective of penalisation of a contravention of s 321D of the Electoral Act is general and specific deterrence: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (Pattinson), at [15] – [16] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). Objectives such as retribution, denunciation and rehabilitation, which are also served by a criminal law sentencing regime, are not ends to which a civil penalty regime is directed.

15    The objective of deterrence means that a civil penalty must be fixed at such a level that incurring it cannot be regarded either by the contravener, or those who may likewise be disposed to contravene the provision concerned, as an acceptable price. In the present context and to paraphrase an observation made by the Full Court in Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249, at [62], expressly approved in Pattinson, at [17], the penalty must be fixed with a view to ensuring that it is not to be regarded by Mr Laming, or others, as an acceptable cost of doing electoral business.

16    Ensuring that penalisation serves the objective of deterrence does not mean that any “notion of proportionality” is to be eschewed, only that care must be taken to understand what is meant by that in the context of a civil penalty regime. That was explained by Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, at 293, in a passage also expressly approved in Pattinson, at [40]:

[I]nsistence upon the deterrent quality of a penalty should be balanced by insistence that it “not be so high as to be oppressive”. Plainly, if deterrence is the object, the penalty should not be greater than is necessary to achieve this object; severity beyond that would be oppression.

17    It is this balance which must be struck in relation to the imposition of any penalty on Mr Laming. It is necessary to say “any penalty” because Mr Laming submitted that the object of deterrence could sufficiently be served in this case just by the granting of declaratory relief in respect of the contraventions and considering the burden of any costs order. Alternatively, he submitted that such a burden was a moderating consideration in relation to the determination of penalty. The Commissioner took issue with each of these propositions.

18    In earlier civil penalty cases under other statutory regimes, factors which, depending on the circumstances of a given case, can be relevant have been identified: see, notably, Trade Practices Commission v CSR Ltd [1991] ATPR 41-076, at 52, 152-52, 153 (French J, as his Honour then was). Lists of such factors are not to be approached as if they were some rigid catalogue and care must be taken to differentiate in such lists factors which more aptly serve objectives other than deterrence: Pattinson, at [19]. Obviously enough, the nature and extent of the contraventions concerned will always be relevant.

19    I discuss below submissions concerning factors which were said to be relevant in the circumstances of this case and identify their role in the fixing of appropriate penalty.

20    Mr Laming submitted it was relevant to consider the impact of a costs liability. A threshold difficulty with that submission is that, if relevant at all, it could only be relevant at a very general level of abstraction and impression. That is because Mr Laming placed no evidence before the primary judge as to his financial circumstances and did not seek leave to introduce any such evidence if it fell to the Full Court to exercise afresh the sentencing discretion. Further, the precise sum payable pursuant to any order for costs to which Mr Laming is, or may be, subject has not been quantified.

21    A like point arose for consideration by Perry J in Australian Communications and Media Authority v Limni Enterprises Pty Ltd [2022] FCA 795 (Limni). That case, like the present, was a regulatory proceeding, governed by civil practice and procedure, in which the purpose of the civil penalty regime was to buttress compliance with norms of behaviour ordained by statute by deterring, by penalisation, departure from those norms. In Limni, at [94], Perry J highlighted, by reference to authority, how this deterrence purpose of a civil penalty regime distinguished it from the purposes of criminal proceedings, which included punishment. Her Honour also distinguished the deterrence purpose of a civil penalty regime from the indemnification purpose of the conferral on a court of a power to award costs.

22    The resultant view which Perry J expressed in Limni, at [95] was:

The highest it might be put, in my view, in the civil penalty context is that a liability to pay the costs of the regulator might be able to be taken into account in ensuring that the penalties to be imposed are not oppressive and thereby exceed the level required to achieve the objects of specific and general deterrence. On the other hand, there may be strong policy reasons as to why that approach might not be taken or which call for a high degree of caution before adopting such an approach. In particular, it might become a disincentive for a respondent to co-operate with the regulator if the respondent’s liability for the regulator’s costs could, in effect, be offset to some degree against the civil penalty which might otherwise be imposed.

However, as Perry J also stated in Limni, at [95], it was unnecessary to determine the point, as to the relevance of subjection to a costs liability in the determination of the appropriate penalty to impose, because the individual concerned had not given evidence of his complete financial position. In that sense, the present case is similar to Limni.

23    Since Limni, Abraham J, in Australian Securities and Investments Commission v Select AFSL Pty Ltd (No 3) [2023] FCA 723 (Select AFSL), has considered the relevance of a costs burden in relation to the determination of penalty and Perry J has revisited that subject in Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (No 3) [2023] FCA 859 (Phoenix Institute).

24    In Select AFSL, Abraham J saw merit in the views Perry J expressed in Limni. So do I. Abraham J identified, at [199], another policy reason why one needed to be cautious about making too much of a respondent’s costs liability in a civil penalty proceeding, stating:

It would appear to be a rather unusual circumstance where a defendant could choose to defend proceedings (regardless of the strength of the plaintiff’s case against them), incur legal fees in so doing, yet seek to have any penalty imposed reduced because of the amount of fees or costs incurred.

25    Her Honour added, at [200], that, at its highest, the impact of legal fees incurred might impact upon the financial position of a respondent, which was a relevant but not determinative consideration when assessing penalty.

26    The reason why Abraham J considered that the financial position of a respondent could not be determinative flowed from a line of authority which she identified in Select AFSL, at [119] - [120]. Of these, it is only necessary to mention this observation made by the Full Court (Heerey, Finkelstein and Allsop JJ) in Australian Competition and Consumer Commission v High Adventure Pty Ltd [2006] ATPR 42-091, at [11]:

Moreover, as deterrence (especially general deterrence) is the primary purpose lying behind the penalty regime, there inevitably will be cases where the penalty that must be imposed will be higher, perhaps even considerably higher, than the penalty that would otherwise be imposed on a particular offender if one were to have regard only to the circumstances of that offender. In some cases the penalty may be so high that the offender will become insolvent. That possibility must not prevent the Court from doing its duty for otherwise the important object of general deterrence will be undermined.

The later, emphatic affirmation in Pattinson of the objective of deterrence as the rationale for a civil penalty regime underscores the correctness of this observation. If penalisation at a particular level is necessary to achieve the objective of deterrence in the circumstances of a given case then the fact that the penalty may be ruinous for the respondent individual or corporate respondent concerned is no reason not to fix penalty at that level. A penalty so fixed will not be oppressive. I also agree with the further observations made by Abraham J in Select AFSL concerning the relevance, if any, with respect to the fixing of penalty of a respondent’s subjection to a costs liability.

27    Phoenix Institute offers an example of how achieving the objective of general deterrence can warrant the imposition of penalties even in circumstances where a respondent company is being wound up, but that case does not warrant any detailed reference in the circumstances of this case.

28    Mr Laming’s submissions sought to draw an analogy between cases concerning penalisation of contempt of court and the relevance of a costs liability as a moderating consideration in relation to the imposition of a civil penalty. Indeed, he went further and submitted that the statutory objective was sufficiently served just by the granting of declaratory relief in conjunction with a costs order. It is true that, in some cases, a finding that a contempt has been committed and a related subjection of a respondent to a costs liability can be a sufficient response to the contempt concerned. However, the objectives served by a power to deal with contempt are much broader than just that of the deterrence objective attending a civil penalty regime. The analogy is not relevant.

29    Closer support for Mr Laming’s submission about the relevance of a costs liability is offered by Australian Securities and Investments Commission v Healey (No 2) (2011) 196 FCR 430 (Healey). In that case, at [227] - [228], Middleton J allowed that a liability to pay costs was a matter that could be relevantly considered in determining any penalty, either because of its impact on a respondent’s financial circumstances, and thus their ability to pay a penalty, or as another consequence for a respondent of proceedings in which contraventions have been found. For reasons already given, and thus subject to the overarching importance of serving the objective of deterrence, an impact of a costs order may have relevance in relation to a respondent’s financial circumstances. However, like Abraham J in Select AFSL, at [201], I consider that to afford what were clearly obiter observations in Healey about the relevance of a costs liability any greater role in penalty determination would be to afford them more weight than they can bear.

30    The absence of any detail as to the amount of any costs liability to which Mr Laming is or may be subject, in conjunction with the absence of evidence as to the nature and extent of his assets, other liabilities (if any) and income, makes it unnecessary further to consider the impact in this case of costs in relation to the fixing of penalty.

31    There must always be “some reasonable relationship between the theoretical maximum and the final penalty imposed”: Pattinson, at [10]. That theoretical maximum offers a “yardstick” for the imposition of penalty in a given case. As at the time of these contraventions and given the then value of a penalty unit, the maximum civil penalty for a single contravention of s 321D(5) by an individual of 120 penalty units amounted to $25,200.

32    For reasons given in upholding ground 1 in the appeal, in respect of the First, Second and Fifth Posts, there were overall 28 contraventions. This total followed from the posts being seen by six, eight and 14 people respectively. That means that the total, theoretical maximum penalty was not $75,600, as the primary judge concluded, and Mr Laming submitted, but instead $705,600.

33    Although sentencing principles from criminal law and practice are not, given the more singular objective of a civil penalty regime, uncritically to be applied in the fixing of a civil penalty, that does not render it irrelevant to consider any evident course of conduct when fixing penalty: Pattinson, at [45]. The relevance of a course of conduct was summarised by Rangiah J (with whom Allsop CJ and Griffiths J agreed) in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 (The Nine Brisbane Sites Appeal), at [124], by reference to Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40, at [84] – [91]:

124    In Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40 at [84]-[91], the Full Court, referring to other judgments of the Full Court, considered the application of the course of conduct principle in the assessment of pecuniary penalties. The principles include the following:

(1)    The purpose of the common law course of conduct principle is to ensure that, having regard to the circumstances (factual and legal), a party is not penalised more than once for the same conduct.

(2)    That phrase should not simplistically be adopted to transfer multiple contraventions into one contravention, or, necessarily, to impose one penalty by reference to one maximum amount.

(3)    The principle cannot, of itself, operate as a de facto limit on the penalty to be imposed.

(4)    The application of the principle must be informed by the particular legislative provisions relevant to the proceedings. In particular, weight must be given to the fact that the legislature has deliberately and explicitly created separate contraventions for each relevant action.

(5)     The application and utility of the principle must be tailored to the circumstances.

(6)     A judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of contraventions.

(7)    The task is to evaluate the conduct and its course and assess what penalty is, or penalties are, appropriate for the contraventions.

(8)    It is necessary to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penalties, in order to avoid double punishment.

[see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 at [31]; Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 at [231]-[236]; Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445; 262 ALR 417 at [16]-[19]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [148].]

34    Although in each of the 28 instances there was a contravention of s 321D(5), it does not follow that there was but one course of conduct by Mr Laming. At a general level of abstraction each of these posts related to the Redland Hospital. However, the timing, content and related circumstances of each of these posts are different. They are detailed in the reasons of the primary judge. The First, Second and Fifth Posts constitute three discrete courses of contravening conduct flowing from three discrete Facebook posts. It is relevant to take these evident courses of conduct into account in the way identified in The Nine Brisbane Sites Appeal.

35    Mr Laming took issue with the primary judge’s conclusion that he had deliberately concealed his identity in the First Post. Yet this flowed as a matter of ordinary English from the text of that post and Mr Laming’s authorship of it. Whether to reach such a conclusion was fully identified and debated in submissions before the primary judge. As was his right, Mr Laming chose not to give evidence, so the proposition as to deliberate concealment could not be put to him in cross-examination. Instead, the proposition was left to inference from the proved facts of post content and authorship. The post is written in the third person, as if a commentary on an action of Mr Laming, “we were delighted when Andrew Laming announced an $83million dollar funding boost to our local hospital service”. The primary judge observed (PJ at [141]), of this post that, “His conduct brings to mind the observation of Griffith CJ in [Oldham] at 358 that the weight attributed by the electors to printed articles, ‘may be greater or less than would be attributed to those articles if the electors knew the real authors’.” That observation was apt. That feature does indeed, as the primary judge concluded, make the First Post the source of the most serious contraventions of s 321D(5) in this case. However, the absence of any hint in any of the three posts that Mr Laming is their author means that each post was subversive of the purpose of the statutory requirement. That was the end to which each course of conduct was directed.

36    Although Mr Laming accepted that penalisation needed to serve the objectives of general and specific deterrence, he submitted that, in relation to specific deterrence, it was not accurate to describe him, as had the primary judge (PJ at [248]), as someone who, as a then member of the House of Representatives, “ought to have made himself familiar with the requirements of the Electoral Act”. Mr Laming pointed to the failure of the Commissioner’s case in respect of the Third and Fourth Posts as indicating that the characterisation of whether a post was or was not “electoral matter” was not without difficulty. At the margin, that may be so. But that merely heightens a need for care and prudence as to disclosure of authorship if making communications to persons which may constitute “electoral matter”. Of all persons who ought to take such care and exercise such prudence, a member of either House of Parliament offers the paradigm example.

37    Although Mr Laming was a member of the House of Representatives at the time when each of the First, Second and Fifth Posts was made, he is no longer. He has not been a candidate in a federal election since the May 2019 election. However, there is no evidence that he has permanently and irrevocably disengaged from political life. It remains possible that he may attempt to re-enter politics. That said, as did the primary judge (PJ at [252]), I accept his submission that he is unlikely to engage again in like contravening conduct. So the need for specific deterrence is limited.

38    In any event, the need for a penalty which will act as a general deterrent is overwhelming. That objective would not be served merely by the declaratory relief granted. The digital age offers via the internet opportunity and ready facility for communication of electoral matter to persons as never before. Although, as the institution of the proceeding exemplifies, the Commissioner can and does monitor legislative compliance, it is an inescapable conclusion that a vast commitment of public resources, with an inevitable opportunity cost, would be needed to monitor the internet and analyse and investigate communications for suspected contraventions of s 321D(5). Necessarily to achieve the statutory purpose without that vast commitment, that calls for penalties to be fixed at a level that puts an economically unacceptable price on contravening conduct, of chancing one’s hand as it were, on the internet.

39    For all that, although I differ from the primary judge as to the number of contraventions, I agree with his Honour that the contraventions were neither systemic nor organised nor calculated to reach a mass audience (PJ at [250]). That is a moderating factor, as is, in relation to specific deterrence, the absence of any prior contravening conduct by Mr Laming. So, too, is the degree of co-operation by him with the Commissioner in relation to the proceeding, as noted by primary judge (PJ at [254]). That this did not extend to admission of liability does not mean penalty should be increased beyond what is apt to serve the statutory objective because Mr Laming chose to contest some issues.

40    The absence of any loss or damage to any person because of any of the First, Second and Fifth Posts must be noted. It is also a moderating factor. However, the potential reward in this type of contravening conduct is not directly monetary but rather electoral advantage.

41    When all is said and done, the task of penalisation is one of “instinctive synthesis”. The error made by the primary judge as to the number of contraventions led, in my view, to an under penalisation in resultant total amount, given the objective of deterrence. That said, even to adopt a like proportion to that of the primary judge of the true individual and total maximum penalties would yield penalties so high as to be oppressive, far beyond what is necessary to serve the objective of deterrence in the circumstances of this case. It would afford insufficient weight to the three revealed courses of conduct, to the fact that these were not mass communications to the world at large but only to those disposed to look at the Facebook page and to the relatively few who were proved to be so disposed.

42    Taking into account the existence of three courses of conduct but recognising that the First Post was the most egregious, the contraventions flowing from the First Post should carry the higher penalty.

43    When one removes that egregious consideration and appreciates that each entailed a single course of conduct involving relatively few persons, there is nothing to choose between the Second and Fifth Posts in terms of penalisation.

44    Although each of the posts employed the facility of the internet, they were not, as mentioned, directed to a mass audience, only to those disposed to look at the Facebook page. That in my view removes the conduct from anything approaching the worst category such as would warrant the imposition of the maximum penalty.

45    By s 85(1) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), the Court is permitted to make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. The three posts gave rise to a series of contraventions of the same or similar character. A single penalty can therefore be imposed but its composition needs to be explained.

46    That single penalty should, for all the reasons given, be $40,000.00, calculated in this way:

(1)    $20,000.00 in respect of contraventions flowing from the post on 24 December 2018 (the First Post);

(2)    $10,000.00 in respect of in respect of contraventions flowing from the post on 7 February 2019 (the Second Post); and

(3)    $10,000.00 in respect of in respect of contraventions flowing from the post on 5 May 2019 (the Fifth Post).

47    I consider that a penalty so comprised in this total amount bears an appropriate relationship with the theoretical maximum when measuring the circumstances of the case by reference to the objective of deterrence. In fixing the aggregate penalty, I have expressly considered whether the sum of $40,000.00 is, in total, nonetheless too great. Given the number of contraventions and even allowing for the revealed courses of conduct, I do not consider that total too great in the circumstances of this case.

48    Given the appellant’s success in the appeal and the cross-appeal, which leaves intact the conclusions of the primary judge as to which of the posts was a source of contraventions, albeit greater in number than as apprehended by the primary judge, there is no reason to disturb the percentage apportionment of costs made in the original jurisdiction.

49    It will be necessary to hear from the parties in relation to the costs of the appeal (including those relating to the respondent’s notice of contention) and of the cross-appeal.

Associate:    

Dated:    23 August 2024

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

50    The appellant, the Electoral Commissioner of the Australian Electoral Commission, sought declarations and pecuniary penalties against the respondent, Mr Andrew Laming, for contraventions of s 321D(5) of the Commonwealth Electoral Act 1918 (Cth). While Mr Laming is a medical doctor, he indicated that he preferred the title “Mr”. Mr Laming was elected as a member of the House of Representatives in the Commonwealth Parliament for the electoral division of Bowman in 2016 and was a candidate in the federal election held on 18 May 2019.

51    The alleged contraventions related to a series of posts on a Facebook page entitled “Redland Hospital: Let’s fight for fair funding” (the Facebook page) which were published by Mr Laming in the six months prior to the 2019 federal election. The Commissioner alleged that five of the posts were “electoral matter” as defined in the Electoral Act and that Mr Laming contravened s 321D(5) by failing to disclose his name and relevant town or city in accordance with the requirements of the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2018 (Cth). While the scope of the issues before the primary judge were significantly reduced by an Amended Statement of Agreed Facts and Admissions, Mr Laming denied the contraventions.

52    Relevantly, the primary judge held that three of the five posts contravened s 321D(5), being those published on the Facebook page on 24 December 2018, 7 February 2019 and 5 May 2019, and made declarations accordingly: Electoral Commissioner of the Australian Electoral Commission v Laming (No 2) [2023] FCA 917 at [218] (PJ). The primary judge also ordered that Mr Laming pay a penalty of $10,000 with respect to his contravention arising from the post of 24 December 2018, and $5,000 each for the other two contraventions. In so holding, his Honour rejected the Commissioner’s contention that a contravention occurred on each occasion that one of these posts was viewed by a different person: PJ at [234]–[236].

53    The notice of appeal raises two issues:

(1)    Whether the primary judge erred in finding that posts made by Mr Laming on the Facebook page on 24 December 2018, 7 February 2019 and 5 May 2019 each constituted a single contravention of s 321D(5) of the Electoral Act, rather than finding that Mr Laming contravened s 321D(5) each time a post was communicated to a person (PJ at [234]–[236]) (Ground 1)?

(2)    Whether the primary judge erred in determining the pecuniary penalties to be imposed on Mr Laming by erroneously proceeding on the basis that Mr Laming had committed only three contraventions of s 321D(5) rather than 28 separate contraventions, being the number of times that the posts containing the electoral matter were (proved to have been) communicated to a person (PJ at [237]) (Ground 2)?

54    Mr Laming also filed a notice of cross-appeal and a notice of contention, contending that:

(1)    the primary judge’s decision to impose a pecuniary penalty was so unreasonable or plainly unjust that it is to be inferred that his Honour did not properly exercise his discretion and no pecuniary penalty should have been imposed (Ground 1, notice of cross-appeal);

(2)    in the alternative, the amount of the pecuniary penalty should have been less because:

(a)    there was no basis for the primary judge to make findings concerning Mr Laming’s motivation in making the post on 24 December 2018 (Ground 2, notice of cross-appeal); and

(b)    the primary judge failed to give sufficient reasons for his decision to impose a pecuniary penalty in respect of the posts on 7 February 2019 and 5 May 2019 (Ground 3, notice of cross-appeal);

(3)    in the event that the cross-appeal is dismissed and the appeal is allowed, the pecuniary penalty orders made by the primary judge should not be disturbed because, even if his Honour erred in assessing the number of contraventions as three rather than 28, the appropriate overall penalty remains $20,000 (Ground 1, notice of contention).

55    Mr Laming accepts that he must establish that the primary judge erred in a manner identified in House v The King (1936) 55 CLR 499 in order to succeed on his challenge to the pecuniary penalties on the ground that they are manifestly excessive. If Mr Laming is successful in reducing or eliminating the penalty, Mr Laming contends the Court should also re-exercise the discretion as to costs from 60% of the Commissioner’s costs (although he accepts that his liability for costs should not be reduced to nil).

56    For the reasons set out below, the Commissioner has established that the primary judge, with respect, erred in his construction of s 321D(5) insofar as his Honour held that the section was contravened by the singular act of placing a post on the Facebook page which was communicated to one or more persons, with the number of people who viewed or may have viewed the post being relevant only to penalty. Rather, there was a contravention on each occasion that the post was communicated to a different person by reason of that person viewing the post. It follows that the primary judge imposed pecuniary penalties on the erroneous understanding that there had been three contraventions of the provision only and that discretion therefore falls to be re-exercised. Consequently, ground 2 of the appeal and the cross-appeal need not be determined save insofar as the submissions with respect to these grounds fall to be considered by this Court in re-exercising the discretion as to penalty.

57    I have had the benefit of reading Logan J’s reasons regarding the re-exercise of the discretion and agree with his Honour’s reasons. While there were 28 contraventions, the contraventions with respect to each post are appropriately treated as part of the same course of conduct. In the circumstances, having regard to the principle that there should be a reasonable relationship between the theoretical maximum and the final penalty, total penalties of $40,000.00 would be appropriate to achieve the objective of deterrence, as the Commissioner contends. That sum in turn is comprised as follows:

(1)    $20,000.00 in respect of the post on 24 December 2018;

(2)    $10,000.00 in respect of the post on 7 February 2019; and

(3)    $10,000.00 in respect of the post on 5 May 2019.

58    Finally, as requested by Mr Laming, the parties are to be afforded the opportunity to make any further submissions as to costs on the appeal. However, I note that, subject to considering any further submissions by the parties, there is no apparent reason why costs should not follow the event.

2.    DISPOSITION OF GROUND 1

2.1    Principles of statutory construction

59    The first issue turns on a question of statutory construction. The relevant principles are well-‍established and were not in issue. As McHugh, Gummow, Kirby and Hayne JJ explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

(Citations omitted.)

60    The importance of commencing with the text in its statutory context was also emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 in the following passage (at [14]):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(Citations omitted.)

61    Context “in its widest sense”, as referred to in this passage, includes “such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (cited with approval in SZTAL at [14]). To have regard to context in this sense, as integral to the process of statutory construction irrespective of whether ambiguity or inconsistency exists in the literal text, accords with the mandate in s 15AA of the Acts Interpretation Act 1901 (Cth) that the interpretation which best gives effect to the legislative purpose must be preferred to any other interpretation: see Mills v Meeking (1990) 169 CLR 214 at 235 (Dawson J). As a result, as Dawson J also explained, the approach required by interpretive provisions of this kind “allows a court to consider the purposes of an Act in determining whether there is more than one possible construction”: ibid; see also the discussion in Pearce DC, Statutory Interpretation in Australia (10th ed, LexisNexis Butterworths, 2024) at [2.22]–[2.26]; Herzfeld P and Prince T, Interpretation (2nd ed, Thomson Reuters, 2020) at [7.20]–[7.30], [7.50].

2.2    Relevant statutory provisions

62    It was (correctly) common ground that:

(1)    Compilation No. 66 of the Electoral Act applied to the 24 December 2018 post;

(2)    Compilation No. 67 applied to the 7 February 2019 post; and

(3)    Compilation No. 68 applied to the 5 May 2019 post.

63    The primary judge found (and I agree) that the only amendment to the relevant sections was “inconsequential for present purposes” and therefore proceeded on the basis of Compilation No 68: PJ [19]. It is convenient to do likewise on the appeal.

64    Section 321D is the principal provision in Part XXA entitled “Authorisation of electoral matter” which comprises of ss 321B–321H. Part XXA was inserted in 2017 by the Electoral and Other Legislation Amendment Act 2017 (Cth) (the Amending Act) which came substantively into operation and effect on 14 March 2018. These amendments were enacted following the 2016 election when significant shortcomings were identified in the Electoral Act relating to authorisations, as we shortly explain. The Revised Explanatory Memorandum to the Electoral and Other Legislation Amendment Bill 2017 (Cth), explained the purpose of the Bill (at [1] of the “Statement of Compatibility with Human Rights”):

The Bill promotes free and informed voting at elections and referendums by allowing electors to know who is communicating to them. The Bill strengthens Australian democracy by extending current authorisation requirements and harmonising existing requirements across communication mediums. …

65    In line with this, the objects of Part XXA set out in s 321C(1) are as follows:

(1)    The objects of this Part are to promote free and informed voting at elections by enhancing the following:

(a)    the transparency of the electoral system, by allowing voters to know who is communicating electoral matter;

(b)    the accountability of those persons participating in public debate relating to electoral matter, by making those persons responsible for their communications;

(c)    the traceability of communications of electoral matter, by ensuring that obligations imposed by this Part in relation to those communications can be enforced.

66    Subsections (2) and (3) further explain that:

(2)    This Part aims to achieve these objects by doing the following:

(a)    requiring the particulars of the person who authorised the communication of electoral matter to be notified if:

(i)    the matter is an electoral advertisement, all or part of whose distribution or production is paid for; or

(ii)    the matter forms part of a specified printed communication; or

(iii)    the matter is communicated by, or on behalf of, a disclosure entity;

(b)    ensuring that the particulars are clearly identifiable, irrespective of how the matter is communicated.

(3)    This Part is not intended to detract from:

(a)    the ability of electoral matters to be communicated to voters; and

(b)    voters’ ability to communicate with each other on electoral matters.

67    Importantly, s 321C(2)(iii) makes it clear that the Part requires the particulars of the authorising person to be provided irrespective of the form of communication, where the matter is communicated by or on behalf of a “disclosure entity”. A “disclosure entity” being, relevantly, a senator or member of the House of Representatives and an electoral candidate: s 321B (definition of “disclosure entity” paras (a), (c) and (d)).

68    Section 321D(1) is the gateway to the substantive obligation imposed by s 321D(5). That subsection relevantly provides that:

(1)    This section applies in relation to electoral matter that is communicated to a person if:

…

(c)    the matter is communicated by, or on behalf of, a disclosure entity (the notifying entity) (and the matter is not an advertisement covered by paragraph (a), nor does the matter form part of a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card).

Note 1:    For paragraph (1)(c), matter may be communicated on behalf of an entity whether or not the entity pays for the communication of the matter.

Note 2:    Examples of matters that may be covered by this section include internet advertisements, bulk text messages and bulk voice calls containing electoral matter.

(Emphasis omitted.)

69    As the Explanatory Memorandum explained, there are no limitations upon the form or method of communication caught by s 321D(1), subject to the exclusion in the definition of “communicate” in s 321B: at [48]. Further, as the examples in Note 2 of sub-s (1) explain, the section is intended to cover bulk means of communication available through modern technology.

70    Section 321D(5) imposes a substantive obligation on notifying entities in the following terms:

(5)    The notifying entity must ensure that the particulars set out in the following table, and any other particulars determined under subsection (7) for the purposes of this subsection, are notified in accordance with any requirements determined under that subsection.

71    The table contains 8 items and identifies the required particulars according to the form of communication, including fridge magnets, flyers, how-to-vote cards and posters, and whether the communication is authorised by a disclosure entity that is a natural person or is not a natural person. The relevant item for the present case is item 4 of the table which applies to natural persons, such as a candidate, and provides that:

72    The importance of identifying not only the name of the person, but their relevant town or city, is explained as follows in the Explanatory Memorandum at [67]:

The requirement to notify the relevant town or city provides further information to voters with respect to local issues. A voter may give more weight to a communication about a local issue in an election where the communication is made by a person or organisation in their own city or town, particularly where local interests differ from those of other areas. For example, a proposed infrastructure project or environmental policy being debated during an election period might disproportionately benefit one electorate while disadvantaging a neighbouring electorate. Information about the geographic source of communications on these issues is likely to be important to voters when they evaluate how much weight to give the communications in order to decide for whom to vote.

73    Section 321D(5) is a civil penalty provision for which a penalty of up to 120 penalty units may be imposed. The provision is enforceable under the Regulatory Powers (Standard Provisions) Act 2014 (Cth) and the Commissioner is an authorised applicant relevantly for the purposes of that Act: see s 384A(2) of the Electoral Act. The amount of the relevant penalty is calculated in accordance with s 4AA of the Crimes Act 1914 (Cth) and is described in the Explanatory Memorandum at [75] as “commensurate with similar Commonwealth regulatory regimes.”

74    By virtue of s 321D(1), the obligation in s 321D(5) applies only where the communication is in relation to an “electoral matter”. The definition of an “electoral matter” is, therefore, of central importance to the provision and was relied upon by both parties in support of their respective constructions of s 321D(5). That phrase is broadly defined in s 4AA as follows:

(1)    Electoral matter means matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote in an election (a federal election) of a member of the House of Representatives or of Senators for a State or Territory, including by promoting or opposing:

(a)    a political entity, to the extent that the matter relates to a federal election; or

(b)    a member of the House of Representatives or a Senator.

Note:    Communications whose dominant purpose is to educate their audience on a public policy issue, or to raise awareness of, or encourage debate on, a public policy issue, are not for the dominant purpose of influencing the way electors vote in an election (as there can be only one dominant purpose for any given communication).

(Emphasis in original.)

75    Sections 4AA(2) and (3) in turn provide that:

(2)    For the purposes of subsection (1), each creation, recreation, communication or recommunication of matter is to be treated separately for the purposes of determining whether matter is electoral matter.

Note:    For example, matter that is covered by an exception under subsection (5) when originally communicated may become electoral matter if recommunicated for the dominant purpose referred to in subsection (1).

Rebuttable presumption for matter that expressly promotes or opposes political entities etc.

(3)    Without limiting subsection (1), the dominant purpose of the communication or intended communication of matter that expressly promotes or opposes:

(a)    a political entity, to the extent that the matter relates to a federal election; or

(b)    a member of the House of Representatives or a Senator, to the extent that the matter relates to a federal election;

is presumed to be the purpose referred to in subsection (1), unless the contrary is proved.

76    Sections 4AA(4) provides that without limiting sub-s (1), certain matters must be taken into account in determining the dominant purpose of a communication or intended communication, including whether it is or would be made to the public or a section of the public and whether it is unsolicited. Section 4AA(5), however, excludes certain matters from the definition including whether the communication or intended communication is part of the reporting of news, for a dominant purpose that is academic or artistic, or would be a private communication by one person to another person known to them.

77    The remaining provisions of Part XXA concern the extended geographical application of s 321D (s 321E) and information gathering powers of the Commissioner relevant to assessing compliance with s 321D (ss 321F, 321G and 321H).

2.3    Construction adopted by the primary judge

78    The primary judge’s reasons on the construction issue can be summarised as follows.

79    First, implicit in the Macquarie Dictionary definition of the verb “communicate” is that communication occurs between people: PJ [227]–[230]. It requires the giving of information by one person and the receipt of that information by another person. This ordinary meaning of the term is confirmed in the text of s 321D(1) which requires the communication of electoral matter “to a person”.

80    Secondly, the word “person” in s 321D(1) must be understood, pursuant to s 23(b) of the Acts Interpretation Act, as requiring communication to a person or persons: PJ [231]. His Honour considered that where a single act resulted in communication of non-complying electoral matter to more than one person, only a single contravention resulted from the single act.

81    Thirdly, the primary judge considered that this construction is supported by the context of the provision. In this regard, his Honour considered (PJ [232]):

Section 321D applies to all forms of communication other than communications excluded under the exceptions in s 321D(3) and s 321D(4) and the definition of “communicate” in s 321B. It encompasses communication by means of mass media, such as newspapers, radio, television and internet content providers. In respect of some forms of communication, while it may be apparent that electoral matter has been published, it may not necessarily be possible to prove how many viewed or heard the published matter. In such cases, an inference may arise from the evidence that the matter was communicated to at least one person and there was consequently a contravention of s 321D(5). It would be anomalous for a person who took out an advertisement containing electoral matter in a national newspaper to have engaged in only one contravention, but for a person who published electoral matter to ten identifiable people to have engaged in ten contraventions. The legislative intention is likely to be that in either case there is only one contravention, and the number of people who received, or are likely to have received, the communication is relevant to the amount of the pecuniary penalty. In may be noted that s 82(6)(a) of the Regulatory Powers Act provides that, in determining the pecuniary penalty, the Court must take into account, “the nature and extent of the contravention”.

2.4    Construction adopted by O’Bryan J in Electoral Commissioner v McQuestin [2024] FCA 287

82    After the hearing of this matter, O’Bryan J handed down judgment in Electoral Commissioner v McQuestin [2024] FCA 287. Justice O’Bryan agreed with the conclusion reached by the primary judge in this matter, although his Honour’s reasons for reaching that conclusion are different: at [46]. The Court re-opened this appeal to allow the parties to file written submissions addressing the decision in McQuestin.

83    Justice O’Bryan’s reasons regarding the interpretation of s 321D of the Electoral Act and the number of contraventions committed by a notifying entity through a single electoral matter which is communicated to multiple persons can be summarised as follows.

84    Justice O’Bryan accepted that s 321D “has no application to electoral matter that is not communicated to any person”: at [48]. However, his Honour considered that “s 321D(1) does not define the relevant statutory prescription. It merely defines an element of the prescription. It defines the electoral matter to which the statutory prescription attaches”: at [48]. While his Honour accepted that the object of s 321D “is to bring about the result that all electoral matter that is communicated to persons in circumstances described in subsection (1) contains the required particulars”, his Honour did not consider that this was a final answer to the question of statutory construction: at [51].

85    The issue was framed by his Honour as “what is the statutory obligation imposed by s 321D(5) and what is the conduct that constitutes a contravention of that obligation?”: at [51].

86    It was significant to O’Bryan J that s 321D(5) imposed “a positive obligation on the notifying entity to ensure that the specified particulars are notified”: at [50] (emphasis added). This contrasted with the “statutory prohibitions of misleading or deceptive conduct” which his Honour considered were not analogous: at [52].

87    A notifying entity will contravene s 321D(5) where they fail, by act or omission, to ensure that a communication contains the required particulars: at [53]. Justice O’Bryan considered that the number of contraventions depended on the acts or omissions that constituted the failure to comply with s 321D(5): at [53]. In the circumstances of McQuestin, his Honour held that “the act or omission that constituted the relevant contravention of s 321D(5) occurred [when the notifying entity uploaded the relevant advertisement] because that was the final point at which a notifying entity could ensure the inclusion of the relevant particulars”: at [54] (emphasis in original). Justice O’Bryan held that “[i]t was at that point of upload that the relevant failure by Mr McQuestin was complete”: at [54] (emphasis added).

2.5    Proper construction of the concept of “communicate” in s 321D of the Electoral Act

88    The definition of the term “communicate” in s 321B casts no light on how that term is to be understood, being concerned to ensure that carriage providers do not communicate electoral material merely by supplying the listed carriage service used to communicate the matter.

89    Applying the principles of statutory construction earlier summarised, I consider that s 321D applies on each occasion that an electoral matter is communicated to a person.

90    First, this construction accords with the ordinary meaning of the words “communicated to a person” in the umbrella to s 321D(1), namely, the transmission of information from one person to another person. Subsection (1) is critical: it is the gateway provision in the sense that the substantive obligation imposed by s 321D(5) is engaged only where the electoral matter in question is “communicated to a person” for the purposes of s 321D(1). In this regard, our construction of the word “communicate” accords with that adopted by the primary judge at [227]–[230].

91    Against this, Mr Laming contends that the starting point was item 4 in the table to s 321D(5), emphasising that item 4 uses the noun, “the communication”. Mr Laming submits that the focus of the obligation in s 321D(5) was, therefore, upon the communication itself (being relevantly here the three posts on Facebook), rather than the receipt of the communication by a person. However, the reference to “the communication” in item 4 is plainly a reference back to the electoral matter communicated to a person in accordance with the gateway criteria in s 321D(1), as the Commissioner submits. In other words, read together, ss 321D(1) and (5) define the scope and nature of a singular obligation imposed on a disclosing entity, being to ensure that electoral matter that is communicated to a person by such an entity contains the requisite particulars. Contrary to the submission by Mr Laming, the fact that s 321D(5) is prefaced by the words “[t]he notifying entity must ensure” does not mean that the subsection is intended to create a separate obligation divorced in some way from sub-s (1). Accordingly, I respectfully disagree with O’Bryan J in McQuestin that sub-s (1) merely creates a circumstantial element of the contravention and rather consider that it is a core component of the conduct which constitutes a breach of s 321D. A contravention of s 321D will only be complete when the electoral matter is communicated to another person. As such, I agree with Logan J in his Honour’s separate reasons that it is a mistake in the context of s 321D(1) of the Electoral Act, to assimilate “communicate to a person” with “publish”. The fact that a notifying entity may cease to have control over compliance at a particular time is not material because the matter was communicated by, or on behalf of, the notifying entity and they had the power to ensure compliance at some stage in the process.

92    Secondly, having correctly construed “communicate”, the primary judge then erred in his Honour’s reliance upon s 23(b) of the Acts Interpretation Act with respect to the construction of the word “person” in s 321D(1). Section 23(b) provides that “[i]n any Act: … (b) words in the singular number include the plural and words in the plural number include the singular.” It will be recalled that the primary judge considered that s 23(b) applied such that the gateway provision, s 321D(1), should be read as providing that s 321D applied in relation to electoral matter “communicated to a person [or persons]” and therefore that, even where a single act resulted in communications to multiple persons, there was still only one contravention of s 321D(5). Neither party relied upon s 23(b) before the primary judge and neither sought to uphold his Honour’s decision in reliance upon that provision. With respect, the primary judge’s reliance upon s 23(b) was misplaced. The presumption in s 23(b) is subject to a contrary intention by virtue of s 2(2) of the Acts Interpretation Act: see e.g. Stratton Finance Pty Ltd v Webb [2014] FCAFC 110; (2014) 314 ALR 166 at [47]. As the Privy Council said in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656 (in a passage approved by Gaudron and Gummow JJ in Walsh v Tattersall (1996) 188 CLR 77 at 90–91):

Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.

93    The existence of a contrary intention is evident in this case from the text and purpose of s 321D, as I further develop below. Furthermore, in line with the explanation of the section in Blue Metal, the evident purpose of s 23(b) of the Acts Interpretation Act is to expand the scope of the statutory provisions to which it applies; it is not, as applied by the primary judge, to restrict the scope of a provision.

94    Thirdly, the construction for which the Commissioner contends accords with the definition of “electoral matter” (quoted above). In particular, s 4AA(2) provides that for the purposes of determining whether matter is “electoral matter”, in accordance with s 4AA(1), “each creation, recreation, communication or recommunication of matter is to be treated separately”. Section 4AA therefore addresses the possibility that the communication of information to one person may be for the dominant purpose of influencing the way that that elector votes so as to fall within the definition, while the communication of precisely the same information to another person may be for a different dominant purpose, bearing in mind the note to s 4AA(1) that there can only be one dominant purpose for “any given communication”. In this regard, the note forms part of the Electoral Act by virtue of s 13 of the Acts Interpretation Act: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at [115]. This has particular relevance in modern circumstances to which the insertion of Part XXA and accompanying definitions were intended to respond, including the capacity for mass unsolicited communications.

95    Thirdly, this construction would best promote the object of Part XXA as set out in s 321C “to promote free and informed voting at elections”, including by enhancing transparency so as to allow voters to know who is communicating electoral matters. The relationship between protecting the integrity of electoral choices and ensuring that those communicating electoral matters are identified in communications on electoral matters is explained in Smith v Oldham (1912) 15 CLR 355. That case upheld the validity of an earlier provision of the Commonwealth Electoral Act 1902 (Cth) which required all material commenting on any candidate, political party or electoral issue which was printed or published in a newspaper, circular, pamphlet or “dodger” once an election was announced to be signed by and identify the author, and give their address. As Griffith CJ explained at 358–359:

It has been not uncommon, for the last half century at least, to make provision in electoral laws requiring advertisements, pamphlets and other election literature to bear the name of the printer and of the person by whose authority it is issued. … It is a notorious fact that many persons rely upon others for their guidance, especially in forming their opinions, It is obvious, therefore, that the freedom of choice of the electors at elections may be influenced by the weight attributed by the electors to printed articles, which weight may be greater or less than would be attributed to those articles if the electors knew the real authors. It was contended that the electors should be allowed to form their own opinions from the abstract arguments addressed to them, irrespective of the persons by whom those arguments are put forward. But it is notorious, again, that many electors are unable to do so; and rely upon authority; and they may be less likely to be misled or unduly influenced if they know the authority upon which they are asked to rely. Parliament may, therefore, think that no one should be allowed by concealing his name to exercise a greater influence than he could command if his personality were known.

(Emphasis added.)

96    Justice Isaacs in Oldham traced Imperial provisions of this kind back to the Corrupt and Illegal Practices Prevention Act 1883 (Imp), explaining the purpose of such provisions in the following terms (at 362–363):

to confine the power of the Parliament to a supervision of the mechanism is to neglect the vital principle behind it. The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances.

…

the public injury, so far as political results are concerned, is as great when the opinion of the electorate is warped by reckless, or even careless, misstatements, as when they are knowingly untrue; in each case the result is falsified, and therefore the mischief may be equally provided against if Parliament thinks fit. Even when nothing is conveyed but advice or opinion, the identity of the person proffering it, if not withheld, might for various reasons seriously affect its value and weight in the minds of the electors. The testimony of a witness in a Court of Justice might be differently appraised if his true personality were undisclosed, or if, on the other hand, his interest, his experience, and possibly, his past career, were placed before the jury.

Not less important may be the personality of those who by the most extensive and effective means known to society disseminate in a great national controversy their assertions of facts, opinion, and advice, for the very purpose of influencing the result. … If the purity and reality of elections be within the ambit of the power, if in the public interest the electors may be protected from the open assaults of force and threats and corruption, it is impossible to exclude the right also to guard them against the more insidious, and, in many respects, the more dangerous form of winning their assent by acts apparently fair and disinterested, but which may be so only on the surface.

(Emphasis added.)

97    Such statements make it clear that Part XXA was enacted to protect the integrity of the democratic process by ensuring, to the extent possible, that no elector is misled or confused about the source of electoral communications, in light of technological advances in methods of communication. As the Explanatory Memorandum explained at [11]–[12] of the “Statement of Compatibility with Human Rights”:

There is a strong public interest in ensuring that voters are aware of who is communicating to them without adversely impacting public debate. These authorisation requirements facilitate transparency and public confidence in Australia’s electoral processes. They allow voters to assess the credibility of the information they rely on when forming their political judgment and selecting their representatives in the Parliament.

Ultimately, this Bill facilitates free and informed voting at elections, an object which is essential to Australia’s system of representative democracy. The strong public interest in achieving these objectives outweighs the rights to privacy of those covered by the authorisation regime who might wish to communicate anonymously.

98    Fourthly, the primary judge’s construction would result in anomalies in the way in which the section operated. For example, irrespective of whether the Commissioner’s construction of s 321D is adopted or the primary judge’s construction which Mr Laming seeks to uphold, it would follow that, if twenty separate emails were sent by a notifying entity from an anonymised address to twenty electors for the dominant purpose of persuading them to vote in a particular way, there would be twenty separate communications to a person by the notifying entity resulting in twenty separate contraventions of s 321D(5). However, on the primary judge’s construction, there would be only one communication to a person and, therefore, only one contravention of s 321D(5) if precisely the same text, for the same dominant purpose, were sent instead to the same twenty electors via a group email.

99    Against this, on the basis that s 321D applied to all forms of communication (absent specific exceptions), the primary judge reasoned that it would be anomalous for a person who took out an advertisement in a national newspaper to have engaged in only one contravention because it may not be possible to prove how many people read the advertisement, while a person who published electoral matter to ten people who could be identified would have engaged in ten contraventions. However, with respect, the premise on which his Honour postulated the anomaly simply recognises an evidentiary issue which commonly arises in civil penalty cases. As the Commissioner contends, in such cases the Court does the best that it can by reference to the evidence and the drawing of inferences, to ascertain the number of contraventions which have occurred and, if it cannot, finds that the precise number cannot be ascertained. This commonplace evidentiary issue, as the Commissioner also contends, “does not indicate a Parliamentary intention that there can only be one contravention in such cases; it is simply something to be accommodated in the penalty analysis including, where appropriate, by grouping such contraventions [as have been proved] as a ‘course of conduct’”: appellant’s submissions filed on 15 January 2024 at [24.1] (emphasis in original); see e.g. Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at [139]–[145] and [157]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [143]–[145]; and Australian Competition Consumer Commission v Birubi Art Pty Ltd (in liq) [2019] FCA 996; (2019) 374 ALR 776 at [71]–[72] (Perry J).

100    Fifthly, I consider that an analogy can be drawn between the obligation in s 321D and the model adopted in other civil penalty regimes such as s 33 of the Australian Consumer Law: see e.g. Reckitt at [145]. While I agree with O’Bryan J in McQuestin that s 321D imposes a positive obligation on notifying entities and that this is different to the statutory prohibitions on engaging in misleading or deceptive conduct, I respectfully do not consider that this means the analogy is inapt. This is because the obligation in s 321D was intended to be for the benefit, and recognises the importance, of every “vote of every elector” (to use the words of Isaacs J).

101    Finally, Mr Laming’s construction would have the result that the same maximum penalty of $25,200 for a natural person would apply irrespective of whether or not the communication was, for example, to one person or 500,000 electors (calculated by reference to the definition of penalty units under the Crimes Act as at the time of the contraventions by Mr Laming). While Mr Laming submits that such different scenarios might be accommodated on his construction in the assessment of the appropriate civil penalty, the construction is a highly unlikely one. In particular, it is difficult to reconcile that construction with the primary purpose of the civil penalty regime, being general and specific deterrence. An individual might well consider that payment of the maximum penalty would be a small price to pay for the publication of a post on social media that reaches potentially hundreds of thousands, or even millions, of electors.

102    It follows for these reasons that the primary judge erred in his Honour’s construction of s 321D and the construction for which the Commissioner contends should be accepted.

3.    CONCLUSION

103    For the reasons above, I consider that ground 1 of the appeal should be upheld. I also agree with the reasons of Logan J as to the re-exercise of the discretion to impose a pecuniary penalty on Mr Laming. In circumstances where Mr Laming seeks for the parties are to be afforded the opportunity to make any further submissions as to costs, I consider the issue of costs on the appeal should be reserved.

Associate:

Dated:    23 August 2024

REASONS FOR JUDGMENT

MEAGHER J:

104    I am indebted to Logan J and Perry J for their comprehensive reasons for judgment, both of which I have had the great advantage of reading in draft.

105    I respectfully agree with the orders proposed, and with respect to ground 1 in the appeal, the reasons of Perry J, and with respect to penalty, the reasons of Logan J.

Associate:

Dated:    23 August 2024